As explained in Matter of Vo, 25 I&N Dec. 426, 430 (BIA 2011), “the ‘attempt’ language was added to the various sections of the [INA] at different times, [so] its inclusion [elsewhere] does not represent a unified design to effectuate a single intent.” Congress may have explicitly added the attempt language to certain sections “as a point of special emphasis to remove any doubt that those sections included such offenses.” Matter of Vo, 25 I&N Dec. at 429; see also Romo v. Barr, 933 F.3d 1191, 1197 (9th Cir. 2019) (“[I]t is not unusual to see redundancy occur in clarifying enactments, which do run the risk of introducing other problems while focusing on the task of making sure that a particular problem does not arise.” (citing Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992))).
the United States Court of Appeals for the Fifth Circuit recently explained, silence does not always imply exclusion. See United States v. Vargas, 74 F.4th 673, 686 (5th Cir. 2023) (en banc) (noting that “[n]ot mentioning something does not necessarily mean excluding it” and that “[t]he context must justify that inference”), cert. denied, 144 S. Ct. 828(2024). The Supreme Court of the United States teaches that drawing an inference from silence is permissible where there is a “statutory listing or grouping” and the “items expressed are members of an ‘associated group orseries,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citation omitted). Because section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), does not include a list or group containing inchoate offenses other than attempts, the wording of the statute does not suggest that attempts have been eliberately excluded. See Vargas, 74 F.4th at 686–87 (concluding that section 4B1.2(b) of the United States Sentencing Guidelines permissibly includes attempts though not expressly listed). Although section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), uses the phrase “crime of child abuse, child neglect, or child abandonment,” we have interpreted these terms as denoting a single “unitary concept,” rather than listing separate, exclusive categories. Matter of Soram, 25 I&N Dec. 378, 381 (BIA 2010); see also Cruz, 101 F.4th at 365. Even if we were to treat these terms as independent of each other, “attempt” would not fit there either. Just as the Fifth Circuit explained with respect to conspiracy, an attempt is not “just another” type of harm to a child, but rather something “conceptually different from the listed acts.” Vargas, 74 F.4th at 687. One can attempt any of them. Id.
Matter of D. Rodriguez, 28 I&N Dec. 815 (BIA 2024)
(1) A conviction for an attempt to commit a crime may constitute a crime of child abuse, child neglect, or child abandonment under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2018).
(2) The respondent’s conviction for attempted injury to a child under sections 15.01(a) and 22.04(a)(1) of the Texas Penal Code renders him removable under section 237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), for having committed a crime of child abuse.