Zhi Liao v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 17-1825
______________
ZHI FEI LIAO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
Agency No. A074-862-076
Immigration Judge: Honorable Kuyomars Q. Golparvar
______________
Argued October 3, 2018
______________
Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.
(Filed: December 10, 2018)
_____________
OPINION
______________
Joshua S. Bolian [ARGUED]
Robbins Russell Englert Orseck Untereiner & Sauber
2000 K Street, N.W.
4th Floor
Washington, DC 20006
Counsel for Petitioner**
Chad A. Readler, Acting Assistant Attorney General
Shelley R. Goad, Assistant Director
Jonathan A. Robbins [ARGUED]
Office of Immigration Litigation
United States Department of Justice
Civil Division
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
SHWARTZ, Circuit Judge.
Zhi Fei Liao petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) dismissing his appeal
**
Attorney for Petitioner appeared pro bono, and his
service is in the highest tradition of our profession. We thank
him for his representation in this case.
2
of an Immigration Judge’s (“IJ”) order removing him from the
United States based upon his alleged commission of a “crime
of child abuse, child neglect, or child abandonment” under the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(2)(E)(i). Because the elements of his crime of
conviction, endangering the welfare of a child under 18 Pa.
Cons. Stat. § 4304(a)(1), do not match the elements of the
crime of “child abuse” under the INA, the order of removal was
improperly entered. Therefore, we will grant the petition for
review and remand to the BIA for further proceedings.
I
Liao, a native and citizen of China, became a lawful
permanent resident of the United States in 2005. On April 18,
2015, Liao had a physical altercation with his girlfriend, Yin
Yu. A neighbor called the police, and Yu told the responding
police officers that she was holding her infant son, J.Y., while
Liao struck her, but that J.Y. was not “hit or hurt” during this
encounter. She said, however, that at some point during the
fight, J.Y. was placed on the bed and fell from the bed to the
floor. Officers arrested Liao, charging him with three offenses,
including endangering the welfare of a child in violation of 18
Pa. Cons. Stat. § 4304(a)(1). Liao was convicted and served
106 days of his 90-330 day prison sentence.
Following Liao’s release from state custody, the
Department of Homeland Security served Liao with a notice
that he was subject to removal for, among other things,
committing “a crime of domestic violence, a crime of stalking,
or a crime of child abuse, child neglect, or child abandonment,”
which rendered him removable under 8 U.S.C.
3
§ 1227(a)(2)(E)(i).1 The IJ ordered Liao’s removal, holding
that endangering the welfare of children in violation of
Pennsylvania law constituted a “crime of child abuse, child
neglect, or child abandonment,” within the meaning of the
INA.2 Liao appealed, and the BIA held, in a single member,
non-precedential decision, that Liao was subject to removal
based on his child endangerment conviction. Reasoning that
the definition of “child abuse” under § 1227(a)(2)(E)(i) “is not
limited to offenses that require proof of harm or injury,” the
BIA held that Pennsylvania’s child endangerment crime fell
within § 1227(a)(2)(E)(i)’s “broad definition” of child abuse.
Liao petitions for review.
1
Initially, Liao received a notice to appear for removal
proceedings that cited his simple assault conviction as the basis
for his removal under 8 U.S.C. § 1227(a)(2)(E)(i). However,
following the IJ’s determination that it would be “difficult to
show” removability based on a violation of Pennsylvania’s
simple assault statute, J.A. 524, the Government served an
amended notice that instead claimed Liao’s child
endangerment and terroristic threat convictions rendered him
removable under § 1227(a)(2)(E)(i).
2
The IJ also held, in the alternative, that Liao’s
conviction for making terroristic threats in violation of 18 Pa.
Cons. Stat. § 2706(a)(1) was sufficient to remove him under
§ 1227(a)(2)(E)(i). The BIA declined to reach the IJ’s alternate
ground, upholding the removal order solely based on Liao’s
violation of Pennsylvania’s child endangerment statute.
4
II3
A
When the BIA issues its own opinion on the merits, we
review the BIA’s decision, not that of the IJ. Mahn v. Att’y
Gen., 767 F.3d 170, 173 (3d Cir. 2014) (citations omitted).
However, where, as here, the BIA expressly adopts portions of
the IJ’s opinion, we review both the IJ and BIA decisions.
Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).
