Ariel Marcelo Bastias v. U.S. Attorney General ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11416
____________________
ARIEL MARCELO BASTIAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A074-344-653
____________________
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2 Opinion of the Court 21-11416
Before NEWSOM and MARCUS, Circuit Judges, and MIDDLEBROOKS,
District Judge. ∗
NEWSOM, Circuit Judge:
Ariel Bastias petitions for review of the Board of Immigra-
tion Appeals’s judgment that he is removable on the ground that
he was convicted of a “crime of child abuse, child neglect, or child
abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
The parties agree that the least culpable conduct criminalized by
the Florida statute under which Bastias was convicted—culpably
negligent child neglect—fits within the BIA’s expansive interpreta-
tion of § 1227(a)(2)(E)(i). The question, then, is whether the BIA’s
reading of that provision is permissible inasmuch as it covers Bas-
tias’s offense. Because this Court has already decided that
§ 1227(a)(2)(E)(i) is ambiguous at Chevron step one, because we
are bound by that decision, and because the BIA’s definition is a
reasonable interpretation of the statute, we deny the petition.
I
In October 2019, Ariel Bastias, a lawful permanent resident
of the United States, pleaded guilty to and was convicted of an of-
fense under Fla. Stat. § 827.03(2), which is titled “Abuse, aggravated
abuse, and neglect of a child.” That statute delineates four distinct
offenses, listed under subsections (2)(a) through (2)(d). Those
∗ Honorable Donald M. Middlebrooks, United States District Judge for the
Southern District of Florida, sitting by designation.
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21-11416 Opinion of the Court 3
offenses range in seriousness from the first-degree felony of “aggra-
vated child abuse,” Fla. Stat. § 827.03(2)(a), to the third-degree fel-
ony of “willfully or by culpable negligence neglect[ing] a child with-
out causing great bodily harm, permanent disability, or permanent
disfigurement,” id. § 827.03(2)(d).
It’s unclear from the record to which of § 827.03(2)’s several
offenses Bastias pleaded guilty: The information charged him with
first-degree felony aggravated child abuse. The judgment lists “ag-
gravated child abuse,” but it describes that crime as a second-de-
gree felony and cites only § “827.03(2)” generally. The sentencing
score sheet describes Bastias’s offense as “child neglect,” a third-de-
gree felony, and cites—even more unhelpfully—just § “827.03.”
And the transcript of Bastias’s plea colloquy is hopelessly opaque:
The judge stated that he “w[ould] adjudicate [Bastias] guilty of [the]
charge of aggravated child—nope, of child neglect—child abuse,
child neglect, a felony of the third degree so it’s a lesser included
offense of what [he] was originally charged with.” When the clerk
asked for the statute number, the judge said, “Oh, I don’t know,”
one of the lawyers suggested “827,” and the judge responded,
“Whatever.”
After Bastias’s conviction—for “[w]hatever”—the Depart-
ment of Homeland Security served him with a notice to appear be-
fore an Immigration Judge on the ground that his conviction ren-
dered him removable under 8 U.S.C. § 1227(a)(2)(E)(i). That pro-
vision makes deportable any alien who “is convicted of a crime of
domestic violence, a crime of stalking, or a crime of child abuse,
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4 Opinion of the Court 21-11416
child neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i)
(emphasis added).
Before the IJ, Bastias argued that his 2019 conviction was
only for the offense of child neglect, see Fla. Stat. § 827.03(2)(d))—
which, he insisted, is not a deportable offense under the INA. But
the IJ found that the Florida judgment and record of conviction
demonstrated that Bastias was convicted of aggravated child abuse,
see Fla. Stat. § 827.03(2)(a). The IJ concluded that Florida aggra-
vated child abuse categorically falls within the BIA’s “broad defini-
tion of child abuse” and proceeded to deny Bastias’s application for
a discretionary cancellation of removal.
Bastias appealed to the Board of Immigration Appeals, re-
newing his contention that he was convicted only of child neglect.
The BIA held that even if Bastias was convicted of child neglect
under § 827.03(2)(d), that offense is categorically a “crime of child
abuse” for INA purposes. 1 The Board explained that it “has inter-
preted the ‘term “crime of child abuse” broadly to mean any of-
fense involving an intentional, knowing, reckless, or criminally
negligent act or omission that constitutes maltreatment of a child
or that impairs a child’s physical or mental well-being.’” Admin. R.
at 4 (quoting In re Velazquez-Herrera, 24 I&N Dec. 503, 512 (BIA
2008)) (emphasis added). Such a crime, the Board said, doesn’t
1The BIA interprets the INA’s phrase “crime of child abuse, child neglect, or
child abandonment” to denote a “unitary concept” that, for short, it simply
calls a “crime of child abuse.” In re Soram, 25 I&N Dec. 378, 381 (BIA 2010).
