RAFAEL DIAZ-RODRIGUEZ V. MERRICK GARLAND ( 2022 )

FILED
FOR PUBLICATION
DEC 8 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL DIAZ-RODRIGUEZ, No. 13-73719
Petitioner, Agency No. A093-193-920
v.
OPINION
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc June 22, 2022
Pasadena, California
Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane
Wardlaw, Ronald M. Gould, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S.
Ikuta, Daniel P. Collins, Patrick J. Bumatay, Lucy H. Koh and Gabriel P. Sanchez,
Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Collins;
Dissent by Judge Wardlaw
SUMMARY *
Immigration
Denying Rafael Diaz-Rodriguez’s petition for review of a Board of Immigration
Appeals’ decision in which the BIA concluded that he was removable under 8 U.S.C.
§ 1227(a)(2)(E)(i) for having committed a “crime of child abuse, child neglect, or
child abandonment,” the en banc court concluded that the BIA did not err in
concluding that a conviction under California Penal Code section 273a(a) qualifies
as an offense under § 1227(a)(2)(E)(i).
Diaz-Rodriguez was convicted under section 273a(a) of the California Penal
Code for willfully permitting a child under his care or custody to be “placed in a
situation where his or her person or health is endangered” “under circumstances or
conditions likely to produce great bodily harm or death.” The IJ and BIA concluded
that this conviction rendered Diaz-Rodriguez was removable under 8 U.S.C.
§ 1227(a)(2)(E)(i).
Applying the categorical approach to determine whether section 273a(a) is a
match to § 1227(a)(2)(E)(i), the en banc court first looked to California courts’
construction of section 273a(a) and concluded that the least of the acts criminalized
by that section requires proof that a defendant [1] had care or custody of a child,
whether or not a parent or legal guardian; and [2] with criminal negligence, meaning
in a manner that a reasonable person would have known creates a high risk of death
or great bodily injury; [3] purposely put the child into an abusive situation in which
the probability of serious injury was great.
Turning to the federal generic crimes encompassed by the phrase “child abuse,
child neglect, or child abandonment,” a plurality of the en banc court concluded that
the normal tools of statutory construction do not lead to an unambiguous
interpretation. Because § 1227(a)(2)(E)(i) does not provide a definition, or cross-
reference a criminal statute, the plurality of the en banc court reviewed dictionary
definitions contemporaneous with the provision’s enactment, explaining that some
definitions of “child abuse” included offenses that do not cause injury and are
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
committed with negligence, while others contemplated intentional conduct and
injury. The dictionaries also did not limit the definition of “child neglect” to conduct
committed by a parent or legal guardian. The plurality further explained that the
surrounding provisions of the Immigration and Nationality Act (INA), and
definitions in other federal statutes, are likewise inconclusive. Moreover, the
plurality concluded that a survey of relevant state statutes did not reveal a uniform
approach. Thus, the plurality concluded that the phrase is ambiguous, agreeing with
this court’s sister circuits that have considered the issue.
Next, the plurality deferred to the BIA’s interpretation of the phrase. Under the
BIA’s interpretation, as set out in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503(BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the term “child
abuse,” or the unitary phrase “crime of child abuse, child neglect, or child
abandonment,” means any offense involving an intentional, knowing, reckless, or
criminally negligent act or omission (including acts or circumstances that create a
substantial risk of harm to a child’s health or welfare, rather than causing actual
injury) that constitutes maltreatment of a child or that impairs a child’s physical or
mental well-being, including sexual abuse or exploitation. The plurality explained
that the BIA’s definition is consistent with the text, nature, and purpose of the statute,
and therefore is within the bounds of reasonable interpretation.
Finally, the en banc court concluded that section 273a(a), is a categorical match
to § 1227(a)(2)(E)(i). The en banc court explained that the BIA’s definition includes
the element of a mens rea of criminal negligence (a match to the second element of
a section 273a(a) conviction), and the element of allowing a child to be placed in a
situation that create a substantial risk of harm to a child’s health or welfare (a match
to the third element of a section 273a(a) conviction). Also, because the state offense
requires proof of care or custody, it is narrower than the generic federal offense of
“child abuse” or “child neglect,” which does not require such proof. The en banc
court thus agreed with the BIA’s reasoning and conclusion that all violations of
section 273a(a) are encompassed by the BIA’s definition of a crime of “child abuse,
child neglect, or child abandonment” in § 1227(a)(2)(E)(i).
Concurring in part and concurring in the judgment, Judge Collins, joined by
Judge Bumatay, agreed with the ultimate conclusion that the BIA did not err in
concluding that Diaz-Rodriguez was removable, but did not join the plurality
opinion in full because his reasoning differed from the plurality’s
analysis. Specifically, Judge Collins disagreed with the plurality’s finding of
ambiguity and concluded that § 273a(a) is a categorical match for the sub-category
of a “crime of . . . child neglect” set out in INA § 237(a)(2)(E)(i). 8 U.S.C. §
1227(a)(2)(E)(i).
Judge Collins explained that ordinary principles of statutory construction lead to
the conclusion that a “crime of . . . child neglect” is one that contains the following
minimum elements: (1) the person had a duty towards a child; (2) the person
breached that duty in a manner that constitutes a gross deviation from accepted
standards; and (3) the person acts with criminal negligence – meaning that the person
should have been aware that his or her conduct presented a substantial and
unjustifiable risk of serious physical or emotional harm to the child. Applying that
definition, Judge Collins explained that section 273a(a) categorically fits within INA
§ 237(a)(2)(E)(i) because all of its elements are equal to or narrower than the
elements of the federal offense.
Dissenting, Judge Wardlaw, joined by Judges Murguia, McKeown, Koh, and
Sanchez, concluded that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously
forecloses the BIA’s interpretation of the provision as encompassing negligent child
endangerment offenses such as section 273a(a). Looking to contemporaneous
dictionary definitions, the structure of the INA, and a survey of state criminal codes,
Judge Wardlaw explained that § 1227(a)(2)(E)(i) renders noncitizens removable if
they are convicted of one of three discrete criminal offenses: child abuse, child
neglect, or child abandonment. Judge Wardlaw concluded that Congress did not
inadvertently omit child endangerment; rather, the fact that Congress enumerated
three crimes and failed to enumerate a fourth justifies the inference that the omission
was deliberate.
Judge Wardlaw further wrote that missing in the plurality’s anodyne analysis is
recognition of a troubling fact: under the BIA’s interpretation, individuals who for
reasons of poverty, cultural difference, work schedules, or bad luck make parenting
mistakes may be permanently separated from their families. Observing that the
court’s responsibility is to ensure that regulated parties know what conduct will
trigger the “civil death penalty” of removal, Judge Wardlaw wrote that the BIA’s
vague, sweeping interpretation of 8 U.S.C. § 1227(a)(2)(E)(i), countenanced by the
plurality, provides no guide.
COUNSEL
David J. Zimmer (argued), Edwina B. Clarke, and Jenna Welsh, Goodwin Procter
LLP, Boston, Massachusetts; Jerry Shapiro, Law Offices of Jerry Shapiro, Encino,
California; for Petitioner.
Erica B. Miles (argued), Senior Litigation Counsel; Ilissa M. Gould and Sara J.
Bayram, Trial Attorneys; M. Jocelyn Lopez Wright, Senior Litigation Counsel; John
W. Blakeley, Assistant Director; Brian M. Boynton, Principal Deputy Assistant
Attorney General; Joyce R. Branda, Acting Assistant Attorney General; United
States Department of Justice, Civil Division, Office of Immigration Litigation,
Washington D.C.; for Respondent.
Oliver Dunford, Pacific Legal Foundation, Palm Beach Gardens, Florida; Caleb
Kruckenberg, Pacific Legal Foundation, Arlington, Virginia; for Amicus Curiae
Pacific Legal Foundation.
Andrew Wachtenheim, Immigrant Defense Project, New York, New York; Sabrina
Damast, American Immigration Lawyers Association, Washington, D.C.; Daniel
Woofter, Goldstein & Russel P.C.; Bethesda, Maryland; for Amici Curiae Immigrant
Defense Project and American Immigration Lawyers Association.
David J. Sutton, Public Defender; Rachael E. Keast, Deputy Public Defender; Marin
County Office of the Public Defender; San Rafael, California; for Amici Curiae
California Public Defenders Association, Marin County Office of the Public
Defender, Santa Clara County Office of the Public Defender, Alameda County
Office of the Public Defender, Sacramento County Office of the Public Defender,
Imperial County Office of the Public Defender, Biggan Christensen and Minsloff,
and The Public Defenders of Santa Cruz County.
OPINION
IKUTA, Circuit Judge, with whom GOULD, CALLAHAN, and M. SMITH,
Circuit Judges, join:
This case raises the question whether an alien who has been convicted under
section 273a(a) of the California Penal Code (criminalizing offenses against
children) is removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having committed a
“crime of child abuse, child neglect, or child abandonment.” After using the
ordinary tools of statutory construction to define these terms in the federal statute,
dictionary definitions, the structure of the Immigration and Nationality Act (INA),
contemporaneous federal statutes, and evidence from state criminal codes, we
conclude that the terms “child abuse” and “child neglect” are ambiguous. We
therefore defer to the reasonable interpretation of the Board of Immigration
Appeals (BIA) that the phrase “crime of child abuse, child neglect, or child
abandonment” can include offenses that involve a mens rea of criminal negligence
and acts or circumstances that create a substantial risk of harm to a child’s health
or welfare, rather than causing an actual injury to the child. We also defer to the
BIA’s treatment of this phrase as a unitary category of crimes against children.
Applying the BIA’s interpretation and the categorical approach outlined in Taylor
v. United States, 495 U.S. 575 (1990), we determine that the BIA did not err in
2
concluding that a conviction under section 273a(a) qualifies as a removable offense
under § 1227(a)(2)(E)(i).
I
Rafael Diaz-Rodriguez, a native and citizen of Mexico, entered the United
States in 1990 as a legal permanent resident.
Since his admission to the country, Diaz-Rodriguez has been convicted
multiple times for driving while intoxicated, including at least two convictions for
driving while intoxicated with a minor child in the vehicle. In November 2003,
Diaz-Rodriguez was pulled over by a police officer as he was driving his five-year-
old son home. Diaz-Rodriguez’s blood alcohol level was .20, over twice the legal
limit. He was subsequently convicted under section 23152(b) of the California
Vehicle Code for driving while intoxicated and under section 273a(a) of the
California Penal Code for willfully permitting a child under his care or custody to
be “placed in a situation where his or her person or health is endangered” “under
circumstances or conditions likely to produce great bodily harm or death.”
In 2009, Diaz-Rodriguez was again pulled over by a police officer, this time
while driving intoxicated with his six-year-old daughter. He was convicted for
driving while intoxicated, Cal. Veh. Code § 23152(b), driving without a license
(revoked for the prior drunk driving violations), Cal. Veh. Code § 14601.2(a), and
3
also convicted under section 273a(a) of the Penal Code. He was sentenced to
imprisonment and other penalties, including a 52-week child abuse program.
After this 2009 conviction, the government started removal proceedings,
alleging that Diaz-Rodriguez had been convicted of the offense of child abuse in
violation of section 273a(a) and was therefore removable as an alien convicted of a
“crime of child abuse, child neglect, or child abandonment.” 8 U.S.C.
§ 1227(a)(2)(E)(i). In December 2012, Diaz-Rodriguez appeared before an
immigration judge (IJ) with counsel and denied the charge of removability. He
also filed an application for cancellation of removal.
The IJ determined that Diaz-Rodriguez was removable as charged. In
considering whether Diaz-Rodriguez’s conviction under section 273a(a)
constituted the removable offense of “child abuse, child neglect, or child
abandonment” in § 1227(a)(2)(E)(i), the IJ relied on the BIA’s interpretation of
that phrase in two precedential opinions, Matter of Velazquez-Herrera, 24 I. & N.
Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). The
IJ concluded that a section 273a(a) offense “falls squarely within the definition of
‘crime of child abuse’ set forth by the [BIA].” The IJ therefore denied Diaz-
Rodriguez’s application for cancellation of removal and ordered him removed to
Mexico.
4
Diaz-Rodriguez filed an administrative appeal to the BIA, which agreed with
the IJ that a violation of section 273a(a) qualifies as a crime of child abuse under
§ 1227(a)(2)(E)(i). The BIA also affirmed the IJ’s decision to deny Diaz-
Rodriguez’s application for cancellation of removal, and dismissed the appeal.
Diaz-Rodriguez timely petitioned for review, challenging only the BIA’s
determination that he was removable under § 1227(a)(2)(E)(i). A three-judge
panel granted the petition for review. Diaz-Rodriguez v. Garland, 12 F.4th 1126(9th Cir. 2021), reh’g en banc granted, 29 F.4th 1018 (9th Cir. 2022) (Mem.). We
took the case en banc to consider whether section 273a(a) qualifies as “a crime of
child abuse, child neglect, or child abandonment” under § 1227(a)(2)(E)(i).
We have jurisdiction under 8 U.S.C. § 1252(a). We review de novo
questions of law, including whether a state conviction qualifies as a federal generic
crime under the INA. See Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130 (9th
Cir. 2016).
II
5
The question before us is whether Diaz-Rodriguez’s conviction under
section 273a(a) makes him removable under 8 U.S.C. § 1227(a)(2)(E)(i).1 Section
1227(a)(2)(E)(i) lists generic federal offenses (child abuse, child neglect, and child
abandonment), and does not provide the elements of those offenses or cross-
reference specific state or federal criminal statutes. When a federal statute refers to
a generic federal offense, we generally apply the categorical approach set forth in
Taylor, 495 U.S. at 588–89, to determine whether the state offense matches the
1
8 U.S.C. § 1227(a)(2(E)(i) provides:
(E ) Crimes of domestic violence, stalking, or violation of
protection order, crimes against children and
(i) Domestic violence, stalking, and child abuse
Any alien who at any time after admission is convicted of a
crime of domestic violence, a crime of stalking, or a crime of
child abuse, child neglect, or child abandonment is deportable.
For purposes of this clause, the term “crime of domestic
violence” means any crime of violence (as defined in section 16
of title 18) against a person committed by a current or former
spouse of the person, by an individual with whom the person
shares a child in common, by an individual who is cohabiting
with or has cohabited with the person as a spouse, by an
individual similarly situated to a spouse of the person under the
domestic or family violence laws of the jurisdiction where the
offense occurs, or by any other individual against a person who
is protected from that individual’s acts under the domestic or
family violence laws of the United States or any State, Indian
tribal government, or unit of local government.
6
federal generic offense, see Mellouli v. Lynch, 575 U.S. 798, 804–05 (2015).
Under this approach, we must identify the elements of both the state offense and
the federal generic offense, because the consequences imposed by the federal
statute are “triggered by crimes having certain specified elements, not by crimes
that happen to be labeled [with the same terms as] the laws of the State of
conviction.” Taylor, 495 U.S. at 588–89. In defining the elements of the state
offense of conviction, we consider only “the least of the acts criminalized” by the
state offense, Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (cleaned up), to
ensure that “anyone convicted under [the state] law is necessarily guilty of all the
generic crime’s elements,” Descamps v. United States, 570 U.S. 254, 261 (2013)
(cleaned up). We then compare the elements of the state statute of conviction with
the elements of the federal generic offense, as we have defined them. Id.; see also
United States v. Gonzalez–Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014). If the
least state offense has the same elements as the generic federal crime, then the state
statute of conviction is a categorical match to the federal generic offense. See
Descamps, 570 U.S. at 261; see also Mathis v. United States, 579 U.S. 500, 505
(2016). But if the state statute of conviction “sweeps more broadly than the
generic [federal] crime, a conviction under that law cannot count as” the generic
federal offense “even if the defendant actually committed the offense in its generic
7
form.” Descamps, 570 U.S. at 261. An alien’s actual conduct is not relevant to
this inquiry. See Moncrieffe, 569 U.S. at 190.
A
We begin by determining the least of the acts criminalized by section
273a(a) of the California Penal Code. See id. at 191. The California Supreme
Court has referred to this statute as an “omnibus statute that proscribes essentially
four branches of conduct.” People v. Valdez, 27 Cal. 4th 778, 783 (2002). Section
273a(a) provides:
Any person who, under circumstances or conditions likely to produce great
bodily harm or death, [1] willfully causes or permits any child to suffer, or
[2] inflicts thereon unjustifiable physical pain or mental suffering, or [3]
having the care or custody of any child, willfully causes or permits the
person or health of that child to be injured, or [4] willfully causes or permits
that child to be placed in a situation where his or her person or health is
endangered.
8
Cal. Penal Code § 273a(a); see also Valdez, 27 Cal. 4th at 783 (providing
bracketed numbers dividing statute into “four branches of conduct”).2 The first
three branches criminalize the infliction of physical or mental injury or suffering,
but the fourth branch does not. Therefore, we focus on the fourth branch as the
least act criminalized by section 273a(a).
The California Supreme Court has instructed that “two threshold
considerations govern all types of conduct” under section 273a(a). People v.
Sargent, 19 Cal. 4th 1206, 1216 (1999) (cleaned up).
2
Although the four branches of conduct are phrased in the disjunctive, we
have previously held that they are alternative means for accomplishing the same
offense, rather than different offenses, and therefore section 273a(a) is not
divisible. See Ramirez v. Lynch, 810 F.3d 1127, 1138 (9th Cir. 2016).
Accordingly, we do not employ a “modified categorical approach,” which would
require us to identify the branch under which Diaz-Rodriguez was actually
convicted and determine whether that branch was a categorical match to the
offenses listed in 8 U.S.C. § 1227(a)(2)(E)(i). See Gonzales v. Duenas-Alvarez,
549 U.S. 183, 187 (2007). People v. Napoles, 104 Cal. App. 4th 108 (2002), is not
to the contrary. Cf. Concur. at 3–4 n.1. Napoles held that when the government
prosecutes a defendant for a specific harmful action in violation of section 273a(a),
but offers evidence of “many separate acts and omissions that might constitute
abuse,” the jury must unanimously agree as to what act or omission constituted
unlawful abuse. Id. at 115, 118. But Napoles did not address jury unanimity as to
the applicable branch of section 273a(a). Cf. Concur. at 3–4 n.1. Regardless of
the applicability of Napoles, the modified categorical approach would not help us
here, because the extra-statutory materials that we may examine in this case, see
Shepard v. United States, 544 U.S. 13, 16 (2005), do not reveal which prong of
section 273a(a) Diaz-Rodriguez was convicted of violating.
9
First, the “conduct must be willful.” Id. Willfulness as used in the statute
“does not require any intent to violate [the] law, or to injure another, or to acquire
any advantage.” Valdez, 27 Cal. 4th at 788 (alteration in original). Rather, the
term “implies simply a purpose or willingness to commit the act, or make the
omission referred to.” Id. at 787–88. “Someone commits an act willfully when he
or she does it willingly or on purpose.” People v. Chaffin, 173 Cal. App. 4th 1348,
1352 (2009); see also People v. Schneider, 6 Cal. App. 3d 983, 985–86 (1970)
(reversing a conviction under section 273a(a) where there was no evidence
showing that the defendant’s violent seizure, which injured a two-year-old boy,
was purposeful).
Second, the defendant’s act “must be committed ‘under circumstances or
conditions likely to produce great bodily harm or death.’” Sargent, 19 Cal. 4th at
1216 (quoting Cal. Penal Code § 273a(a)). The California Supreme Court has
interpreted this phrase as criminalizing “abusive situation[s] in which the
probability of serious injury is great.” Id.; see also Valdez, 27 Cal. 4th at 784. The
phrase “great bodily harm” in this context means “significant or substantial
injury.” People v. Clair, 197 Cal. App. 4th 949, 954 (2011). The word “likely”
10
means there is “a substantial danger, i.e., a serious and well-founded risk.” People
v. Wilson, 138 Cal. App. 4th 1197, 1204 (2006).3
The fourth branch of section 273a(a) requires proof that a defendant has “the
care or custody of any child.” California law attaches “no special meaning to the
terms ‘care and custody’ beyond the plain meaning of the terms.” People v. Perez,
164 Cal. App. 4th 1462, 1475 (2008). The “care and custody element” requires
“only a willingness to assume duties correspondent to the role of a caregiver,” and
there is no requirement that the state prove the defendant “affirmatively
demonstrated or expressed a willingness to assume caretaker duties.” Id. at 1476.
For example, a California appellate court held that a jury could have reasonably
found that a defendant transporting a minor in his speeding car “undertook
caregiving responsibilities or assumed custody over her while she was in his car”
3
Diaz-Rodriguez argues that the term “likely” requires that the risk of harm
to a child be only “reasonably foreseeable,” relying on a state appellate court
decision stating that “reasonably construed, [section 273a(a)] condemned the
intentional placing of a child, or permitting him or her to be placed, in a situation
in which serious physical danger or health hazard to the child is reasonably
foreseeable.” People v. Hansen, 59 Cal. App. 4th 473, 479–80 (1997). We reject
this argument, because Hansen was superseded by the California Supreme Court’s
subsequent determination that “likely” as used in section 273a(a) means “the
probability of serious injury is great.” Sargent, 19 Cal. 4th at 1216; see also
Valdez, 27 Cal. 4th at 788. The California Supreme Court recently confirmed this
interpretation of the word “likely,” holding that it must be construed according to
its ordinary meaning as “having a high probability of occurring or being true” and
“very probable.” In re B.M., 6 Cal. 5th 528, 533 (2018).
11
because he took “it upon himself to control [her] environment and safety.” People
v. Morales, 168 Cal. App. 4th 1075, 1084 (2008).
In addition to these elements, the California Supreme Court has determined
that the fourth branch of section 273a(a) must be committed with a mens rea of at
least criminal negligence. See Sargent, 19 Cal. 4th at 1219; Valdez, 27 Cal. 4th at
781. Valdez reasoned that “criminal negligence is the appropriate standard when
the act is intrinsically lawful, such as leaving an infant with a babysitter, but
warrants criminal liability because the surrounding circumstances present a high
risk of serious injury.” 27 Cal. 4th at 789. The criminal negligence requirement in
section 273a(a) “sets forth a standard of conduct that is rigorous,” id. at 788, and
requires “aggravated, culpable, gross, or reckless” conduct, “that is, the conduct of
the accused must be such a departure from what would be the conduct of an
ordinarily prudent or careful person under the same circumstances as to be
incompatible with a proper regard for human life or an indifference to
consequences,” id. (cleaned up). “Criminal negligence involves more than
ordinary negligence, inattention, or mistake in judgment.” Chaffin, 173 Cal. App.
4th at 1352. Thus, the statute does not cover a parent’s “poor housekeeping” or
everyday parenting decisions; rather, it punishes conduct “which even the most
ignorant and insensitive parent should recognize as hazardous to children.” People
12
v. Harris, 239 Cal. App. 2d 393, 398 (1966). For example, section 273a(a) was
violated when a parent shook an infant with the force equivalent to dropping him
out of a second story window, see Sargent, 19 Cal. 4th at 1222; where the
conditions in defendant’s home gave his nine- and seven-year-old children access
to chemicals used to manufacture methamphetamine, exposed electrical wire, and
12 weapons, three of which were loaded, see People v. Odom, 226 Cal. App. 3d
1028, 1033–34 (1991); and where a mother confined her daughter in a closet
without proper emotional or medical attention for months at a time, beginning
when the child was only six months old, see People v. Hernandez, 111 Cal. App.
3d 888, 894–96 (1980).
Amici California Public Defenders argue that section 273a(a) punishes
ordinary parenting mistakes and list examples “from recent memory” where a
parent was charged under section 273a(a) for such mistakes. The amici provide no
citation to any court proceedings reflecting charges or convictions on such basis,
and we therefore do not consider these examples when analyzing the statute for
purposes of the categorical approach. See Duenas-Alvarez, 549 U.S. at 193(holding that a party arguing that “a state statute creates a crime outside the generic
definition of a listed crime in a federal statute . . . must at least point to his own
case or other cases in which the state courts in fact did apply the statute in the
13
special (nongeneric) manner for which he argues”). Echoing amici’s argument, the
dissent cites two federal district court cases that it claims show that section 273a(a)
criminalizes poor parenting decisions. Dissent at 16 (citing Andres-Lucas v.
Mayorkas, No. 3:21-cv-01121, 2021 WL 3929686, at *1 n.1 (S.D. Cal. Sept. 2,
2021); Sky N. v. Becerra, No. 2:21-cv-507, 2021 WL 3744383, at *3 (C.D. Cal.
June 22, 2021). Neither of these opinions is apposite. First, we are bound by state
court determinations of the elements of a state offense, not by district court cases.
See Johnson v. United States, 559 U.S. 133, 138 (2010). Moreover, none of the
federal cases cited by the dissent upheld a conviction under section 273a(a) based
on a poor parenting decision or ratified a defendant’s version of the conduct
underlying the conviction.4
4
In Andres-Lucas, the court merely recited a habeas petitioner’s version of
the events that led to his guilty plea under section 273a(a) “solely for purposes of
setting a briefing schedule.” Andres-Lucas, 2021 WL 3929686, at *1 n.1 (noting
that the habeas petitioner claimed his four-year-old son threw a temper tantrum,
and when the petitioner “intervened to try to calm his son and discipline him,” the
child “fell and was injured” (emphasis added)). And in Sky N., the defendant
father was convicted of misdemeanor child abuse under section 273a(b), not felony
child abuse under 273a(a). Sky N., 2021 WL 3744383, at *3 (noting that the father
in that case had left a crying seven-day-old newborn in a locked car parked in an
underground parking lot, returned to the restaurant where he had been eating
dinner with his wife and the baby, “so he could resume eating,” and finally “left
the restaurant because he observed a police officer standing outside holding his
baby”).
14
Under California courts’ construction of section 273a(a), therefore, the least
of the acts criminalized by the fourth branch of the statute requires proof that a
defendant (1) had care of custody of a child, whether or not a parent or legal
guardian; and (2) with criminal negligence, meaning in a manner that a reasonable
person would have known creates a high risk of death or great bodily injury; (3)
purposely put the child into an abusive situation in which the probability of serious
injury was great. See Sargent, 19 Cal. 4th at 1219–21; Valdez, 27 Cal. 4th at783–86.
B
Having determined the least act criminalized by section 273a(a), our next
task is to define the federal generic crimes encompassed by the phrase “child
abuse, child neglect, or child abandonment” under § 1227(a)(2)(E)(i). We begin
by “using the normal tools of statutory interpretation.” Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1569 (2017). In some cases, this task is straightforward,
as when Congress provides a definition of the offense in the statute itself. See, e.g.,
18 U.S.C. § 924(e)(2)(B) (defining “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of another”).
In other statutes, Congress establishes the elements of a generic offense by cross-
15
referencing another federal statute. See, e.g., 8 U.S.C. § 1101(a)(43)(B)
(incorporating the definition of “drug trafficking crime” contained in section
924(c) of Title 18).
Where, as here, Congress takes neither approach, we apply other tools of
statutory construction. First, we consider “[t]he everyday understanding of” the
terms, including the ordinary definitions of those words at the time the relevant
provision was enacted. Esquivel-Quintana, 137 S. Ct. at 1569; see also Perrin v.
United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory
construction is that, unless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning.”). This textual analysis typically
begins by consulting contemporaneous dictionaries, because we are “bound to
assume that the legislative purpose is expressed by the ordinary meaning of the
words used.” INS v. Cardoza-Fonesca, 480 U.S. 421, 431 (1987) (cleaned up).
Where the dictionary definitions point clearly in a single direction, they carry great
weight in interpreting the scope of a generic offense. See Esquivel-Quintana, 137
S. Ct. at 1569; Kawashima v. Holder, 565 U.S. 478, 484 (2012); Lopez v.
Gonzales, 549 U.S. 47, 53–54 (2006). But when the dictionary definitions point in
conflicting directions, we look to other sources to determine the meaning of the
statute. See Torres, 578 U.S. at 458–60.
16
We also consider “the structure of the INA,” including “surrounding
provisions” of the terms at issue. Esquivel-Quintana, 137 S. Ct. at 1570; see also
Carachuri-Rosendo v. Holder, 560 U.S. 563, 578 (2010). Additionally, a court
may consult relevant contemporaneous federal statutes that use the same language
or relate to the same type of offenses. See Esquivel-Quintana, 137 S. Ct. at1570–71; Carachuri-Rosendo, 560 U.S. at 574–75.
Finally, a court may consider “evidence from state criminal codes” to
examine relevant state criminal laws in place at the time the relevant federal statute
was enacted. See Esquivel-Quintana, 137 S. Ct. at 1571; Duenas-Alvarez, 549
U.S. at 190. While an analysis of contemporaneous state laws may shed light on
what Congress meant in using specific terms, the Supreme Court has made clear
that such an analysis is not required by the categorical approach. See Esquivel-
Quintana, 137 S. Ct. at 1571 n.3.