Typically, “[w]e review the BIA’s legal determinations de
novo . . . subject to the principles of deference set forth in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843-45 (1984).” Sesay v. Att’y Gen., 787
F.3d 215, 220 (3d Cir. 2015) (citation omitted). When “we are
asked to review an unpublished, non-precedential decision
issued by a single BIA member,” however, we defer to the
BIA’s legal determinations only insofar as they have the power
to persuade. Mahn, 767 F.3d at 173.
B
Before reaching the merits of Liao’s claim, we must
determine whether he exhausted his administrative remedies as
required by 8 U.S.C. § 1252(d)(2). To obtain judicial review,
“an alien is required to raise and exhaust his or her remedies as
to each claim or ground for relief.” Abdulrahman v. Ashcroft,
3
The IJ had jurisdiction over Liao’s immigration
proceedings under 8 C.F.R. § 1208.2, and the BIA had
jurisdiction over the appeal pursuant to 8 C.F.R. §§ 1003.1(b)
and 1240.15. We have jurisdiction over final orders of the BIA
under 8 U.S.C. § 1252.
5
330 F.3d 587, 594-95 (3d Cir. 2003) (internal citations
omitted). We do not apply this principle “in a draconian
fashion,” however. Lin v. Att’y Gen., 543 F.3d 114, 121 (3d
Cir. 2008). Under our “liberal exhaustion policy . . . , an alien
need not do much to alert the Board that he is raising an issue.”
Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006). “[S]o
long as an immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal, a petitioner is deemed to have
exhausted [his] administrative remedies.” Lin, 543 F.3d at 121
(citations omitted).
The purpose of administrative exhaustion “is to ensure
that the agency is given an opportunity to resolve issues raised
before it prior to any judicial intervention.” Hoxha v. Holder,
559 F.3d 157, 163 (3d Cir. 2009) (citation omitted). Thus, the
question is not whether the petitioner used magic words from
a particular legal standard or even cited to the relevant case law
regarding an issue, but rather whether there is “sufficient
information available to the Board . . . to put it on notice of the
issue being raised.” 4 Yan Lan Wu v. Ashcroft, 393 F.3d 418,
422 n.4 (3d Cir. 2005). Therefore, while a petitioner who
completely omits an issue fails to meet the exhaustion
requirement with respect to that issue, see Abdulrahman, 330
4
The Government is mistaken as to how our liberal
exhaustion policy works. It does not require liberally
construing a party’s pleadings as we must for pro se litigants.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Rather, it
requires examining the pleadings expansively to determine
whether they alert the BIA to an issue that a party wants to be
reviewed. Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 n.4 (3d
Cir. 2005); Abdulrahman, 330 F.3d at 595.
6
F.3d at 595, a petitioner who gives enough information to put
the BIA on notice that he is raising an issue has exhausted the
issue, and we have jurisdiction to review it.
Here, though Liao did not squarely present in his notice
of appeal his claim that the Pennsylvania statute does not
require sufficient risk to a child’s welfare to be considered a
crime of child abuse under § 1227(a)(2)(E)(i), he argued,
through counsel, that violation of the “duty of care, protection
or support” described under Pennsylvania’s child
endangerment statute did not require the type of conduct
necessary to constitute a “crime of child abuse” under the INA.
J.A. 59-61. Liao’s argument on this issue was sufficient to
notify the BIA not only that he was contesting whether the
conviction for child endangerment rendered him removable
(the degree of notification required by Yan Lan Wu, 393 F.3d
at 422, for exhaustion) but, in addition, that the ground for his
position was the contention that the level of risk that must be
shown to violate Pennsylvania’s child endangerment statute
did not correspond with the level of risk needed to commit the
crime of child abuse as provided for in the INA.
The BIA’s ruling also reflects that it was aware Liao
disputed that his conviction rendered him removable and that
he challenged whether his crime of conviction constituted the
crime of “child abuse” under the INA. The BIA held that it
was, which required it to determine whether the Pennsylvania
crime met the INA’s risk requirement. Thus, the BIA decided
the issue we are asked to consider. The BIA’s actions further
support our conclusion that Liao exhausted his argument, and
we have jurisdiction to analyze his assertion that his child
endangerment conviction is not categorically a “crime of child
7
abuse” under the INA. 8 U.S.C. §§ 1227(a)(2)(E)(i),
1252(d)(1); Hoxha, 559 F.3d at 163.
III
A
Our analysis of Liao’s claim requires us to determine
the meaning of the phrase “crime of child abuse” under the
INA. The INA does not provide a definition but the BIA has
interpreted this phrase.