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21-11416 Opinion of the Court 5
require “actual harm or injury to a child” if the defendant’s mental
state was “greater than common law negligence” and there is
“proof of a likelihood or reasonable probability that a child will be
harmed.” Id. (citing In re Soram, 25 I&N Dec. 378, 381 (BIA 2010),
and In re Rivera-Mendoza, 28 I&N Dec. 184, 187–89 (BIA 2020)
(quotation marks omitted)). Child neglect under Fla. Stat.
§ 827.03(2)(d), the BIA concluded, categorically falls within its in-
terpretation because it requires a mental state of “culpable negli-
gence”—a greater mental state than ordinary negligence—and con-
duct that “could reasonably be expected to result in” serious injury
or death. Id. at 4–5 (citing, inter alia, Jones v. State, 292 So. 3d 519,
522 (Fla. Dist. Ct. App. 2020), and Fla. Stat. § 827.03(1)(e) (defining
“neglect of a child”)). So, the Board held that DHS established Bas-
tias’s removability by clear and convincing evidence, and it af-
firmed the IJ’s discretionary denial of cancellation of removal.
Bastias petitioned this Court for review. Before us, he ar-
gues that we should follow the Tenth Circuit’s decision in Ibarra v.
Holder, 736 F.3d 903, 906 (10th Cir. 2013), and hold that the BIA’s
interpretation of 8 U.S.C. § 1227(a)(2)(E)(i) is impermissibly over-
broad to the extent that it includes non-injurious criminally negli-
gent conduct. Citing Ibarra, Bastias notes that in 1996, when
§ 1227(a)(2)(E)(i) was enacted, most states required a “knowing or
intentional” mens rea to convict someone of non-injurious child
neglect or endangerment; “[o]nly eleven states clearly criminalized
non-injurious child endangerment where the culpable mental state
was only criminal negligence.” Br. of Appellant at 25–26 (quoting
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6 Opinion of the Court 21-11416
Ibarra, 736 F.3d at 915). Therefore, Bastias says, the BIA’s reading
“falls so far outside the interpretive ‘gap’ left by Congress” that we
shouldn’t defer to it. Id. at 29 (quoting Ibarra, 736 F.3d at 918).
The government responds that the BIA’s definition is a rea-
sonable interpretation of an ambiguous statute. It contends that
this Court has already determined that § 1227(a)(2)(E)(i) is ambig-
uous at Chevron step one and that we must therefore defer to the
Board’s interpretation at step two so long as it’s reasonable and
consistent with the statute. See Br. of Appellee at 15 (citing Pierre
v. U.S. Att’y Gen., 879 F.3d 1241, 1249 (11th Cir. 2018)); see also
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984). The government would have us follow the ap-
proach taken by the Second, Third, and Fifth Circuits and conclude
(1) that under Chevron’s step two, the Board’s reading of §
1227(a)(2)(E)(i) needn’t be the best interpretation of the statute or
reflect the approach of most states and (2) that the Board’s expan-
sive interpretation is permissible because it’s reasonable. Id. at 17–
19 (citing Florez v. Holder, 779 F.3d 207, 211–12 (2d Cir. 2015),
Mondragon-Gonzalez v. U.S. Att’y Gen., 884 F.3d 155, 159–60 (3d
Cir. 2018), and Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020)).
II
“Whether a conviction qualifies as a ‘crime of child abuse’
. . . under the INA is a question of law for the Court. We review
de novo such questions of law, subject to the principles of defer-
ence articulated in Chevron.” Pierre, 879 F.3d at 1248–49 (citation
omitted). Under Chevron, “if [a] statute is silent or ambiguous
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21-11416 Opinion of the Court 7
with respect to the specific issue” at hand, we defer to an adminis-
trative agency’s interpretation if it “is based on a permissible con-
struction of the statute.” 467 U.S. at 843. An agency’s interpreta-
tion is “permissible” under Chevron “so long as [it] is reasonable
and consistent with the statute.” Pierre, 879 F.3d at 1249 (citing
Chevron, 467 U.S. at 843). Published, precedential BIA decisions,
if reasonable, are entitled to Chevron deference. See id.A
We begin with what’s undisputed: First, all agree that we
should apply the “categorical approach” to determine whether Bas-
tias was convicted of a “crime of child abuse, child neglect, or child
abandonment” within the meaning of the INA. Under that ap-
proach, “we consider only the fact of conviction and the statutory
definition of the offense, rather than the specific facts underlying
the defendant’s case,” and we focus on “the least culpable conduct
necessary to sustain a conviction under the statute” under which
Bastias was convicted. Pierre, 879 F.3d at 1250 (quotation marks
omitted).
