Lorenzo Alvarez-Cerriteno v. Jefferson Sessions, III , 899 F.3d 774 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENZO ALVAREZ-CERRITENO, No. 16-73486
Petitioner,
Agency No.
v. 091-009-097
JEFFERSON B. SESSIONS III, United
States Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 14, 2018
San Francisco, California
Filed August 8, 2018
Before: Marsha S. Berzon and Carlos T. Bea, Circuit
Judges, and Terrence Berg, * District Judge.
Opinion by Judge Bea;
Concurrence by Judge Berzon
*
The Honorable Terrence Berg, District Judge for the Eastern
District of Michigan, sitting by designation.
2 ALVAREZ-CERRITENO V. SESSIONS
SUMMARY **
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ determination that Lorenzo Alvarez-
Cerriteno was removable, holding that the BIA erred in
finding that his conviction for “Child Abuse and Neglect”
under Nevada Revised Statutes § 200.508(2)(b)(1) was
categorically a “crime of child abuse” under 8 U.S.C.
§ 1227(a)(2)(E)(i), and remanded.
The panel observed that it was bound by this court’s
recent opinion in Martinez-Cedillo v. Sessions, No. 14-
71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which
deferred to the BIA’s interpretation, in Matter of Soram, 25
I. & N. Dec. 378 (BIA 2010), that the generic crime of child
abuse includes acts and omissions that create at least a
“reasonable probability” that a child will be harmed.
The panel further concluded that, to sustain a conviction
under section 200.508(2), the Supreme Court of Nevada
would require proof that a defendant negligently exposed a
child to at least a “reasonably foreseeable” harm, but no
greater risk need be shown.
Comparing the federal generic crime and Nevada statute
of conviction, the panel concluded that the Nevada statute is
broader because it includes conduct that creates a
“reasonable foreseeability” of harm to a child, while the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ALVAREZ-CERRITENO V. SESSIONS 3
generic crime requires a “reasonable probability” of harm.
The panel also concluded that there is a “realistic
probability” that Nevada could prosecute conduct under its
statute that falls outside the scope of the federal generic
crime.
Concurring, Judge Berzon wrote that if the panel were
not bound by Martinez-Cedillo, she would rule in accord
with Judge Wardlaw’s dissent in that case because Matter of
Soram is not a reasonable interpretation of the phrase “crime
of child abuse.”
COUNSEL
Don P. Chairez (argued), Law Offices of Don Chairez,
Woodland, California, for Petitioner.
Erica B. Miles (argued) and Anthony W. Norwood, Senior
Litigation Counsel; Corey L. Ferrell, Attorney; Chad A.
Readler, Principal Deputy Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
4 ALVAREZ-CERRITENO V. SESSIONS
OPINION
BEA, Circuit Judge:
Today we must determine whether Nevada’s child
neglect statute is broader—that is, makes criminal more
conduct—than does the federal Immigration and Nationality
Act’s (“INA”) generic “crime of child abuse.” If so, the
Board of Immigration Appeals (“BIA”) erred in finding
Petitioner, a native and citizen of Mexico and a legal
permanent resident of the United States, removable as
charged under the INA. Because the Nevada statute outlaws
conduct that presents a lesser risk of harm to a child
(“reasonably foreseeable” harm) than does the conduct
required to violate the INA (at least a “reasonable
probability” of harm), we conclude that the BIA did so err,
and grant the petition.
I. BACKGROUND
A. Factual History
Petitioner Lorenzo Alvarez-Cerriteno (“Alvarez-
Cerriteno”) is a native and citizen of Mexico. He entered the
United States on March 9, 1985, without inspection or
parole. However, he duly became a lawful permanent
resident on December 1, 1990.