The BIA first defined the phrase “crime of child abuse”
in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512
(B.I.A. 2008), interpreting it broadly to encompass:
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. At a
minimum, this definition encompasses
convictions for offenses involving the infliction
on a child of physical harm, even if slight; mental
or emotional harm, including acts injurious to
morals; sexual abuse, including direct acts of
sexual contact, but also including acts that
induce (or omissions that permit) a child to
engage in . . . sexually explicit conduct . . . .
Building on this definition, in Matter of Soram, 25 I. & N. Dec.
at 381-83 (B.I.A. 2010), the BIA interpreted the phrase “crime
of child abuse” to also capture some “child endangerment”
8
statutes, which criminalize not just harm to children, but acts
that present different levels of risk of harm to children.
Specifically, the BIA observed:
[s]tates use various terms to describe the level of
threat required [for violation of their child
endangerment statutes], including “realistic,”
“serious,” “reasonably foreseeable,”
“substantial,” or “genuine.” Since the meaning
of a term such as “substantial” could be subject
to different interpretations by courts in each
State, we will not attempt to analyze whether the
myriad State formulations of endangerment-type
child abuse offenses come within the ambit of
“child abuse” under [8 U.S.C.
§ 1227(a)(2)(E)(i)]. 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. Mindful of these differences, the BIA in Soram
analyzed the child endangerment subsection of Colorado’s
child abuse statute, which makes it illegal to “permit[] a child
to be unreasonably placed in a situation that poses a threat of
injury to the child’s life or health.” Id. at 379-80 (citing Colo.
Rev. Stat. § 18-6-401(1)(a)). Examining the statute’s
legislative history and case law interpretations, the BIA
concluded that the Colorado child endangerment offense was
categorically a “crime of child abuse” under the INA, pointing
out that it required “a knowing or reckless act” that creates “at
9
least a reasonable probability that the child’s life or health will
be endangered.” Id. at 385-86 (emphases omitted).
In Matter of Mendoza Osorio, 26 I. & N. Dec. 703
(B.I.A. 2016), the BIA examined the New York child
endangerment statute5 to determine whether its “formulation[]
of endangerment-type child abuse offenses come[s] within the
ambit of ‘child abuse,’” Soram, 25 I. & N. Dec. at 383, under
the INA. The BIA held that the New York statute’s
“elements—a knowing mental state coupled with an act or acts
creating a likelihood of harm to a child—fit within our
definition of a ‘crime of child abuse, child neglect, or child
abandonment’ in section [1227(a)(2)(E)(i)].” Mendoza
Osorio, 26 I. & N. Dec. at 706. In reaching this holding, the
BIA recognized that:
there are child endangerment statues that do not
require a sufficiently high risk of harm to a child
to meet the definition of child abuse, neglect, or
abandonment under the Act. For example, the
child endangerment statute at section 273a(b) of
the California Penal Code criminalizes conduct
that places a child “in a situation where his or her
person or health may be endangered.” (Emphasis
added.) In Fregozo v. Holder, 576 F.3d 1030
(9th Cir. 2009), the Ninth Circuit held that this
5
Section 260.10(1) of the New York Penal Law
provides, in pertinent part, that “[a] person is guilty of
endangering the welfare of a child when . . . [h]e or she
knowingly acts in a manner likely to be injurious to the
physical, mental or moral welfare of a child less than seventeen
years old . . . .”
10
statute did not categorically define a “crime of
child abuse” within the meaning of the Act. The
court observed that the statute does not “require
that the circumstances create any particular
likelihood of harm to a child” and punishes
“conduct that creates only the bare potential for
nonserious harm to a child.” Id. at 1037-38. In
this regard, the court cited as an example of facts
that did not meet our definition of child abuse the
case of a parent “placing an unattended infant in
the middle of a tall bed without a railing, even
though the child was never injured.” Id. Based
on the facts as construed by the court, we would
agree that they do not, alone, define a crime of
child abuse or neglect.
Id. at 711. Thus, to qualify as a crime of child abuse under the
INA, a state child endangerment offense must require that the
actor’s conduct “create [a] particular likelihood of harm to the
child” that rises above “conduct that creates only the bare
potential for nonserious harm. . . .” Id. (internal citation and
quotation marks omitted). As a result, where a state child
endangerment statute fails to require “any particular likelihood
of harm to a child,” id. (quoting Fregozo, 576 F.3d at 1037), it
falls outside the ambit of the INA’s “child abuse” offense.