Second, all seem to agree that the “least culpable conduct”
covered by Bastias’s statute of conviction is culpably negligent child
neglect that doesn’t cause significant injury, as criminalized in Fla.
Stat. § 827.03(2)(d). While it once contended that Bastias was actu-
ally convicted of aggravated child abuse under Fla. Stat.
§ 827.03(2)(a), the government now seems to assume, for purposes
of our review, that Bastias was convicted under subsection (d) and
argues that a conviction under that subsection qualifies as a “crime
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8 Opinion of the Court 21-11416
of child abuse, child neglect, or child abandonment.” See Br. of
Appellee at 22. 2
Finally, all agree that Fla. Stat. § 827.03(2)(d) categorically
constitutes a “crime of child abuse, child neglect, or child abandon-
ment” within the BIA’s broad interpretation of that statutory
phrase: Convictions under § 827.03(2)(d), that is, “necessarily in-
volve[] facts equating to the generic federal offense” as the BIA de-
fines it. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (cleaned up);
see Br. of Appellant at 10 (arguing only that the BIA’s definition is
an impermissible interpretation of the INA). Section 827.03(2)(d)
requires a mens rea of culpable negligence, which is encompassed
within the BIA’s requirement of an “intentional, knowing, reckless,
or criminally negligent” mental state. 3 See Velazquez-Herrera, 24
2 We would reach the same conclusion independently. We apply the “modi-
fied categorical approach” when a statute is divisible—i.e., when it “lists a
number of alternative elements that effectively create several different
crimes.” Spaho v. U.S. Att’y Gen., 837 F.3d 1172, 1177 (11th Cir. 2016) (quo-
tation marks omitted). Under that approach, we may look “to a limited class
of documents (for example, the indictment, jury instructions, or plea agree-
ment and colloquy) to determine what crime, with what elements, a defend-
ant was convicted of.” Mathis v. United States, 579 U.S. 500, 505–06 (2016).
But here, those documents don’t clearly identify the subsection of Fla. Stat.
§ 827.03(2) under which Bastias was convicted. Therefore, we apply the cate-
gorical approach to § 827.03(2) and assess whether the least culpable conduct
under that statute—culpably negligent child neglect, see § 827.03(2)(d)—is cat-
egorically a “crime of child abuse, child neglect, or child abandonment” as that
phrase is used in the INA.
3 While the parties dispute whether Florida’s “culpable negligence” mens rea
is equivalent to criminal negligence or something more serious, see infra note
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21-11416 Opinion of the Court 9
I&N Dec. at 517. And § 827.03(2)(d)’s actus reus, “neglect[],” is de-
fined as a caregiver’s failure to provide “care, supervision, and ser-
vices necessary to maintain the child’s physical and mental health”
or to “make a reasonable effort to protect a child from abuse, ne-
glect, or exploitation by another person.” Fla. Stat. § 827.03(1)(e).
Accordingly, the offense of which all now agree Bastias was
convicted fits within the BIA’s interpretation of § 1227(a)(1)(E)(i)’s
key statutory phrase, “crime of child abuse, child neglect, or child
abandonment,” which the Board reads to encompass “child endan-
germent-type offense[s]” that require a “likelihood or reasonable
probability that a child will be harmed.” Rivera-Mendoza, 28 I&N
Dec. at 186–87 (quotation omitted).
B
Because Fla. Stat. § 827.03(2)(d) is a “crime of child abuse,
child neglect, or child abandonment” as the BIA interprets that stat-
utory phrase, we must determine whether the BIA’s interpretation
is permissible insofar as it reaches “culpably negligent” child ne-
glect. Given our binding precedent, we conclude that it is.
i
“Chevron established a familiar two-step procedure for eval-
uating whether an agency’s interpretation of a statute is lawful. At
5, they agree that it’s at least as severe as criminal negligence. See Br. of Ap-
pellee at 22–27; Reply Br. of Appellant at 2–14. It thus falls within the BIA’s
definition.