If “Congress has supplied a clear and unambiguous answer to the
interpretive question at hand,” we do not defer to the BIA’s interpretation of the
text at issue. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018) (discussing
deference under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)); see also
Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2291 n.9 (2021).
17
Diaz-Rodriguez does not argue that the offenses “child abuse, child neglect,
or child abandonment” under § 1227(a)(2)(E)(i) have clear and unambiguous
meanings. Rather, he argues that his section 273a(a) conviction is not a categorical
match for such offenses for two reasons. First, he claims that in 1996, a crime of
“child abuse” required the perpetrator to have a mens rea of at least recklessness,
not mere criminal negligence, and to have engaged in conduct that caused harm to
a child, not merely put a child at risk of harm. Second, Diaz-Rodriguez argues that
in 1996, an act of “child neglect” or “child abandonment” could be committed only
by a parent or legal guardian. The dissent raises a different argument. It claims
that section 273a(a) constitutes a crime of child endangerment, Dissent at 12, and
Congress unambiguously excluded the crime of child endangerment from
§ 1227(a)(2)(E)(i), Dissent at 21. The dissent defines the offense “commonly
referred to as a child endangerment offense” as having the elements of:
(1) “causing or permitting a child ‘to be placed in a situation where his or her
person or health is endangered,’” (2) “committed with a mens rea of criminal
negligence,” and (3) “involving serious risk of harm to the child but no resulting
injury.” Dissent at 12.
Applying Esquivel-Quintana, we frame our inquiry by determining whether
it is unambiguous that the generic federal offenses of “child abuse, child neglect, or
18
child abandonment” in § 1227(a)(2)(E)(i) do not match the least offense
criminalized by section 273a(a): a mens rea of criminal negligence, an actus reus
of placing a child in a situation where the child’s person or health is endangered
under circumstances or conditions likely to produce great bodily harm or death,
and a perpetrator who is merely a caretaker of the child. See Esquivel-Quintana,
137 S. Ct. at 1568 (determining that the generic federal offense of “sexual abuse of
a minor” was unambiguous in including the element that the victim was younger
than 16, and therefore it was unambiguous that the generic federal offense was not
a match to section 261.5(c) of the California Penal Code, which criminalized
consensual intercourse between a victim who is almost 18 and a perpetrator who
just turned 21).
1
We begin with the text of § 1227(a)(2)(E)(i). Because the INA does not
define the crimes of “child abuse, child neglect, or child abandonment,” or cross-
reference a federal criminal statute containing a definition, we start with dictionary
definitions of these terms that were current at the time Congress added the
language to the INA in 1996. We review these definitions to see if they shed any
light on the question whether Congress meant the offenses listed in
§ 1227(a)(2)(E)(i) to cover (or not cover) crimes against children that require only
19
a mens rea of criminal negligence, do not require injury to the victim, and do not
require the perpetrator to be a parent or legal guardian, but could include persons
temporarily responsible for a child.
Turning first to the term “child abuse,” the contemporaneous dictionaries do
not clearly support Diaz-Rodriguez’s claim that this term requires a mens rea of at
least recklessness and an actual injury to the child. His best support for this claim
comes from a 1990 edition of Black’s Law Dictionary, which defined the term
“child abuse” to mean an intentional injury to a child. Specifically, it stated that
“child abuse” means “[a]ny form of cruelty to a child’s physical, moral or mental
well-being,” Black’s Law Dictionary at 239 (6th ed. 1990), with “cruelty” defined
as “[t]he intentional and malicious infliction of physical or mental suffering,” id. at
377. However, other dictionaries defined the term to mean injury to a child that
could be inflicted intentionally or negligently, or did not specify the perpetrator’s
intent. Thus, a 1999 edition of Black’s Law Dictionary defined the term “child
abuse” to mean “an intentional or neglectful physical or emotional injury imposed
on a child, including sexual molestation,” Black’s Law Dictionary at 10 (7th ed.
1999), and the 1989 edition of the Oxford English Dictionary defined “child
abuse” as the “maltreatment of a child, esp. by beating, sexual interference, or
neglect,” Oxford English Dictionary at 114 (2d ed. 1989). A contemporaneous
20
edition of Merriam-Webster’s Dictionary of Law defined the term “child abuse” to
mean “the infliction of physical or emotional injury; also: the crime of inflicting
such injury,” but was silent as to whether the injury could be inflicted negligently.
Merriam-Webster’s Dictionary of Law at 4, 76 (1996). Some contemporaneous
dictionaries defined “child abuse” without specifying the role of either injury or
intent. Ballentine’s Legal Dictionary and Thesaurus defined child abuse as: “[t]he
physical, sexual, verbal, or emotional abuse of a young person. Child abuse
includes the neglect of a child.” Ballentine’s Legal Dictionary and Thesaurus at 96
(1995). Finally, Webster’s II New College Dictionary defined the term as
including “toleration of and complicity in conditions injurious to the child’s
health.” Webster’s II New College Dictionary at 194 (1995). Based on these
contemporaneous definitions, we do not see a clear consensus that the term “child
abuse” meant injury to the child that was inflicted intentionally or recklessly.5 The
dictionary thus does not provide an unambiguous meaning of the term “child
5
On this score, the dissent agrees that contemporaneous dictionaries defined
child abuse as being committed with “neglect” or “negligence,” and that “the mens
rea elements” for child abuse “may not have been defined clearly.” Dissent at 23
& n.7. Likewise, despite the dissent’s characterization of “child abuse” as
requiring the infliction of injury upon the child, the dictionary definitions of “child
abuse” cited by the dissent do not unanimously require such injury. Dissent at
22–23 (citing Child Abuse, Black’s Law Dictionary at 239, 377 (6th ed. 1990);
Child Abuse, Oxford English Dictionary at 114 (2d ed. 1989)).
21
abuse” with respect to these elements. Therefore, we reject Diaz-Rodriguez’s
argument that contemporaneous dictionary definitions of “child abuse” require
actual harm to a child and do not include negligent acts that merely put a child at
risk of harm.
We next turn to the term “child neglect.” The dictionaries generally define
the term “child neglect” as failure by a responsible party to provide requisite care
for a child, but they do not address whether the defendant’s mental state must be
criminally negligent, knowing, or intentional, whether the targeted conduct must
actually injure the child, or whether the perpetrator must be a child’s parent or
legal guardian. Webster’s II New College Dictionary defines the term “child
neglect” as “failure on the part of a parent or parental substitute to supervise a child
and provide requisite care and protection,” Webster’s II New College Dictionary at
194 (1995), but does not indicate whether a “parental substitute” must be a legal
guardian or could be a temporary caretaker. Nor does it indicate the requisite
mental state of the parent or parental substitute or whether the child must be
harmed by that person’s failure to provide care. Other dictionaries are no more
helpful. For instance, the relevant entry in Merriam-Webster’s Dictionary of Law
defines the term “neglect” as “a disregard of duty resulting from carelessness,
indifference, or willfulness; esp: a failure to provide a child under one’s care with
22
proper food, clothing, shelter, supervision, medical care, or emotional stability.”
Merriam-Webster’s Dictionary of Law at 324 (1996). Ballentine’s Legal
Dictionary and Thesaurus defines the term “child neglect” with a cross reference to
the term “child abuse,” which is defined as “[t]he physical, sexual, verbal, or
emotional abuse of a young person.” Ballentine’s Legal Dictionary and Thesaurus
at 96 (1995). Finally, the 1999 edition of Black’s Law Dictionary defines the term
“child neglect” as the “failure of a person responsible for a minor to care for the
minor’s emotional or physical needs.” Black’s Law Dictionary at 199 (7th ed.
1999). Because none of these definitions specify whether the person committing
child neglect must be a parent, legal custodian, or temporary caretaker, we reject
Diaz-Rodriguez’s argument that the term “child neglect” cannot be a match to
23
section 273a(a).6 By the same token, however, because the dictionary definitions
do not identify the mental state or the degree of harm caused by the person
committing child neglect, the definitions also do not support the concurrence’s
view that the term “child neglect” is unambiguous and a categorical match to
section 273a(a). Concur. at 6.
By contrast, contemporaneous dictionaries support the conclusion that the
term “child abandonment” means that a parent or legal guardian has failed to
discharge a parent’s legal duty. Merriam-Webster’s Dictionary of Law defines
“abandonment” with respect to children as “failure to communicate with or provide
financial support for one’s child over a period of time that shows a purpose to
forgo parental duties and rights.” Merriam-Webster’s Dictionary of Law at 1
(1996). Likewise, Ballentine’s Legal Dictionary and Thesaurus defines
6
The dissent argues that the dictionary definition of “child neglect” includes
“a sustained failure to meet a child’s needs.” Dissent at 25. Therefore, the dissent
contends, the term “child neglect” cannot be a match to section 273a(a), which
allows a conviction to rest on a one-time parenting mistake. This argument fails
for several reasons. First, evidence that a defendant engaged in conduct amounting
to ordinary negligence (such as the failure to pack a child’s school lunch, Dissent
at 26–27) would not satisfy the requirements for a conviction under section
273a(a). Supra 12–13. Moreover, none of the dictionary entries cited by the
dissent clearly state that child neglect requires a pattern of negligence over time.
Although the dissent infers that the failure to provide “food, clothing, shelter,
supervision, medical care,” see Merriam-Webster’s Dictionary of Law at 324
(1996), “implies a sustained failure” of care, Dissent at 26 (emphasis added), that
definition could also cover a one-time act that threatens to cause serious harm.
24
“abandonment of child” to occur when “a parent deserts [a child] with the intention
of casting off all parental obligations,” Ballentine’s Legal Dictionary and
Thesaurus at 2 (1995), and the 1990 edition of Black’s Law Dictionary defines the
term as “foregoing parental duties,” Black’s Law Dictionary at 2 (6th ed. 1990);
see also Dictionary of Modern Legal Usage at 3 (2d ed. 1995) (defining “abandon”
in the context of family law as leaving “children or a spouse willfully”). We have
found no dictionary definitions to the contrary.
Based on our review of common usage, we conclude that a “crime of . . .
child abandonment” in § 1227(a)(2)(E)(i) includes, as an element, the fact that the
crime was committed by a parent or legal guardian of a child. Therefore, section
273a(a), which can be committed by a person who is not a parent or legal guardian,
supra Section II.A, does not match the offense of “child abandonment.” This does
not end our categorical analysis, however, because so long as the least offense
criminalized by section 273a(a) can qualify as “child abuse” or “child neglect,” it
remains a removable offense under § 1227(a)(2)(E)(i).
Because the dictionaries do not point in one direction with respect to the
terms “child abuse” and “child neglect,” we must look to other tools of statutory
construction to determine whether Congress meant for the term “child abuse” to
cover crimes that require only a mens rea of criminal negligence and do not require
25
injury to the victim, and for the term “child neglect” to cover crimes that do not
require the perpetrator to be a parent or legal guardian.
2
We next turn to the “[s]urrounding provisions of the INA,” Esquivel-
Quintana, 137 S. Ct. at 1570, to guide our interpretation. The terms “child abuse,”
“child neglect,” and “child abandonment” in § 1227(a)(2)(E)(i) are listed in a
section referencing “crimes of domestic violence, stalking, or violation of
protection order, crimes against children,” and in a subsection referring to
“domestic violence, stalking, and child abuse.” Under a well-established canon of
statutory construction, where “several items in a list share an attribute,” we
interpret “the other items as possessing that attribute as well.” Beecham v. United
States, 511 U.S. 368, 371 (1994) (collecting cases). Esquivel-Quintana applied
this canon in interpreting the term “sexual abuse of a minor” in 8 U.S.C.
§ 1101(a)(43)(A). See 137 S. Ct. at 1570. In that case, the Court noted that
“sexual abuse of a minor” was “listed in the INA as an ‘aggravated felony,’” and
was in “the same subparagraph as ‘murder’ and ‘rape,’” which therefore “suggests
that sexual abuse of a minor encompasses only especially egregious felonies.” Id.Applying the same interpretive method here, we first note that the term “child
abandonment,” the third in the trio of terms in § 1227(a)(2)(E)(i), does not
26
necessarily involve an injury to the child, which undercuts the argument that “child
abuse” and “child neglect” necessarily requires an injury. Moreover, the inclusion
of “stalking” and “violation of protection order”—crimes that do not necessarily
include violence or injury—in § 1227(a)(2)(E)(i) indicates that Congress did not
mean that a crime of child abuse or child neglect would encompass only egregious
felonies requiring injury to the victim.
Taking a broader view of the INA, Diaz-Rodriguez argues that the structure
and purpose of the INA preclude interpreting § 1227(a)(2)(E)(i) as applying to
crimes requiring only criminal negligence. Such an application is wrong, he
contends, because it makes a parent who has a single lapse in judgment removable
and ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(2)(A)(iv).
According to Diaz-Rodriguez, such a result is “decidedly at odds with the
otherwise child-protective aim of” the INA. We disagree. First, the mens rea of
“criminal negligence” is “a degree of culpability higher than ordinary negligence,”
United States v. Gomez-Leon, 545 F.3d 777, 791 (9th Cir. 2008), and it typically
requires a “‘substantial risk’ and/or that the failure to perceive such a risk
constitutes ‘a gross deviation from the standard of care that a reasonable person
would observe in the actor’s situation,’” id. (quoting Model Penal Code § 2.02(d)).
As we have explained, California courts define the criminal negligence required for
27
a violation of section 273a(a) in this manner. Supra Section II.A. Under a
criminal negligence standard, therefore, “a state would not punish conduct that
amounts to only ordinary negligence,” id., such as the parenting mistakes
envisioned by Diaz-Rodriguez.
Second, in interpreting the INA, we are mindful that “providing relief to
aliens with strong ties to the United States” and “promoting family unity” “are not
the INA’s only goals, and Congress did not pursue them to the n th degree.”
Holder v. Martinez Gutierrez, 566 U.S. 583, 594 (2012). The Supreme Court
provided one example of this principle: the INA makes certain lawful permanent
residents who are “convicted of aggravated felonies ineligible for cancellation of
removal, regardless of the strength of their family ties.” Id. (citing § 1229b(a)(3)).
More generally, the Court has declined to “read a silent statute as requiring (not
merely allowing)” a rule that promotes family unity “just because that rule would
be family-friendly.” Id. Therefore, the structure and purpose of the INA do not
28
preclude interpreting § 1227(a)(2)(E)(i) as including crimes against children
committed with criminal negligence.7
3
We next consider other federal statutes that use similar terms, especially
when those statutes are “closely related” to the statute at issue. Esquivel-Quintana,
137 S. Ct. at 1570. As a general rule, “statutes addressing the same subject matter”
should be interpreted consistently with each other. Wachovia Bank v. Schmidt, 546
U.S. 303, 316 (2006); see also United States v. Stewart, 311 U.S. 60, 64 (1940)
(“[A]ll acts in pari materia are to be taken together, as if they were one law.”
(emphasis added)). For example, Esquivel-Quintana identified a “closely related”
federal statute that criminalized “[s]exual abuse of a minor or ward,” which is
similar to the term “sexual abuse of a minor” in the INA, 137 S. Ct. at 1570
7
The dissent argues that nonpermanent residents have a better argument than
the lawful permanent residents discussed in Martinez-Gutierrez for a family-
friendly reading of § 1227(a)(2)(E)(i), because to obtain cancellation of removal,
they must demonstrate that removal would result in “exceptional and extremely
unusual hardship” to their United States citizen or legal permanent resident family
members. Dissent at 39–40. Therefore, the dissent argues, the BIA’s reading of
§ 1227(a)(2)(E)(i) would cause “‘exceptional and extremely unusual hardship’
based on parenting mistakes,” which would be inconsistent with Congress’s intent
to “preserve family unity.” Dissent at 40. But as indicated in Martinez Gutierrez,
courts do not interpret the INA with the presumption that Congress intended an
interpretation “that would be family-friendly,” 566 U.S. at 594, and the framework
for cancellation of removal does not guide our interpretation of § 1227(a)(2)(E)(i).
29
(quoting 18 U.S.C. § 2243), and relied on that related federal statute “for evidence
of the meaning of sexual abuse of a minor,” even while recognizing the statute did
not provide “the complete or exclusive definition” of the offense, id. at 1571.
Because the federal criminal code does not include a crime of “child abuse”
or “child neglect,” we look to other parts of the federal code for evidence of
Congress’s meaning. The most relevant evidence comes from the National Child
Protection Act of 1993 (NCPA), Pub. Law 103-209, 107 Stat. 2490 (Dec. 20,
1993), which was enacted “to establish procedures for national criminal
background checks for child care providers.” Under the NCPA, states are required
to provide records of convictions for child abuse crimes and to develop a system
for ongoing reporting of such convictions through a “national criminal history
background check system.” 42 U.S.C. § 5119(a) (1996). The federal background
check system enables a state to determine whether a childcare provider had been
convicted of the sort of crime against children “that bears upon [an] . . .
individual’s fitness to have responsibility for the safety and well-being of
children.” Id. § 5119a(a)(1). The NCPA defines the term “child abuse crime” to
mean “a crime committed under any law of a State that involves the physical or
mental injury, sexual abuse or exploitation, negligent treatment, or maltreatment of
a child by any person.” Id. § 5119c(3). This definition demonstrates that just three
30
years before Congress amended the INA to include a “crime of child abuse” as a
removable offense, Congress understood such a crime to include the “negligent
treatment” of a child “by any person.”8
Diaz-Rodriguez contends that we may not rely on federal civil statutes like
the NCPA to interpret generic criminal offenses under the INA. According to
Diaz-Rodriguez, civil statutes have a different purpose, such as determining “when
social services may intervene” to help victims of child abuse, Ibarra v. Holder, 736
F.3d 903, 911 (10th Cir. 2013), and so are not a reliable indicator of how Congress
would have understood the terms in the context of defining conduct subject to
criminal penalties.9
8
Contrary to the dissent’s contention that the NCPA’s definition of “child
abuse crime” renders two of the three crimes listed in § 1127(a)(2)(E)(ii), child
neglect and child abandonment, superfluous, Dissent at 42, the NCPA’s definition
supports our conclusion that Congress intentionally used overlapping terms to
encompass a wide range of crimes, infra 53.
9
The dissent similarly argues that we should not look to civil statutes.
Dissent at 43–44. According to the dissent, Esquivel-Quintana “implicitly
rejected” “[t]he use of civil statutes to define criminal offenses” by declining to
rely on the interpretation of “sexual abuse of a minor” in 18 U.S.C. § 3509, a
criminal procedure statute on which the BIA had relied. Dissent at 43. See
Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1025 (6th Cir. 2016), rev'd, 137 S. Ct.
1562. This argument is groundless, given that the Supreme Court did not even
mention § 3509 in Esquivel-Quintana, or give any indication that a civil statute
cannot constitute a “related federal statute” for purposes of interpreting a generic
federal offense. 137 S. Ct. at 1570.
31
We disagree. The NCPA defined the term “child abuse crimes” to describe
convictions for a category of crimes against children, see 42 U.S.C. § 5119c(3)
(1996), and the INA used the term “crime of child abuse” in 8 U.S.C.
§ 1227(a)(2)(E)(i) for exactly the same purpose. In both statutes, Congress
focused on this category of convictions for civil purposes: determining whether a
prospective childcare provider had committed a potentially disqualifying offense
(for the NCPA) or determining whether an alien had committed a removable crime
(for the INA). Accordingly, the NCPA’s definition of “child abuse crime” is a
reliable indicator of how Congress would have understood the materially identical
terminology (“crime of child abuse”) in the INA.
Other federal civil code sections defining “child abuse” in 1996 are also
relevant. Two provisions, 18 U.S.C. § 3509(a)(3) (1996) and 42 U.S.C.
§ 13031(c)(1) (1996), defined the term “child abuse” to mean “the physical or
mental injury, sexual abuse or exploitation, or negligent treatment of a child.”10
Likewise, 42 U.S.C. § 3796aa-8(2) (1996) defined the term “abuse” to mean “the
physical or mental injury, sexual abuse or exploitation, or negligent treatment of a
10
18 U.S.C. § 3509(a)(3) (1996) refers to victims of child abuse in the
context of defining the rights of such victims in court proceedings. 42 U.S.C.
§ 13031(c)(1) (1996) defines the term in the context of a statute requiring child
abuse reporting for certain covered professionals in federal jurisdictions.
32
child,” and 42 U.S.C. § 13001a(5) (1996) defined the term “child abuse” to mean
the “physical or sexual abuse or neglect of a child.”11 Finally, 42 U.S.C.
§ 5106g(4) (1996) (enacted under the Child Abuse Prevention and Treatment Act
(CAPTA)) defined the term “child abuse and neglect” to mean “physical or mental
injury, sexual abuse or exploitation, negligent treatment, or maltreatment of a child
by a person who is responsible for the child’s welfare, under circumstances which
indicate that the child’s health or welfare is harmed or threatened thereby, as
determined in accordance with regulations prescribed by the Secretary.” Although
these statutes did not define the term “child abuse” in the context of describing
conduct subject to criminal penalties, they provide some evidence that this term
was commonly understood as encompassing neglectful conduct.
We also consider federal code provisions referencing “child neglect” as
evidence of the ordinary meaning of that term. The handful of federal definitions
of this term provide some support for the proposition that it was commonly
understood that child neglect could be committed by someone other than a parent
or legal guardian. As noted above, CAPTA defined the term “child abuse and
11
42 U.S.C. § 3796aa-8(2) (1996), transferred to 34 U.S.C. § 10337, defined
the term “abuse” in connection with awarding federal grants for closed-circuit
televising of testimony of child abuse victims. 42 U.S.C. § 13001a(5) (1996),
transferred to 34 U.S.C. § 20302, defined the term “child abuse” in connection
with improving the states’s investigation and prosecution of child abuse.
33
neglect” to include the “negligent treatment, or maltreatment of a child by a person
who is responsible for the child’s welfare.” 42 U.S.C. § 5106g(4) (1996).
Regulations implementing CAPTA further defined the term “negligent treatment or
maltreatment” to “include[] failure to provide adequate food, clothing, shelter, or
medical care,” 45 C.F.R. § 1340.2(d)(2)(i), without limiting liability to a parent or
legal guardian. The only other federal statute to define the term “child neglect” is
25 U.S.C. § 3202(4) (1996) (relating to child abuse in Indian country, including
requiring reporting and establishing a database), which defined the term as
“includ[ing] but . . . not limited to, negligent treatment or maltreatment of a child
by a person, including a person responsible for the child’s welfare, under
circumstances which indicate that the child’s health or welfare is harmed or
threatened thereby.” None of these statutes or regulations establishes that the
person responsible for child neglect must be a parent or legal guardian, indicating
34
that the ordinary meaning of “child neglect” in 1996 did not necessarily include
that element.12 See Esquivel-Quintana, 137 S. Ct. at 1570.
4
Finally, we may “look to state criminal codes for additional evidence about
the generic meaning” of “child abuse, child neglect, or child abandonment,”
although this step “is not required by the categorical approach.” Id. at 1571 & n.3.
In determining the meaning of a generic federal offense, the Supreme Court
has used multistate surveys in different ways. Id. In the decision first establishing
the categorical approach to define federal generic offenses, the Supreme Court
defined the generic federal crime of “burglary” in the Armed Career Criminal Act
by reference to state law. Taylor, 495 U.S. at 598–99. The Court acknowledged
that burglary was a crime at common law, and that “[w]hatever else the Members
of Congress might have been thinking of, they presumably had in mind at least the
12
The concurrence claims that the definitions of child neglect in these
contemporary federal civil statutes conclusively establish that the person
responsible for child neglect need not be a parent or guardian, and therefore our
determination that these statutes do not resolve this issue is “inexplicabl[e].”
Concur. at 13–14 & n.7. We disagree. As explained above, see supra 30–35, these
federal civil statutes provide little guidance for interpreting a crime of child
neglect. Moreover, a review of contemporaneous federal statutes is only one of the
tools of statutory construction. As explained below, see infra 48 n. 22, numerous
state statutes criminalize “child neglect” only when the perpetrator is a parent or
legal guardian.
35
‘classic’ common-law definition.” Id. at 592–93. Nevertheless, the Court
recognized that states had “expanded this definition to include entry without a
‘breaking,’ structures other than dwellings, offenses committed in the daytime,
entry with intent to commit a crime other than a felony, etc.” Id. at 593. The Court
therefore considered the “generic, contemporary meaning of burglary,” as the term
was used “in the criminal codes of most States,” and identified a consensus set of
elements from the state survey. Id. at 598 (stating that “the generic, contemporary
meaning of burglary contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in a building or other structure, with intent to
commit a crime.” (citing Wayne R. LaFave & Austin W. Scott, Substantive Crim.
L., § 8.13(a) (2d ed. 1986); Model Penal Code § 221.1 (1980))).
In its subsequent interpretation of a generic federal offense, the crime of
“sexual abuse of a minor,” which is not a traditional common-law crime, the Court
placed far less emphasis on a state survey. Esquivel-Quintana, 137 S. Ct. at 1569.
Rather than distilling the elements of the generic offense by surveying state
criminal codes as Taylor did, Esquivel-Quintana used the “normal tools of
statutory interpretation” to discern those elements, id., and looked to state criminal
codes only “for additional evidence about the generic meaning of sexual abuse of a
minor,” id. at 1571. This makes sense, because as our sister circuits have noted, in
36
interpreting a federal generic offense that is not a traditional common-law crime,
but “could encompass multiple, divergent offenses in any given state,” it may be
more difficult or impossible “to sift through the multitudes of qualifying state
offenses and identify a consensus set of the minimum elements necessary to define
the category.” United States v. Alfaro, 835 F.3d 470, 473 (4th Cir. 2016); see also
United States v. Ramirez-Garcia, 646 F.3d 778, 782–83 (11th Cir. 2011).
In our case, Esquivel-Quintana provides more relevant guidance than Taylor
for interpreting the federal generic crimes encompassed by the phrase “child abuse,
child neglect, or child abandonment” under § 1227(a)(2)(E)(i). Unlike the offense
of “burglary,” see Taylor, 495 U.S. at 998, crimes against children, including the
crimes of child abuse, child neglect, child abandonment, and child endangerment,
were not crimes at common law, see Wayne LaFave, Subst. Crim. L. § 2.1(b) (3d
ed. 2022) (listing common law crimes).13
And there is no “prevailing view” among the states—much less any
generally shared elements—of what constitutes child abuse, child neglect, or child
abandonment offenses. Taylor, 495 U.S. at 998. Rather, states have developed
such divergent and overlapping definitions of these offenses as to preclude
13
Indeed, in 1874, abusers of an eight-year-old girl “were prosecuted under
the law for prevention of cruelty to animals, since no law protecting children then
existed.” See Child Abuse, Black’s Law Dictionary at 12 (11th ed. 2019).
37
identifying consensus elements. See Alfaro, 835 F.3d at 473. In 1996, states took
a wide variety of approaches to labeling, categorizing, and defining crimes against
children. For instance, although many states described crimes against children
using the terms “abuse” and “neglect,” at least 16 states used other terms, such as
“criminal nonsupport,” Alaska Stat. § 11.51.120 (Alaska), “cruelty to children,”
Ga. Code Ann. § 16-5-70 (Georgia), and “endangering the welfare of children,”
Mont. Code Ann. § 45-5-622 (Montana).
Even states that used the term “abuse” in describing crimes against children
required different offense elements and did not agree on the combination of
elements that constituted the crime of abuse. For instance, state offenses labeled
“abuse” sometimes could be committed with a lesser standard of culpability than
recklessness, but nevertheless required that the offense conduct result in actual
injury to a child.14 By contrast, other state offenses labeled “abuse” required proof
of a mens rea of recklessness or a higher standard of culpability, but did not require
an actual injury.15
14
See, e.g., Md. Code Ann. § 35C; Fisher v. State, 786 A.2d 706, 737 (2001)
(Maryland); Tenn. Code Ann. § 39-15-401; State v. Ducker, 27 S.W.3d 889, 896
(2000) (Tennessee).
15
See, e.g., N.D. Cent. Code §§ 14-09-22, 12.1-02-02 (North Dakota); Okla.
Stat. tit. x, § 7115; Johnson v. State, 751 P.2d 1094, 1096 (1988) (Oklahoma).