Recognizing that the phrase “child abuse” has different
meanings in different states, and that child abuse in this context
is meant to address conduct that is criminal, it is appropriate to
define the phrase “child abuse” under the INA to capture
conduct that poses a particular likelihood of harm to the child.
Using this definition, we next examine whether the
Pennsylvania child endangerment statute constitutes a “crime
11
of child abuse” under § 1227(a)(2)(E)(i). If so, then a
conviction under the Pennsylvania statute provides a basis for
removal.
B
To decide whether a state conviction qualifies as a basis
for removal under the INA, we “employ a ‘categorical
approach’ to determine whether the state offense is comparable
to [the] offense listed in the INA.” Moncrieffe v. Holder, 569
U.S. 184, 190 (2013); see also Descamps v. United States, 570
U.S. 254, 257 (2013) (describing categorical approach
generally). Because we focus on the elements of the offense
of conviction, a petitioner’s specific conduct that led to the
conviction is “irrelevant.” Moncrieffe, 569 U.S. at 190
(citation omitted).
Under Pennsylvania law, “[a] parent, guardian or other
person supervising the welfare of a child under 18 years of age,
or a person that employs or supervises such a person, commits
an offense if he knowingly endangers the welfare of the child
by violating a duty of care, protection or support.” 18 Pa. Cons.
Stat. § 4304(a)(1). In construing this provision, the
Pennsylvania Supreme Court has stated that, notwithstanding
the rule of lenity typically applied to penal statutes, the child
endangerment provision “must be construed to effectuate its
broad purpose of sheltering children from harm. Specifically,
the purpose of such juvenile statutes is defensive; they are
written expansively by the legislature to cover a broad range of
conduct in order to safeguard the welfare and security of our
children.” Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa.
2015) (internal citations and quotation marks omitted).
12
Pennsylvania’s child endangerment statute has thus been
construed to “impose[] a duty on parents and other caretakers
to not risk any kind of harm, not just bodily injury, to a minor
child in his or her care.” Commonwealth v. Coppedge, 984
A.2d 562, 563 (Pa. Super. Ct. 2009) (examining the elements
of Pennsylvania’s child endangerment offense to determine if
it merged with simple assault). Thus, “a conviction for
endangering the welfare of children only requires proof of
circumstances that could threaten the child’s physical or
psychological welfare.” Commonwealth v. Martir, 712 A.2d
327, 330 (Pa. Super. Ct. 1998)6; see also Commonwealth v.
6
In Martir, the Pennsylvania Superior Court examined
the question of whether a conviction for child endangerment
merges for sentencing purposes with, as a lesser included
offense, a conviction for reckless endangerment. 712 A.2d at
328. The reckless endangerment statute in question provided,
in full, that “[a] person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily
injury.” 18 Pa. Cons. Stat. § 2705. The court held that the
convictions did not merge, reasoning, as relevant for our
purposes, that:
[a] conviction for reckless endangerment
requires proof of conduct that places or may
place another person in danger of death or
serious bodily injury, while a conviction for
endangering the welfare of children only
requires proof of circumstances that could
threaten the child’s physical or psychological
welfare. Thus, reckless endangerment requires
13
Young, No. 2556 EDA 2015, 2017 WL 238469, at *4 (Pa.
Super Ct. 2017) (not precedential) (observing that the child
endangerment offense requires only “proof of circumstances
that could threaten the child” (quoting Martir, 712 A.2d at
330)).7
proof of a fact that endangering the welfare of
children does not. In other words, the element of
conduct which places or may place a person in
danger of death or serious bodily injury is not
subsumed within proof that a child is placed in
circumstance[s] that could threaten the child.
Martir, 712 A.2d at 329-30.
7
Citing to Commonwealth v. Wallace, 817 A.2d 485,
490 (Pa. Super. Ct. 2002), the Government contends that
Pennsylvania “caselaw has in fact narrowed the [child
endangerment] statute to proscribe practical certainty that
conduct threatens a child’s physical or psychological welfare.”
Aug. 15 DOJ Letter at 2. The Government is mistaken. The
passage the Government refers to was discussing the mental
state required for conviction under the statute, stating that “it is
the awareness by the accused that his violation of his duty of
care, protection and support is ‘practically certain’ to result in
the endangerment to his children’s welfare, which is proscribed
by the statute.” Wallace, 817 A.2d at 492 (citing 18 Pa. Cons.