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10 Opinion of the Court 21-11416
the first step, we ask whether the statute’s plain terms directly ad-
dress the precise question at issue.” Nat’l Cable & Telecom. Ass’n
v. Brand X Internet Servs., 545 U.S. 967, 986 (2005) (cleaned up);
see Chevron, 467 U.S. at 842–43. If, “employing traditional tools
of statutory construction,” we conclude that the statute unambig-
uously addresses that question, our analysis ends there. Chevron,
467 U.S. at 843 n.9. But “[i]f the statute is ambiguous on the point,
we defer at step two to the agency’s interpretation so long as the
construction is a reasonable policy choice for the agency to make.”
Brand X, 545 U.S. at 986 (quotation marks omitted).
However we might decide the issue ourselves—and we can
see good arguments going both ways—we are bound by circuit
precedent to conclude at Chevron step one that 8 U.S.C.
§ 1227(a)(2)(E)(i) is ambiguous, so we must proceed to step two
and defer to the BIA’s interpretation so long as it’s reasonable. In
Pierre, we considered whether a conviction for child battery under
Fla. Stat. § 784.085 was a “crime of child abuse” under the same
provision of the INA at issue here, 8 U.S.C. § 1227(a)(2)(E)(i). See
879 F.3d at 1249. We first explained that “[i]f an INA term or pro-
vision is undefined or ambiguous, and the BIA has interpreted that
term or provision in a published, precedential decision, we defer to
the BIA’s interpretation under Chevron, as long as it reflects a per-
missible construction of the INA statute.” Id. Then, observing that
“[t]he INA does not define ‘child abuse,’” we immediately—and
without further explanation—concluded that the “statute is silent
on the issue” and, accordingly, that we should “defer to the BIA’s
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21-11416 Opinion of the Court 11
interpretation of the INA, so long as that interpretation is reasona-
ble and consistent with the statute.” Id. 4 “[A]pplying Chevron def-
erence to the definitions of ‘child abuse’ found in Velazquez-Her-
rera and Soram”—the same BIA decisions at issue here—we
“uph[e]ld them as reasonable interpretations of the INA, to the ex-
tent they appl[ied]” to the case before us. Id. at 1251. But because
that case involved “a knowing and overt act,” we noted that it
didn’t require us “to determine whether purely negligent acts with
no injury to the child proscribed by a state statute constitute ge-
neric crimes of child abuse.” Id. at 1251 n.3.
We are bound by Pierre to conclude that the phrase “crime
of child abuse, child neglect, or child abandonment” in 8 U.S.C.
§ 1227(a)(2)(E)(i) is “ambiguous” at Chevron step one: Pierre pro-
ceeded to Chevron step two with respect to the very same statu-
tory provision and BIA interpretations that we’re now considering.
Id. at 1249; see also United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008) (explaining that under this Court’s prior-panel-
precedent rule, “a prior panel’s holding is binding on all subsequent
panels unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en
banc”). Therefore, we too must proceed to Chevron step two and
4 The statute doesn’t define “crime of child abuse, child neglect, or child aban-
donment,” but does define “crime of domestic violence” in the same subsec-
tion. See 8 U.S.C. § 1227(a)(2)(E)(i); Florez, 779 F.3d at 211.
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12 Opinion of the Court 21-11416
determine whether the BIA’s interpretation is reasonable as applied
to Fla. Stat. § 827.03(2)(d).
ii
The BIA’s interpretation of the INA’s phrase “crime of child
abuse, child neglect, or child abandonment” to include culpably
negligent conduct likely to result in harm is a reasonable interpre-
tation of the statute that is entitled to Chevron deference.
An agency’s interpretation of a statute is permissible—de-
serving of deference at Chevron step two—if it’s “reasonable and
consistent with the statute.” Pierre, 879 F.3d at 1249. Chevron re-
quires us “to accept the agency’s construction of the statute, even
if the agency’s reading differs from what [we] believe[] is the best
statutory interpretation.” Brand X, 545 U.S. at 980. For better or
worse, Chevron enables the agency, when faced with statutory am-
biguity, to make a “reasonable policy choice” even when that
choice leads to it adopt a merely permissible—rather than the
best—interpretation of the statute. Id. at 986 (quoting Chevron,
467 U.S. at 845).
The crux of the parties’ dispute is whether the BIA’s inter-
pretation of the phrase “crime of child abuse, child neglect, or child
abandonment” is reasonable inasmuch as it reaches a crime—Fla.