Alvarez-Cerriteno has incurred several criminal
convictions since entering the United States, including a
January 18, 2011, conviction for “Child Abuse and Neglect”
under Nevada Revised Statutes § 200.508(2)(b)(1). 1 In that
1
“2. A person who is responsible for the safety or welfare of a child
. . . and who permits or allows that child . . . to be placed in a situation
where the child may suffer physical pain or mental suffering as the result
ALVAREZ-CERRITENO V. SESSIONS 5
case, Alvarez-Cerriteno was charged with “punching” his
fourteen-year-old son in 2010. 2 Alvarez-Cerriteno pleaded
guilty to violating § 200.508(2)(b)(1) and received a prison
sentence of nine months. After Alvarez-Cerriteno was
arrested because of outstanding traffic warrants in 2016, the
Department of Homeland Security (“DHS”) initiated
removal proceedings against him based on the 2011 child
abuse conviction.
B. Procedural History
DHS issued a Notice to Appear (“NTA”) and charged
that Alvarez-Cerriteno was removable pursuant to Section
237(a)(2)(E)(i) of the INA (codified at 8 U.S.C.
§ 1227(a)(2)(E)(i)) as an “alien who at any time after entry
has been convicted of . . . a crime of child abuse, child
neglect, or child abandonment.” Alvarez-Cerriteno admitted
the factual allegations in the NTA but denied the charge of
removability. On May 31, 2016, he submitted an application
for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).
On June 6, 2016, the Immigration Judge (IJ) issued a
written decision, which (1) found that Alvarez-Cerriteno was
removable as charged in the NTA and (2) denied Alvarez-
Cerriteno’s application for discretionary cancellation of
removal. On the first issue, the IJ found that, under the
of abuse or neglect: . . . (b) If substantial bodily or mental harm does not
result to the child: (1) If the person has not previously been convicted of
a violation of this section or of a violation of the law of any other
jurisdiction that prohibits the same or similar conduct, is guilty of a gross
misdemeanor.” Nev. Rev. Stat. § 200.508(2).
2
During his hearing before the immigration judge, Petitioner stated
that he hit his son in the face during an argument.
6 ALVAREZ-CERRITENO V. SESSIONS
BIA’s decision in Matter of Soram, “the crime of
unreasonably placing a child in a situation that poses a threat
of injury to the child’s life or health . . . is categorically a
crime of child abuse under [the INA], even though no proof
of actual harm or injury to the child was required” under the
state statute of conviction. Matter of Soram, 25 I. & N. Dec.
378 (BIA 2010). Having thus denied Alvarez-Cerriteno’s
claim based on the “categorical approach,” 3 the IJ did not
apply the “modified categorical approach.” On the second
issue, the IJ denied discretionary relief based on Alvarez-
Cerriteno’s “pattern of violations of this country’s criminal
laws.”
On October 25, 2016, the BIA dismissed Alvarez-
Cerriteno’s appeal. The Board affirmed the IJ’s
determination that Alvarez-Cerriteno was removable based
on a conviction for a “crime of child abuse, neglect, or child
abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). The BIA found
that the Nevada statute includes reasonableness and
criminal-negligence standards that would “preclude a
3
In Taylor v. United States, the Supreme Court prescribed a
“categorical approach” for determining whether a given state conviction
constitutes a conviction of a “generic” type specified in a federal
sentencing statute. 495 U.S. 575, 602 (1990). In its unmodified form,
that approach requires courts to determine whether “the basic elements”
of the state statute of conviction are the same (or narrower) than the
elements of the federal generic crime, without considering any facts of
the defendant’s crime beyond “the mere fact of conviction.” Id. at 598–
602. The so-called “modified categorical approach,” however, permits
courts “to go beyond the mere fact of conviction in a narrow range of
cases where a jury was actually required to find all the elements of [the
generic crime].” Id. at 602. That is, “if the indictment or information
and jury instructions” in the state case “show that . . . the jury necessarily
had to find” the elements of the generic crime, then the state conviction
constitutes a conviction of the federal generic crime and counts for the
purpose of the federal statute. Id. at 602 (emphasis added).