Stat. § 302(b)(2) (describing “general requirements of
culpability” under Pennsylvania criminal law)). The present
dispute does not concern the mental state required to commit
the offense; rather, what is at issue here is the meaning of
“endangerment,” which Wallace defines as putting “at risk of
danger,” specifying that neither “actual infliction” nor
14
Comparing the Pennsylvania child endangerment
statute to the offense of “child abuse” under the INA reveals a
difference between each statute’s risk requirements. Whereas
the Pennsylvania statute merely requires conduct that “could
threaten” a child’s “welfare,” Martir, 712 A.2d at 330, “child
abuse” under the INA requires “a likelihood of harm to [the]
child.” Mendoza Osorio, 26 I. & N. Dec. at 706. The BIA has
not identified a specific risk level, but it does embrace the view
that a statute that does not “‘require . . . any particular
likelihood of harm to a child’” would not include “a
sufficiently high risk of harm to a child” to qualify as INA child
abuse. Id. at 711 (quoting Fregozo, 576 F.3d at 1037-38). This
required risk level places a reasonable limitation on the
offenses that constitute “child abuse” under the INA. Florez v.
Holder, 779 F.3d 207, 212 (2d Cir. 2015).
Like the California statute our sister circuit examined in
Fregozo, the Pennsylvania statute lacks an element requiring
proof of a “sufficiently high risk of harm.” Mendoza Osorio,
26 I. & N. Dec. at 711 (emphasis omitted). The Pennsylvania
statute makes it illegal to place the child in “circumstances that
could threaten [his or her] welfare.” Martir, 712 A.2d at 330.
The California statute makes it illegal to place a child “in a
situation where his or her person or health may be
endangered.” Fregozo, 576 F.3d at 1037 (quoting Cal. Penal
Code § 273a(b)). Like the California statute, the Pennsylvania
“imminent threat of physical injury” to the child is required for
conviction under 18 Pa. Cons. Stat. § 4304(a)(1), id. at 491-
92, and which other Pennsylvania courts have defined as
conduct that “could threaten” a child’s welfare. Martir, 712
A.2d at 330.
15
statute does not specify “any particular likelihood of harm to a
child” required for violation. Mendoza Osorio, 26 I. & N. Dec.
at 711 (internal citation omitted). Because “child abuse” under
the INA requires a specified risk of harm that rises above
conduct that creates only the bare potential for non-serious
harm, id., and the Pennsylvania child endangerment statute in
effect at the time of Liao’s conviction did not,8 the elements of
the two statutes do not match. As a result, under the categorical
approach, Pennsylvania’s child endangerment statute under
which Liao was convicted does not fit within the definition of
“child abuse” under § 1227(a)(2)(E)(i), and the BIA erred in
concluding otherwise.
C
The Government claims that we must also engage in a
“realistic probability” inquiry, examining convictions under
the state statute to assess “whether the statute is actually
applied to conduct that falls outside of the federal definition,”
Resp’t’s Br. at 31-32, before concluding the statute does not
8
In 2017, the grading portion of the Pennsylvania child
endangerment statute was amended to state that any violation
that posed “a substantial risk of death or serious bodily injury”
would make the offense a felony. See Pa. Act of June 29, 2017,
P.L. 246, No. 12 (H.B. 217) (noting previous statutory
language). Thus, a conviction under the felony provision of
the endangerment statute would qualify as a crime of child
abuse under the INA because it requires proof of a substantial
risk of death or serious bodily injury.
16
qualify as INA child abuse.9 The Government argues that we
are bound to undertake this analysis because Gonzalez v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007), dictates that there
should be “a realistic probability, not a theoretical possibility”
that the state statute would be applied to such conduct.
Resp’t’s Br. at 31.
Contrary to the Government’s assertion, it is
unnecessary to conduct a realistic probability inquiry in every
case. In Singh v. Attorney General, 839 F.3d 273, 285-86 (3d
Cir. 2016), we held that the BIA erred in conducting a “realistic
probability” inquiry where the elements of petitioner’s
controlled substance conviction under Pennsylvania state law
9
In its August 15, 2018 Rule 28(j) letter, the
Government admitted that the “realistic probability” test is not
necessary where the text of the statutory provision plainly
covers a broader swath of conduct than the generic federal
offense, but argued that the test is required in all other
instances, seemingly regardless of how courts articulate the
statute’s elements. When pressed on this position at oral
argument, the Government admitted that one could look to the
elements courts apply in comparing the elements of a state
offense with the generic federal offense, but nevertheless
maintained that a realistic probability test was necessary here.