Stat. § 827.03(2)(d)—that requires a mens rea of only “culpable neg-
ligence.” Florida’s “culpable negligence” standard isn’t one of the
mental states traditionally required for criminal liability—i.e., in-
tent, knowledge, recklessness, or negligence, see Borden v. United
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21-11416 Opinion of the Court 13
States, 141 S. Ct. 1817, 1823–24 (2021)—and the parties disagree
about where it falls in the mens rea hierarchy. 5 But we needn’t
resolve their dispute because even if we assume that culpable neg-
ligence is equivalent to traditional criminal negligence and assess
the BIA interpretation at its broadest scope, 6 that interpretation is
reasonable.
5 For its part,
the government argues that “culpable negligence” under Florida
law is “something more” than typical criminal negligence: Culpable negli-
gence, it says, is “a higher mens rea than recklessness.” Br. of Appellee at 22–
27 (citing State v. Greene, 348 So. 2d 3, 4 (Fla. 1977), for the proposition that
culpable negligence “evinc[es] reckless disregard of human life or of the safety
of persons exposed to its dangerous effects . . . or such wantonness or reckless-
ness or grossly careless disregard of the safety and welfare of the public . . .
which is equivalent to an intentional violation”). Bastias, by contrast, con-
tends that “culpable negligence” is equivalent to traditional criminal negli-
gence. See Br. of Appellant at 33–36; Reply Br. of Appellant at 9–10. Unlike
recklessness, which requires that a defendant subjectively comprehend and
“consciously disregard[]” an unreasonable risk, criminal negligence is typically
considered a lesser mens rea that is satisfied when the defendant “is not con-
scious of the unreasonable risk but should be.” Ibarra, 736 F.3d at 915 n.16
(citing 1 Wayne R. LaFave, Substantive Criminal Law § 5.4 (2d ed. 2003)).
6Assuming that culpable negligence is equivalent to criminal negligence re-
quires us to assess the reasonableness of the BIA interpretation insofar as it
extends to criminally negligent conduct, rather than just to reckless, knowing,
or purposeful conduct. And at least some Florida child-neglect cases point to
“culpable negligence” as encompassing traditional criminal negligence. For
example, in Lanier v. State, a Florida appellate court defined “culpable negli-
gence” as “consciously doing an act or following a course of conduct that the
defendant must have known, or reasonably should have known, was likely to
cause death or great bodily harm.” 264 So. 3d 402, 406 (Fla. Dist. Ct. App.
2019) (emphasis added) (quotation omitted).
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14 Opinion of the Court 21-11416
We’ll begin by addressing Bastias’s contention that the BIA’s
interpretation is impermissible because it encompasses conduct
that most states didn’t criminalize in 1996, when 8 U.S.C.
§ 1228(a)(2)(E)(i) was enacted. In Ibarra, the Tenth Circuit “exam-
ined the criminal laws of all fifty states and the District of Columbia
in effect in 1996 to determine the majority approach to crimes of
child abuse, abandonment, neglect, and endangerment.” 736 F.3d
at 915. It found that of the 49 jurisdictions that criminalized child
endangerment or neglect without resulting injury, 27 states re-
quired a mens rea of “knowing or intentional,” 6 required reckless-
ness, 11 “clearly criminalized non-injurious child endangerment
where the culpable mental state was only criminal negligence,” and
5 had an unclear minimum mens rea. 7 Id. Bastias argues that we
should follow the Ibarra court and hold that because at least 33
states didn’t criminalize child endangerment offenses where the
mens rea was only criminal negligence, the BIA’s interpretation
isn’t permissible. We disagree.
Rather, as the Second and Fifth Circuits have recognized, at
Chevron step two, “we are not looking for the best interpretation,
or the majority interpretation—only a reasonable one.” Florez,
779 F.3d at 212; accord Garcia, 969 F.3d at 134. While the Supreme
7 By the Ibarra court’s count, 8 states required a minimum mens rea of criminal
negligence, 2 required only tort negligence, and 1 imposed strict liability—
making for a total of 11 states in which criminally negligent child endanger-
ment or neglect was criminalized. See 736 F.3d at 920.
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21-11416 Opinion of the Court 15
Court has identified the generic federal definition of various crimes
by examining the approach taken by a majority of the states, see,
e.g., Taylor v. United States, 495 U.S. 575, 598 (1990); Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1571 (2017), it “has never sug-
gested that an administrative agency must employ that method to
construe an ambiguous federal term that references state crimes,”
Florez, 779 F.3d at 213. “The agency is required to adopt a reason-
able interpretation—not to proceed by any particular interpretative
method.” Id.