ALVAREZ-CERRITENO V. SESSIONS 7
conviction” for conduct which “creates only the bare
potential for nonserious harm to a child.” The BIA
concluded therefore that there was no “realistic probability”
the Nevada statute could be used to prosecute conduct
outside the scope of the generic crime in the INA. The BIA
also affirmed the IJ’s discretionary denial of cancellation of
removal on de novo review, and emphasized that Alvarez-
Cerriteno’s “history of domestic violence over a period of
years, for which he shows little remorse, is a very significant
negative factor.” Petitioner timely petitioned this court for
review.
II. STANDARD OF REVIEW
“Where, as here, the BIA adopts the IJ’s decision and
adds some of its own analysis, the panel reviews both
decisions.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th
Cir. 2014). This court reviews de novo “the BIA’s
conclusions on questions of law—including whether a
particular state conviction is a removable offense under the
INA—except to the extent that deference is owed to the
BIA’s interpretation of the statutes and regulations it is
charged with administering,” including the INA. Fregozo v.
Holder, 576 F.3d 1030, 1034 (9th Cir. 2009). “The BIA’s
‘findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the
contrary.’” Ling Huang, 744 F.3d at 1152 (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
III. DISCUSSION
A. Legal Framework
The INA, as codified and amended, provides that “[a]ny
alien who at any time after admission is convicted of . . . a
crime of child abuse, child neglect, or child abandonment is
8 ALVAREZ-CERRITENO V. SESSIONS
deportable.” 8 U.S.C. § 1227(a)(2)(E)(i). Where, as here,
the immigration statute refers to a generic crime (“a crime of
child abuse”), the BIA must apply the categorical and
modified categorical approaches set forth in Taylor v. United
States, 495 U.S. 575 (1990), to determine whether the state
conviction was for conduct that falls within the scope of the
generic crime. See Fregozo, 576 F.3d at 1035. Under the
categorical approach, the BIA “‘compare[s] the elements of
the statute of conviction with a federal definition of the crime
to determine whether conduct proscribed by the state statute
is broader than the generic federal definition.’” Id. “‘If the
statute of conviction criminalizes conduct that would not
satisfy the federal definition of the crime at issue, then the
conviction does not qualify as a predicate offense under the
categorical approach.” Id. (citations omitted).
Thus, the BIA must construe both the state and federal
statutes. Id. at 1034–35 (“To determine whether a state
conviction constitutes a removable offense, the BIA must
determine first the elements of the offense the petitioner has
been convicted of committing, and second whether the
conviction falls within the definition of a removable offense
under the INA.”). “As the BIA has no statutory expertise in
. . . state law matters,” this court “reviews de novo its
determination of the elements of the offense for which the
petitioner was convicted.” Id. at 1034. However, “[i]f, in
resolving the [federal law] issue, the BIA has interpreted an
ambiguous INA statutory term”—here, “a crime of child
abuse, child neglect, or child abandonment”—“and rendered
its interpretation in a precedential decision intended to carry
the force of law,” this court defers to the BIA’s interpretation
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Id. at 1034–35.
ALVAREZ-CERRITENO V. SESSIONS 9
We proceed in three steps. First, we determine the
elements of the federal generic crime. See Section III.B,
infra. Second, we analyze Nevada Revised Statute
§ 200.508 to determine the elements of the Nevada statute of
conviction. See Section III.C, infra. Finally, we compare
the federal generic crime and the Nevada statute of
conviction and conclude that (1) the Nevada statute’s
elements encompass more conduct than do the federal
generic crime’s elements and (2) there is a “realistic
probability” that Nevada could prosecute conduct under its
statute that falls outside the scope of the federal generic
crime, as required by Gonzales v. Duenas-Alvarez, 549 U.S.
183, 193 (2007). See Section III.D, infra. Therefore, the
BIA erred in finding that Petitioner’s conviction was
categorically a crime of child abuse under the INA.
B. Scope of the Federal Generic Crime
1. The BIA’s Construction
In Fregozo v. Holder, this court considered whether a
petitioner’s conviction under a California child abuse statute,
which made criminal “willfully caus[ing] or permit[ting] . . .