38
Likewise, state statutes labeled “neglect” included different combinations of
elements. A “neglect” crime could be committed with a mens rea of criminal
negligence, recklessness, or intent.16 And regardless of the mens rea, some neglect
crimes required an injury to the child while others did not,17 and some “neglect”
crimes required the defendant to have custody of the child while others did not.18
In light of these overlapping definitions, we review all relevant state statutes,
even if they did not define the conduct at issue using the same terminology as
16
For a mens rea of criminal negligence, see, e.g., Or. Rev. Stat. § 163.545(Oregon); S.C. Code Ann. § 20-7-50 (South Carolina); Va. Code Ann. § 18.2-
371.1 (Virginia); for a mens rea of recklessness, see, e.g., Ind. Code § 35-46-1-4(Indiana); for a mens rea of intent, see e.g., La. Stat. Ann. § 14:74 (Louisiana);
Minn. Stat. § 609-378(a) (Minnesota); Wis. Stat. § 948.21 (Wisconsin).
17
For “neglect” crimes with a mens rea of recklessness or greater with an
injury requirement, see, e.g., 11 R.I. Gen. Laws § 11-9-5 (Rhode Island); Tenn.
Code Ann. § 39-15-401 (Tennessee), and with no injury requirement, see, e.g., Ind.
Code § 35-46-1-4 (Indiana); Iowa Code Ann. § 726.3 (Iowa); La. Stat. Ann.
§ 14:74 (Louisiana); Minn. Stat. § 609-378(a) (Minnesota); N.J. Stat. Ann. § 9:6-3(New Jersey); Okla. Stat. tit. x, § 7115 (Oklahoma); Wis. Stat. § 948.21(Wisconsin). For “neglect” crimes with a mens rea of criminal negligence and an
injury requirement, see, e.g., W. Va. Code Ann. § 61-8D-4(b) (West Virginia), and
with no injury requirement, see, e.g., Or. Rev. Stat. § 163.545 (Oregon); S.C. Code
Ann. § 20-7-50 (South Carolina); Va. Code Ann. § 18.2-371 (Virginia); W. Va.
Code Ann. § 61-8D-4(e) (West Virginia).
18
For “neglect” crimes requiring custody of the child, see, e.g., Ariz. Rev.
Stat. Ann. § 13-3619 (Arizona); 720 Ill. Comp. Stat. 130/2 (Illinois); Iowa Code
Ann. § 726.3 (Iowa); for “neglect” crimes not requiring custody, see, e.g., Miss.
Code Ann. § 97-5-39 (Mississippi); Nev. Rev. Stat. § 200.508 (Nevada); Okla.
Stat. tit. x, § 7115 (Oklahoma); S.D. Codified Laws § 26-8A-2(6) (South Dakota);
W. Va. Code Ann. §§ 61-8D-3, 61-8D-4(e) (West Virginia).
39
§ 1227(a)(2)(E)(i). See Esquivel-Quintana, 137 S. Ct. at 1571–72 (interpreting
“sexual abuse of a minor” by reference to statutory rape offenses in 51
jurisdictions, where only two states had offenses labeled “sexual abuse of a
minor”). Applying this approach, our survey indicates that in 1996 some 15 states
criminalized crimes against children that involved a mens rea of criminal
negligence, did not require any injury to the child, and did not require the
perpetrator to be a parent or legal guardian.19 See Appendix: 1996 State Statutes
Analogous to Section 273a(a) of the California Penal Code. These 15 states
19
Because of the difficulty of delineating the scope of state criminal statutes,
which are modified by and evolve based on judicial interpretations, we must be
cautious in our conclusions regarding the specific elements of state crimes against
children. See Appendix: 1996 State Statutes Analogous to Section 273a(a) of the
California Penal Code (explaining our reasoning for including each of the 15
states); infra 70–71 (identifying certain errors in the Tenth Circuit’s multi-state
survey). The difficulty in drawing definitive conclusions regarding the elements of
these offenses further supports our approach of giving only limited weight to a
multijurisdictional analysis for determining what Congress meant when using
terms such as child abuse, neglect, and abandonment.
40
comprised more than 45 percent of the United States population in 1996,20 a factor
indicating that there was a common understanding that such elements could be
included as part of crimes against children. See Taylor, 495 U.S. at 594; Esquivel-
Quintana, 137 S. Ct. at 1571. That a crime against children analogous to the least
offense criminalized by section 273a(a) was in force in the most populous regions
of our nation supports the conclusion that Congress could have understood “crimes
of child abuse, child neglect, or child abandonment” in § 1227(a)(2)(E)(i) to
include such offenses. Because of the states’ varied approaches to categorizing
and defining crimes against children, we infer that “Congress purposefully
employed the overlapping concepts of child abuse, neglect, and abandonment [in
§ 1227(a)(2)(E)(i)] to denote a broad array of crimes,” and to “assure coverage of
such crimes, however denominated by the States.” Martinez-Cedillo v. Sessions,
896 F.3d 979, 990 (9th Cir. 2018) (emphasis omitted), vacated, 923 F.3d 1162 (9th
Cir. 2019).
20
U.S. Bureau of the Census, 1990 Census of Population and Housing,
Population and Housing Unit Counts (CPH-2) (available at
https://www.census.gov/data/tables/1993/dec/cph-2-1-1.html); U.S. Bureau of the
Census, Current Population Reports, P25-1106, State Population Estimates by Age
and Sex: 1980 to 1992 (available at
https://www.census.gov/library/publications/1990/demo/p25-1990s.html); U.S.
Bureau of the Census, Compendia, Population Report at 28 (available at
https://www2.census.gov/library/publications/1997/compendia/statab/117ed/tables/
pop.pdf)
41
The dissent argues that a multi-state survey undermines our conclusion.
Dissent at 46–49. While the dissent acknowledges that “the definitions of child
abuse, child neglect, and child abandonment admit some overlap and ambiguity as
to the elements of each offense,” it argues, based on an “inference” drawn from
Esquivel-Quintana, that the multi-state survey provided in the vacated panel
opinion shows that a majority of states “excluded negligent endangerment in the
large majority of jurisdictions.” Dissent at 47–48. But Esquivel-Quintana
provides no support for this conclusion. In Esquivel-Quintana, the Supreme
Court’s multi-state survey identified specific statutory language to the effect that
“[w]hen ‘sexual abuse of a minor’ was added to the INA in 1996, thirty-one States
and the District of Columbia set the age of consent at 16 for statutory rape offenses
that hinged solely on the age of the participants.” 137 S. Ct. 1571. The Court held
that the express adoption of this age of consent in the statutes of a significant
majority of states, which “point[ed] in the same generic direction as dictionaries
and federal law,” was “additional evidence” supporting its interpretation of the
federal offense. Id. at 1571–72.
Of course, there is no similar statutory evidence in the multi-state survey
here to support the dissent’s conclusion that the states intended to exclude the
offense of “negligent endangerment” from its definitions of child abuse, child
42
neglect, and child abandonment. Rather, the survey shows that the three elements
of what the dissent terms the offense of child endangerment, see Dissent at 12;
supra 19, are present in a range of state crimes against children, and all three
elements are present in the criminal statutes of 15 states.21 Far from undermining
our conclusion, our survey shows that the laws of 15 states, applying to nearly half
of the United States population, criminalized section 273a(a)-type offenses,
supporting the view that Congress did not intend to exclude such crimes in
§ 1227(a)(2)(E)(i). And contrary to the dissent’s conclusion, Dissent at 50, our
survey demonstrates that a substantial number of states—home to more than 45
percent of the United States population—did criminalize what the dissent refers to
as child endangerment.
C
21
The dissent states that we are “shoehorn[ing] . . . an ‘express adoption’
requirement” into the consideration of evidence from state criminal codes. Dissent
at 49 n.18. This is incorrect. In defining a federal generic offense, a court may use
all “the normal tools of statutory interpretation,” Esquivel-Quintana, 137 S. Ct. at
1569, which includes considering whether state codes include or exclude specified
elements, see id. at 1571. Here we merely point out that the overlapping state
offenses, with their mix and match of the various elements included in section
273a(a), do not provide any “additional evidence” supporting the dissent’s
interpretation of section 273a(a), and stand in contrast to the strong evidence in
Esquivel-Quintana that “thirty-one States and the District of Columbia set the age
of consent at 16 for statutory rape offenses that hinged solely on the age of the
participants.” Id. at 1571.
43
Having applied all the “traditional tools of statutory construction,” Chevron,
467 U.S. at 843 n.9, we conclude that the generic offenses of “child abuse” and
“child neglect” in § 1227(a)(2)(E)(i) remain susceptible to multiple reasonable
interpretations and therefore are ambiguous. The statute is susceptible to an
interpretation of “child abuse” and “child neglect” as requiring no more than a
mental state of criminal negligence and conduct that puts a child at risk of serious
harm by someone who may have only temporary responsibility for a child’s care.
But the statute is also susceptible to an interpretation of “child abuse” as being
limited to offenses where the perpetrator has a mens rea of at least recklessness and
engages in conduct that actually injures a child, and to an interpretation of “child
neglect” as an offense that can be committed only by a parent or legal guardian.
As discussed in our review of dictionaries contemporaneous with the
enactment of § 1227(a)(2)(E)(i), some dictionary definitions of “child abuse”
allowed the inclusion of offenses that do not injure the child and are committed
with negligence, while other definitions contemplated intentional conduct and
injury. Similarly, the dictionaries do not limit the definition of “child neglect” to
conduct committed by a person who is a parent or legal guardian.
44
The surrounding provisions of the INA, and definitions of the terms “child
abuse” and “child neglect” in other federal statutes, are likewise inconclusive as to
the elements of those offenses and do not clearly foreclose either interpretation.
Congress did not reference a federal criminal statute to supply the meaning
of the terms in § 1227(a)(2)(E)(i) more definitively. See Moncrieffe, 569 U.S. at193–94; Lopez, 549 U.S. at 53. And while Congress’s contemporaneous definition
of a “child abuse crime” in the NCPA as including “negligent treatment” of a child
“by any person” provides strong support for defining the crime of child abuse as
not requiring intent or injury (and is consistent with other federal civil statutes),
there is no “closely related federal statute” governing an analogous criminal
offense. Esquivel-Quintana 137 S. Ct. at 1570–71. Thus, this tool of statutory
construction provides weaker evidence than it did in Esquivel-Quintana. See id.Moreover, our survey of state statutes relating to crimes against children
does not reveal a uniform approach to criminalizing the relevant conduct. See id.at 1571–72; Duenas-Alvarez, 549 U.S. at 189. Only a minority of states in 1996
defined crimes against children as including offenses with a mens rea of criminal
negligence and conduct that merely put a child at risk of harm, which supports
Diaz-Rodriguez’s argument. But it is significant that this minority of states
included some 45 percent of the nation’s population. This fact demonstrates that
45
state statutes criminalizing this category of conduct were neither extraordinary nor
rare, which bolsters the conclusion that Congress meant its phrase “crime of child
abuse, child neglect, or child abandonment” to include such offenses. Further, the
overlapping state offenses can be analyzed in many different ways, and therefore
do not foreclose Diaz-Rodriguez’s interpretation.
In sum, the normal tools of statutory construction do not lead to a single
interpretation of the language that “unambiguously forecloses” all others.
Esquivel-Quintana, 137 S. Ct. at 1572. We therefore agree with our sister circuits
that have considered this issue, and conclude that the phrase “crime of child abuse,
child neglect, or child abandonment” is ambiguous because it is susceptible to
multiple, plausible interpretations. See, e.g., Bastias v. U.S. Att’y Gen., 42 F.4th
1266, 1272 (11th Cir. 2022); Zarate-Alvarez v. Garland, 994 F.3d 1158, 1164
(10th Cir. 2021); Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020); Mondragon-
Gonzalez v. U.S. Att’y Gen, 884 F.3d 155, 158–59 (3d Cir. 2018); Florez v. Holder,
779 F.3d 207, 211 (2d Cir. 2015).
D
Both the concurrence and dissent disagree with our conclusion that the
phrase “child abuse, child neglect, or child abandonment” is ambiguous, but reach
opposite conclusions. The concurrence concludes that the phrase “crime of child
46
neglect” is unambiguous and a categorical match to section 273a(a) while the
dissent concludes that the phrase “crime of child abuse, child neglect, or child
abandonment” is unambiguous and not a categorical match for section 273a(a).
Neither the concurrence nor dissent’s view is persuasive.
1
The concurrence claims that the term “child neglect” is unambiguous and
“§ 273a(a) is a categorical match for the [term] . . . crime . . . of child neglect.”
Concur. at 6. This claim is based on the following interpretative steps. First, the
concurrence adopts a definition of “neglect” as failure to perform a duty, and
determines that “neglect” of a “child” means “the failure to perform one’s legal
duty towards a child.” Concur. at 6–7. The concurrence then infers that because
§ 1227(a)(2)(E)(i) refers to a “crime . . . of child neglect,” Congress intended to
define the crime as including a mens rea of criminal negligence (rather than
requiring knowing or intentional acts). Concur. at 7–8. Further, the concurrence
reasons, because there is a mens rea of criminal negligence, the conduct must cause
“a substantial risk of serious physical or emotional harm to the child,” and the
defendant “should have been aware that his or her conduct” presented such a risk.
Concur. at 9.
47
While the concurrence’s interpretation of the phrase “crime . . . of child
neglect” is reasonable, it is not required by the normal tools of statutory
construction to the exclusion of all others. The concurrence has selected elements
of a child neglect offense based on its own legal reasoning and argumentation but
none of these elements is required by the statutory text, the dictionary definitions,
or any federal statute. Cf. Esquivel-Quintana, 137 S. Ct. at 1569 (requiring use of
the “normal tools of statutory interpretation”). Nor have the states uniformly
adopted the concurrence’s choice of elements. Rather, they have enacted crimes
labeled “child neglect” that require the perpetrator to be a parent or legal guardian
(not just a person who fails to discharge a duty), a mens rea of reckless or knowing
(not just criminal negligence), and an injury to the child (not merely a risk of such
harm).22 In short, the concurrence’s effort to derive the elements of a child neglect
22
For statutes labeled “child neglect” crimes that require the perpetrator to
be a parent or legal guardian, see, e.g., Ariz. Rev. Stat. Ann. § 13-3619 (Arizona);
11 Del. C. § 1103 (Delaware); 720 Ill. Comp. Stat. 130/2 (Illinois); Iowa Code
§ 726.3 (Iowa); La. Stat. Ann. § 14:74 (Louisiana); 11 R.I. Gen. Laws § 11-9-5(Rhode Island); S.C. Code Ann. § 20-7-50 (South Carolina); D.C. Code § 22-902(Washington, D.C.); Wis. Stat. §§ 948.21, 948.01(3) (Wisconsin); that require a
mens rea of reckless or knowing, see, e.g., Ariz. Rev. Stat. Ann. § 13-3619(Arizona); Ind. Code § 35-46-1-4 (Indiana); Iowa Code § 726.3 (Iowa); N.J. Stat.
Ann § 9:6-3 (New Jersey); Okla. Stat. tit. x, § 7115 (Oklahoma); Or. Rev. Stat.
§ 163-547 (Oregon); that require an injury to the child, see e.g.,11 R.I. Gen. Laws
§ 11-9-5 (Rhode Island); Tenn. Code Ann. § 39-15-401 (Tennessee); W. Va. Code
Ann. §§ 61-8D-3, 61-8D-4(b) (West Virginia).
48
crime through a process of legal reasoning does not preclude other reasonable
interpretations that discern different elements, and therefore does not make the
term “child neglect” unambiguous.
The concurrence also relies on CAPTA, to support its interpretation of
“child neglect.” Concur. at 13–14. We agree that federal civil statutes are
relevant in showing the common understanding of terms in the INA. Supra 32.
But because “the unique interests at stake in a criminal action do not parallel the
duties and interests at stake in a civil . . . proceeding,” Costanich v. Dep’t of Soc. &
Health Servs., 627 F.3d 1101, 1115 (9th Cir. 2010), the definition of “child
neglect” in a federal civil statute such as CAPTA does not remove ambiguity from
the term “crime of child neglect.” Civil offenses do not impose criminal penalties
or define criminal conduct, so the definition of a purely civil offense is merely
suggestive of the elements of a criminal offense. Supra 31. In short, the term
“crime of child neglect” is susceptible to more than one reasonable interpretation,
and is therefore ambiguous. Kisor v. Wilkie, 139 S. Ct. 2400, 2410 (2019) (stating
that a regulation “susceptible to more than one reasonable reading” is “genuinely
ambiguous”).
49
2
By contrast, the dissent claims that the statutory phrase “crime of child
abuse, child neglect, or child abandonment” establishes Congress’s unambiguous
intent not to criminalize a crime of “child endangerment.” The dissent starts from
the premise that child abuse, child neglect, child abandonment, and child
endangerment each have “distinct” meanings, Dissent at 33–34, 50, and “discrete
definitions,” Dissent at 21, which make them “separate,” Dissent at 34, 42, and
“discrete crimes,” Dissent at 19, 21.23 The dissent claims that “child
endangerment” is commonly understood to refer to the discrete crime of “causing
or permitting a child ‘to be placed in a situation where his or her person or health is
endangered,’ committed with a mens rea of criminal negligence . . . . [and]
involving serious risk of harm to the child but no resulting injury.” Dissent at 12.
In choosing the three terms of child abuse, child neglect, and child abandonment in
§ 1227(a)(2)(E)(i), the dissent reasons, Congress intentionally “chose to separately
identify each criminal offense,” Dissent at 34, and omit “the independent offense
of child endangerment,” Dissent at 1; see also Dissent at 35. Because section
273a(a) meets the definition of child endangerment, the dissent concludes,
23
Nonetheless, the dissent concedes that there is “overlap between the
elements of such offenses” and that their definitions cross-reference each other.
Dissent at 34.
50
§ 1227(a)(2)(E)(i) is not a categorical match to the crime for which
Diaz-Rodriguez was convicted. Dissent at 1.
This analysis fails because its premise is incorrect. As explained above, the
common law did not include categories of crimes against children with generally
recognized elements. There was no common-law “child endangerment” offense.
Supra 37. When states enacted modern laws criminalizing crimes against children,
they developed multiple divergent offenses incorporating different conduct, mental
states, and defendants. Supra 37–40. Based on our review of offenses against
children in the 50 states, the elements the dissent claims are specific to a “child
endangerment” can be found only in the crimes listed in the Appendix. These
crimes are referred to by a range of labels, including child abuse, cruelty to
51
persons, abandonment, and child neglect, as well as child endangerment.24
Otherwise, states mix and match the elements identified by the dissent.25 Nor are
state crimes labeled “child endangerment” limited to the three elements identified
by the dissent. State statutes criminalizing “child endangerment” include strict
24
Crimes with the elements of “causing or permitting a child ‘to be placed in
a situation where his or her person or health is endangered,’ committed with a
mens rea of criminal negligence . . . . [and] involving serious risk of harm to the
child but no resulting injury,” Dissent at 12, are labeled “child abuse,” see Ariz.
Rev. Stat. Ann. § 13-3623(B) (Arizona); Colo. Rev. Stat. § 18-6-401(1)
(Colorado); Fla. Stat. § 827.04(1) (Florida); Neb. Rev. Stat. Ann. § 28-707(1)
(Nebraska); Utah Code Ann. § 76-5-109(3) (Utah), “cruelty to persons,” Conn.
Gen. Stat. § 53-20 (Connecticut), “abuse, neglect or endangerment of child,” Nev.
Rev. Stat. Ann. § 200.508(1)(a) (Nevada), “abandonment or abuse of a child,”
N.M. Stat. Ann. § 30-6-1(C) (New Mexico), “child neglect in the second degree,
and cruelty and injuries to children,” Or. Rev. Stat. § 163.545 (Oregon), as well as
“child endangerment,” Kan. Stat. Ann. § 21-3608(a) (Kansas); Mo. Rev. Stat.
§ 568.050(1) (Missouri); N.Y. Penal Law § 260.10(2) (New York).
25
Some states require a mens rea of criminal negligence but also require an
injury to the child. See, e.g., Del. Code Ann. tit. xi, § 1103 (Delaware); La. Stat.
Ann. § 14:93 (Louisiana); W. Va. Code Ann. § 61-8D-4(b) (West Virginia). Other
states do not require an injury to the child, but require a higher mens rea, ranging
from recklessness, see, e.g., N.D. Cent. Code § 14-09-22 (North Dakota), S.D.
Codified Laws § 26-10-1 (South Dakota), to knowingly, see, e.g., N.C. Gen. Stat. §
14-316.1 (North Carolina), to intent, see, e.g., La. Stat. Ann. § 14:74 (Louisiana);
Wis. Stat. § 948.20 (Wisconsin). States with different mens rea and injury
requirements may not specify a relationship between the defendant and the child.
See, e.g., N.C. Gen. Stat. § 14-316.1 (North Carolina); S.D. Codified Laws § 26-
10-1 (South Dakota); Wis. Stat. § 948.20 (Wisconsin).
52
liability, ordinary negligence, intent, and knowledge, not just criminal negligence.26
The conduct that constitutes “endangerment” may include conduct that merely
contributes to the delinquency of a minor, rather than creating a substantial risk of
serious harm.27 And some statutes hold that any person can be liable for child
endangerment, not just parents or those with custody of the child.28
Because there was no discrete, well-understood offense of “child
endangerment,” just as there were no discrete offenses of “child abuse, child
neglect, or child abandonment,” in 1996, it is not possible to infer that Congress’s
failure to use the phrase “child endangerment” meant that Congress did not intend
26
As to the mens rea element of a child endangerment offense, states
required purpose, see Kan. Stat. Ann. § 21-3608 (Kansas), intent, see Alaska Stat.
§ 11.51.100 (Alaska), knowledge, see, e.g., Del. Code Ann. tit. xi, § 1102
(Delaware); Haw. Rev. Stat. § 709-904 (Hawaii); 720 Ill. Comp. Stat. Ann. 5/12-
216 (Illinois); Iowa Code Ann. § 726.6 (Iowa); Mont. Code Ann. § 45-5-622(Montana); N.H. Rev. Stat. Ann. § 639:3 (New Hampshire), and ordinary
negligence, Ala. Code § 13A-13-6 (Alaska). New York imposed a strict liability
regime for child endangerment, N.Y. Penal Law § 260.10.
27
For child endangerment statutes criminalizing conduct that contributes to
delinquency of a minor, see, e.g., Alaska Stat. 13A-13-6 (Alaska); N.Y. Penal Law
§ 260.10 (New York).
28
For child endangerment statutes imposing liability on persons who neither
were parents nor had custody of a child, see, e.g.. Ark. Code Ann. § 5-27-204(Arkansas); Ga. Code Ann. § 40-6-391 (Georgia); 720 Ill. Comp. Stat. 5/12-21.6
(Illinois); Kan. Stat. Ann. § 21-3608 (Kansas); Me. Stat. tit. xvii, § 554 (Maine);
Mo. Rev. Stat. § 568.050 (Missouri); N.Y. Penal Law § 260.10 (New York); Ohio
Rev. Code Ann. § 2912.22(B), (C) (Ohio).
53
its overlapping definitions to cover crimes involving the elements of the least
offense criminalized by section 273a(a).
III
In light of our conclusion that the statutory language is ambiguous, we next
turn to the question whether the BIA’s interpretation of the statute is permissible,
and therefore compels our deference under the principles described in Chevron,
467 U.S. 837.29
29
Before applying Chevron, we briefly address Diaz-Rodriguez’s argument
in his supplemental brief that a principle of “immigration lenity” identified in INS
v. St. Cyr, 533 U.S. 289, 320 (2001) should first be used to construe
§ 1227(a)(2)(E)(i), and only then can we consider whether the BIA’s interpretation
is entitled to deference under Chevron. Diaz-Rodriguez did not raise this argument
in his opening brief. Instead, he raised it for the first time in his supplemental brief
to the en banc court. We have long held that an issue is deemed forfeited in such
circumstances. See United States v. Briones, 35 F.4th 1150, 1158 (9th Cir. 2021)
(issue raised for the first time in a supplemental brief to the en banc court after
remand from the Supreme Court is forfeited); Devereaux v. Abbey, 263 F.3d 1070,
1079 (2001) (issue raised for the first time in a supplemental brief to the en banc
court is forfeited). We therefore deem this argument to be forfeited. Moreover,
Diaz-Rodriguez “has made no attempt to establish ‘good cause’ for his failure to
raise such arguments in his Opening Brief,” Briones, 35 F.4th at 1159, and because
his brief was submitted in response to an order for simultaneous briefing, “the
Government has not had an opportunity to respond to them” and “surely would be
prejudiced if we were to consider” them, id. (cleaned up). Contrary to the dissent’s
argument, Dissent at 53–55, it is not clear that the rule of lenity applies in this
context. Since deciding Chevron in 1984, the Supreme Court has never applied the
principle of lenity to determine if the BIA’s interpretation of an ambiguous
statutory provision is entitled to deference. See Valenzuela Gallardo v. Barr, 968
F.3d 1053, 1060 (9th Cir. 2020) (“[T]he rule of lenity and Chevron deference are
(continued...)
54
A
The deference accorded the BIA’s interpretation of ambiguous provisions is
based on a view of congressional intent. We presume “that Congress, when it left
ambiguity in a statute meant for implementation by an agency, understood that the
ambiguity would be resolved, first and foremost, by the agency, and desired the
agency (rather than the courts) to possess whatever degree of discretion the
ambiguity allows.” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740–41 (1996).
“The power of an administrative agency to administer a congressionally created
program necessarily requires the formulation of policy and the making of rules to
fill any gap left, implicitly or explicitly, by Congress.” Chevron, 467 U.S. at 843(alteration omitted). Here, Congress charged the BIA with administering the INA,
and the Supreme Court has repeatedly “recognized that judicial deference to the
Executive Branch is especially appropriate in the immigration context where
officials ‘exercise especially sensitive political functions that implicate questions
of foreign relations.’” INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (quoting INS v.
(...continued)
typically mutually exclusive.”). Indeed, in Esquivel-Quintana, the Supreme Court
expressly declined to address the issue. 137 S. Ct. at 1572. Because the
application of Chevron would obviate the need to apply the rule of lenity, the
dissent errs in suggesting that the “‘long standing’ immigration rule of lenity”
would necessarily apply in this case—even assuming Diaz-Rodriguez had not
forfeited the argument. Dissent at 55.
55
Abudu, 485 U.S. 94, 110 (1988)); see also Scialabba v. Cuellar de Osorio, 573
U.S. 41, 75 (2014) (plurality opinion) (deferring to the BIA’s “textually reasonable
construction [of the INA] consonant with its view of the purposes and policies
underlying immigration law”); Martinez Gutierrez, 566 U.S. at 586 (deferring to
the BIA’s “permissible construction of the [INA]”).
Accordingly, “where a statute’s plain terms admit of two or more reasonable
ordinary usages,” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 989 (2005), we “may not substitute [our] own construction of [that]
statutory provision for a reasonable interpretation made by” the BIA, Chevron, 467
U.S. at 844. We must defer to the BIA if its “answer is based on a permissible
construction of the statute.” Aguirre-Aguirre, 526 U.S. at 424. To be sure, the
agency’s construction must be reasonable: we do not accept an agency’s
interpretation that is foreclosed by any fair reading of the statute, or that “departs
so sharply from the statute’s text and history that it cannot be considered a
permissible reading.” Mellouli, 575 U.S. at 813. Nor do we defer to “an agency
interpretation that is inconsistent with the design and structure of the statute as a
whole.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014) (alterations
omitted). Nevertheless, if the agency’s construction is reasonable, then the
agency’s “position prevails . . . whether or not it is the only possible interpretation
56
or even the one a court might think best.” Martinez Gutierrez, 566 U.S. at 591(unanimously reversing the Ninth Circuit’s determination that the BIA’s
construction of the INA was not permissible).30
B
In applying these principles of deference, our first step is to discern how the
BIA has interpreted the relevant phrase in § 1227(a)(2)(E)(i). In Matter of
Velazquez-Herrera, the BIA interpreted the term “child abuse” in
§ 1227(a)(2)(E)(i) to mean “any offense 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, including sexual abuse
or exploitation.” 24 I. & N. Dec. at 512.
In reaching this conclusion, the BIA considered the “ordinary, contemporary
and common meaning of the term ‘child abuse’” as well as “the term’s established
30
We recognize the future of the Chevron deference doctrine has been called
into question. In recent years, several justices have called for the Court to
reexamine Chevron deference or proposed narrowing its scope. See Michigan v.
EPA, 576 U.S. 743, 762–63 (2015) (Thomas, J., concurring); Pereira, 138 S. Ct. at
2120 (Kennedy, J., concurring); see also SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,
1364 (2018) (Breyer, J., dissenting). Further, the Court has sometimes reversed an
agency’s interpretation of a statute without citing Chevron. See, e.g., Am. Hosp.