In fact, it would likely contravene Chevron and its progeny
to hold that when states have varying formulations of a crime, the
only permissible interpretation open to an agency at Chevron step
two is that adopted by the majority of jurisdictions. The whole
point of Chevron and Brand X—again, for better or worse—is to
allow agencies to make “reasonable policy choice[s]” among com-
peting permissible interpretations of a statute, including policy-
based choices to adopt less-than-best readings. See Brand X, 545
U.S. at 980, 986; Chevron, 467 U.S. at 865–66. Given that we have
already held that 8 U.S.C. § 1227(a)(2)(E)(i) is ambiguous and that
we must therefore proceed to Chevron step two, see Pierre, 879
F.3d at 1249, there must be some range of discretion for the BIA to
make a policy choice among different possible interpretations. If
we were to hold that the Board had to adopt the approach taken by
most states, we would eliminate the range of reasonable policy
choices that the agency could consider at Chevron step two: The
BIA instead would be compelled to adopt the majority
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16 Opinion of the Court 21-11416
interpretation—here, the knowing or intentional mens rea re-
quired by 27 states in 1996—rather than just a “reasonable” one.
But cf. Brand X, 545 U.S. at 980 (requiring a reviewing court to ac-
cept an agency’s reasonable interpretation of a statute “even if the
agency’s reading differs from what [we] believe[] is the best statu-
tory interpretation”). So, the fact that most states didn’t criminal-
ize criminally negligent child neglect in 1996 doesn’t make the
BIA’s interpretation unreasonable.
We conclude, to the contrary, that the BIA’s interpretation
of § 1227(a)(2)(E)(i) is reasonable—for two main reasons.
First, the ordinary meaning of the statutory text. The INA—
which explicitly includes “crime . . . of child neglect”—can reason-
ably be understood to include the criminally negligent failure to
provide a child with necessary care, as criminalized by Fla. Stat.
§ 827.03(2)(d). In 1996, Merriam-Webster’s Dictionary of Law de-
fined “neglect,” in relevant part, to mean “a failure to provide a
child under one’s care with proper food, clothing, shelter, supervi-
sion, medical care, or emotional stability.” Merriam-Webster’s
Dictionary of Law 324 (1996). That definition is consistent with
criminally negligent conduct; it doesn’t require intent or the sub-
jective awareness of risk. Similarly, Black’s Law Dictionary defined
“neglected child” as one whose “parent or custodian, by reason of
cruelty, mental incapacity, immorality or depravity, is unfit
properly to care for him, or neglects or refuses to provide necessary
. . . care for him.” Black’s Law Dictionary 1032 (6th ed. 1990). A
criminally negligent parent—whose gross carelessness causes him
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21-11416 Opinion of the Court 17
not to appreciate an unreasonable risk to his child—is one whose
“mental incapacity” or “immorality” makes him “unfit properly to
care for” her child. These definitions reflect our linguistic intui-
tions and conventions: One neglects her child when she is crimi-
nally negligent. Compare Neglect, Oxford English Dictionary (3d
ed. 2003), with Negligent, id. (both derived from the same Latin
root, neglegere—“to disregard, overlook, to fail to care for”).
Second, contemporaneous statutes. The fact that the BIA’s
interpretation is consistent with the approach taken by a sizable
minority of states and by other federal statutes suggests that it’s
reasonable. As the Ibarra court found, there wasn’t a single pre-
vailing definition of “child abuse” or “child neglect” in 1996: While
a bare majority of 27 states required a mens rea of knowledge or
intent, 6 required recklessness, 8 required criminal negligence, 2 re-
quired tort negligence, and 1 imposed strict liability. The Board
recognized a “growing acceptance by 1996 that the concept of
‘child abuse’ included . . . criminally negligent acts.” Velazquez-
Herrera, 24 I&N Dec. at 511. It was thus a “reasonable policy
choice,” Brand X, 545 U.S. at 986, for the BIA, when confronted
with an undefined statutory term, to adopt a definition consistent
with a sizable and growing minority of states—a definition that
mirrored the approach taken by Arizona, Colorado, Florida, Mis-
souri, New Mexico, Oregon, Texas, and Wyoming and was less ag-
gressive than the approach taken by New York, South Carolina,
and Nebraska, see Ibarra, 736 F.3d at 920; Florez, 779 F.3d at 212.
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18 Opinion of the Court 21-11416
Moreover, some federal statutes defined “child abuse” in a
manner that would seem to encompass criminally negligent con-
duct. See Velazquez-Herrera, 24 I&N Dec. at 510–11 (citing, inter
alia, 42 U.S.C. § 5106g(4) (1994), and 42 U.S.C. § 5119c(3) (1994)).