[a] child to be placed in a situation where his or her person
or health may be endangered,” was categorically a “crime of
child abuse” under the INA. Cal. Penal Code § 273a(b)
(emphasis added)); Fregozo, 576 F.3d at 1037. The panel
noted that “[t]he term ‘crime of child abuse’ is not defined
in the INA,” and that this court “ha[d] not defined the term
as it is used in that statute.” Fregozo, 576 F.3d at 1035. The
panel did not construe the generic crime, but rather deferred
to the BIA’s construction in Matter of Velazquez-Herrera,
24 I. & N. Dec. 503 (BIA 2008). There, the BIA had
construed the federal generic “crime of child abuse” to mean
“any offense involving an intentional, knowing, reckless, or
criminally negligent act or omission that constitutes
10 ALVAREZ-CERRITENO V. SESSIONS
maltreatment of a child or that impairs a child’s physical or
mental well-being, including sexual abuse or exploitation.”
Id. at 512. Using that definition, Fregozo found that the
generic “crime of child abuse” did not include conduct that
“creates only potential harm to a child.” 576 F.3d at 1037–
38 (emphasis added). The panel therefore held that the
California statute was broader than the federal generic crime.
Id. The court granted the petition and remanded to the BIA.
Id. at 1040.
Alvarez-Cerriteno argues that Fregozo requires the same
result here: Because the Nevada statute of conviction
criminalizes acts which place a child in a situation where he
“may suffer physical pain or mental suffering,” it too
criminalizes more conduct than does the federal generic
crime. Thus, a conviction under the Nevada statute is not
categorically a “crime of child abuse” under the INA.
However, after this court decided Fregozo, the BIA clarified
that its definition of the federal generic “crime of child
abuse,” as set forth in Velazquez-Herrera, was “not limited
to offenses requiring proof of injury to the child.” Matter of
Soram, 25 I. & N. Dec. 378, 381 (BIA 2010). In Matter of
Soram, the BIA clarified that the federal generic “crime of
child abuse” is broad enough to include criminally negligent
acts and omissions that create at least a “reasonable
probability” of harm to a child. Id. at 385–86. The BIA
based this conclusion on a survey of child abuse, “neglect,”
“abandonment,” and “endangerment” laws in American
state and territorial jurisdictions. Id. at 382–83. The BIA
found that “[a]s recently as July 2009, some 38 States, . . .
included in their civil definition of ‘child abuse,’ or ‘child
abuse or neglect,’ acts or circumstances that threaten a child
with harm or create a substantial risk of harm to a child’s
ALVAREZ-CERRITENO V. SESSIONS 11
health or welfare.” 4 Id. at 382. Therefore, it concluded, a
majority of jurisdictions agreed that a “crime of child abuse”
could include acts which did not result in actual harm. Id.
The BIA did not purport to decide definitively what
“degree of threat” of harm to the child the generic crime
required, but instead left that question for later cases:
[A]pproximately half of the States that
include endangerment-type offenses in their
definitions of “child abuse” . . . do not
specify the degree of threat required. . . .
[W]e will not attempt to analyze whether the
myriad State formulations of endangerment-
type child abuse offenses come within the
ambit of “child abuse” under [the INA].
Rather, we find that a State-by-State analysis
is appropriate 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. at 382–83. However, turning to its “State-by-State
analysis,” the BIA determined in Soram that the Colorado
4
In Soram, the majority BIA opinion argued that it properly
considered state civil codes in defining the generic “crime of child
abuse,” despite the fact that civil codes do not define crimes at all. 25 I.
& N. Dec. at 382 n.3 (noting that, in Fregozo, this court deferred to the
BIA’s interpretation in Velazquez-Herrera, which likewise considered
civil definitions). The concurring opinion in Soram instead focused on
state criminal statutes, but reached the same conclusion as the majority
because “as of September 1996, a majority of States—28—had criminal
provisions punishing child endangerment offenses as part of their
criminal child abuse statutes.” Id. at 386–88.