Ass’n v. Becerra, 142 S. Ct. 1896 (2022); West Virginia v. EPA, 142 S. Ct. 2587
(2022). But we remain bound by past decisions of the Supreme Court until it
overrules those decisions, see Agostini v. Felton, 521 U.S. 203, 217 (1997), so we
must apply Chevron where relevant.
57
legal usage.” Id. at 508. The BIA also considered the federal policies underlying
§ 1227(a)(2)(E)(i), noting that the provision was enacted “as part of an aggressive
legislative movement to expand the criminal grounds of deportability in general and
to create a ‘comprehensive statutory scheme to cover crimes against children’ in
particular.” Id. at 508–09 (citation omitted). In light of these policies, the BIA
determined that “the term ‘crime of child abuse’ should be interpreted broadly.” Id.
at 509. The BIA next considered seven federal statutes defining “child abuse” and
related concepts in effect in 1996, and concluded that “the weight of Federal
authority when [§ 1227(a)(2)(E)(i)] was enacted reflected an understanding that
‘child abuse’ encompassed the physical and mental injury, sexual abuse or
exploitation, maltreatment, and negligent or neglectful treatment of a child.” Id. at
511. Finally, the BIA considered state statutes, and determined that “there was a
growing acceptance by 1996 that the concept of ‘child abuse’ included not just
intentional infliction of physical injury, but also acts of sexual abuse or exploitation,
criminally negligent acts, or acts causing mental or emotional harm.” Id. Although
the BIA acknowledged that some state statutes, and one federal statute, “limited the
definition of ‘child abuse’ to acts committed by a parent, custodian, or other person
responsible for the child’s care,” the BIA determined this was not material. Id. at
512. Applying this definition, the BIA determined that the crime of “assault in the
58
fourth degree,” under section 9A.36.041 of the Washington Revised Code, did not
qualify categorically as a “crime of child abuse” under § 1227(a)(2)(E)(i). Id. at
517.
Matter of Velazquez-Herrera left a number of open questions. First (as noted
by a concurring board member in the opinion), “broad though the definition is, it is
unclear whether it extends to crimes in which a child is merely placed or allowed to
remain in a dangerous situation, without any element in the statute requiring
ensuing harm, e.g., a general child endangerment statute, or selling liquor to an
underage minor, or failing to secure a child with a seatbelt.” Id. at 518 n.2 (Pauley,
Board Member, concurring). Second, the BIA refrained from applying its
definition “to encompass the entire statutory phrase ‘crime of child abuse, child
neglect, or child abandonment.’” Id. at 512 n.14. Rather, it stated that while the
“definition is comprehensive enough to subsume most, if not all, crimes of ‘child
neglect,’ it is not as evident to us that crimes of ‘child abandonment’ would be so
encompassed,” and therefore left that question open. Id.
We subsequently interpreted Matter of Velazquez-Herrerra as holding “that,
although ‘child abuse’ is not limited to the infliction of physical harm, the
perpetrator’s actions, either intentional or criminally negligent, must actually inflict
some form of injury on a child.” Fregozo v. Holder, 576 F.3d 1030, 1037 (9th Cir.
59
2009). Fregozo, however, noted the existence of a different definition of “child
abuse”—“[a]n act or failure to act that presents an imminent risk of serious harm to
a child”—which could include “[n]egligent or intentional conduct that places a
child in situations in which serious harm is imminently likely.” Id. at 1038(emphasis omitted).
Two years later, the BIA answered the open question recognized by the
concurrence in Velazquez-Herrera, and clarified that the term “child abuse” in
§ 1227(a)(2)(E)(i) had the second meaning suggested by Fregozo. See Matter of
Soram, 25 I. & N. Dec. at 380. In Matter of Soram, the BIA addressed the question
whether section 18-6-401(1)(A) of the Colorado Revised Statutes, which punished a
person who “knowingly or recklessly permit[s] a child to be unreasonably placed in
a situation that poses a threat of injury to the child’s life or health,” was
categorically a crime of child abuse. Id. at 383. The alien argued that the Colorado
statute was not a categorical match for the offense of “child abuse” as defined in
Matter of Velazquez-Herrera because “that clause does not require, at a minimum,
physical harm, mental or emotional harm, acts injurious to morals, sexual abuse, or
child exploitation.” Id. at 379.
The BIA held that the term “crime of child abuse,” as defined in Matter of
Velazquez-Herrera, “is not limited to offenses requiring proof of injury to the
60
child.” Id. at 381. The BIA reasoned that its definition of child abuse in Matter of
Velazquez-Herrera included the phrase “an act or omission that constitutes
maltreatment of a child,” and that phrase “encompasse[s] endangerment-type
crimes,” id. at 383, that is, “acts or circumstances that threaten a child with harm or
create a substantial risk of harm to a child’s health or welfare,” id. at 382. The BIA
declined to specify the level of threat required for such an offense to qualify as child
abuse, because many states had overlapping definitions of crimes against children
and adopted terminology relating to the degree of risk that “could be subject to
different interpretations by courts in each state.” Id. at 383. Therefore, the BIA
chose instead to make a case-by-case analysis “to determine whether the risk of
harm required by the endangerment-type language in any given State statute is
sufficient to bring an offense within the definition of ‘child abuse’ under the Act.”
Id.
In connection with this analysis, the BIA also addressed the second question
left open in Matter of Velazquez-Herrera, and concluded that the definition of the
term “crime of child abuse” applied to the entire phrase of “crime of child abuse,
child neglect, or child abandonment.” See id. at 381. The BIA took this approach
because of the overlapping nature of those definitions. See id. It noted that an
endangerment-type offense of putting a child in dangerous circumstances “can
61
reasonably be viewed as either abuse or neglect, and that some States include child
endangerment in their definition of ‘child abuse,’ while a number of others consider
it ‘child abuse or neglect.’” Id.
Applying its interpretation to the Colorado statute, the BIA concluded that
the Colorado offense was encompassed by the generic federal offense of “child
abuse, child neglect, or child abandonment.” See id. at 383. In this regard, the BIA
determined, that the Colorado statute had a mens rea of “knowingly or recklessly,”
and an actus reus of permitting a child to be unreasonably placed in a situation that
posed a threat of injury to the life or health of the child. See id. In addition, based
on its reading of a Colorado Supreme Court opinion and Colorado legislative
history, the BIA determined that the statute punished such an offense only if there
62
was a “reasonable probability that the child’s life or health will be endangered.” Id.
at 384 (emphasis omitted).31
In sum, under the BIA’s interpretation, the term “child abuse,” or the unitary
phrase “crime of child abuse, child neglect, or child abandonment,” means any
offense involving an intentional, knowing, reckless, or criminally negligent act or
omission that constitutes maltreatment of a child or impairs a child’s physical or
mental well-being, including sexual abuse or exploitation. An “act or omission that
31
The dissent suggests that the BIA’s interpretation of “a crime of child
abuse, child neglect, or child abandonment” in Matter of Soram is not entitled to
deference because the BIA has changed its interpretation of the phrase over the
years. Dissent at 4–9, 53–54 n.20. We disagree. Matter of Soram did not change
the interpretation of this phrase; it merely addressed the open issues left in Matter
of Velazquez-Herrera, 25 I. & N. Dec. at 380–81. But even if Matter of Soram had
modified the agency’s views, such a change “is not invalidating, since the whole
point of Chevron is to leave the discretion provided by the ambiguities of a statute
with the implementing agency.” Smiley, 517 U.S. at 742; see also Brand X, 545
U.S. at 981 (“Agency inconsistency is not a basis for declining to analyze the
agency’s interpretation under the Chevron framework.”); id. at 982 (“[I]n Chevron
itself, this Court deferred to an agency interpretation that was a recent reversal of
agency policy.”).
63
constitutes maltreatment of a child” includes acts or circumstances that create a
substantial risk of harm to a child’s health or welfare.32 See id. at 380–82.
C
Our next step is to determine whether the BIA’s interpretation is permissible,
and therefore owed deference under Chevron. This step involves two main
inquiries.
First, we consider whether the BIA’s interpretation of the statute is consistent
with the statute’s text. Our review of dictionaries, statutory context, other
provisions in federal civil codes, and state criminal statutes showed that crimes of
child abuse and child neglect can include offenses that may be committed with
criminal negligence, where a child is not injured but placed at a substantial risk of
harm, and where the perpetrator may be someone other than a parent or legal
guardian. Therefore, the BIA’s interpretation does not sharply depart from the
relevant federal and state laws in place in 1996, or from other established sources of
32
In his supplemental brief to the en banc court, Diaz-Rodriguez argues for
the first time that the BIA’s definition of § 1227(a)(2)(E)(i) from Matter of Soram
should not apply retroactively to his 2009 conviction. Diaz-Rodriguez forfeited
this argument because he raised it for the first time in his supplemental brief to the
en banc court. See Briones, 35 F.4th at 1158; Devereaux, 263 F.3d at 1079. Supra
54 n.29.
64
statutory meaning. Supra Section II.B.33 In particular, Congress’s
contemporaneous definition of “child abuse crime” in the NCPA provides strong
support for the BIA’s definition. Supra Section II.B.3.
Second, we consider whether the BIA’s interpretation is consistent with the
authority granted to it by Congress and with a reasonable understanding of
Congress’s policy goals. See Util. Air Regul. Grp., 573 U.S. at 321, 325. As the
BIA explained in Matter of Velazquez-Herrera, § 1227(a)(2)(E)(i) “was enacted . . .
as part of an aggressive legislative movement to expand the criminal grounds of
deportability in general and to create a ‘comprehensive statutory scheme to cover
crimes against children’ in particular.” 24 I. & N. Dec. at 508–09 (quoting Matter
of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 994 (BIA 1999)). Therefore, the
BIA’s interpretation furthers the purpose of the 1996 addition of “child abuse” to
§ 1227. In addition, adjudicating and applying congressional criteria for
determining which aliens are removable is a core function of the BIA. Therefore,
we cannot say that the BIA’s interpretation “flouted a congressional command,” or
33
Although the BIA did not specifically address the term “child
abandonment” in its opinions, the BIA’s treatment of the phrase in
§ 1227(a)(2)(E)(i) as a unitary concept that covers a broad category of crimes
against children, regardless of how they are labeled in each state, see Matter of
Soram, 25 I. & N. Dec. at 381, would encompass the elements of child
abandonment crimes as well.
65
that “the INA’s purposes demand” a contrary result. Martinez Gutierrez, 566 U.S.
at 594.
Because the BIA’s interpretation of § 1227(a)(2)(E)(i) in Matter of Soram
and Matter of Velazquez-Herrera is consistent with the “text, nature, and purpose of
the statute,” Cuozzo Speed Techs., LLC v. Lee, 579 U.S. 261, 277 (2016), it is
“within the bounds of reasonable interpretation,” City of Arlington v. FCC, 569 U.S.
290, 296 (2013), and therefore is entitled to deference, see Brand X, 545 U.S. at
980.34
In reaching this conclusion, we join the Eleventh Circuit, which likewise
deferred to the BIA’s interpretation of § 1227(a)(2)(E)(i) as including crimes that
required a mens rea of criminal negligence and did not result in injury to the child.
See Bastias, 42 F.4th at 1273. In Bastias, a petitioner was convicted of a crime
under a Florida statute which criminalized, among other offenses, “the third-degree
felony of ‘willfully or by culpable negligence neglect[ing] a child without causing
great bodily harm, permanent disability, or permanent disfigurement.’” Id. at
34
Fregozo’s statement that Matter of Velazquez-Herrerra held that the crime
of child abuse in § 1227(a)(2)(E)(i) requires actual injury to a child, 576 F.3d at
1037, is therefore superseded by Matter of Soram’s holding to the contrary. See
Brand X, 545 U.S. at 982 (holding that a court must follow an agency construction
that is entitled to Chevron deference rather than a prior judicial interpretation of
that statute).
66
1268–69 (quoting Fla. Stat. § 827.03(2)(d)).35 Based on the “ordinary meaning of
the statutory text,” id. at 1275, and a review of contemporaneous federal statutes,
including the NCPA, see id., Bastias held that “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 interpretation of
the statute that is entitled to Chevron deference,” id. at 1273.
We also join the conclusion of the Second, Third, Fifth, and Tenth Circuits
that the BIA was reasonable in interpreting § 1227(a)(2)(E)(i) as including crimes
that do not result in injury to the child. See Zarate-Alvarez, 994 F.3d at 1164;
Garcia, 969 F.3d at 133–34; Mondragon-Gonzalez, 884 F.3d at 159; Florez, 779
F.3d at 212.
Despite this weight of authority, Diaz-Rodriguez urges us to follow the Tenth
Circuit, which has declined to defer to the BIA’s interpretation of “crime of child
abuse, child neglect, or child abandonment” as including criminally negligent
35
The Eleventh Circuit assumed without deciding that “culpable negligence”
was “equivalent to traditional criminal negligence.” Bastias, 42 F.4th at 1273.
67
conduct that does not result in injury. See Ibarra, 736 F.3d at 905.36 In Ibarra, the
Tenth Circuit held that § 1227(a)(2)(E)(i) does not cover such conduct. See id. at
918. The petitioner in Ibarra was convicted of a child abuse offense under
Colorado law, although her offense conduct was minor. See id. at 905. The IJ
denied the petitioner’s application for cancellation of removal because she had been
convicted of an offense that qualifies as a “crime of child abuse, neglect, or
abandonment” under § 1227(a)(2)(E)(i), which made her ineligible for relief. See
id. at 905–06 (citing 8 U.S.C. § 1229b(b)(1)).
The Tenth Circuit determined that the statutory text of § 1227(a)(2)(E)(i) was
ambiguous, but declined to defer to the BIA’s interpretation under Chevron. See id.
at 910 (“[W]hile the statutory text at issue here does contain some ambiguity,
Congress’s intent is not so opaque as to grant the BIA the sweeping interpretive
license it has taken.” (emphasis omitted)). The Tenth Circuit first noted that the
BIA had primarily relied on definitions of “child abuse” and “child neglect” in civil
statutes, and concluded such definitions were not applicable to interpreting the
elements of a crime. See id. at 911–12. The Tenth Circuit did not discuss the
36
As noted above, the Tenth Circuit has since held that the BIA’s
interpretation of this provision as including knowing and reckless conduct that did
not result in injury is entitled to Chevron deference. Zarate-Alvarez, 994 F.3d at
1164.
68
NCPA, although it was referenced in Matter of Velazquez-Herrera. See 24 I. & N.
Dec. at 518 n.9. Second, because the INA did not provide textual clues for
interpreting a “crime of child abuse, child neglect, or child abandonment,” and
because there was no relevant legislative history or federal crime of child abuse or
neglect, see id. at 912, Ibarra looked almost exclusively to a survey of state
criminal codes, see id. at 914–16. Based on its survey, the Tenth Circuit determined
that “the majority of states in 1996, at least thirty-three, did not criminalize
endangering children or exposing them to a risk of harm absent injury if there was
only a culpable mental state of criminal negligence.” Id. at 915. Primarily based on
this survey, the Tenth Circuit concluded that, “contrary to what the BIA has held,
criminally negligent conduct with no resulting injury to a child cannot serve as the
generic federal definition for the ‘crime of child abuse, child neglect, or child
abandonment.’” Id. at 915–16. Accordingly, the Tenth Circuit concluded that the
petitioner had not been convicted of a “crime of child abuse, child neglect, or child
abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i). See id. at 918.
We disagree with the Tenth Circuit because it applied the wrong standard.
Once a court has determined that the statutory phrase “crime of child abuse, child
neglect, or child abandonment” is ambiguous, the court must defer to the BIA’s
reasonable interpretation. See Aguirre-Aguirre, 526 U.S. at 424. As stated in
69
Martinez-Cedillo, “there is no requirement that the BIA interpret a generic offense
in the INA to conform to how the majority of the states might have interpreted that
term at the time of amendment.” 896 F.3d at 989; see also Bastias, 42 F.4th at 1274
(stating that “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”). An agency’s deviation from interpretations of a majority of
states—or even from the interpretation “a court might think best,” Martinez
Gutierrez, 566 U.S. at 591—does not make the agency’s construction unreasonable
or relieve us of the obligation to defer, see Brand X, 545 U.S. at 980.
But even if the Tenth Circuit’s preference for its own interpretation of
§ 1227(a)(2)(E)(i) were relevant, the Tenth Circuit erred by giving undue weight to
its state survey. First, as our prior analysis indicates, the state survey is only one of
multiple tools of statutory construction, and as stated in Esquivel-Quintana, we are
not required to use this tool when determining the elements of a generic federal
offense. See 137 S. Ct. at 1571 n.3. The Tenth Circuit failed to recognize that other
tools of statutory construction yield inconclusive results or weigh in favor of the
BIA’s interpretation, including the definition of “child abuse crime” provided by
the NCPA. Further, the Tenth Circuit’s state survey contains errors that reduce its
70
persuasive value. For example, we previously recognized that Ibarra erred in
stating that California’s section 273a(a) required knowingness or intent for crimes
not requiring injury, given that a mens rea of criminal negligence is sufficient, see
Martinez-Cedillo, 896 F.3d at 991, and we have identified numerous other errors.37
Therefore, we reject the Tenth Circuit’s conclusion that the BIA’s interpretation of
§ 1227(a)(2)(E)(i) as including crimes where the mens rea was criminal negligence
was unreasonable.
We also reject Diaz-Rodriguez’s additional arguments as to why we should
not defer to the BIA’s reasoning and conclusion in Matter of Velazquez-Herrera
and Matter of Soram. First, Diaz-Rodriguez argues that the BIA unreasonably
relied on dictionary definitions and state laws that post-dated the enactment of
37
For instance, Ibarra stated that Utah “did not appear to criminalize child
abuse, endangerment, abandonment, or neglect in 1996 unless the child was
injured.” 736 F.3d at 921. But Ibarra failed to recognize that the relevant statute
defines “physical injury” to include “any other condition which imperils the child’s
health or welfare,” Utah Code. Ann. § 76-5-109(1)(e)(iv) (1996), a definition that
can be satisfied “without an actual physical impact on the child,” Provo City v.
Cannon, 994 P.2d 206, 210 (Utah Ct. App. 1999). As another example, Ibarra
stated that Virginia required knowingness or intent for crimes not requiring injury,
736 F.3d at 919, but failed to recognize the crime of “cruelty and injuries to
children,” which makes it a crime to negligently permit the life of a child to be
endangered, Va. Code Ann. § 40.1-103.
71
§ 1227(a)(2)(E)(i).38 Our review of state statutes and dictionary definitions from
1996 generated the same conclusion as the BIA reached: there was no clear
consensus among these sources that would preclude the BIA’s definition. Supra
Sections II.B.1, 4, II.D. Therefore, any error in relying on post-enactment
dictionaries is harmless and does not make the BIA’s decision unreasonable.
We also reject Diaz-Rodriguez’s argument that the BIA’s treatment of the
phrase “crime of child abuse, child neglect, or child abandonment” as a unitary
concept makes its decision unreasonable. As our analysis showed, supra Sections
II.B.4, II.D, states in 1996 took a varied approach in criminalizing similar conduct,
using a variety of terminology and elements. Given the lack of uniformity and
clarity among contemporary definitions, supra Section II.B.1, the INA’s structure,
supra Section II.B.2, other federal civil statutes, supra Section II.B.3, and the
states’ criminal law, supra Sections II.B.4, II.D, the BIA’s decision not to divide the
generic removable offense in § 1227(a)(2)(E)(i) into three distinct sub-parts was
reasonable.
38
Specifically, Diaz-Rodriguez notes that Matter of Soram relied in part on a
summary of state laws provided by the Department of Health and Human Services,
published in 2009. See 25 I. & N. Dec. at 382 (citing Child Welfare Information
Gateway, U.S. Department of Health and Human Services, Definitions of Child
Abuse and Neglect: Summary of State Laws 2–3 (2009)).
72
Finally, Diaz-Rodriguez argues that the BIA’s interpretation of
§ 1227(a)(2)(E)(i) as requiring a “sufficient” risk of harm is unreasonable because it
gives aliens insufficient guidance regarding the immigration consequences of a
guilty plea to many state endangerment offenses. But this complexity is a result of
the states’ varied approaches to defining the relevant culpable conduct and mens rea
requirements, and the BIA’s definition of the generic federal offense in light of this
complexity was reasonable.
Accordingly, we defer to the BIA’s interpretation of the unitary phrase
“crime of child abuse, child neglect, or child abandonment” to mean any offense
involving an intentional, knowing, reckless, or criminally negligent act or omission
(including acts or circumstances that create a substantial risk of harm to a child’s
health or welfare) that constitutes maltreatment of a child or that impairs a child's
physical or mental well-being, including sexual abuse or exploitation.
IV
We now turn to the question whether the BIA erred in determining that Diaz-
Rodriguez’s statute of conviction, section 273a(a), is a categorical match to the
crime of “child abuse, child neglect, or child abandonment” in § 1227(a)(2)(E)(i).
In considering Diaz-Rodriguez’s petition, the BIA stated that section 273a(a),
as construed by the California Supreme Court in Sargent, protected “a child from an
73
abusive situation in which the probability of serious injury is great.”39 The BIA also
recited the definition of “crime of child abuse” in Matter of Soram and Matter of
Velazquez-Herrera. Based on this analysis, the BIA ruled that Diaz-Rodriguez’s
offense qualified categorically as a “crime of child abuse” under § 1227(a)(2)(E)(i),
and sustained the charge of removability.
The BIA’s reasoning and conclusion were correct. To obtain a conviction
under section 273a(a), the state must prove that a defendant (1) who has care or
custody of a child, but need not be a parent or legal guardian, and (2) with criminal
negligence, meaning in a reckless manner that a reasonable person would have
known creates a high risk of death or great bodily injury, (3) purposely put the child
into an abusive situation in which the probability of serious injury was great. Supra
Section II.A. The BIA defines the generic federal offense of “child abuse, child
neglect, or child abandonment” to include the element of a mens rea of criminal
negligence (a match to the second element of a section 273a(a) conviction), and the
element of allowing a child to be placed in a situation that create a substantial risk
of harm to a child’s health or welfare (a match to the third element of a section
273a(a) conviction). Supra Section III.B. Because the state offense requires proof
39
Thus, Diaz-Rodriguez’s argument that remand is required because the
BIA’s “decision in this case was not specific to the California statute” is belied by
the record.
74
of care or custody, it is narrower than the generic federal offense of “child abuse”
or “child neglect,” which does not require such proof. We thus agree with the
BIA’s reasoning and conclusion that all violations of section 273a(a) are
encompassed by the BIA’s definition of a crime of “child abuse, child neglect, or
child abandonment” in § 1227(a)(2)(E)(i). Therefore, the BIA did not err in
concluding that Diaz-Rodriguez was removable under § 1227(a)(2)(E)(i).
PETITION DENIED.
75
APPENDIX
1996 State Statutes Analogous to Section 273a(a) of the California Penal Code
1. Arizona: Ariz. Rev. Stat. Ann. § 13-3623(B) (“Child or vulnerable adult abuse;
emotional abuse”) states: “Under circumstances likely to produce death or serious
physical injury, any person . . . who causes or permits [a] child or vulnerable adult
to be placed in a situation where its person or health is endangered . . . [i]f done
with criminal negligence [is guilty of] a class 4 felony.”
2. California: The current version of Cal. Penal Code § 273a(a) (“Willful harm or
injury to a child; endangering person or health”), discussed supra Section II.A, is
the same as the version effective in 1996, and so meets the relevant criteria.
3. Colorado: Colo. Rev. Stat. § 18-6-401(1) (“Child abuse”) states: “A person
commits child abuse if such person . . . permits a child to be unreasonably placed in
a situation which poses a threat of injury to the child’s life or health . . . .” “Where
no death or injury results, . . . [a]n act of child abuse when a person acts with
criminal negligence is a class 3 misdemeanor.” Colo. Rev. Stat. § 18-6-401(7)(b).
76
4. Connecticut: Conn. Gen. Stat. § 53-20 (“Cruelty to persons”) covers “[a]ny
person who, having the control and custody of any child under the age of sixteen
years, and in any capacity whatsoever, maltreats, tortures, overworks, cruelly or
unlawfully punishes or willfully or negligently deprives such child of necessary
food, clothing, or shelter.” The requirement of “control and custody” is comparable
to California Penal Code section 273a(a)’s “care or custody requirement,” and it has
been applied to defendants who were not the victim’s parent. See State v.
Patterson, 308 Conn. 835, 838 (2013); State v. Smith, 37 Conn. Supp. 664, 665
(1981). The Connecticut Supreme Court has held that “negligently” in this statute
refers to criminal negligence. See State v. Clark, 5 Conn. Cir. Ct. 699, 706–07, 709
(1969).
5. Florida: Fla. Stat. § 827.04(1) (“Child abuse”) states “[w]hoever, willfully or by
culpable negligence, deprives a child of, or allows a child to be deprived of,
necessary food, clothing, shelter, or medical treatment . . . shall be guilty of a felony
of the third degree.”
6. Kansas: Kan. Stat. Ann. § 21-3608(a) (“Endangering a child”) states:
“Endangering a child is intentionally and unreasonably causing or permitting a child
77
under the age of 18 years to be placed in a situation in which the child’s life, body
or health may be injured or endangered.” The Kansas Supreme Court interpreted the
term “unreasonably” to mean “the doing or omitting of some action contrary to
reason, the doing of or omitting to do something that the average person, possessing
ordinary mental faculties, would not have done or would not have omitted under all
of the attendant and known circumstances.” State v. Fisher, 230 Kan. 192, 194
(1981) (interpreting an earlier version of the statute). In interpreting the current
version of the statute, an appellate court in Kansas held that the term “intentionally”
makes this offense “a general intent crime,” so “all that is required is proof that the
person acted intentionally in the sense that he [or she] was aware of what he [or she]
was doing.” State v. Cummings, 45 Kan. App. 2d. 15, 18 (2010), rev’d on other
grounds, 297 Kan. 716 (2013).
7. Missouri: Mo. Rev. Stat. § 568.050(1) (“Endangering the welfare of a child in
the second degree”) covers any person who “with criminal negligence acts in a
manner that creates a substantial risk to the life, body or health of a child less than
seventeen years old . . .”
78
8. Nebraska: Neb. Rev. Stat. Ann. § 28-707(1) (“Child abuse”) states: “A person
commits child abuse if he or she knowingly, intentionally, or negligently causes or
permits a child to be . . . [p]laced in a situation that endangers his or her life or
physical or mental health . . .”
9. Nevada: Nev. Rev. Stat. Ann. § 200.508(1)(a) (“Abuse, neglect or endangerment
of child”) covers “[a] person who . . . [w]illfully causes a child who is less than 18
years of age . . . to be placed in a situation where the child may suffer physical pain
or mental suffering as the result of abuse or neglect.” In Childers v. State, the
Nevada Supreme Court clarified that the term “willfully” “implies simply a purpose
or willingness to commit the act or to make the omission in question,” and “does
not require in its meaning any intent to violate the law, or to injure another, or to
acquire any advantage.” 100 Nev. 280, 283 (1984). The court further stated that
this offense “is a general intent crime.” Id.
10. New Mexico: N.M. Stat. § 30-6-1(C) (“Abandonment or abuse of a child”)
states: “Abuse of a child consists of a person knowingly, intentionally or
negligently, and without justifiable cause, causing or permitting a child to be . . .
placed in a situation that may endanger the child’s life or health.” The New Mexico
79
Supreme Court has held that this statute “is a strict liability offense.” State v.
Lucero, 98 N.M. 204, 206 (1982).
11. New York: N.Y. Penal Law § 260.10(2) (“Endangering the welfare of a child”)
states: “A person is guilty of endangering the welfare of a child” when “being a
parent, guardian, or other person legally charged with the care or custody of a child
less than eighteen years old, he fails or refuses to exercise reasonable diligence in
the control of such child to prevent him from becoming an ‘abused child,’ a
‘neglected child,’ a ‘juvenile delinquent,’ or a ‘person in need of supervision,’ as
those terms are defined in articles ten, three and seven of the family court act.” A
person is “legally charged” with a child’s care if the person is “legally responsible”
for a child under article ten of the Family Court Act, which includes “the child’s
custodian, guardian [or] any other person responsible for the child’s care at the
relevant time.” People v. Carroll, 93 N.Y.2d 564, 568 (1999) (quoting Family Ct.
Act § 1012(g)). This crime is a “strict liability” offense. People v. Scully, 134
Misc. 2d 906, 908 (1987).