For example, 42 U.S.C. § 5119c(3) defined “child abuse crime”—for
purposes of the federal law requiring states to report such crimes
to the national criminal history background-check system—as “a
crime committed under any law of a State that involves the physi-
cal or mental injury, sexual abuse or exploitation, negligent treat-
ment, or maltreatment of a child by any person.” 42 U.S.C.
§ 5119c(3) (1994) (emphasis added). The fact that some federal stat-
utes in 1996 defined “child abuse” to include “negligent” treat-
ment—which, again, would seem to encompass crimes with a
mens rea of criminal negligence—further supports the reasonable-
ness of the BIA’s interpretation.
* * *
At the end of the day, we are compelled by Pierre—and, by
extension, Chevron—to assess only whether the BIA’s interpreta-
tion of 8 U.S.C. § 1227(a)(2)(E)(i) is reasonable, not whether it’s the
best reading of the statute. Because it’s reasonable to interpret
“crime of . . . child neglect” as including the Florida offense of cul-
pably negligent child neglect, we defer to the BIA’s conclusion that
Bastias’s conviction under Fla. Stat. § 827.03(2) renders him remov-
able.
PETITION DENIED.
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21-11416 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I concur in the Court’s opinion today, but write separately
to explain my view that this Court’s approach to Chevron step one
in Pierre v. U.S. Att’y Gen., 879 F.3d 1241 (11th Cir. 2018), can’t
easily be reconciled with Supreme Court precedent that both pre-
dates and post-dates our decision there—or, just as importantly,
with the separation-of-powers principles that the Supreme Court’s
recent reinvigoration of step one embodies. In short, we gave up
on step one entirely too quickly in Pierre. We proceeded directly
from the premise that a key statutory term was “not define[d]” to
the conclusion that the provision was “silent,” and thus ambiguous,
and, therefore, that we should move on to the deference that step
two typically entails. That was error; Chevron step one demands
more. 1
1 Although I find Pierre’s methodology to be in significant tension with Su-
preme Court precedent, I believe that we are nonetheless bound by it under
our prior-panel-precedent rule. “Under that rule, a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or undermined
to the point of abrogation by the Supreme Court or by this court sitting en
banc,” and intervening Supreme Court or en banc precedent can overrule a
prior panel decision only if it is “clearly on point.” United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008) (quotation omitted). As I’ve said before, we
should resist the urge to invoke “flabbier variants” of the prior-panel-prece-
dent rule “to ‘write around’” earlier decisions with which we disagree because
“a healthy respect for the decisions of [our] colleagues—both past and pre-
sent—counsels a fairly rigorous application” of the rule. Kondrat’yev v. City
USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 20 of 23
2 Newsom, J., Concurring 21-11416
Here’s the sum total of the analysis that the Pierre Court
conducted to determine whether 8 U.S.C. § 1227(a)(2)(E)(i) had a
clear meaning at Chevron step one: “The INA does not define
‘child abuse.’ Because the statute is silent on the issue, we may
defer to the BIA’s interpretation of the INA, so long as that inter-
pretation is reasonable and consistent with the statute.” Pierre, 879
F.3d at 1249 (citations omitted). That’s it. No assessment of ordi-
nary meaning, no consideration of the canons, no analysis of statu-
tory structure—no nothing. Instead, we simply concluded that be-
cause the INA didn’t expressly “define” the key term, the statute
was “silent on the issue” and that we should proceed straight to
Chevron step two, deferring to the agency’s interpretation so long
as it was reasonable. Supreme Court precedent makes clear that
our duty as judges to say what the law is before declaring a statute
ambiguous and ceding the interpretive function to an administra-
tive agency is not so easily sidestepped.
Start with Chevron itself. In describing the first step of the
analysis that it fashioned—i.e., determining “whether Congress has
directly spoken to the precise question at issue”—the Supreme
Court said there that “if a court, employing traditional tools of stat-
utory construction, ascertains that Congress had an intention on
the precise question at issue, that intention is the law and must be
of Pensacola, 949 F.3d 1319, 1334 n.1 (11th Cir. 2020) (Newsom, J., concur-
ring). In my view, no intervening Supreme Court decision is sufficiently
“clearly on point” to enable us to ignore Pierre.
USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 21 of 23
21-11416 Newsom, J., Concurring 3
given effect.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842, 843 n.9 (1984). Thus, the Court directed judges
to use all “traditional tools” of statutory interpretation in a genuine
attempt to discern a provision’s meaning before declaring it “silent
or ambiguous” and deferring to any reasonable agency interpreta-
tion. Id. at 843. Pierre’s approach—declaring a statute silent or
ambiguous simply because it doesn’t explicitly “define” the rele-
vant term—seems hard to square with Chevron itself.