12 ALVAREZ-CERRITENO V. SESSIONS
statute at issue there (as interpreted by the courts of
Colorado) required at least a “reasonable probability” of
harm to the child, and that the generic crime did not require
more. Id. at 384–86. Thus a violation of the Colorado statute
constituted commission of the generic crime of child abuse
under the INA. Id. The BIA has since stated that a
“likelihood” of harm to the child is also sufficient to bring
an act or omission within the scope of the generic crime.
Matter of Mendoza Osorio, 26 I. & N. Dec. 703, 706 (BIA
2016) (“[A]cts creating a likelihood of harm to a child . . . fit
within our definition of a ‘crime of child abuse, child
neglect, or child abandonment.’”).
2. Chevron deference
Ordinarily, this court must apply the Chevron two-step
analysis to determine whether to defer to the BIA’s
construction of the generic term “crime of child abuse” in
8 U.S.C. § 1227(a)(2)(E)(i). That two-step inquiry asks if
(1) the INA is ambiguous with regard to what constitutes a
“crime of child abuse” and (2) the BIA’s construction in
Soram reasonably resolves the ambiguity. However, this
court recently held that the BIA’s interpretation of the
generic crime in Soram is entitled to Chevron deference.
Martinez-Cedillo v. Sessions, No. 14-71742, 2018 WL
3520402, at *11 (9th Cir. July 23, 2018) (holding that “the
BIA’s interpretation of a crime of child abuse, neglect, or
abandonment in Velazquez and Soram is a reasonable
construction of ambiguous statutory language”). We are
bound by this precedent. Miller v. Gammie, 335 F.3d 889,
899 (9th Cir. 2003) (en banc). Therefore, we defer to the
BIA’s definition of “crime of child abuse” in Soram.
Accordingly, the generic “crime of child abuse,” as used in
the INA, includes acts and omissions that (1) are criminally
negligent and (2) create at least a “reasonable probability”
ALVAREZ-CERRITENO V. SESSIONS 13
that a child will be harmed. Soram, 25 I. & N. Dec. at 385–
86.
C. Scope of the Nevada “Statute of Conviction”
We next consider the elements of the Nevada Revised
Statute § 200.508(2), the “statute of conviction.” “As the
BIA has no statutory expertise in . . . state law matters,” this
court “reviews de novo its determination of the elements of
the offense for which the petitioner was convicted.”
Fregozo, 576 F.3d at 1034. Although densely worded,
section 200.508 defines as a misdemeanor (1) an act or
omission (2) by a person “responsible for the safety or
welfare of a child” (3) who has no prior child abuse
convictions, (4) which act or omission “permits or allows”
(5) the child “to be placed in a situation where the child may
suffer physical pain or mental suffering” (6) as a result of the
responsible person’s “abuse or neglect,” (7) even if
“substantial bodily or mental harm does not result to the
child.” Nev. Rev. Stat. § 200.508(2). 5
Like the generic crime, section 200.508(2) requires a
mens rea of at least negligence. The Nevada statute defines
“allows” as “to do nothing to prevent or stop the abuse or
neglect of a child in circumstances where the person knows
or has reason to know that the child is abused or neglected.”
5
The statutory text reads, in pertinent part: “2. A person who is
responsible for the safety or welfare of a child . . . and who permits or
allows that child . . . to be placed in a situation where the child may suffer
physical pain or mental suffering as the result of abuse or neglect: . . .
(b) If substantial bodily or mental harm does not result to the child: (1)
If the person has not previously been convicted of a violation of this
section or of a violation of the law of any other jurisdiction that prohibits
the same or similar conduct, is guilty of a gross misdemeanor.” Nev.
Rev. Stat. § 200.508(2).
14 ALVAREZ-CERRITENO V. SESSIONS
Id. § 200.508(4)(b) (emphasis added). “‘Permit’ means
permission that a reasonable person would not grant and
which amounts to a neglect of responsibility attending the
care, custody and control of a minor child.” Id. at
§ 200.508(4)(c) (emphases added). Thus, the statute
requires a mens rea of either knowledge or negligence.