12. Oregon: Or. Rev. Stat. § 163.545 (“Child neglect in the second degree”) states:
“A person having custody or control of a child under 10 years of age commits the
80
crime of child neglect in the second degree if, with criminal negligence, the person
leaves the child unattended in or at any place for such period of time as may be
likely to endanger the health or welfare of the child.” The phrase “having control of
a child” as used in § 163.545 refers to “temporary custodian[s],” including
individuals who are not parents or guardians, such as a “baby-sitter, relative, [or]
teacher.” State v. Sparks, 267 Or. App. 181, 203 (2014).
13. Texas: Tex. Penal Code Ann. § 22.041(c) (“Abandoning or Endangering
Child”) states: “A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or omission, engages in conduct that
places a child younger than 15 years in imminent danger of death, bodily injury, or
physical or mental impairment.”
14. Utah: Utah Code Ann. § 76-5-109(3) (“Child abuse”) covers “[a]ny person who
inflicts upon a child physical injury.” The term “physical injury” includes “any
other condition which imperils the child’s health or welfare.” Utah Code Ann.
§ 76-5-109(1)(b)(iv). The Utah Supreme Court has confirmed that for purposes of
this section, “physical injury can include acts that imperil or threaten a child’s
health or welfare without an actual physical impact on the child.” Provo City v.
81
Cannon, 994 P.2d 206, 2010 (Utah 1999). “[I]f done with criminal negligence, the
offense is a class C misdemeanor.” Utah Code Ann. § 76-5-109(3)(c).
15. Virginia: Va. Code Ann. § 40.1-103 (“Cruelty and injuries to children”) states:
“It shall be unlawful for any person employing or having the custody of any child
willfully or negligently to cause or permit the life of such child to be endangered
. . .” The Virginia Supreme Court has interpreted “custody,” in a materially
identical version of the statute, as “not restricted in application to those having legal
custody of children.” Lovisi v. Commonwealth, 212 Va. 848, 850 (1972). For
example, the court stated that “teachers, athletic instructors and baby-sitters” would
qualify. Id.82
Diaz-Rodriguez v. Garland, 13-73719 FILED
COLLINS, Circuit Judge, with whom BUMATAY, Circuit Judge, joins, DEC 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
concurring in part and concurring in the judgment:
I agree that Diaz-Rodriguez’s conviction under California Penal Code
§ 273a(a) qualifies as a conviction for “a crime of child abuse, child neglect, or
child abandonment” within the meaning of § 237(a)(2)(E)(i) of the Immigration
and Nationality Act (“INA”) and that the Board of Immigration Appeals (“BIA”)
therefore properly held that Diaz-Rodriguez is removable under that section.
Accordingly, I join Part I, Part II(A) (except for footnote 2), and Part IV of Judge
Ikuta’s opinion and concur in the court’s judgment denying Diaz-Rodriguez’s
petition for review. However, my reasoning differs from the plurality’s analysis,
and I therefore do not join Parts II(B) and III of the plurality opinion.
I
Under the relevant language of § 237(a)(2)(E)(i) of the INA, “[a]ny alien
who at any time after admission is convicted of . . . a crime of child abuse, child
neglect, or child abandonment is deportable.” 8 U.S.C. § 1227(a)(2)(E)(i).
“Because Congress predicated deportation ‘on convictions, not conduct,’” the
applicability of this statute turns, not on “the particulars of [the] alien’s behavior”
underlying the conviction, but rather on whether “the statutory definition of the
offense of conviction” falls within the federally defined category of crimes.
Mellouli v. Lynch, 575 U.S. 798, 805 (2015) (citation omitted); see also Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1567 (2017) (explaining that the provisions
of INA § 237(a)(2) “make[] aliens removable based on the nature of their
convictions, not based on their actual conduct”). Under this “categorical
approach,” we must ask “whether ‘the state statute defining the crime of
conviction’ categorically fits within the ‘generic’ federal definition.” Esquivel-
Quintana, 137 S. Ct. at 1568 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190
(2013)). A “state offense is a categorical match with a generic federal offense only
if a conviction of the state offense necessarily involved facts equating to the
generic federal offense.” Moncrieffe, 569 U.S. at 190 (simplified) (emphasis
added).
Where a state statute’s language covers a range of different conduct in a
single indivisible offense, the inquiry focuses on whether “the least of the acts
criminalized by the state statute falls within the generic federal definition.”
Esquivel-Quintana, 137 S. Ct. at 1568 (emphasis added). The apparent theory
behind this lesser-includes-the-greater approach is that, when there is a broad
general area of overlap between the state offense and the generic federal definition,
a disqualifying mismatch will be found, if at all, at the outer limits of the state
offense rather than at its more serious core. But this consideration of “the
minimum conduct criminalized by the state statute is not an invitation to apply
2
‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a
theoretical possibility, that the State would apply its statute to conduct that falls
outside the generic definition of a crime.’” Moncrieffe, 569 U.S. at 191 (quoting
Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193 (2007)).
Here, all members of the en banc court agree that the least of the conduct
covered by California Penal Code § 273a(a) is reflected in the fourth and final
clause of that provision, which imposes criminal punishment on “[a]ny person
who, under circumstances likely to produce great bodily harm or death, . . . having
the care or custody of any child, . . . willfully causes or permits that child to be
placed in a situation where his or her person or health is endangered.” CAL. PENAL
CODE § 273a(a).1 As the majority explains, the elements of the offense described
1
Although we have said that § 273a(a) is not a divisible statute, that conclusion
rested on caselaw involving prosecutions under § 273a(a) based on multiple
“specific acts” within a “single course of conduct.” Ramirez v. Lynch, 810 F.3d
1127, 1136 (9th Cir. 2016). We noted that the California courts had held that, “[i]n
the context of section 273a(a), a prosecutor can allege a pattern of abuse, and, in
such a case, the jury need not agree unanimously as to which specific acts the
defendant committed within that pattern.” Id. at 1136 (emphasis added) (citing
People v. Ewing, 140 Cal. Rptr. 299, 301 (Ct. App. 1977)). The California courts
have also held, however, that “[w]hen the jury is permitted to convict for a specific
act”—rather than “a continuous course of conduct”—and “more of such acts are
proved than charged,” then the jury must unanimously agree “on the specific act or
omission found unlawful” under § 273a(a). People v. Napoles, 127 Cal. Rptr. 2d
777, 785–86 (Ct. App. 2002) (emphasis added). It may well be that, in a case in
which the relevant case documents make clear that a § 273a(a) prosecution was
based on a specific act or omission under only one of the four branches of conduct,
the modified categorical approach would apply, and only the relevant clause of
3
in this clause are that (1) while the defendant “had care or custody of a child”;
(2) the defendant “purposely put the child into an abusive situation in which the
probability of serious [physical] injury was great”; and (3) the defendant acted
“with criminal negligence.” See Opin. at 15; see also Cal. Jud. Council, Criminal
Jury Instructions No. 821 (2022 ed.). “The terms ‘care or custody’ do not imply a
familial relationship but only a willingness to assume duties correspondent to the
role of a caregiver.” People v. Toney, 90 Cal. Rptr. 2d 578, 580 (Ct. App. 1999).
The requisite criminal negligence exists when the defendant acted “in a reckless
way” that a “reasonable person would have known” “creates a high risk of death or
great bodily injury” and that reflects a “disregard for human life, or indifference to
the consequences” of the defendant’s acts. People v. Chafin, 93 Cal. Rptr. 3d 531,
534 (Ct. App. 2009).
The remaining question, then, is whether the offense defined by these
elements categorically constitutes a “crime of child abuse, child neglect, or child
abandonment” within the meaning of INA § 237(a)(2)(E)(i). 8 U.S.C.
§ 273a(a) would need to be considered. But I need not address this possibility
further to resolve this case. As the plurality notes, the modified categorical
approach is of no help here, because the records of Diaz-Rodriguez’s conviction
“do not reveal which prong of section 273a(a) [he] was convicted of
violating.” See Opin. at 9 n.2. And even assuming that the statute is not divisible,
all members of the court agree that, because the fourth clause of § 273a(a) is the
least of the conduct criminalized, we may for that reason limit our focus, in the
first instance, to that clause.
4
§ 1227(a)(2)(E)(i). As explained in the next section, I think the answer to that
question is clearly yes.
II
As with all cases of statutory construction, we must “begin by analyzing the
statutory language, assuming that the ordinary meaning of that language accurately
expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 560
U.S. 242, 251 (2010) (simplified). And if, after “‘exhaust[ing] all the traditional
tools of construction,’” the “intent of Congress is clear from the terms of the
statute,” then we proceed no further and afford no deference to the agency’s
reading of that language under Chevron, U.S.A. Inc. v. Natural Res. Def. Council,
467 U.S. 837 (1984). Medina Tovar v. Zuchowski, 982 F.3d 631, 634 (9th Cir.
2020) (en banc) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)); see also
id. at 639 (Collins, J., concurring in the judgment). In my view, the traditional
tools of statutory construction suffice to confirm that the federal statutory phrase
“crime of child abuse, child neglect, or child abandonment” categorically embraces
the above-described “least” offense covered by § 273a(a).
The relevant sentence of INA § 237(a)(2)(E)(i) provides, in full: “Any alien
who at any time after admission is convicted of a crime of domestic violence, a
crime of stalking, or a crime of child abuse, child neglect, or child abandonment is
deportable.” 8 U.S.C. § 1227(a)(2)(E)(i). The text notably uses the phrase “a
5
crime of” three separate times to delineate three general categories of crimes. But
the category we are asked to apply here—the third category—is itself comprised of
three sub-categories of crimes against children: “child abuse, child neglect, or child
abandonment.” Id. That suggests that a state statutory offense would be a
categorical match if, collectively, all of the conduct covered by that statute falls
within one or more of those three categories. In other words, there does not need
to be a categorical match to one sub-category exclusively. But that interpretive
issue ultimately does not matter here, because I conclude that § 273a(a) is a
categorical match for the sub-category of a “crime of . . . child neglect.”2
A
The INA does not define the term “child neglect,” but the ordinary meaning
of this term is readily discernible. “Child neglect” is, of course, the neglect of a
child. At the time that this phrase was added to the INA in 1996, see Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No.
104-208, Div. C, § 350(a), 110 Stat. 3009-639–3009-640 (1996), the term
“neglect” was understood to denote—as it does today—“[a]n omission to do or
2
I note parenthetically, however, my disagreement with the BIA’s suggestion that
the three sub-categories constitute a “unitary” category of crimes with a single
meaning. Matter of Soram, 25 I. & N. Dec. 378, 381 (BIA 2010). To be sure, the
three sub-categories may overlap considerably, but I think it is clear that the three
phrases do not have the same meaning and cannot be reduced to a unitary formula.
But I need not consider this issue further here, given my conclusion that there is a
categorical match to the sub-category of the crime of “child neglect.”
6
perform some work, duty, or act.” Neglect, BLACK’S LAW DICTIONARY (6th ed.
1990); see also Neglect, BRYAN GARNER, A DICTIONARY OF MODERN LEGAL
USAGE 535 (2d ed. 1995) (“the act or condition of disregarding”; “Neglect
indicates, as a purely objective fact, that a person has not performed a duty”);
Neglect, BALLANTINE’S LEGAL DICTIONARY AND THESAURUS (1995) (“The failure
to do or perform some work, act, or duty, required by one’s status or by law”);
Neglect, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1513 (1981 ed.)
(defining the verb as “to carelessly omit doing (something that should be done)”
and the noun as “the action of neglecting something”). Accordingly, “neglect” of a
“child” refers, in the broadest sense, to the failure to perform one’s legal duty
towards a child. Child Neglect, WEBSTER’S II NEW COLLEGE DICTIONARY (1995)
(“Failure on the part of a parent or parental substitute to supervise a child and
provide requisite care and protection”); Neglect, MERRIAM-WEBSTER’S
DICTIONARY OF LAW 324 (1996) (“a failure to provide a child under one’s care
with proper food, clothing, shelter, supervision, medical care, or emotional
stability”).
From this core concept of the “neglect” of a “child,” two key elements thus
emerge: (1) the person must have a “duty” or “responsibility” owed to the child;
and (2) the person failed to perform that duty toward the child. But the statute
requires more than “child neglect”; it requires the “crime of . . . child neglect.”
7
Requiring that the breach of the duty toward the child rise to the level of a “crime”
indicates that, with respect to both the actus reus and the mens rea, there must be a
sufficient level of culpability to implicate criminal responsibility.
Where a statutory phrase is silent as to mens rea,3 the Court has “often” read
into the statute a mens rea of “knowledge or intent.” Ruan v. United States, 142
S. Ct. 2370, 2377 (2022). But there is a compelling textual reason not to construe
“crime . . . of child neglect” as requiring either knowledge or intent. The operative
term, after all, is “neglect,” and the relevant offense is the “crime of . . . child
neglect.” “Nothing” in that language “indicates that [it] applies exclusively to
knowing or intentional” acts or omissions. Voisine v. United States, 579 U.S. 686,
692 (2016). On the contrary, the very concept of criminal neglect clearly indicates
that criminal negligence is sufficient.
Criminal negligence is present when a person “‘should be aware’ of such a
‘substantial and unjustifiable risk’” that “attache[s] to his [or her] conduct” but the
person acts in “‘gross deviation’ from accepted standards.” Borden v. United
States, 141 S. Ct. 1817, 1824 (2021) (citation omitted). But in the context of
3
Because such silence is the starting point for my analysis of mens rea, the
plurality and the dissent achieve nothing in noting that the dictionary definitions of
“child neglect” “do not address whether the defendant’s mental state must be
criminally negligent, knowing, or intentional,” see Opin. at 22, and that such
definitions “are silent as to the requisite mens rea,” see Dissent at 29. See infra at
11–12.
8
“child neglect,” not just any “substantial and unjustifiable risk” is sufficient; rather,
to qualify as the “crime . . . of child neglect,” the relevant “substantial and
unjustifiable risk” that must be occasioned by the person’s criminal neglect is a
substantial risk of serious physical or emotional harm to the child.4
Accordingly, consideration of the relevant words in the phrase “crime of . . .
child neglect” leads to the conclusion that this category embraces crimes that
include the following minimum elements: (1) the person had a duty towards a
child; (2) the person breached that duty in a manner that constitutes a gross
deviation from accepted standards; and (3) the person should have been aware that
his or her conduct presented a substantial and unjustifiable risk of serious physical
or emotional harm to the child.
B
Neither the plurality opinion nor the dissenting opinion provides any
persuasive basis for reading the phrase “crime of . . . child neglect” differently.
4
Given that my analysis places critical weight on the entirety of the phrase “crime
of . . . child neglect,” the dissent is simply wrong in contending that I have
“analyz[ed] the word ‘neglect’ in isolation.” See Dissent at 28. The dissent is
equally wrong in asserting that the composite phrase “child neglect” had a settled
phrase-of-art meaning that is somehow narrower than the ordinary meaning of the
combined “constituent words,” viz., “neglect” of a “child.” See id. at 28–29.
Sometimes two words in combination have a very different meaning from the
simple sum of the two constituent words in isolation (e.g., “cold turkey”), but this
is not such a case. “Child neglect” is simply “neglect of a child.”
9
The plurality’s finding of textual ambiguity rests largely on the premise that
the phrase is “susceptible” to Diaz-Rodriguez’s “interpretation of ‘child neglect’”
as requiring the violation of the special duty a “parent or legal guardian” owes to a
child in his or her care. See Opin. at 45 (emphasis added). But the plurality itself
ably debunks this textual argument. As the plurality explains, only one of the
major contemporaneous dictionaries even mentions “parents” in defining “child
neglect,” and it refers to a “failure on the part of a parent or parental substitute.”
Id. at 22–23 (emphasis added) (quoting Child Neglect, WEBSTER’S II NEW
COLLEGE DICTIONARY (1995)). And as the plurality correctly notes, a “parental
substitute” could readily refer to either a “legal custodian” or a “temporary
caretaker.” See id at 23.
Indeed, there is no reason to think that a breach of duty toward a child by a
“parental substitute” constitutes “child neglect” only if the person acting in place
of the parents is a formal legal guardian. Lots of persons act, on occasion, as
“parental substitutes” without being legal guardians in the formal sense, such as
babysitters, daycare workers, and teachers. Cf. Vernonia Sch. Dist. v. Acton, 515
U.S. 646, 654 (1995) (“When parents place minor children in private schools for
their education, the teachers and administrators of those schools stand in loco
parentis over the children entrusted to them.”); MODEL PENAL CODE § 3.08(1), (2)
(AM. L. INST. 1985 ed.) (including, within the class of persons who may exercise
10
force in the discipline of children, “the parent or guardian or other person similarly
responsible for the general care and supervision of a minor or a person acting at the
request of such parent, guardian or other responsible person” and “a teacher or a
person otherwise entrusted with the care or supervision for a special purpose of a
minor”). There is thus no basis for concluding that this particular dictionary even
used “parental substitute” in the narrow sense of formal legal guardians. And even
if it did, that view finds no support (as the plurality notes) in any of the other
available major dictionaries of the time, see Opin. at 23, and one variant dictionary
is not enough to displace an otherwise clear meaning, or even to create a sufficient
ambiguity warranting Chevron deference. See MCI Telecomms. Corp. v. AT&T
Co., 512 U.S. 218, 226–28 (1994).
As I noted earlier, see supra note 3, the plurality also makes the irrelevant
observation that the definitions of “child neglect” in contemporaneous dictionaries
do not “address whether the mental state must be criminally negligent, knowing, or
intentional” or “whether the targeted conduct must actually injure the child.” See
Opin. at 22. The dissent makes a similar claim as well, noting that the relevant
dictionary definitions of child neglect “are silent as to the requisite mens rea.” See
Dissent at 29. But as I have explained, the mental-state and degree-of-risk-of-harm
elements arise, not from the concept of “child neglect” simpliciter, but from the
composite notion of “crime of . . . child neglect.” See supra at 8–9. To say that a
11
“crime” involving “neglect” denotes criminal negligence seems almost tautological
and can hardly be considered to be ambiguous or uncertain. It is that latter concept
of criminal negligence that supplies the additional minimum elements of “crime of
. . . child neglect” that the plurality and the dissent, with their unduly narrow focus,
think are missing from “child neglect” considered in isolation.
The dissent, by contrast, agrees that the phrase “crime of . . . child neglect”
is not ambiguous, but it insists that it has at least one additional element—namely,
the neglect must be “sustained” rather than a “one-time” action. See Dissent at 25–
31.5 The dissent says that this follows from dictionary definitions describing
“child neglect” as “a failure to provide a child under one’s care with proper food,
clothing, shelter, supervision, medical care, or emotional stability,” Neglect,
MERRIAM-WEBSTER’S DICTIONARY OF LAW 324 (1996), or as a “[f]ailure on the
part of a parent or parental substitute to supervise a child and provide requisite care
and protection,” Child Neglect, WEBSTER’S II NEW COLLEGE DICTIONARY (1995).
See Dissent at 25–31. I have read the same definitions, and I do not see where they
suggest that the failure must be “sustained” to count as child neglect. A babysitter
who observes that a child is running a 105-degree fever and is convulsing, but who
then simply goes back to binge-watching Netflix while the child suffers has
5
The dissent also argues that the phrase unambiguously applies only to “parents
and legal guardians,” see Dissent at 29–31, but that is wrong for the reasons
explained earlier.
12
certainly committed “a failure to provide a child under one’s care with proper . . .
supervision, [or] medical care” in the most literal sense of those terms. The dissent
asserts that the mere reference to a “‘proper’ or ‘necessary’ standard of care”
denotes “a relationship of care persisting beyond a one-time instance of minor
neglectful conduct.” See Dissent at 26–27 n.8. But that is obviously wrong, as any
perusal of mine-run tort cases makes clear. The dissent also relies on the definition
of “neglected child,” which does indeed carry a connotation of a condition that is
ongoing. See Dissent at 25–26. But that, of course, is not the phrase used in the
statute, and so the additional connotation that is distinctively associated with that
phrase is irrelevant here.
The additional materials discussed by the plurality and the dissent do not
warrant any different conclusions from what I have set forth above. In particular,
to the extent that contemporaneous federal statutes provide any guidance as to
Congress’s understanding of the term “child neglect,” that consideration reinforces
my reading of § 237(a)(2)(E)(i). On September 27, 1996—just three days before
Congress gave final approval to IIRIRA (which added INA § 237(a)(2)(E)(i))—
Congress gave final approval to the “Child Abuse Prevention and Treatment Act
Amendments of 1996” (“CAPTA Amendments Act”). See Pub. L. No. 104–235,
13
110 Stat. 3063.6 Section 110 of the CAPTA Amendments Act added the following
definition of the composite phrase “child abuse and neglect” to § 113 of CAPTA
(42 U.S.C. § 5106h):
[T]he term ‘child abuse and neglect’ means, at a minimum,
any recent act or failure to act on the part of a parent or
caretaker, which results in death, serious physical or emotional
harm, sexual abuse or exploitation, or an act or failure to act
which presents an imminent risk of serious harm.
See 110 Stat. at 3078. Every aspect of that definition coheres with what I have set
forth earlier: it applies to a single “act or failure to act,” and not just a pattern of
behavior; it extends to a “caretaker” (who has obvious duties towards the child),
and not merely to a parent or legal guardian; and it applies if the conduct entails an
“imminent risk of serious harm.” As the nearest contemporaneous expression of
Congress’s understanding of the terminology in this area, the CAPTA
Amendments Act strongly reinforces the correctness of the understanding of
“crime . . . of child neglect” that I described above. See Erlenbaugh v. United
States, 409 U.S. 239, 243–44 (1972) (noting that, when statutes on the same
subject are “enacted by the same legislative body at the same time,” one act can
assist in “ascertaining the meaning of the words as used in their contemporary
6
Although passed by Congress first, the CAPTA Amendments Act was signed by
the President on October 3, 1996, see Pub. L. No. 104–235, 110 Stat. 3063,
whereas IIRIRA was signed by the President on the same day Congress passed it
(September 30, 1996), see Pub. L. No. 104–208, 110 Stat. 3009.
14
setting” in the other act).7
Both the plurality and the dissent also rely on surveys of state legislation, but
the Supreme Court has made clear that such a multi-state survey “is not required
by the categorical approach.” Esquivel-Quintana, 137 S. Ct. at 1571 n.3. The
Court recognized that such a survey might nonetheless be useful if it meaningfully
“helps shed light on the common understanding and meaning of the federal
provision being interpreted,” id. (emphasis added) (citations and internal quotation
marks omitted), but that is not the case here. As the plurality’s and the dissent’s
surveys show, the various state approaches are too disparate to support any
inference that, in deploying the phrase “crime of . . . child neglect,” Congress
intended to adopt any particular variant of these approaches. Cf. id. at 1571(noting that, in Taylor v. United States, 495 U.S. 575 (1990), the Court had
7
The plurality agrees that none of the federal statutes defining “child neglect” or a
related composite term “establishes that the person responsible for child neglect
must be a parent or guardian,” but it then inexplicably goes on to state that these
statutes are “inconclusive” and “do not clearly foreclose” Diaz-Rodriguez’s
contrary view. See Opin. at 34–35, 45. But the fact that these definitions may not
be controlling does not mean that they are ambiguous or “inconclusive” on this
point. A statement that a “parent or caretaker” can commit “child . . . neglect”
cannot be reconciled with the view that only parents or legal guardians can do so.
The plurality and dissent also suggest that the distinction between criminal and
civil offenses is relevant here, see Opin. at 49–50; Dissent at 43 n.12, but I do not
see how that is so. As I have explained, the fact that the INA requires a “crime of
. . . child neglect” rather than just “child neglect” may bear on the requisite level of
scienter or of risk of harm, see supra at 7–9, but I do not see how it plausibly
suggests that daycare workers or one-time babysitters get a pass.
15
“interpret[ed] ‘burglary’ under the Armed Career Criminal Act of 1984 according
to the generic sense in which the term is now used in the criminal codes of most
States” (quoting Taylor, 495 U.S. at 598) (further quotation marks omitted)). If
anything, the wide disparity among States simply reinforces the view that, as the
plurality aptly notes, Congress “purposefully employed” a series of overlapping
terms in § 237(a)(2)(E)(i) so as to “assure coverage of such crimes, however
denominated by the States.” See Opin. at 42 (citation omitted).
The dissent argues that construing § 237(a)(2)(E)(i) of the INA to reach
single acts of criminal child neglect would make no sense, because that would
render the alien ineligible for the discretionary relief of cancellation of removal,
which turns on whether the alien’s removal would cause “exceptional and
extremely unusual hardship” to the alien’s child. 8 U.S.C. § 1229b(b)(1)(D).
According to the dissent, it would be “absurd[]” to say that an alien convicted of a
single instance of criminal child neglect should be “categorically ineligible for
cancellation of removal,” even if the alien can otherwise show “‘exceptional and
extremely unusual hardship’ to that same child.” See Dissent at 37 (citations and
further quotation marks omitted). I disagree. There is nothing inconsistent, much
less absurd, in saying that an alien who is slated for removal for having engaged in
criminal child neglect should not then be allowed to invoke his or her caregiving
16
responsibilities towards that very child as a shield against deportation.8
The dissent also argues that, because the composite phrase “crime of child
abuse, child neglect, or child abandonment” is paired together in the same statutory
provision with “crime of domestic violence” and “crime of stalking,” elements
assertedly common to the latter two (such as intent) must be read into the third.
See Dissent at 29 n.9. But the principle invoked by the dissent—i.e., “[t]hat
several items in a list share an attribute counsels in favor of interpreting the other
items as possessing that attribute as well”—“is by no means a hard and fast rule,”
Beecham v. United States, 511 U.S. 368, 371 (1994), and there are good reasons
not to apply it here. The three “crime of” phrases in § 237(a)(2)(E)(i) are all
plainly distinct in critical respects and, as I have noted, the particular phrase at
issue here—“crime of child abuse, child neglect, or child abandonment”—is itself
composed of three overlapping but dissimilar items. See supra at 6. This canon
cannot be invoked to efface the obvious differences among those categories, and
that is especially true here, given that “crime of . . . child neglect” affirmatively
8
The dissent also relies heavily on an amicus brief’s vague descriptions of charges
assertedly brought under § 273a(a) in various California counties, which the
dissent says shows that the statute is being applied to trivial “parenting mistakes.”
See Dissent at 38–39. But as the plurality correctly notes, see Opin. at 13–14, the
cited amicus brief does not even say whether any of these charges resulted in
convictions, see Dissent at 38–39, and even if it did, the limited information that is
selectively presented in the brief is so devoid of foundation that we cannot take
judicial notice of the claims made in it.
17
denotes criminal negligence rather than intent.
Finally, one might be tempted to think that the phrase “child neglect” must
be deemed to be ambiguous simply because so many judges in multiple cases have
disagreed as to its meaning. But such a show-of-hands approach to statutory
interpretation and to the applicability of Chevron would be wrong. The requisite
ambiguity exists only if, after “exhaust[ing] all the ‘traditional tools’ of
construction,” the matter remains sufficiently unclear that the court must then
“wave the ambiguity flag.” Medina Tovar, 982 F.3d at 634 (quoting Kisor, 139
S. Ct. at 2415). “[H]ard interpretive conundrums . . . can often be solved,” Kisor,
139 S. Ct. at 2415, and the fact that some courts may have applied the “‘traditional
tools’ of construction” incorrectly is not enough to establish ambiguity. The Sixth
Circuit put the point well:
[D]isagreements between judges at most suggest ambiguity.
They do not prove it. If they did, the agency would win every
circuit split about whether a federal law authorizes its
regulation, but see, e.g., Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002) (agency loses); the State would win
every circuit split about whether a federal law preempts its
statute, but see, e.g., Northwest, Inc. v. Ginsberg, 572 U.S. 273(2014) (State loses); and the criminal defendant would win
every circuit split about whether a federal law punishes his
conduct, but see, e.g., United States v. Castleman, 572 U.S.
157 (2014) (criminal defendant loses).
Sexton v. Panel Processing, Inc., 754 F.3d 332, 341 (6th Cir. 2014) (emphasis
added) (parallel citations omitted).