More recently, the Supreme Court has taken pains to clarify
that Chevron step one has teeth: We judges must actually do the
hard work of statutory interpretation; we can’t just skip ahead to
step two. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017),
decided only eight months before Pierre, is a prime example. In
that case, the Supreme Court considered whether a California of-
fense criminalizing sex with someone under the age of 18 categor-
ically qualified as “sexual abuse of a minor” as that term is used in
the INA. Id. at 1567. As in our case, the phrase “sexual abuse of a
minor” was added to the INA in 1996 as a crime that renders an
alien removable. Id. at 1569. And as in our case, the BIA had inter-
preted that phrase broadly—there, to include statutory rape of-
fenses involving 16- and 17-year-olds. Id. at 1567. But quite unlike
our approach in Pierre, the Supreme Court determined for itself
the meaning of “sexual abuse of a minor.” The Court consulted
legal dictionaries to determine that the “generic” age of consent in
1996 was 16, examined related federal statutes that specified 16 as
the age of consent, and surveyed the states to conclude that in 1996,
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4 Newsom, J., Concurring 21-11416
32 jurisdictions set the age of consent at 16. Id. at 1569–72. Based
on that thorough textual, contextual, and historical inquiry, the
Court concluded that the phrase “sexual abuse of a minor” embod-
ied an age of consent of 16 and, therefore, that California’s offense
criminalizing sex with minors under 18 didn’t categorically qualify.
Id. at 1572. Only then, having engaged in a rigorous, de novo stat-
utory interpretation, did the Court conclude, in a single sentence,
that Chevron didn’t “appl[y]” because, it said, “the statute, read in
context, unambiguously forecloses the Board’s interpretation.” Id.The difference between the robust interpretive analysis conducted
by the Esquivel-Quintana Court and the perfunctory approach in
Pierre—blink and you miss it—is night and day.
Shortly after we decided Pierre, the Supreme Court again
reiterated the principle “that deference is not due unless a ‘court,
employing traditional tools of statutory construction,’ is left with
an unresolved ambiguity.” Epic Systems Corp. v. Lewis, 138 S. Ct.
1612, 1630 (2018). In Epic Systems, the Court considered whether
to apply Chevron deference to an agency opinion suggesting that
the National Labor Relations Act displaces the Federal Arbitration
Act. Id. at 1629. The Court refused on the ground that the canon
against reading conflicts into statutes—a “traditional tool of statu-
tory construction”—was “more than up to the job of solving [the]
interpretive puzzle.” Id. at 1630. Because traditional interpretive
tools “suppl[ied] an answer,” the Court reasoned, “Chevron le[ft]
the stage.” Id. (quotation marks omitted).
USCA11 Case: 21-11416 Date Filed: 08/02/2022 Page: 23 of 23
21-11416 Newsom, J., Concurring 5
Even this brief tour shows that we were far too quick in
Pierre to conclude that 8 U.S.C. § 1227(a)(2)(E)(i) is ambiguous and
to defer to any reasonable BIA interpretation. Instead, like the Su-
preme Court in Esquivel-Quintana, we first should have examined
the ordinary meaning of the statutory text and contemporaneous
state and federal statutes to determine whether the phrase “crime
of child abuse” unambiguously encompassed the state offense.
And were we not bound by Pierre here, our approach in this case
should have been to decide for ourselves at Chevron step one
whether the phrase “crime . . . of child neglect” in the INA unam-
biguously includes Florida’s offense of culpably negligent child ne-
glect. To be sure, we might still have concluded that the statute is
ambiguous: The evidence gleaned from contemporaneous dic-
tionary definitions and federal statutes seems to point in the oppo-
site direction from that gleaned from a state-counting approach.
Compare Maj. Op. at 14, with Maj. Op. at 16–18. But that’s not the
point. The point is that we, as judges in whom the Constitution
“vest[s] exclusively” the judicial power of the United States, should
do statutory interpretation before deferring to any reasonable in-
terpretation offered by an executive agency. Kisor v. Wilkie, 139
S. Ct. 2400, 2437 (2019) (Gorsuch, J., concurring in the judgment).
If we fail in that obligation—if we shirk our “duty of interpreting
the laws” at Chevron step one—we exacerbate the risk of the “ju-
dicial power be[ing] shared with the Executive Branch” in violation
of Article III. Id. (quotation marks omitted and alterations
adopted).