Because negligence is the lower of the two standards, it is
the relevant mens rea element for purposes of the categorical
approach.
However, section 200.508(2) does not specify what
probability of harm to the child the “situation” in which the
child is placed must carry; it merely refers to situations
“where the child may suffer physical pain or mental
suffering” as a result of “abuse or neglect.” Nev. Rev. Stat.
§ 200.508(2) (emphasis added). Nevada courts have not
decided what “may” means precisely in this provision, but
other state courts have interpreted similarly worded
provisions to carry either a “reasonable foreseeability”
standard, see, e.g., People v. Hansen, 68 Cal. Rptr. 2d 897,
900 (Ct. App. 1997) (holding that California Penal Code
§ 273a 6 “condemned . . . permitting [a child] to be placed[]
in a situation in which serious physical danger or health
hazard to the child is reasonably foreseeable”), or a
“reasonable probability” standard, People v. Hoehl, 568 P.2d
484, 486 (Colo. 1977) (“We construe the word ‘may’ . . . to
mean that there is a reasonable probability that the child’s
6
The California statute provides, “Any person who . . . willfully . . .
permits [a] child to be placed in a situation where his or her person or
health may be endangered, is guilty of a misdemeanor.” Cal. Penal Code
§ 273a(b) (emphasis added).
ALVAREZ-CERRITENO V. SESSIONS 15
life or health will be endangered from the situation in which
the child is placed.”). 7
We think the Supreme Court of Nevada would likely
adopt California’s “reasonable foreseeability” standard.
First, “may” denotes mere possibility; it does not require any
particular threshold of likelihood or probability. See, e.g.,
May, Black’s Law Dictionary (10th ed. 2014) (“To be a
possibility . . . .”).
Second, the reasonableness and negligence standards set
forth in the definition of “permit” suggest a “reasonable
foreseeability” standard. Smith v. State, 927 P.2d 14, 18
(Nev. 1996), abrogated on other grounds by City of Las
Vegas v. Eighth Judicial Dist. Court ex rel. County of Clark,
59 P.3d 477 (Nev. 2002) (holding that the definition of
“permit” in § 200.508(4)(c) “indicates that a violator must
act in a way that ‘a reasonable person’ would not.”). 8 The
use of a “reasonable person” standard suggests a common-
law-negligence standard of culpable causation, which
requires only reasonable foreseeability. See Butler ex rel.
7
The Supreme Court of Colorado did not make clear what it meant,
exactly, by “reasonable probability.” It stated only that it is something
less than “imminent danger.” 568 P.2d at 560.
8
In Smith v. State, the Supreme Court of Nevada rejected the
defendant’s argument that the phrase “placed in a situation where the
child may suffer” was impermissibly vague. Smith, 927 P.2d at 18. The
defendant had allowed her son to be severely physically abused by her
boyfriend. Id. at 15. The state proved that the defendant saw bruises on
her son’s body, was told of the beatings by her boyfriend, and several
times refused to take her son to the hospital.” Id. at 19. The court held
that the statute was not void for vagueness as applied to the defendant
because she was on notice that she “act[ed] unreasonably,” for purposes
of the statute, in permitting or allowing her son to be subjected to her
boyfriend’s abuse. Id. at 18.
16 ALVAREZ-CERRITENO V. SESSIONS
Biller v. Bayer, 168 P.3d 1055, 1065 (Nev. 2007) (listing
proof of “harm to the plaintiff that was reasonably
foreseeable” among necessary elements of a negligence
claim under Nevada law); see also Early v. N.L.V. Casino
Corp., 678 P.2d 683, 684 (Nev. 1984) (“[T]he proprietor’s
duty to protect an invited guest from injury caused by a third
person is circumscribed by the reasonable foreseeability of
[1] the third person’s actions and [2] the injuries resulting
from the condition or circumstances which facilitated the
harm.” (emphasis added)).