18
C
Accordingly, ordinary principles of statutory construction lead to the
conclusion that a “crime of . . . child neglect,” within the meaning of INA
§ 237(a)(2)(E)(i), is one that contains, at a minimum, the following elements:
(1) the person had a duty towards a child; (2) the person breached that duty in a
manner that constitutes a gross deviation from accepted standards; and (3) the
person should have been aware that his or her conduct presented a substantial and
unjustifiable risk of serious physical or emotional harm to the child. See supra at
8–9. Applying that definition, I think it is clear that California Penal Code
§ 273a(a) is a categorical match. Section 273a(a) requires proof that the defendant
“had care or custody of a child,” see Opin. at 15, and the duties attendant to that
care or custody satisfy the element of duty towards the child. Section 273a(a)’s
requirement to show that the child was placed “into an abusive situation in which
the probability of serious [physical] injury was great,” see Opin. at 15, is, if
anything, more demanding than a showing of a gross deviation from accepted
standards. And § 273a(a)’s requirement to show criminal negligence plainly
satisfies the federal generic definition’s similar requirement. Put simply, § 273a(a)
categorically fits within INA § 237(a)(2)(E)(i) because all of its elements are equal
to or narrower than the elements of the federal definition as set forth above.
19
III
For the foregoing reasons, I agree with the ultimate conclusion in Part IV of
Judge Ikuta’s opinion that “the BIA did not err in concluding that Diaz-Rodriguez
was removable” under § 237(a)(2)(E)(i). See Opin. at 75. On that understanding, I
join Part I, Part II(A) (except for footnote 2), and Part IV of Judge Ikuta’s opinion
and concur in the judgment denying Diaz-Rodriguez’s petition for review.
20
FILED
DEC 8 2022
Diaz-Rodriguez v. Garland, No. 13-73719
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WARDLAW, Circuit Judge, with whom MURGUIA, Chief Circuit Judge,
McKEOWN, KOH, and SANCHEZ Circuit Judges, join, dissenting:
I respectfully dissent. Congress “supplied a clear and unambiguous answer”
to the question before us. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018).
Section 1227(a)(2)(E)(i) renders noncitizens removable if they are convicted of
one of three discrete criminal offenses: child abuse, child neglect, or child
abandonment. Congress did not inadvertently omit the independent offense of
child endangerment for which Diaz-Rodriguez was convicted under section
273a(a) of the California Penal Code. Because the statute unambiguously excludes
child endangerment, we do not defer to the BIA’s contrary construction under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984). Accordingly, the petition should be granted.
I.
Rafael Diaz-Rodriguez has lived in the United States for more than thirty
years. He has been a lawful permanent resident since 1990. He and his partner
have two children together. Both children are U.S. citizens. Diaz-Rodriguez’s
parents and eight siblings live in the United States; his mother is a United States
citizen, and his father is a lawful permanent resident.
In 2003 and 2009, Diaz-Rodriguez was stopped by police while driving
under the influence of alcohol with one of his children in the car. Each arrest
resulted in convictions for felony child endangerment in violation of section
273a(a) of the California Penal Code. Section 273a(a) sets forth punishment for
anyone who, “having the care or custody of any child,” and “under circumstances
likely to produce great bodily harm or death,” “willfully causes or permits that
child to be placed in a situation where his or her person or health is endangered.” 1
Although the statute states that the defendant must act “willfully,” the California
Supreme Court has held that a mens rea of criminal negligence suffices, such that
the state need not prove that the defendant was subjectively aware of the risk of
1
Section 273a(a) of the California Penal Code provides in full:
Any person who, under circumstances or conditions likely to produce
great bodily harm or death, willfully causes or permits any child to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any child, willfully causes or
permits the person or health of that child to be injured, or willfully
causes or permits that child to be placed in a situation where his or her
person or health is endangered, shall be punished by imprisonment in a
county jail not exceeding one year, or in the state prison for two, four,
or six years.
The statute contains a separate provision punishing as a misdemeanor the same
acts when committed “under circumstances or conditions other than those likely to
produce great bodily harm or death.” Cal. Penal Code § 273a(b); see Fregozo v.
Holder, 576 F.3d 1030, 1037–38 (9th Cir. 2009).
2
harm involved to obtain a conviction. People v. Valdez, 27 Cal.4th 778, 790
(2002).
In 2012, the Department of Homeland Security (DHS) initiated removal
proceedings against Diaz-Rodriguez based on his 2009 child endangerment
conviction. The agency charged that the conviction rendered Diaz-Rodriguez
removable under 8 U.S.C. § 1227(a)(2)(E)(i), a provision of the Immigration and
Nationality Act (INA) that authorizes the removal of a noncitizen who “at any time
after admission is convicted of a crime of domestic violence, a crime of stalking, or
a crime of child abuse, child neglect, or child abandonment.” The Immigration
Judge (IJ) concluded that a conviction under section 273a(a) of the California
Penal Code qualified as a conviction for “a crime of child abuse, child neglect, or
child abandonment,” and found Diaz-Rodriguez removable. The IJ also denied
Diaz-Rodriguez’s application for cancellation of removal as a matter of discretion.
The Board of Immigration Appeals (BIA) affirmed the IJ’s ruling. Diaz-Rodriguez
petitions for review of the BIA’s decision, challenging only the determination that
he is removable based on his conviction under section 273a(a) of the California
Penal Code.
II.
The issue whether “a crime of child abuse, child neglect, or child
abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i) includes the separate crime of child
3
endangerment has a tortured history both before the BIA and our court. Since the
passage of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), the BIA has adopted increasingly expansive and punitive
interpretations of the statute, obscuring Congress’s clear directive in
§ 1227(a)(2)(E)(i) and dramatically expanding the scope of this removability
provision. We, and our sister circuits, have struggled to assess the agency’s shape-
shifting understanding of the crimes of child abuse, child neglect, and child
abandonment.
A.
Over the last two decades, the BIA has haphazardly revised its interpretation
of “a crime of child abuse, child neglect, or child abandonment.” The agency
began with the plain text of the statute and contemporaneous dictionaries. But it
quickly pivoted to dubious sources of statutory meaning, consulting civil
definitions of child abuse and relying on state-by-state risk assessments to expand
the scope of 8 U.S.C. § 1227(a)(2)(E)(i).
In 1998, the BIA defined a crime of child abuse with reference to the Sixth
Edition of Black’s Law Dictionary as “any form of cruelty to a child’s physical,
moral[,] or mental well-being.” In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991,
996 (B.I.A. 1999) (citing Black’s Law Dictionary 1375 (6th Ed. 1990)). That
definition required the intentional infliction of injury on the child. See id. (holding
4
that child abuse refers to “physical or mental maltreatment” and “encompasses
actions or inactions that also do not require physical contact”).
In 2006, we concluded that the BIA’s definition in Rodriguez-Rodriguez was
dicta, not precedential, and not entitled to deference because it was announced in
an appeal about the separate crime of child sexual abuse. See Velazquez-Herrera
v. Gonzales (Velazquez-Herrera I), 466 F.3d 781, 782–83 (9th Cir. 2006). But, in
the years between Rodriguez-Rodriguez and Velazquez-Herrera I, and even after,
several circuit courts of appeal accepted Rodriguez-Rodriguez as a reasonable
interpretation of § 1227(a)(2)(E)(i), Ochieng v. Mukasey, 520 F.3d 1110, 1114–15
(10th Cir. 2008); Nguyen v. Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007); Loeza-
Dominguez v. Gonzales, 428 F.3d 1156, 1158–59 (8th Cir. 2005), and many lawful
permanent residents had relied on the definition to make decisions about how to
plead in criminal proceedings, see INS v. St. Cyr, 533 U.S. 289, 322 (2001) (“There
can be little doubt that, as a general matter, [noncitizen] defendants considering
whether to enter into a plea agreement are acutely aware of the immigration
consequences of their convictions.”). In Velazquez-Herrera I, we remanded the
petition to the BIA with an invitation to issue a precedential decision. 466 F.3d at782–83.
In response, the BIA held that the generic definition of a crime of child
abuse now extended to crimes against children committed with a mens rea of
5
criminal negligence so long as the convictions involve “the infliction on a child of
physical harm, even if slight” or “mental or emotional harm, including acts
injurious to morals . . . .” Matter of Velazquez-Herrera (Velasquez-Herrera II), 24
I. & N. Dec. 503, 512 (BIA 2008). In Velazquez-Herrera II, the BIA recognized
that its generic definition had to reflect a “flexible, uniform standard,” applicable
nationwide, and could not make “reference to legal classifications that vary from
State to State.” Id. at 508 (first quoting, then citing Kahn v. INS, 36 F.3d 1412,
1414–15 (9th Cir. 1994)).
At the time, a concurring BIA member, Roger Pauley, wrote separately to
note that the BIA’s definition was incomplete and confusing: it was “unclear”
whether the Board’s new definition extended to “crimes in which a child is merely
placed or allowed to remain in a dangerous situation, without any element in the
statute requiring ensuing harm.” Id. at 518 n.2. Pauley cited the example of
“failing to secure a child with a seatbelt.” Id. Pauley further noted that the BIA’s
definition ignored the statutory text, defining only the “crime of child abuse”
without acknowledging that the crimes Congress listed included the “crime of child
abuse, child neglect, and child abandonment.” Id. at 518 (Pauley, concurring).
Nevertheless, the BIA issued its definition in Velasquez-Herrera II without
adjusting or clarifying the meaning of the phrase.
6
After Velazquez-Herrera II, we granted a petition for review in Fregozo v.
Holder, 576 F.3d 1030 (9th Cir. 2009). We held that the Velazquez-Herrera
II definition requires injury to the child. Id. at 1037. There, Fregozo, a permanent
resident, pleaded nolo contendere to child endangerment under section 273a(b) of
the California Penal Code, after he drove drunk with his wife and two children in
the car. Id. at 1033–34. We concluded that a conviction under section 273a(b) is
not categorically a crime of child abuse under Velazquez-Herrera II because the
BIA’s interpretation required “some form of injury on a child” while section
273a(b) required only a potential harm to the child for a conviction, rendering the
state statute broader than the generic federal crime. Id. at 1037.
After Fregozo, the BIA once again revisited its definition of the crime of
child abuse. See Matter of Soram, 25 I. & N. Dec. 378, 380 (BIA 2010). Shifting
from its conclusion that a crime of child abuse requires “infliction on a child of
physical harm, even if slight,” or “mental or emotional harm,” Velazquez-Herrera
II, 24 I. & N. Dec. at 512, the BIA now found “no convincing reason to limit
[deportable] offenses under [§ 1227(a)(2)(E)(i)] to those requiring proof of actual
harm or injury to the child,” Soram, 25 I. & N. Dec. at 381. In Soram, the Board
inexplicably looked to the civil child abuse statutes in force in 38 states as of 2009,
not the criminal laws in effect in 1996 when Congress enacted IIRIRA. Id. at 382
(citing a 2009 Department of Health and Human Services compendium of civil
7
laws). A concurring board member, Lauri Steven Filppu, remarked on this
methodological flaw, stating, “I find it most relevant to look to the criminal statutes
of the various States in 1996, rather than the civil statutes.” Id. at 386–87 (Filppu,
concurring). The BIA then concluded that the phrase “a crime of child abuse, child
neglect, or child abandonment” encompassed child endangerment offenses
committed with a mens rea of at least criminal negligence. Id. at 383.
Soram broke from Velasquez-Herrera II in two other respects. First, where
the BIA rejected a state-by-state analysis in Velazquez-Herrera II, it approved a
state-by-state analysis in Soram. Id. at 383. After surveying state laws, the BIA
noted that states use different terms, like “realistic,” “serious,” “reasonably
foreseeable,” “substantial,” and “genuine” to describe the level of risk required to
trigger a child endangerment offense, and “approximately half of the States that
include endangerment-type offenses in their definitions of ‘child abuse’ or ‘child
abuse or child neglect’ [did] not specify the degree of threat required.” See id. at
382–83 (collecting terms). Eschewing its decision in Velasquez-Herrera II to
adopt a uniform national standard, the BIA left it to courts to decide “whether the
risk of harm required by the endangerment-type language in any given State statute
is sufficient to bring an offense within the definition of ‘child abuse’ under the
Act.” Id. at 383. In recent years, the BIA has clarified that the state-by-state risk
assessment under Soram requires “proof of a ‘likelihood’ or ‘reasonable
8
probability’ that a child will be harmed, not a mere possibility or potential for
harm.” Matter of Rivera-Mendoza, 28 I. & N. Dec. 184, 187 (BIA 2020).
Second, where the BIA in Velazquez-Herrera II decided to define only the
“crime of child abuse,” the BIA now confirmed that its new definition applied to
the phrase “a crime of child abuse, child neglect, or child abandonment.” Soram,
25 I. & N. Dec. at 381 (holding that the phrase “denotes a unitary concept”). In
Soram, the BIA chose to read “child neglect” and “child abandonment” out of the
statute, reasoning that the phrase as a whole referred to the various ways that states
chose to criminalize crimes against children. Id.
B.
We have twice agreed to consider en banc the BIA’s most recent
refashioning of § 1227(a)(2)(E)(i): first, in Martinez-Cedillo v. Sessions, 896 F.3d
979 (9th Cir. 2018), vacated sub nom. Martinez-Cedillo v. Barr, 923 F.3d 1162(9th Cir. 2019), and again in this appeal, Diaz-Rodriguez v. Garland, 12 F.4th 1126(9th Cir. 2021), reh’g en banc granted, 29 F.4th 1018 (9th Cir. 2022). The original
panels in both cases applied Chevron’s two step framework.2 Those panels,
however, arrived at opposing conclusions.
2
In Chevron, the Supreme Court set forth a two-step inquiry to determine whether
a reviewing court must defer to an agency’s interpretation of a statute. 367 U.S. at
842–43. At step one, the court determines “whether Congress has directly spoken
to the precise question at issue” by assessing whether “the statute is silent or
ambiguous with respect to the specific issue.” Id. If Congress has directly spoken
9
In Martinez-Cedillo, the panel unanimously held at step one that the phrase
“a crime of child abuse, child neglect, and child abandonment” in
§ 1227(a)(2)(E)(i) is ambiguous as to whether it encompasses criminal offenses
that punish negligent endangerment of a child. 896 F.3d at 987; id. at 998
(Wardlaw, J., dissenting). At step two, the panel concluded that the BIA’s
interpretation of that phrase in Soram was reasonable and deferred to the agency’s
interpretation. Id. at 988–89 (majority opinion).
When a majority of the active judges agreed to rehear the case en banc, we
withdrew the panel opinion, rendering it non-precedential. Martinez-Cedillo v.
Barr, 918 F.3d 601 (9th Cir. 2019). We subsequently vacated the panel’s decision
when the en banc court dismissed the appeal as moot. Martinez-Cedillo, 923 F.3d
at 1162. Given these developments, Martinez-Cedillo is no longer binding
precedent. 3
to the question and the agency reached a different conclusion, the inquiry stops
there: the court must reverse the agency and give effect to Congress’s
unambiguously expressed intent. If Congress has not directly spoken to the
question, the court, at step two, determines whether the agency’s answer is
“reasonable.” Id. at 843, 845.
3
Shortly after Martinez-Cedillo issued but before we decided to rehear the case en
banc, two other three-judge panels of our court issued published decisions that
relied on Martinez-Cedillo’s holding that the BIA’s decision in Soram is entitled to
Chevron deference. Menendez v. Whitaker, 908 F.3d 467, 474 (9th Cir. 2018);
Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781 (9th Cir. 2018). Those decisions
have not been vacated. In both decisions, although the panel followed Martinez-
Cedillo and applied Soram, the petitioners ultimately prevailed because the
elements of their crimes were broader than the generic offense as defined by the
10
We now confront this issue again. Diaz-Rodriguez, 12 F.4th at 1132.
Contrary to the panel in Martinez-Cedillo, the panel majority in Diaz-Rodriguez
held at step one of Chevron that the phrase “a crime of child abuse, child neglect,
and child endangerment” does not encompass a crime of negligent child
endangerment. Id. at 1128. Guided by the Supreme Court’s analysis in Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562 (2017), the panel majority found that “three
of the four sources of statutory meaning the Court consulted in [that case]—
contemporary legal dictionaries, statutory structure, and contemporary state
criminal codes—support the conclusion that § 1227(a)(2)(E)(i) unambiguously
forecloses the BIA’s interpretation of the statute in Soram.” Id. at 1132; but see id.
at 1145 (Callahan, J., dissenting) (“To the extent that the majority asserts that
§ 1227(a)(2)(E)(i) is unambiguous, it is wrong.”). The panel majority did not
reach the second step of Chevron. Id. at 1145.
III.
We apply the categorical approach to determine whether “the least of the
acts criminalized by the state statute,” section 273a(a) of the California Penal
BIA. Thus, they had no incentive to petition for rehearing by the panel or the en
banc court. And although these decisions were not vacated, given the unusual
circumstances surrounding their timing and actual holdings, the Diaz-Rodriguez
three-judge panel majority did not view them as binding precedent on the Soram
issue. As we now sit en banc, we are not bound by those decisions. Miller v.
Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc) (stating that an en banc
court may overrule three-judge panel decision).
11
Code, falls within the generic federal definition of the offense in 8 U.S.C.
§ 1227(a)(2)(E)(i). Esquivel-Quintana, 137 S. Ct. at 1568. If so, the two offenses
are a categorical match and the state conviction may serve as a ground for
removal. Id.A.
Determining the least of the acts criminalized under section 273a(a) of the
California Penal Code is straightforward. It consists of causing or permitting a
child “to be placed in a situation where his or her person or health is endangered,”
committed with a mens rea of criminal negligence. Cal. Penal Code § 273a(a).
Such an offense, involving serious risk of harm to the child but no resulting injury,
is commonly referred to as a child endangerment offense.
Section 273a(a) has three elements. First, a person must have “care or
custody” of a child. Id. This does not require a familial relationship between the
defendant and child; “a willingness to assume duties correspondent to the role of a
caregiver” will suffice. People v. Cochran, 62 Cal. App. 4th 826, 832 (1998)
(interpreting Cal. Penal Code § 273a(b)).
Second, that child must be placed “in a situation where his or her person or
health is endangered.” Cal. Penal Code § 273a(a). This conduct must occur
“under circumstances or conditions likely to produce great bodily harm or death.”
Id.; cf. id. § 273a(b) (misdemeanor if conduct is under circumstances “other than
12
those likely” to produce such risk). Conditions are “likely” to result in harm or
death if “the probability of serious injury is great.” Valdez, 27 Cal.4th at 784(quoting People v. Sargent, 19 Cal.4th 1206, 1216 (1999)). A defendant need not
be subjectively aware of the risk to the child. Valdez, 27 Cal.4th at 790.
Third, the statute requires a defendant to act “willfully.” Cal. Penal Code
§ 273a(a). The California Supreme Court has interpreted this to require a mens rea
of criminal negligence, reasoning that the standard is appropriate given that
negligent child endangerment can occur “when the act is intrinsically lawful, such
as leaving an infant with a babysitter, but warrants criminal liability because the
surrounding circumstances present a high risk of serious injury.” Valdez, 27
Cal.4th at 789. Valdez uses extreme language to describe the degree of negligence
required, stating it
must be aggravated, culpable, gross, or reckless, that is, the conduct of
the accused must be such a departure from what would be the conduct
of an ordinarily prudent or careful [person] under the same
circumstances as to be incompatible with a proper regard for human life
. . . or an indifference to consequences.
Valdez, 27 Cal.4th at 788 (citations omitted).
The plurality opinion waves off concerns that the criminal negligence
standard embraces “‘poor housekeeping’ or everyday parenting decisions.”
Plurality 12 (citation omitted). The plurality draws on lurid examples to argue that
the statute only extends to serious, aberrant conduct: a father “shaking a four-and-
13
a-half-month-old infant . . . with the force equivalent to dropping him out of a
second story window,” Sargent, 19 Cal. 4th, at 1222 (1999); a father storing
dangerous chemicals, exposed electrical wires, and weapons at home and within
reach of his children, People v. Odom, 226 Cal. App. 3d 1028, 1033–34 (1991);
and a mother confining her eight-and-a-half-year-old daughter in the home since
she was only six-months old, including keeping her in a closet for at least a six-
month period. People v. Hernandez, 111 Cal. App. 3d 888, 894–95 (1980).
We acknowledge that section 273a(a) criminalizes extreme wrongdoing.
But these examples merely show that such conduct is sufficient for liability under
the statute. They tell us nothing about the lower-bound of liability embraced by
the criminal negligence standard. As detailed in a brief submitted by California
public defenders, prosecutors and law enforcement officers disagree with the
plurality’s exaggerated assessment of the mens rea requirement, and have found
simple parenting mistakes—such as failing to restrain a child properly in a car seat
or falling asleep while children were in one’s care—criminally negligent. Br. of
Cal. Pub. Defenders Ass’n et. al. at 9 (Cal. Defenders Br.); see generally id. at 9–
11.
The concurrence and plurality opinion wrongly dismiss these examples—
chiding amici for failing to provide citations to court proceedings, Plurality 13, and
arguing that “the limited information that is selectively presented in the [amicus]
14
brief is so devoid of foundation that we cannot take judicial notice of the claims
made in it.,” Concurrence 17 n. 8. The plurality and concurrence disregard the
reality that the cases, such as those the plurality cites, likely to result in a detailed
disposition and necessitating a significant investment of prosecutorial and judicial
resources are likely to involve complex, unsympathetic facts. Both the plurality
and concurrence also disregard amici’s caveat that its examples are “necessarily
vague” due to confidentiality concerns. Cal. Defenders Br. at 8.
Moreover, regardless of how high the criminal negligence standard has been
set by the California Supreme Court, there are numerous examples in our circuit of
actors in the criminal justice system finding that poor parenting decisions satisfy
the criminal negligence mens rea required for arrests, prosecutions, or convictions
under section 273a(a). In order to fairly assess what the least of the acts
criminalized by section 273a(a) is, it is important to understand how the statute is
routinely applied in practice.
In Andre-Lucas v. Mayorkas, a father pleaded guilty to child endangerment
allegedly for trying to calm down and discipline his four-year old son who was
throwing a temper tantrum. No. 3:21-cv-01121, 2021 WL 3929686, at *1 (S.D.
Cal. Sept. 2, 2021). His son was allegedly upset at receiving the wrong flavor of
ice cream. Id.15
In Sky N. v. Becerra, a father was charged with child endangerment after
leaving a child in their family car for a short period while he returned to a
restaurant. No. 2:21-cv-507, 2021 WL 3744383, at *2–3 (C.D. Cal. June 22,
2021). The father was charged with violating sections 273a(a) and (b) of the
California Penal Code and convicted under section 273a(b). Id. at *1. See
Sargent, 19 Cal. 4th at 1223 (“The scienter required for both [subsections (a) and
(b)] is the same.”); see also Valdez, 27 Cal.4th at 783 n.3 (noting that the “primary
difference” between subdivisions (a) and (b) is unrelated to mens rea element).
The car was parked in an underground garage which a passerby described as “a
little bit warm.” Id. at *3. The child was unharmed. Id.
Calming a child upset about his ice cream choice hardly seems
“incompatible with a proper regard for human life or an indifference to
consequences.” Valdez, 27 Cal.4th at 788 (internal citations omitted). These
examples suggest that, notwithstanding the harsh language California courts use in
describing the criminal negligence standard, prosecutors, arresting officers, and
juries have found parents criminally negligent and liable for child endangerment
for ordinary parenting mistakes.
B.
Congress enacted 8 U.S.C. § 1227(a)(2)(E)(i) as part of IIRIRA. Pub. L.
No. 104-208, § 350(a). IIRIRA added “a crime of child abuse, child neglect, or
16
child abandonment” to the list of offenses that render noncitizens removable from
the United States but did not further define the crimes of “child abuse,” “child
neglect,” or “child abandonment.” Id. When a federal statute specifies an offense
by name without further defining its elements, we assume that Congress intended
to rely on a uniform, generic version of the offense, drawn from the ordinary
meaning of the term at the time Congress enacted the statute. Esquivel-Quintana,
137 S. Ct. at 1569; see also Perrin v. United States, 444 U.S. 37, 42 (1979)
(“A fundamental canon of statutory construction is that, unless otherwise defined,
words will be interpreted as taking their ordinary, contemporary, common
meaning.”)
The BIA has repeatedly attempted to formulate a definition of the generic
federal offense described by the terms “child abuse,” “child neglect,” and “child
abandonment.” The reason the agency has failed to formulate a definitive meaning
likely is because its expertise is in immigration law—not criminal law—and it has
failed to employ the requisite tools of statutory construction. The Supreme Court
in Esquivel-Quintana instructs us on how to conduct the two-step inquiry Chevron
requires under the circumstances presented here. In Esquivel-Quintana, the Court
addressed another conviction-based removal provision enacted as part of IIRIRA,
authorizing removal of noncitizens convicted of “sexual abuse of a minor.” 137 S.
Ct. at 1568–69; 8 U.S.C. §§ 1227(a)(2)(A)(iii) (authorizing removal of noncitizens
17
convicted of an aggravated felony), 1101(a)(43)(A) (defining sexual abuse of a
minor as an aggravated felony). The Court considered whether the generic federal
definition of this offense, “in the context of statutory rape offenses that criminalize
sexual intercourse based solely on the age of the participants,” requires that the
victim be younger than sixteen. Esquivel-Quintana, 137 S. Ct. at 1568. The BIA
had held that the generic federal definition included crimes in which the victim was
sixteen or seventeen so long as there was “a meaningful age difference between the
victim and the perpetrator.” Id. at 1567 (quoting Matter of Esquivel-Quintana, 26
I. & N. Dec. 469, 477 (BIA 2015)). The Supreme Court rejected the BIA’s
analysis at step one of Chevron. Id. at 1572. The Court relied on “the normal tools
of statutory interpretation,” consulting contemporaneous dictionaries, the structure
of the INA, state criminal codes, and a related federal criminal statute. Id. at 1569–
72.
C.
“Before we address whether in the statute Congress has spoken clearly, we
must identify the precise question at issue.” Fournier v. Sebelius, 718 F.3d 1110,
1118 (9th Cir. 2013) (quoting Chevron, 467 U.S. at 842–43). Once we identify
that question, we use the normal tools of statutory construction to determine if
Congress adopted language which unambiguously provides an answer, evincing
Congress’s intent to foreclose alternatives proposed by an agency. “If the intent of
18
Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Fournier,
718 F.3d at 1118 (citations omitted).
The question at issue is what Congress meant when it said “a crime of child
abuse, child neglect, or child abandonment.” We must answer this question with
reference to the contemporaneous, ordinary meaning of these three crimes. At step
one, we independently evaluate what the statute means, whether it is ambiguous,
and whether that ambiguity evinces an intent to leave an interpretive gap for the
agency to fill. Here, we conclude that Congress meant what it said when it
identified three discrete crimes in § 1227(a)(2)(E)(i). While the statute may admit
some ambiguity as to the elements of each stated offense, this ambiguity did not
explicitly or implicitly authorize the BIA to render removable a new category of
noncitizens convicted of child endangerment offenses.
The plurality goes astray by beginning with the wrong question. It asks
“whether Congress meant the offenses listed in § 1227(a)(2)(E)(i) to cover (or not
cover) crimes against children that require only a mens rea of criminal negligence,
do not require injury to the victim, and do not require the perpetrator to be a parent
or legal guardian, but could include persons temporarily responsible for a child.”
19
Plurality 19–20.4 But this elliptical phrasing implicitly adopts the BIA’s
interpretation of the statute, conflating Chevron step two with step one. For the
plurality, the question is not what Congress meant, but whether language Congress
happened to adopt admits enough ambiguity to support the BIA’s interpretation.
This question guides the plurality’s parsing of dictionary definitions, see id. at 20-
26, its reliance on inapposite federal civil statutes, mimicking the BIA’s
methodology, id. at 29-35, and its attempts to obfuscate results of its multi-
jurisdictional analysis of crimes against children.5 Id. at 35-43.
IV.
We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously
forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or
4
The plurality alternatively “frame[s] [its] inquiry by determining whether it is
unambiguous that the generic federal offenses of ‘child abuse, child neglect, or
child abandonment’ in § 1227(a)(2)(E)(i) do not match the least of the offense
criminalized by section 273a(a)[.]” Plurality 18–19.
5
By misconstruing the interpretive question in step one, the plurality goes looking
for ambiguity on the BIA’s behalf and, unsurprisingly, finds it. See Atlantic
Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (“Most words
have different shades of meaning and consequently may be variously construed
. . . .”). The plurality opinion takes the bare fact of ambiguity as conclusive
evidence that Congress intended to adopt language in 8 U.S.C. § 1227(a)(2)(E)(i)
that could encompass negligent child endangerment, Plurality 44–46 , and
reflexively defers to the BIA’s interpretation. Id. 64, 73. This order of operations
befits an enterprising agency eager to expand its regulatory domain. It is not
befitting of a reviewing court “exhaust[ing] ‘all the textual and structural clues’
bearing on [the statute’s] meaning” to “ensure the federal government does not
exceed its statutory license.” Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480, 1486
(2021) (citation omitted).
20
child abandonment” in Soram. 25 I. & N. Dec. at 380–81. Section
1227(a)(2)(E)(i) refers to three discrete crimes—child abuse, child neglect, and
child abandonment. The ordinary meaning of those terms excludes negligent child
endangerment offenses like section 273a(a) of the California Penal Code. 6
A.
“Our analysis begins with the language of the statute.” Leocal v. Ashcroft,
543 U.S. 1, 8 (2004). In interpreting such language, a court references the
“ordinary meaning” of terms included in a statute “at the time Congress enacted
the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018)
(citation omitted). Reviewing dictionaries published shortly before and after
IIRIRA’s enactment, we find that the crimes of child abuse, child neglect, and
6
In light of the Supreme Court’s recent admonitions that courts should engage in a
searching statutory analysis, bringing to bear all standard tools of statutory
construction before concluding that a statute in ambiguous, I have revised my view
about the statute’s ambiguity. Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019)
(“[T]he possibility of deference can arise only if a regulation is genuinely
ambiguous . . . even after a court has resorted to all the standard tools of
interpretation.”); see also Wooden v. United States, 142 S. Ct. 1063, 1075 (2022)
(Kavanaugh, J., concurring) (“[A] court must exhaust all the tools of statutory
interpretation” before applying the rule of lenity in criminal cases.). At the time
Martinez-Cedillo was decided, none of our sister circuits had applied a rigorous
methodology to construe the phrase “a crime of child abuse, child neglect, and
child abandonment.” Having now engaged in that analysis—and evaluated the
original panel majority’s analysis— I now conclude that the list of crimes is not
ambiguous as to the question we must ask here: did Congress intend to include
negligent child endangerment offenses when it failed to list that crime against
children along with the three it did list?
21
child abandonment had discrete definitions. These definitions suggest that the
ordinary meaning of such terms did not encompass negligent child endangerment
offenses.
1.
The ordinary meaning of “child abuse” in 1996 involved the infliction of
some form of injury upon the child. One of the principal dictionaries consulted by
the Court in Esquivel-Quintana defines “child abuse” as “the infliction of physical
or emotional injury,” including sexual abuse. Child Abuse, Merriam-Webster’s
Dictionary of Law, 4, 76 (1996); Esquivel-Quintana, 137 S. Ct. at 1569 (citing
Merriam-Webster’s Dictionary of Law (1996)). The two editions of Black’s Law
Dictionary published shortly before and after IIRIRA’s enactment similarly define
child abuse as requiring some infliction of injury: the Sixth Edition of Black’s
Law Dictionary defines “child abuse” as “[a]ny form of cruelty to a child’s
physical, moral, or mental well-being,” and defines “cruelty” as “[t]he intentional
and malicious infliction of physical or mental suffering.” Child Abuse, Black’s
Law Dictionary 239, 377 (6th ed. 1990) (Black’s Sixth Edition). The Seventh
Edition defines “child abuse” as “[a]n intentional or neglectful physical or
emotional injury imposed on a child, including sexual molestation.” Child Abuse,
Black’s Law Dictionary 10, 233 (7th ed. 1999) (Black’s Seventh Edition). And the
1989 edition of the Oxford English Dictionary defines “child abuse” as the
22
“maltreatment of a child, esp[ecially] by beating, sexual interference, or neglect.”
Child Abuse, Oxford English Dictionary 114 (2d ed. 1989).
The plurality opinion asserts first, that these definitions are ambiguous as to
the requisite mens rea, and, second, that “[s]ome contemporaneous dictionaries
defined ‘child abuse’ without specifying the role of . . . injury.” Plurality 21.
Although the mens rea elements may not have been defined clearly 7, what is clear
is that at the time IIRIRA was enacted, for an act to constitute child abuse, injury
to the child was required.
The plurality opinion relies entirely on two dictionary definitions for its
conclusion that injury was not commonly understood as an element of child abuse
in 1996. Plurality 21–22. It cites the 1995 edition of Ballentine’s Law Dictionary
for a definition of child abuse as “[t]he physical, sexual, verbal, or emotional abuse
of a young person,” including neglect of a child. Child Abuse, Ballentine’s Legal
Dictionary 96 (1995). It also cites the 1995 edition of Webster’s II New College
Dictionary, which includes in the definition of child abuse “toleration and
7
The Sixth Edition of Black’s Law Dictionary, predating IIRIRA, suggests that
child abuse must be “intentional and malicious.” Child Abuse, Black’s Sixth
Edition 239, 377. However, other dictionaries are unclear on this point, and an
alternate definition of “abuse” (in verb form) in Merriam-Webster’s Dictionary of
Law suggests that “physical or emotional mistreatment or injury on (as one’s
child)” can be done “purposely or through negligence or neglect and often on a
regular basis.” Abuse, Merriam-Webster’s Dictionary of Law 4 (1996).
23
complicity in conditions injurious to the child’s health.” Child Abuse, Webster’s II
New College Dictionary 194 (1995). Plurality 21–22.
However, both definitions in fact require injury. As to Ballentine’s, the
modifiers “physical, sexual, verbal, or emotional” indicate that the abuse has an
effect on the child. A child adversely affected in a “physical, sexual, verbal, or
emotional” form experiences an injury. By contrast, children unaware of the fact
that they are placed in a risky situation, unharmed as a result of being placed in
such situation, experience no injury. For example, if a child lived in a home where
dangerous items were present but inaccessible to the child, see Cal. Defenders Br.
at 10, or was unknowingly driven by a parent who had “two or three beers,” that
child would suffer no “physical, sexual, verbal, or emotional” injury. Child Abuse,
Ballentine’s Legal Dictionary 96 (1995).
As to Webster’s II, child abuse covers toleration of “conditions injurious to
the child’s health.” Child Abuse, Webster’s II New College Dictionary 194
(emphasis added). On its face, this definition requires that injury be present. The
definition does not include situations in which a parent tolerates conditions that
may, at some point in the future, become injurious to the child’s health, such as
failure to restrain a child properly in a car seat where no harm results. Cal.
Defenders Br. at 9.
24
These definitions in fact support our conclusion that the ordinary meaning of
child abuse in 1996 requires some form of injury. Section 273a(a) of the
California Penal Code requires no injury to the child and is therefore not a
categorical match for “child abuse” in § 1227(a)(2)(E)(i).
2.
The ordinary meaning of “child neglect” in 1996 required a sustained failure
by a child’s caregiver to provide for the child’s basic needs based on a standard of
proper care. Merriam-Webster’s Dictionary of Law defines child “neglect” as
“failure to provide a child under one’s care with proper food, clothing, shelter,
supervision, medical care, or emotional stability,” cross-referencing the definition
of “child abuse.” Neglect, Merriam-Webster’s Dictionary of Law 324. Black’s
Sixth Edition does not define “child neglect,” but defines a “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 physical, affectional, medical, surgical,
or institutional or hospital care for him, or he is in such condition of
want or suffering, or is under such improper care or control as to
endanger his morals or health.
Neglected Child, Black’s Sixth Edition 1032.
The Seventh Edition defines “child neglect” as “[t]he failure of a person
responsible for a minor to care for the minor’s emotional or physical needs.” Child
Neglect, Black’s Seventh Edition 233; see also id. (defining “neglected child” as:
25
“1. A child whose parents or legal custodians are unfit to care for him or her for
reasons of cruelty, immorality, or incapacity. 2. A child whose parents or legal
custodians refuse to provide the necessary care and medical services for the
child.”).
Based on these definitions, child neglect occurs when a parent or guardian
fails to perform essential parental duties, assessed against a standard of proper
care. This implies a sustained failure to meet a child’s needs and would exclude
situations in which an otherwise caring parent or guardian makes a mistake. 8 A
busy parent who forgets to pack his child’s school lunch does not commit child
“neglect” by failing to provide “proper food.” Neglect, Merriam-Webster’s
Dictionary of Law 324. Likewise, a parent running errands with his children, who
8
Both the plurality and the concurrence disagree that child neglect involves a
“sustained failure” to meet a child’s needs. They argue first, that the dictionary
definitions cited do not “clearly state” such a requirement, Plurality 24 n.6; see
also Concurrence 12 , and second, that the ordinary meaning of child neglect could
encompass one-time acts that cause serious harm, id. The concurrence poses a
hypothetical involving a babysitter who “observes that a child is running a 105-
degree fever and is convulsing,” and fails to seek appropriate medical care, arguing
that the babysitter would be liable for child neglect. Concurrence 12.
We disagree. A parent or custodian may violate a duty of care to a child
through a one-time act resulting in serious harm, but that conduct—assuming it
results in injury to a child—would constitute child abuse under the definitions
discussed in Section IV.A.1. The definitions of child neglect emphasize that
parents fall beneath a “proper” or “necessary” standard of care, suggesting a
relationship of care persisting beyond a one-time instance of minor neglectful
conduct. See, e.g. Neglect, Merriam-Webster’s Dictionary of Law 324; Neglected
Child, Black’s Sixth Edition 1032.
26
accidentally and unknowingly leaves his children in a grocery store while
“frantically” searching for them in the parking lot, does not fail to provide for his
children’s “mental and emotional needs.” Cal. Defenders Br. at 9–10; Child
Neglect, Black’s Seventh Edition 233.
The concurrence agrees that “child neglect” is unambiguous but argues that
the ordinary meaning of child neglect encompasses negligent child endangerment.
Viewing the same set of definitions, the concurrence deduces three elements:
(1) the person had a duty towards a child; (2) the person breached that
duty in a manner that constitutes a gross deviation from accepted
standards; and (3) the person should have been aware that his or her
conduct presented a substantial and unjustifiable risk of serious
physical or emotional harm to the child.
Concurrence 9.
The concurrence’s first element is consistent with the definitions discussed
above. Its second and third elements are not. The concurrence reasons that
because § 1227(a)(2)(E)(i) refers to the “crime” of child neglect, the “very
concept of criminal neglect clearly indicates that criminal negligence is
sufficient.” Concurrence 8. However, as the plurality opinion notes, this
reasoning is fundamentally flawed. See Plurality at 47–49. The concurrence
breaks the phrase “child neglect” into its two constituent words and derives a
mens rea requirement of negligence by analyzing the word “neglect” in
isolation. Concurrence 8 (“The operative term, after all, is “neglect” . .
.). “The definition of words in isolation, however, is not necessarily
27
controlling in statutory construction.” Dolan v. U.S. Postal Serv., 546 U.S.
481, 486 (2006) (holding that “negligent transmission” of postal matter
“does not comprehend all negligence occurring in the course of mail
delivery”). Here, the statutory phrase “child neglect” was widely defined in
contemporaneous dictionaries and used in state criminal codes, which carry
more interpretative weight than dictionary definitions of
“neglect.” See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1826–27 (2020)
(Kavanaugh, J., dissenting) (“This Court has often emphasized the
importance of sticking to the ordinary meaning of a phrase, rather than the
meaning of words in the phrase.”); see also FCC v. AT&T Inc., 562 U.S.
397, 406 (2011) (“AT&T’s argument treats the term ‘personal privacy’ as
simply the sum of its two words: the privacy of a person. . . . But two words
together may assume a more particular meaning than those words in
isolation.”). Those dictionaries and state criminal codes do not support the
concurrence’s assertion that criminal negligence is sufficient. In fact, the
dictionary definitions the concurrence relies on are silent as to the
requisite mens rea. 9 Accord Plurality 24.
9
We note that the surrounding terms in the statute — “domestic violence” and
“stalking” — both require intent. See 8 U.S.C. § 1227(a)(2)(E)(i) (defining “crime
of domestic violence”); Matter of Sanchez-Lopez, 27 I. & N. Dec. 256, 258 (BIA
2018) (stalking requires “intent to cause [the victim] or a member of his or her
immediate family to be placed in fear of bodily injury or death”). In Esquivel-
28
The plurality opinion, by contrast, focuses primarily on refuting Diaz-
Rodriguez’s argument that the term “child neglect” ordinarily refers to an offense
that could be committed only by a parent or guardian rather than divining the
ordinary meaning of the term in 1996. Plurality 23–24. The plurality opinion
notes that only Webster’s II New College Dictionary specifies that a parent or
guardian can commit child neglect, defined as a “[f]ailure on the part of a parent or
parental substitute to supervise a child and provide requisite care and protection.”
Child Neglect, Webster’s II New College Dictionary 194 (1995). Other dictionary
definitions, the plurality contends, are less clear. See Neglect, Merriam-Webster’s
Dictionary of Law 324 (not specifying who can commit child neglect); Child
Neglect, Black’s Seventh Edition 199 (same); Child Neglect, Ballentine’s Legal
Dictionary 96 (defining child neglect by cross referencing child abuse which does
not specify relationship between abuser and abused); Plurality 22–23.
Quintana, the Court found the meaning of the surrounding crimes useful in
defining sexual abuse of a minor. See 137 S. Ct. at 1570 (“[T]he INA lists sexual
abuse of a minor in the same subparagraph as “murder” and “rape,” §
1101(a)(43)(A)—among the most heinous crimes it defines as aggravated felonies.
§ 1227(a)(2)(A)(iii). The structure of the INA therefore suggests that sexual abuse
of a minor encompasses only especially egregious felonies.”). So, given the
proximity of “domestic violence” and “stalking” to “child abuse, child neglect, or
child abandonment,” it would be consistent with Esquivel-Quintana to require
intent for all three categories of crimes. Regardless, though, nothing in the
definitions cited by the concurrence clearly establishes that the mens rea for child
neglect is negligence.
29
We do not find these definitions ambiguous as to whether a non-parent or
guardian can commit child neglect. The types of duties referenced—provision of
proper food, water, medical care, emotional support, and shelter—are commonly
associated with parents and legal guardians. Neglect, Merriam-Webster’s
Dictionary of Law 324; Neglected Child, Black’s Sixth Edition 1032; Child
Neglect, Black’s Seventh Edition 233.
But even if the plurality reading is correct, this observation fails to buttress
its conclusion that the ordinary meaning of “child neglect” is ambiguous enough to
encompass negligent child endangerment offenses such as section 273a(a) of the
California Penal Code. See Plurality 25 (noting that definitions of child abuse and
child neglect “do not point in one direction”). Even if non-parents can be charged
with child neglect, the ordinary meaning of that term does not extend to situations
where non-parents commit one-time negligent acts or omissions that expose
children to risk of harm. Yet, under section 273a(a), a grandfather can be charged
for hiding firearms in a home where his grandson happens to be present, even if his
grandson had no access to the firearm and was not harmed. Cal. Defenders Br. at
11. Unless the plurality intends at step one of Chevron to implicitly accept the
BIA’s conclusion in Soram that “child neglect” is one part of a “unitary concept”
denoted by “a crime of child abuse, child neglect, and child abandonment,” 25 I. &
N. Dec. at 381, ambiguity regarding the parent-or-guardian element of “child
30
neglect” does not support the conclusion that this term encompasses negligent
child endangerment.
3.
The ordinary meaning of “child abandonment” in 1996 is similar to that of
child neglect. Both terms involve forsaking one’s parental duties. Merriam-
Webster’s Dictionary of Law defines “abandonment” with respect to a child as
“failure to communicate with or provide financial support for one’s child over a
period of time that shows a purpose to forgo parental duties and rights.”
Abandonment, Merriam-Webster’s Dictionary of Law 1. Black’s Sixth Edition
defines abandonment with respect to children as “[d]esertion or willful forsaking”
and “[f]oregoing parental duties.” Abandonment, Black’s Sixth Edition 2. The
Seventh Edition simplifies this to “[t]he act of leaving a spouse or child willfully
and without an intent to return.” Abandonment, Black’s Seventh Edition 2; see
also Bryan A. Garner, A Dictionary of Modern Legal Usage 3 (2d ed. 1995)
(abandon: “in family law, to leave children or a spouse willfully and without an
intent to return”). Each definition references intent: child abandonment must be
committed with a “purpose” to forgo such duties, Abandonment, Merriam-
Webster’s Dictionary of Law 1, or be done “willfully,” Abandonment, Black’s
Seventh Edition 2; Abandonment, Black’s Sixth Edition 2. While child neglect
31
occurs over a sustained period, child abandonment may be permanent, or
committed with the intent to abandon permanently.
We conclude that the ordinary meaning of child abandonment requires not
only that the crime be committed by a child’s parent or legal guardian, but also
involves the intentional forsaking of parental duties, over a long period of time or
permanently. Negligent child endangerment offenses do not fit within this
ordinary understanding of child abandonment. As such, section 273a(a) is not a
categorical match. Neither Diaz-Rodriguez nor the government argues that one-
time negligent acts or omissions exposing a child to the risk of harm fall within the
ordinary meaning of child abandonment.
The plurality agrees that child abandonment is not a categorical match for
section 273a(a) but on a different ground. Plurality 24–25. Intermixing a new
dictionary definition, the plurality opinion concludes that child abandonment is not
a categorical match for section 273a(a) because child abandonment may be
committed only by a parent or legal guardian. Abandonment of Child, Ballentine’s
Legal Dictionary 2 (defining “abandonment of a child” as when “a parent deserts
[a child] with the intention of casting off all parental obligations”).
We take no issue with the plurality opinion’s conclusion on this point but
question its methodology. As with child neglect, the plurality opinion does not
draw an explicit conclusion regarding the ordinary meaning of child abandonment,
32
merely finding a mismatch between one element of section 273a(a), which can be
committed by a non-parent or guardian with “care or custody” of a child. Fair
enough, but our inquiry at step one of Chevron is not so limited. The question is
not whether “child abandonment” can be plausibly read to encompass negligent
child endangerment. The question is what “child abandonment” means.
4.
The “reliable dictionaries” consulted by the Court in Esquivel-Quintana
clarify the ordinary meanings of child abuse, child neglect, and child abandonment,
and demonstrate that these distinct definitions do not encompass negligent child
endangerment as criminalized under California law. 137 S. Ct. at 1569. Some
overlap between the elements of such offenses exists. For example, injury to the
child is required for all three offenses; a parental or guardianship relationship
between the abuser and the child is required for child neglect and child
abandonment. The dictionary definitions of such offenses are occasionally cross-
referenced. See Child Neglect, Merriam-Webster’s Dictionary of Law 324 (cross-
referencing “child neglect” with the definition of abuse); Child Abuse, Black’s
Sixth Edition 239 (cross referencing “child abuse” with “[a]bused and neglected
children”). But the ordinary meaning of each term is distinct, cutting against the
inference that Congress intended to treat these terms as a “unitary concept.”
Soram, 25 I. & N. Dec. at 381; accord Concurrence 6 n.2
33
Notably, instead of adopting language that would embrace each of these
offenses as one concept—“crimes against children” or, as the plurality opinion
might suggest, “crimes against children that require only a mens rea of criminal
negligence, do not require injury to the victim, and do not require the perpetrator to
be a parent or legal guardian, but could include persons temporarily responsible for
a child,” Plurality 19–20, —Congress chose to separately identify each criminal
offense. The canon of “expressio unius est exclusio alterius as applied to statutory
interpretation creates a presumption that when a statute designates certain persons,
things, or manners of operation, all omissions should be understood as exclusions.”
See Silvers v. Sony Pictures Ent., Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc)
(internal quotation marks and citation omitted). This canon applies only where
items in the list are “members of an ‘associated group or series,’ 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) (quoting
United States v. Vonn, 535 U.S. 55, 65 (2002)), and “can be overcome by ‘contrary
indications that adopting a particular rule or statute was probably not meant to
signal any exclusion,’” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013)
(quoting Vonn, 535 U.S. at 65).
Child abuse, child neglect, and child abandonment are members of an
associated group of crimes against children. Even assuming the dictionary
34
definitions of child abuse and child neglect somewhat overlap, child endangerment
was recognized as an independent offense in dictionaries bookending IIRIRA’s
enactment. Endangerment, Merriam-Webster’s Dictionary of Law 160 (defining
endangerment as “the crime or tort of exposing others to possible harm or
danger”); Child Endangerment, Black’s Seventh Edition 233 (defining “child
endangerment” as “the placing of a child in a place or position that exposes him or
her to danger to life or health”); see also Child Endangerment, Black’s Law
Dictionary (11th ed. 2019) (stating that earliest usage of the term “child
endangerment” was in 1981, defined as “the placing of a child in a place or
position that exposes him or her to danger to life or health”). The fact that
Congress enumerated three related crimes against children and failed to enumerate
a fourth independently defined crime justifies the inference that this omission was
the product of deliberate choice, not mere inadvertence. There is no contrary
textual indication that Congress did not intend to “signal any exclusion.” For
example, 8 U.S.C. § 1227(a)(2)(E)(i) does not cover “crimes against children,
which may include” the “crime of child abuse, child neglect, and child
abandonment.” See Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 80 (2002)
(declining to apply expressio unius canon where Congress used the “expansive
phrasing of ‘may include’ [which] points directly away from the sort of exclusive
specification” justifying application of the canon). We find that Congress meant
35
what it said when it rendered noncitizens convicted of the three enumerated crimes
removable.
B.
The structure of the INA provides further evidence that Congress’s omission
of child endangerment from the list of crimes against children in § 1227(a)(2)(E)(i)
was the product of deliberate choice, not mere inadvertence.
1.
As part of IIRIRA, Congress created a discretionary form of relief intended
to ameliorate the harshness of removal for noncitizen children and their families:
cancellation of removal. 10 Noncitizens who are not lawful permanent residents
may seek cancellation of removal if they can show, among other things, that their
removal would result in “exceptional and extremely unusual hardship” to their
child, provided the child is a United States citizen or lawful permanent resident. 8
U.S.C. § 1229b(b)(1)(D). However, a conviction for “a crime of child abuse, child
neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i) not only renders
a noncitizen removable but also makes the noncitizen statutorily ineligible for this
10
Cancellation of removal for legal permanent residents and non-citizens without
such status replaced a different form of discretionary relief—suspension of
deportation. Suspension was added to the INA in 1952 and was available to a
broader class of noncitizens. See An Act to Revise the Laws Relating to
Immigration, Naturalization, and Nationality; and For Other Purposes, title II, ch.
5, § 244, 82 Cong. Ch. 477, 66 Stat. 163, 214 (1952).
36
discretionary form of relief. Id. § 1229b(b)(1)(C). Under the BIA’s reading of
§ 1227(a)(2)(E)(i) in Soram, a noncitizen convicted of a single instance of
negligent child endangerment is categorically ineligible for cancellation of
removal, even if the noncitizen can show that this would “cause ‘exceptional and
extremely unusual hardship’ to that same child.” Matthews v. Barr, 927 F.3d 606,
625 (2d Cir. 2019) (Carney, J., dissenting); see also Diaz-Rodriguez, 12 F.4th at
1134. The BIA’s interpretation absurdly undermines Congress’s purpose for
creating cancellation as a form of relief.11
11
The concurrence argues that “[t]here is nothing inconsistent, much less absurd,
in saying that a [noncitizen] who is slated for removal for having engaged in
criminal child neglect should not then be allowed to invoke his or her deficient
caregiving responsibilities towards that very child as a shield against deportation.”
Concurrence 16. The concurrence appears to misunderstand the interaction of
sections 1227(a)(2)(E)(i) and 1229b(b)(1)(D).
A noncitizen without lawful permanent resident status does not invoke “his
or her deficient caregiving responsibility as a shield against deportation” when
seeking cancellation of removal. Concurrence 16. Such noncitizens establish
eligibility for relief from removal by demonstrating that their removal will result in
“extreme and exceptional hardship” to their “spouse, parent, or child.” 8 U.S.C.
§ 1229b(b)(1)(D). But even if such parents can make that showing, they are, under
Soram, categorically ineligible for cancellation if convicted of section 273a(a) of
the California Penal Code for a minor parenting infraction. 8 U.S.C. §
1229b(b)(1)(C).
The absurdity of this result is apparent in view of the otherwise consistent
purposes of California’s child endangerment statute and § 1229b(b)(1)(D). Both
statutes are intended to protect children—the former in penalizing criminally
negligent parents, the latter in preventing removal of qualifying noncitizens that
would result in “extreme and exceptional hardship” to that child. But under the
BIA’s interpretation, an otherwise caring parent who makes a mistake will be
unable to seek cancellation, even if he or she shows that removal will result in
“extreme and exceptional hardship” to their child. “Paradoxically, it is children
37
The plurality falls back on its misleading characterization of the meaning of
criminal negligence to argue that the BIA’s reading of 8 U.S.C. § 1227(a)(2)(E)(i)
to include child endangerment would not be at odds with the otherwise child-
protective aim of § 1229b(b)(1)(C). Plurality 27–28. We, and amici, provide
numerous examples of people arrested or prosecuted under section 273a(a) of the
California Penal Code for parenting mistakes. Cal. Defenders Br. at 8-10. Each of
these arrests or prosecutions could ripen into a conviction or guilty plea and expose
noncitizen parents to immigration consequences on the basis of minor infractions,
subverting Congress’s statutory design. See Ibarra v. Holder, 736 F.3d 903,
905 & n.3 (10th Cir. 2013) (finding a noncitizen without legal permanent resident
status ineligible for cancellation of removal because she left her children at home
while at work).
But even if section 273a(a) may criminalize innocuous parenting mistakes
and render parents ineligible for cancellation of removal, the plurality reminds us
that “‘providing relief to aliens with strong ties to the United States” and
“‘promoting family unity’ ‘are not the INA’s only goals, and Congress did not
pursue them to the n th degree.’” Plurality 28 (citing Holder v. Martinez Gutierrez,
566 U.S. 583, 594 (2012)). Analogizing to a Supreme Court case analyzing
who will suffer harm under the agency’s interpretation of [section 273a(a)]—a law
intended for their protection.” Matthews, 927 F.3d at 636 (Carney, J., dissenting).
38
cancellation of removal for legal permanent residents, the plurality concludes that
the INA can promote both family unity and interior enforcement even if those
values may occasionally be at odds. See 8 U.S.C. § 1229b(a)(3); Plurality 28–29.
However, the plurality misses a key difference between cancellation of
removal for legal permanent residents and noncitizens lacking such status. These
are two distinct forms of relief under the INA. Cancellation of removal for legal
permanent residents may incidentally promote family unity by allowing long-term
legal permanent residents to remain with their family members, provided such
noncitizens have lived in the United States continuously for at least seven years,
remained in legal permanent resident status for five years, and have not committed
an aggravated felony. See 8 U.S.C. § 1229b(a)(1)–(3). Cancellation of removal
for non-legal permanent residents requires an explicit showing that removal would
endanger family unity and sets a significantly higher eligibility threshold.
Noncitizens who are not legal permanent residents who seek cancellation must
have lived in the United States continuously for at least ten years, show that they
have been a person of good moral character, not be convicted of certain offenses
including aggravated felonies, and demonstrate that removal would result in
“exceptional and extremely unusual hardship” to their United States citizen or legal
permanent resident family members. 8 U.S.C. § 1229b(b)(1)(A)–(D).
39
The exceptional hardship requirement strongly suggests that Congress
designed cancellation for noncitizens who lack legal permanent resident status as a
form of relief intended to preserve family unity. The BIA’s reading of
§ 1227(a)(2)(E)(i) in Soram runs directly counter to this statutory design,
authorizing summary removals that will cause “exceptional and extremely unusual
hardship” based on parenting mistakes.
2.
The plurality’s efforts to find helpful meaning in the structure of the INA is
fruitless. Plurality 26. Following its cursory assessment of surrounding provisions
of the INA, the plurality looks to other civil statutes enacted around the time of
IIRIRA to discern the phrase’s meaning, finding a handful of statutes and civil
code provisions generally related to conduct of court proceedings involving
victims of such crimes, see generally 42 U.S.C. § 3796aa-8(2) (1996) (federal
grants for televising of testimony of child abuse victims); 18 U.S.C. § 3509(a)(3)
(1996) (defining rights of victims in court proceedings), and provision of federal
resources to improve prosecution and research of crimes against children, 42
U.S.C. § 5106g(4) (defining “child abuse and neglect” in the context of the Child
Abuse Prevention and Treatment Act). Plurality 30–34. None of these civil
provisions supports the plurality’s ultimate determination that the phrase “a crime
40
of child abuse, child neglect, or child abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i)
is ambiguous. Plurality 44.
The plurality opinion homes in on the National Child Protection Act of 1993
(NCPA), a statute enacted “to establish procedures for national criminal
background checks for child care providers.” 42 U.S.C. § 5119a (1996); Plurality
30 (“The most relevant evidence comes from the National Child Protection Act of
1993.”) (citation omitted). The NCPA defines “child abuse crime” as “a crime
committed under any law of a State that involves the physical or mental injury,
sexual abuse or exploitation, negligent treatment, or maltreatment of a child by any
person.” Id. § 5119c(3) (1996). This expansive definition of child abuse, the
plurality concludes, is a “reliable indicator of how Congress would have
understood the materially identical terminology (‘crime of child abuse’) in the
INA.” Plurality 32.