Third, the Supreme Court of Nevada has noted that
§ 200.508 is “very similar” to the California child abuse
statute at issue in Fregozo, Cal. Penal. Code. § 273a. Smith,
927 P.2d at 19 n.2. This analogy further suggests that the
Supreme Court of Nevada would interpret section
200.508(2) to carry the same “reasonable foreseeability”
standard as the California statute. See, e.g., Hansen, 68 Cal.
Rptr. 2d at 900; People v. Beaugez, 43 Cal. Rptr. 28, 33–34
(Ct. App. 1965) (construing Cal. Penal Code § 273a’s “may
be endangered” language “to condemn the intentional
placing of a child, or permitting him to be placed, in a
situation in which serious physical danger or health hazard
to the child is reasonably foreseeable”).
The government argues that the Nevada statute is
“meaningfully distinguishable and different from the
California statute” because it requires proof of an additional
element of “abuse or neglect.” This element may be proved,
asserts the government, by showing that “a person
responsible for the child must have [1] allowed or permitted
abuse or neglect, and [2] placed that child at risk of even
more harm amounting to ‘physical pain or mental
suffering.’” But even if the court reads the statute to require
proof of actual “abuse or neglect” in all cases, that
ALVAREZ-CERRITENO V. SESSIONS 17
requirement may be satisfied by proof of “negligent
treatment . . . under circumstances which indicate that the
child’s health or welfare is harmed or threatened with harm.”
Nev. Rev. Stat. § 200.508(4)(a) (defining “abuse or
neglect”) (emphasis added). So , even accepting the
government’s argument, we are still left to ask what “threat”
of harm, as “indicate[d]” in the “circumstances,” is required
for a finding of “abuse or neglect” (and thus guilt). As
discussed above, determining whether treatment is
“negligent” involves the application of an objective,
“reasonable person” standard. Thus, treatment of a child is
negligent when it places the child in circumstances that
create a risk of harm which is “reasonably foreseeable.”
Accordingly, we find that, to sustain a conviction under
section 200.508(2), the Supreme Court of Nevada would
require proof that a defendant negligently exposed a child to
at least a “reasonably foreseeable” harm, but no greater risk
need be shown.
D. Comparison
As discussed in the preceding sections, the generic crime
includes conduct that creates at least a “reasonable
probability” or a likelihood of harm to a child. But the
Nevada statute is even broader: It includes conduct that
creates only a “reasonable foreseeability” of harm to a child.
Compare Probability, Black’s Law Dictionary (10th ed.
2014) (“1. Something that is likely . . . 2. The degree to
which something is likely to occur . . . 3. The quality, state,
or condition of being more likely to happen or to have
happened than not . . . .”), and Reasonable Medical
Probability, id. (“In proving the cause of an injury, a
standard requiring a showing that the injury was more likely
than not caused by a particular stimulus . . . .” (emphasis
18 ALVAREZ-CERRITENO V. SESSIONS
added)), with Foreseeability, id. (“The quality of being
reasonably anticipatable.”).
The BIA seems to agree. In Matter of Mendoza Osorio,
the BIA specifically cited the California child abuse statute
as an example of a “child endangerment statute[] that do[es]
not require a sufficiently high risk of harm to a child to meet
the definition of child abuse, neglect, or abandonment under
the [INA].” 26 I. & N. Dec. 703, 711 (BIA 2016). Because
we find that the Supreme Court of Nevada would interpret
section 200.508(2) to carry the same “reasonable
foreseeability” standard as California Penal Code § 273a, the
Nevada provision likewise “do[es] not require a sufficiently
high risk of harm to a child to meet the definition of child
abuse, neglect, or abandonment” adopted in Soram. The
BIA therefore erred in distinguishing Nevada Revised
Statute § 200.508(2) from California Penal Code § 273a(b).
Finally, “to find that a state statute creates a crime
outside the generic definition of a listed crime in a federal
statute . . . requires 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.” Duenas-
Alvarez, 549 U.S. at 193. According to the government, the
Nevada statute raises no “realistic probability of prosecution
for acts which encompass the nonserious harm contemplated
in Fregozo.” However, the Supreme Court of Nevada has
held that “a rational juror could reasonably infer . . . child
neglect” sufficient to support a conviction under
§ 200.508(2) from evidence that the child “missed at least
47 days of school” during one semester. See Gibson v. State,
No. 57193, 2011 WL 2793542, at *1 (Nev. June 15, 2011).
There, the court noted that the defendant, the child’s father,
was home with the child on those days, and that the child
“often” stayed home to take care of the defendant or to help
ALVAREZ-CERRITENO V. SESSIONS 19
around the house. Id. The court affirmed the judgment of
conviction even though there was a less than reasonable
probability that a child would suffer “physical pain or mental
suffering” as a result of staying home with her father. Id. at
*4. Therefore, there is a “realistic probability” that Nevada’s
statute could be used to prosecute conduct that poses less
than a “reasonable probability” of actual harm to a child. See
Fregozo, 576 F.3d at 1037 (finding a “realistic probability”
of prosecution for conduct outside the scope of the generic
crime based on a single case where the California child abuse
statute was “used to prosecute a parent who placed ‘an
unattended infant in the middle of a tall bed without a railing,
even though the child was never injured’”) (citing People v.
Little, 9 Cal. Rptr. 3d 446, 449–50 (Ct. App. 2004)).
IV. CONCLUSION
“In reviewing the decision of the BIA,” this court
considers “only the grounds relied upon by that agency.”
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
Neither the IJ, nor the BIA, nor the government’s answering
brief cites any case or BIA decision which interprets the
federal generic “crime of child abuse” to include conduct
which creates only a “reasonably foreseeable” risk of harm
to a child. 9 Nor did the BIA purport below to expand upon
Soram’s construction of the generic crime to include conduct
that creates only a “reasonably foreseeable” risk of harm to
a child. Rather, the BIA based its decision on its erroneous
9
The BIA has itself suggested that the generic crime is not so
capacious. See Matter of Mendoza Osorio 26 I. & N. Dec. 703, 711 (BIA
2016) (noting that California Penal Code § 273a(b) “do[es] not require a
sufficiently high risk of harm to a child to meet the definition of child
abuse, neglect, or abandonment under the [INA]”).
20 ALVAREZ-CERRITENO V. SESSIONS
interpretation of the Nevada statute. If “the BIA’s decision
cannot be sustained upon its reasoning,” then this court
“must remand to allow the agency to decide any issues
remaining in the case.” Andia, 359 F.3d at 1184. We
therefore grant the petition and remand for further
proceedings. 10
Finally, we lack jurisdiction to consider Petitioner’s
challenge to the denial of discretionary cancellation of
removal. Petitioner does not argue that the IJ applied the
wrong law, or that the IJ failed to consider any relevant facts.
Petitioner argues only that the IJ incorrectly weighed the
relevant factors in denying cancellation of removal as a
matter of discretion. But “we lack jurisdiction to review the
merits of a discretionary decision to deny cancellation of
removal.” Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir.
2012).
PETITION GRANTED and REMANDED.
BERZON, Circuit Judge, concurring:
I concur in the opinion. As the majority notes, we are
bound by this court’s decision in Martinez-Cedillo v.
Sessions, No. 14-71742, 2018 WL 3520402 (9th Cir. July
23, 2018). Were we not so bound, I would rule in accord with
Judge Wardlaw’s dissent in that case. I agree with Judge
Wardlaw that Matter of Soram, 25 I. & N. Dec. 378 (B.I.A.
10
On remand, the BIA may consider whether to deny relief because
Petitioner’s conviction falls within the generic “crime of child abuse”
under the “modified” categorical approach. See Fregozo, 576 F.3d at
1039 (granting petition and remanding for the BIA to apply the modified
categorical analysis).
ALVAREZ-CERRITENO V. SESSIONS 21
2010), is not a reasonable interpretation of the phrase “crime
of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). See
Martinez-Cedillo, 2018 WL 3520402, at *22 (Wardlaw, J.,
dissenting). Because I am bound by Martinez-Cedillo,
however, I concur.