“Child abuse” as defined in NCPA encompasses a bevy of crimes against
children—“any” state criminal law targeting “maltreatment” of “a child by any
person.” Id. This definition certainly encompasses the crimes of child neglect and
abandonment. If we take the plurality opinion at its word, we must conclude that
Congress intentionally rendered two of three crimes it listed in § 1227(a)(2)(E)(i)
superfluous. “[W]e must normally seek to construe Congress’s work ‘so that effect
is given to all provisions, so that no part will be inoperative or superfluous, void or
41
insignificant.’” Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1939 (2022)
(quoting Corley v. United States, 556 U.S. 303, 314 (2009)). This canon has
limited force where any interpretation of a statute will create redundancy.
See Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 106 (2011). But where a
“competing interpretation gives effect to every clause and word of a statute,” the
canon controls. Id. (internal quotation marks omitted). Our review of
contemporaneous dictionaries allows us to easily distinguish between the ordinary
meanings of these three separate crimes. Therefore, the plurality opinion’s
reference to an inapposite civil statute—concerning maintenance of a national
criminal history background check system—is of little interpretive value here.
42 U.S.C. §§ 5119(a), 5119c(3) (1996); Plurality 30–31. Indeed, it cuts the other
way because it demonstrates that Congress in 1996 knew how to draft expansive
language to broadly encompass maltreatment of children, and chose not to do so in
IIRIRA.
These civil definitions do not illuminate how Congress intended to punish
individuals convicted of such offenses, including through removal—a sanction
“intimately related to the criminal process.” Padilla v. Kentucky, 559 U.S. 356,
365 (2010). 12 The use of civil statutes to define criminal offenses was implicitly
12
The concurrence’s analysis suffers from the same flaws as the plurality’s—it
references a definition that swallows up all three crimes listed in
§ 1227(a)(2)(E)(i), and it relies on a civil statute to define criminal elements
42
rejected by the Supreme Court in Esquivel-Quintana. In the Sixth Circuit,
the panel relied on a civil statute to interpret “sexual abuse of a minor.” See
Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1025 (6th Cir. 2016) (discussing
18 U.S.C. § 3509). But reviewing the Sixth Circuit’s decision, the Supreme Court
declined to use that statute in its analysis, relying instead only on laws that
criminalize conduct. See Esquivel-Quintana, 137 S. Ct. at 1570-71 (discussing 18
U.S.C. § 2243). The plurality offers no support for its unprecedented use of civil
statutes to define the quasi-criminal statute at issue here. Given the manifestly
high stakes of removal proceedings, it is wrong to assume civil statutes can
illuminate congressional intent in describing criminal convictions.
The plurality opinion replicates the BIA’s freewheeling analysis from
Velasquez-Herrera II to Soram, consulting a similar set of contemporaneous civil
statutes to illuminate the federal generic definition of a crime. Velazquez-Herrera
II, 24 I. & N. Dec. at 510 nn.5-6; see also Soram, 25 I. & N. Dec. at 382 n.3. But
looking to federal civil statutes unreasonably widens the net of crimes against
children that may expose a noncitizen to removability under 8 U.S.C.
§ 1227(a)(2)(E)(i). There are many reasons that civil statutes may broadly define
crimes against children: to ensure that federal protections extend to victims in
without citing any support for doing so, see Plurality 49 (“[T]he definition of a
purely civil offense is merely suggestive of the elements of a criminal offense”).
43
court proceedings regardless of the severity of an offense, 18 U.S.C. § 3509(a)(3),
or to improve public understanding of how the states define such offenses, given
the variety of approaches states have taken, 42 U.S.C. § 5106g(4).
C.
In Esquivel-Quintana, the Supreme Court acknowledged that a multi-state
survey of state criminal codes as they stood at the time Congress enacted the
statute in question “helps shed light on the common understanding and meaning of
the federal provision being interpreted.” 138 S. Ct. at 1571 n.3 (internal quotation
marks omitted).
The Court relied in part on its determination that “the general consensus
from state criminal codes points to the same generic definition as dictionaries and
federal law” to determine that the federal generic offense of “sexual abuse of a
minor” in the INA included as an element that the victim was under sixteen years
old. Id. at 1572.
Relying on the original panel majority’s survey of criminal codes including
negligent child endangerment offenses irrespective of the label used, we conclude
that the phrase “a crime of child abuse, child neglect, or child abandonment” does
not encompass negligent child endangerment offenses. In 1996, only fourteen
states criminalized child endangerment committed with a mens rea of criminal
negligence—the least of the acts criminalized under section 273a(a) of the
44
California Penal Code. Appendix A. The other 36 states did not criminalize such
conduct. Appendix B. Of these 36 states, 23, along with the District of Columbia,
criminalized child endangerment committed with a mens rea of at least
recklessness. Appendix C. The remaining 13 states did not criminalize child
endangerment at all.
In Esquivel-Quintana, the Supreme Court found that the consensus view of
31 states and the District of Columbia was sufficient to demonstrate that Congress
unambiguously foreclosed the BIA’s attempt to define the generic offense of
sexual abuse of a minor to include an age of consent of 18, given that a majority of
states maintained that sexual abuse of a minor must involve a victim younger than
18. Id. at 1571–72. Here, a consensus view of 36 states, including the District of
Columbia, at the time of IIRIRA’s enactment supports the view that “a crime of
child abuse, child neglect or child abandonment” does not include the crime of
negligent child endangerment, given that a majority of states did not criminalize
this behavior.
The plurality conducts its own survey and arrives at a different number (15)
and list of states that criminalized negligent child endangerment.13 Plurality 40.
13
The original panel majority found that Alabama, Arizona, California, Colorado,
Missouri, Nebraska, New Mexico, New York, Oregon, South Carolina, South
Dakota, Texas, Virginia, and Wyoming criminalized negligent child
endangerment. By contrast, the plurality found that Arizona, California, Colorado,
45
Faced with the realization that a small minority of jurisdictions criminalized
negligent child endangerment in 1996, the plurality pivots and obfuscates—
arguing that its multijurisdictional analysis merely illustrates the “wide variety of
approaches [states took] to labeling, categorizing, and defining crimes against
children.” Plurality 38. This in turn, the plurality claims, supports the inference
that “‘Congress purposefully employed the overlapping concepts of child abuse,
neglect, and abandonment [in § 1227(a)(2)(E)(i)] to denote a broad array of
crimes,’ and to ‘assure coverage of such crimes, however denominated by the
States.’” Plurality 41 (quoting Martinez-Cedillo, 896 F.3d at 990); see also
Concurrence 15.14 The plurality also speculates that because negligent child
endangerment was criminalized “in the most populous regions of our nation,”
“Congress could have understood ‘crimes of child abuse, child neglect, and child
abandonment’ in § 1227(a)(2)(E)(i) to include such offenses.” Plurality 41–42; id.
41 (noting that this is “a factor indicating that there was a common understanding
Connecticut, Florida, Kansas, Missouri, Nebraska, Nevada, New Mexico, New
York, Oregon, Texas, Utah, and Virginia criminalized the same offense.
14
The concurrence draws a similar conclusion, noting that the “various state
approaches are too disparate to support any inference that, in deploying the phrase
‘crime of . . . child neglect,’ Congress intended to adopt any particular variant of
these approaches.” That said, the concurrence declines to conduct an independent
multijurisdictional analysis, reiterating the Supreme Court’s reminder that “such a
multi-state survey ‘is not required by the categorical approach.’ Esquivel-
Quintana, 137 S. Ct. at 1571 n.3.” Concurrence 15.
46
that such elements [of section 273a(a) of the California Penal Code] could be
included as part of crimes against children.”).
We agree that states took a variety of approaches in defining crimes against
children at the time of IIRIRA’s enactment. Both our and the plurality’s analysis
of jurisdictions criminalizing negligent child endangerment reference statutes
labeled abuse15, neglect, 16 and abandonment. 17 We also agree that the definitions
of child abuse, child neglect, and child abandonment admit some overlap and
ambiguity as to the elements of each offense. See supra Section I.A.3. But the
plurality’s inference—that Congress could have intended “crimes of child abuse,
child neglect, and child abandonment” in § 1227(a)(2)(E)(i) to encompass
negligent child endangerment—does not follow from these observations. Even
assuming Congress employed the phrase “a crime of child abuse, child neglect, and
child abandonment” to denote a “broad array of crimes,” our multijurisdictional
analysis shows this array excluded negligent endangerment in the large majority of
jurisdictions. Plurality 41.
15
See Ariz Rev. State. Ann. § 13-3623(B) (“Child or vulnerable adult abuse;
emotional abuse”); Colo. Rev. Stat. § 18-6-401(1) (“Child abuse”); Neb. Rev. Stat.
Ann. § 28-7071(1) (“Child abuse”); Va. Code Ann. §
16See Or. Rev. Stat. § 163.545 (“Child neglect in the second degree”).
17
See N.M. Stat. § 30-6-1(C) (“Abandonment or abuse of a child”); Tex. Penal
Code Ann. § 22.041(c) (“Abandoning or Endangering Child”).
47
The inference we draw follows from the Supreme Court’s teaching in
Esquivel-Quintana. The Supreme Court acknowledged that states criminalizing
sexual abuse of a minor used different labels and included different elements—
observing that only two states “had offenses labeled ‘sexual abuse of a minor’ in
1996,” and that “[m]any jurisdictions set a different age of consent for offenses
that include an element apart from the age of participants, such as offenses that
focus on whether the perpetrator is in some special relationship of trust with the
victim.” 137 S. Ct. at 1572; see also Plurality 40.
The Supreme Court did not, at that juncture, throw up its hands and declare
that “sexual abuse of a minor” had no settled meaning at the time of IIRIRA’s
enactment. Cf. Plurality 53 (“[T]here was no discrete, well-understood offense of
‘child endangerment,’ just as there were no discrete offenses of ‘child abuse, child
neglect, and child abandonment,’ in 1996[.]”); id. 51–53. Nor did it suggest that
the states’ varying approaches revealed that Congress could have intended for
“sexual abuse of a minor” in §1227(a)(2)(A)(iii) to encompass conduct
criminalized in a small minority of jurisdictions—for example, to require an
element that the victim be younger than 18, as was true in 10 states—based on the
percentage of the population that happened to reside in such states. Esquivel-
Quintana, 137 S. Ct. at 1571; cf. Plurality 40–41. Instead, the Court determined
that the “generic federal definition of ‘sexual abuse of a minor’” accorded with the
48
approach taken by a majority of states, “requir[ing] the age of the victim to be less
than 16.” Esquivel-Quintana, 137 S. Ct. at 1572.18
We apply the Supreme Court’s logic to the results of our multijurisdictional
analysis. The generic federal definition of a “crime of child abuse, child neglect,
or child abandonment” accords with the approach taken by a majority of states,
which used a variety of different approaches to criminalize crimes against children
and did not, irrespective of the label used, criminalize negligent child
endangerment.
D.
18
The plurality argues that “Esquivel-Quintana provides no support for this
conclusion” because the Supreme Court allegedly drew its inference based on the
“express adoption of this age of consent in the statutes of a significant majority of
states[.]” Plurality 43. The plurality’s narrow reading of Esquivel-Quintana is
unsupported by the plain text of that opinion and absurd in any event. First, the
plurality shoehorns in an “express adoption” requirement neither implicitly nor
explicitly endorsed by the Court in Esquivel-Quintana—which refers only to the
“general consensus” drawn from state criminal codes, 137 S. Ct. at 1572. Second,
the plurality’s suggestion that state legislatures must affirmatively adopt language
excluding criminal elements or offenses in order for a court to draw any inference
from such exclusion beggars belief. Plurality 43. Taking the plurality at its word:
had the Supreme Court in Esquivel-Quintana found that the large majority of states
omitted the age of consent as an element of sexual abuse of a minor—the Court
would be forced to bury its head in the sand, treating this omission as incidental
unless states “expressly” stated that age of consent was not an element. Faced with
clear evidence that a large majority of jurisdictions did not criminalize negligent
child endangerment under any label, we decline the plurality’s invitation to put on
interpretive blinders.
49
We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i) unambiguously
forecloses the BIA’s interpretation of “a crime of child abuse, child neglect, or
child endangerment” as encompassing negligent child endangerment offenses such
as section 273a(a) of the California Penal Code. Section 1227(a)(2)(E)(i) may be
ambiguous on some counts, including as to other crimes against children that may
fall within the definitions of the three enumerated offenses. See Diaz-Rodriguez,
12 F.4th at 1136 (“We agree with the Tenth Circuit’s observation that ‘while the
text at issue here does contain some ambiguity, Congress’s intent is not so opaque
as to grant the BIA the sweeping interpretive license it has taken.’” (quoting
Ibarra, 736 F.3d at 910)). But the distinct, ordinary meanings of “child abuse,”
“child neglect,” and “child abandonment” at the time of IIRIRA’s passage did not
encompass negligent child endangerment. Even if the language is ambiguous on
some counts, this ambiguity does not evince Congress’s intent to empower the BIA
to render removable noncitizens convicted of child endangerment. We recognize
that, in reaching this conclusion, we diverge from other circuits that have
considered this question and determined at step one of Chevron that the statute is
ambiguous. See Bastias v. U.S. Att’y Gen., 42 F.4th 1266, 1268 (11th Cir. 2022);
Garcia v. Barr, 969 F.3d 129, 133 (5th Cir. 2020); Mondragon-Gonzalez v. Att’y
Gen., 884 F.3d 155, 158–59 (3d Cir. 2018); Florez v. Holder, 779 F.3d 207, 209,
211 (2d Cir. 2015); Matthews, 927 F.3d at 613; but see Ibarra, 736 F.3d at 910; cf.
50
Zarate-Alvarez v. Garland, 994 F.3d 1158, 1161-62 (10th Cir. 2021) (finding
statute ambiguous and upholding BIA interpretation of statute as applied to child
endangerment committed with knowing and reckless mens rea).
Respectfully, none of our sister circuits has applied the rigorous
methodology dictated by the Supreme Court in Esquivel-Quintana. Courts have
found section 1227(a)(2)(E)(i) ambiguous without conducting a thorough statutory
analysis. See Bastias, 42 F.4th at 1272 (deferring to Pierre v. U.S. Att’y General,
879 F.3d 1241, 1249 (11th Cir. 2018)); Pierre, 879 F.3d at 1249 (stating that the
“INA does not define ‘child abuse’” and concluding that the “statute is silent on
the issue”); Mondragon-Gonzalez, 884 F.3d at 159 (same). Courts have also
remarked that other circuits have found the language ambiguous and reflexively
adopted the consensus view, moving on to step two. Garcia, 969 F.3d at 132;
Florez, 779 F.3d at 211. Even the original panel majority in Martinez-Cedillo held
that 8 U.S.C. § 1227(a)(2)(E)(i) was ambiguous after two scant paragraphs, citing
to no dictionaries, no related sections of the INA, no criminal or civil statutes, and
no state laws aside from section 273a(a) of the California Penal Code.19 Martinez-
19
The Martinez-Cedillo panel majority’s full analysis at step one of Chevron reads
as follows:
Section 1227(a)(2)(E)(i) states that “[a]ny alien who at any time after
admission is convicted of a crime of domestic violence, a crime of
stalking, or a crime of child abuse, child neglect, or child abandonment
is deportable.” Unlike the term “crime of domestic violence,” no part
of the phrase “a crime of child abuse, child neglect, or child
51
Cedillo, 896 F.3d at 987. This “cursory analysis” of § 1227(a)(2)(E)(i) is
unpersuasive and suggests “an abdication of the Judiciary’s proper role in
interpreting federal statutes.” Pereira, 138 S. Ct at 2120 (Kennedy, J., concurring).
Our analysis, by contrast, is responsive to the Supreme Court’s admonition
that reviewing courts must ensure that our “legal toolkit is empty and the
interpretive question still has no single right answer” before deferring to an
agency’s construction. Kisor, 139 S. Ct. at 2415. Having found no genuine
ambiguity in 8 U.S.C. § 1227(a)(2)(E)(i) evincing Congress’s intent to grant the
BIA interpretive license, we conclude that the statute forecloses the agency’s
reading.
E.
In light of our conclusion that the statute is unambiguous at step one, “[w]e
have no need to resolve whether the rule of lenity or Chevron receives priority in
abandonment” is defined in the INA. There are no federal crimes of
child abuse, neglect, or abandonment to provide analogous definitions,
and unlike certain common-law crimes like burglary or assault, there
are no widely accepted definitions of child abuse, neglect, or
abandonment.
Section 1227(a)(2)(E)(i)’s language is broad and susceptible to multiple
interpretations. Every circuit court to have considered it has noted its
ambiguity. See Florez, 779 F.3d at 211 (“[W]e have little trouble
concluding that the statutory provision is ambiguous.”); Ibarra, 736
F.3d at 910 (rejecting the BIA’s interpretation but only after
acknowledging that “the statutory language is ambiguous”). We agree
and therefore pass to step two.
896 F.3d at 987.
52
this case because the statute, read in context, unambiguously forecloses the
Board’s interpretation. Therefore, neither the rule of lenity nor Chevron applies.”
Esquivel-Quintana, 137 S. Ct. at 1572. The plurality finds ambiguity, and then
concludes that the BIA’s interpretation is reasonable. I disagree. 20
The plurality sidesteps any substantive discussion of the immigration rule of
lenity, “the longstanding principle of construing any lingering ambiguities in
deportation statutes in favor of the [noncitizen].” INS v. Cardoza-Fonseca, 480
U.S. 421, 449 (1987); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“[S]ince
the stakes are considerable for the individual, we will not assume that Congress
20
The BIA’s shifting definition remains “so imprecise, it violates ‘essential’ tenets
of due process, most specifically, ‘the prohibition of vagueness in criminal
statutes.’” Martinez-Cedillo, 896 F.3d at 999 (Wardlaw, J., dissenting) (quoting
Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018)). In Velasquez-Herrera II and
Soram, the BIA failed to define the elements of a specific crime—the “crime of
child abuse, child neglect, or child abandonment.” Id. at 999-1000. The BIA’s
attempt to define the mens rea for this crime is sweeping, including any
“intentional, knowing, reckless, or criminally negligent” mens rea. Soram, 25 I. &
N. Dec at 380. The agency’s attempt to define the actus reus is similarly vague.
While the BIA recently clarified the state-by-state risk analysis IJs conduct to
determine if a child endangerment offense falls under § 1227(a)(2)(E)(i), see
Rivera-Mendoza, 28 I. & N. Dec. at 187, the BIA’s actus reus test extends to
“conduct that does not result in any injury to the child . . . , combining multiple
crimes and including terms covered elsewhere in the immigration codes.”
Martinez-Cedillo, 896 F.3d at 999. Further, the BIA has repeatedly, without
explanation, changed this generic definition. This fact, coupled with the vagueness
of the BIA’s current interpretation, “underscores the irrationality of its current
position.” Martinez-Cedillo, 896 F.3d at 1000-01; see Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 220 (2016); FCC v. Fox Television Stations, Inc., 556 U.S.
502, 516 (2009).
53
meant to trench on his freedom beyond that which is required by the narrowest of
several possible meanings of the words used.”). The plurality opinion, via
footnote, dismisses this longstanding principle on procedural grounds. Plurality 54
n.29 (deeming argument forfeited by Diaz-Rodriguez). Regardless of whether
Diaz-Rodriguez surfaced this claim in briefing to us or in the proceedings below,
the Supreme Court recognized an open question regarding the immigration rule of
lenity, and its priority relative to deference at step two, as part of the analysis
required under Chevron. Esquivel-Quintana, 137 S. Ct. at 1572.
The plurality opinion assumes that because the Supreme Court has yet to
apply the immigration rule of lenity and Chevron in the same case, it cannot do
so. But the fact that there is an open question about how to harmonize the two
venerable principles of statutory construction is not a reason to ignore binding
precedent on the immigration rule of lenity. Cf. I.N.S. v. St. Cyr, 533 U.S. 289,
320 (2001) (applying presumption against retroactivity alongside immigration rule
of lenity). There is no doubt that applying the rule in this context would require
the plurality to arrive at a conclusion more favorable to petitioner than it does. The
plurality provides no persuasive justification for its refusal to apply the “long
standing” immigration rule of lenity at Chevron step two.
V.
54
The plurality opinion picks at dictionary definitions, disregards statutory
structure, and obfuscates the results of its multijurisdictional survey, all to prop up
the BIA’s impermissible approach to determining the generic definition of a “crime
of child abuse, child neglect, or child abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i).
Throughout its analysis, the plurality opinion implicitly adopts the BIA’s
interpretation of the statute, answers the wrong question, and ultimately fails to
show that Congress intended to leave an interpretive gap in the statute for the BIA
to fill.
Missing in the plurality opinion’s anodyne analysis is recognition of a
troubling fact: under the BIA’s overbroad interpretation of 8 U.S.C.
§ 1227(a)(2)(E)(i), individuals who for reasons of poverty, cultural difference,
work schedules, or bad luck make parenting mistakes may be permanently
separated from their families. This harm is not theoretical. In the decade since the
BIA decided Soram, the agency has extended § 1227(a)(2)(E)(i) to child
endangerment statutes in Colorado, New York, and Oregon. Br. of Am. Immigr.
Lawyers’ Ass’n & Immigr. Def. Proj. 4. Public defenders in California attest to
the vast array of conduct criminalized under section 273a(a) of the California Penal
Code. Cal. Defenders Br. at 9-10. By blessing the BIA’s patchwork analysis, the
plurality opinion invites the agency to expand its regulatory domain to new vistas,
ceding vast power to an agency which has “no special expertise by virtue of its
55
statutory responsibilities in construing state or federal criminal statutes.”
Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en banc).
Our responsibility as a reviewing court is to ensure that regulated parties—
here, noncitizen families—know what conduct will trigger the “civil death penalty”
of removal. Martinez-Cedillo, 896 F.3d at 989. The BIA’s vague, sweeping
interpretation of 8 U.S.C. § 1227(a)(2)(E)(i), countenanced by the plurality,
provides no guide. We should grant Diaz-Rodriguez’s petition and hold that
Congress unambiguously foreclosed the BIA’s incorrect interpretation of the
crimes of child abuse, child neglect, and child abandonment.
56
APPENDIX A
In 1996, the following 14 States criminalized child endangerment committed with
a mens rea of negligence:
Alabama
Ala. Code §§ 12-15-1(10)(f), 13A-13-6(a)(2); see Pearson v. State, 601
So.2d 1119, 1126 (Ala. Crim. App. 1992)
Arizona
Ariz. Rev. Stat. Ann. § 13-3623(B)(3), (C)(3)
California
Cal. Penal Code § 273a; see People v. Valdez, 42 P.3d 511, 517–18 (Cal.
2002)
Colorado
Colo. Rev. Stat. § 18-6-401(1), (7)(b)(II)
Missouri
Mo. Rev. Stat. § 568.050(1)
Nebraska
Neb. Rev. Stat. § 28-707(1)(a)
New Mexico
N.M. Stat. Ann. § 30-6-1(C)(1)
New York
57
N.Y. Penal Law § 260.10(2); N.Y. Fam. Ct. Act § 1012(e), (f); see People v.
Scully, 513 N.Y.S.2d 625, 627 (Crim. Ct. 1987)
Oregon
Or. Rev. Stat. § 163.545(1)
South Carolina
S.C. Code Ann. § 20-7-50(A)(1); see State v. Fowler, 470 S.E.2d 393, 396
(S.C. Ct. App. 1996)
South Dakota
S.D. Codified Laws §§ 26-8A-2(6), 26-9-1
Texas
Tex. Penal Code Ann. § 22.041(c)
Virginia
Va. Code Ann. §§ 16.1-228(1), 18.2-371; see Miller v. Commonwealth, 769
S.E.2d 706, 713–14 (Va. Ct. App. 2015)
Wyoming
Wyo. Stat. Ann. § 6-4-403(a)(ii)
58
APPENDIX B
In 1996, the following 23 States and the District of Columbia criminalized child
endangerment if committed with a mens rea of at least recklessness:
Arkansas
Ark. Code Ann. § 5-27-204(a)
Connecticut
Conn. Gen. Stat. § 53-21(1); see State v. Dennis, 150 Conn. 245, 188 A.2d
65, 66–67 (Conn. 1963)
Delaware
Del. Code Ann. tit. 11, § 1102(a)
District of Columbia
D.C. Code § 22-1101(b)
Hawaii
Haw. Rev. Stat. § 709-904(2)
Idaho
Idaho Code § 18-1501(1)–(2); see State v. Young, 64 P.3d 296, 299 (Idaho
2002)
Illinois
720 Ill. Comp. Stat. 5/12-21.6; see People v. Jordan, 843 N.E.2d 870, 879
(Ill. 2006)
59
Indiana
Ind. Code § 35-46-1-4(a)(1)
Iowa
Iowa Code § 726.6(1)(a)
Kansas
Kan. Stat. Ann. § 21-3608(a)
Kentucky
Ky. Rev. Stat. Ann. §§ 530.060(1), 600.020(1)
Maine
Me. Stat. tit. 17-A, § 554(1)(C)
Minnesota
Minn. Stat. § 609.378(b)(1)
Montana
Mont. Code Ann. § 45-5-622(1)
New Hampshire
N.H. Rev. Stat. Ann. § 639:3(I)
North Carolina
N.C. Gen. Stat. § 14-318.2(a); see State v. Hunter, 270 S.E.2d 120, 122
(N.C. Ct. App. 1980)
Ohio
60
Ohio Rev. Code Ann. § 2919.22(A); see State v. Barton, 594 N.E.2d 702,
707 n.1 (Ohio Ct. App. 1991)
Oklahoma
Okla. Stat. tit. 10, §§ 7102(B)(1), 7115; see Ball v. State, 173 P.3d 81, 92
(Okla. Crim. App. 2007)
Pennsylvania
18 Pa. Cons. Stat. § 4304(a)
Tennessee
Tenn. Code Ann. §§ 37-1-102(b)(1), (b)(12)(G); 37-1-
157(a); see Konvalinka v. Chattanooga-Hamilton County Hospital
Authority, 249 S.W.3d 346, 357 (Tenn. 2008)
Vermont
Vt. Stat. Ann. tit. 13, § 1304; see State v. Amsden, 75 A.3d 612, 624 (Vt.
2013)
Washington
Wash. Rev. Code § 9A.42.030(1)
West Virginia
W. Va. Code §§ 61-8D-1(6), 61-8D-4(e); see 2014 W. Va. Acts 451Wisconsin
Wis. Stat. §§ 948.03(4), 948.04(2)
61
APPENDIX C
In 1996, the following 13 States did not criminalize child endangerment at all. The
cited statutory provisions refer to the jurisdiction’s other crimes against children.
Alaska
Alaska Stat. §§ 11.51.100 (intentional desertion), 11.51.120 (criminal
nonsupport)
Florida
Fla. Stat. §§ 39.01 (definitions), 827.04 (abuse), 827.05 (neglect)
Georgia
Ga. Code Ann. §§ 16-5-70 (abuse and neglect), 19-10-1 (abandonment)
Louisiana
La. Stat. Ann. § 14:79.1 (abandonment)
Maryland
Md. Code Ann., Art. 27, § 35C (abuse); Cts. & Jud. Proc. § 3-831
(contribution to delinquency); Fam. Law §§ 10-203 (nonsupport and
desertion), 10-219 (desertion)
Massachusetts
Mass. Gen. Laws ch. 119, § 39; ch. 273, § 1 (abandonment)
Michigan
Mich. Comp. Laws §§ 750.135 (abandonment), 750.136b (abuse)
62
Mississippi
Miss. Code Ann. §§ 43-21-105(m) (defining “abused child”); 97-5-1
(abandonment); 97-5-39(1), (2) (contributing to neglect; abuse)
Nevada
Nev. Rev. Stat. §§ 200.508, 432B.140 (abuse and neglect)
New Jersey
N.J. Stat. Ann. §§ 2C:24-4 (moral or sexual endangerment); 9:6-1, 9:6-3
(abuse, abandonment, cruelty, and neglect)
North Dakota
N.D. Cent. Code §§ 14-07-15 (abandonment), 14-09-22 (abuse and neglect)
Rhode Island
R.I. Gen. Laws §§ 11-2-1 (abandonment), 11-9-5 (cruelty and neglect), 11-
9-5.3 (abuse)
Utah
Utah Code Ann. § 76-5-109 (abuse)
63