Oral Argument at 18:40, Liao v. Att’y Gen., No. 17-1825,
http://www2.ca3.uscourts.gov/oralargument/audio/17-
1825Liaov.AttyGenUSA.mp3. For the reasons discussed in
the text, we conclude that it is unnecessary to apply the realistic
probability test where the elements of the offense, whether as
set forth in a statute or case law, do not match the generic
federal crime.
17
did not match the elements of the generic federal offense of
illicit trafficking in a controlled substance because it was only
appropriate to apply such an analysis where the elements of the
compared offenses matched. Moreover, we observed that
“[t]he Supreme Court has never conducted a ‘realistic
probability’ inquiry” where the elements of the crime of
conviction are not the same as the elements of the generic
federal offense.10 Id. at 286 n.10; see also Salmoran v. Att’y
Gen., No. 17-2683, 2018 WL 6166242, at *7 (3d Cir. Nov. 26,
2018) (holding that no realistic probability analysis is
necessary where the state statute “plainly encompasses more
conduct than its federal counterpart”).
In this case, we are not confronted with a situation in
which there is no guidance as to how the statute applies. As
explained above, Pennsylvania does not require any particular
level of risk to violate its child endangerment statute, and thus,
there is a difference between the risk element under the
Pennsylvania child endangerment statute and the INA child
abuse statute, making further inquiry into the law’s application
unnecessary. Put simply, the elements leave nothing to the
“legal imagination,” Duenas-Alvarez, 549 U.S. at 193, because
they show that one statute captures conduct outside of the
other. Therefore, we need not carry out a “realistic probability”
inquiry to conclude that a conviction for a violation of
10
Only where the state statute offers insufficient
guidance as to its application is further analysis needed to
address whether the state applied its statute in a way that
captured conduct outside of the federal statute’s scope.
Moncrieffe, 569 U.S. at 191-95; Duenas-Alvarez, 549 U.S. at
193.
18
§ 4304(a)(1) does not constitute a removable “crime of child
abuse, child neglect, or child abandonment” under
§ 1227(a)(2)(E)(i).11
11
Our sister circuit courts have also held that the
“realistic probability” inquiry is unnecessary where the
elements of the offenses do not match. See Hylton v. Sessions,
897 F.3d 57, 64 (2d Cir. 2018) (evaluating whether a state
conviction for sale of marijuana in the third degree constituted
an INA aggravated felony, and concluding that “[b]y
demanding that Hylton produce old state cases to illustrate
what the statute makes punishable by its text, the
Government’s argument misses the point of the categorical
approach and wrenches the Supreme Court’s language in
Duenas Alvarez from its context” (internal quotation marks
and citations omitted)); United States v. Titties, 852 F.3d 1257,
1274-75 (10th Cir. 2017) (determining applicability of Armed
Career Criminal Act (“ACCA”) sentencing enhancement
based on prior convictions, and concluding, in spite of
Government’s contention that a “realistic probability” inquiry
was necessary, that “[t]his is not a case where we need to
imagine hypothetical non-violent facts to take a statute outside
of the ACCA’s ambit. . . . The Government gives no persuasive
reason why we should ignore [the statute’s] plain language to
pretend [it] is narrower than it is.”); Swaby v. Yates, 847 F.3d
62, 66 (1st Cir. 2017) (“[Duenas-Alvarez’s] sensible caution
against crediting speculative assertions regarding the
potentially sweeping scope of ambiguous state law crimes has
no relevance to a case like this [where the state law at issue
unambiguously covered one drug not on the federal schedules,
as relevant for removal eligibility under the INA]. The state
crime at issue clearly does apply more broadly than the
19
federally defined offense.”); United States v. Aparicio-Soria,
740 F.3d 152, 157-58 (4th Cir. 2014) (en banc) (rejecting
Government’s argument that a “realistic probability” inquiry is
necessary because “this case does not require an exercise of
imagination, merely mundane legal research skills: we have
precedent from Maryland’s highest court” confirming that the
state offense of resisting arrest captures conduct outside the
scope of “crimes of violence” under the United States
Sentencing Guidelines); Ramos v. Att’y Gen., 709 F.3d 1066,
1071-72 (11th Cir. 2013) (examining whether a state theft
conviction qualified as an aggravated felony rendering an alien
removable under the INA and observing that “Duenas-Alvarez
does not require [a realistic probability] showing when the
statutory language itself, rather than ‘the application of legal
imagination’ to that language, creates the ‘realistic probability’
that a state would apply the statute to conduct beyond the
generic definition.”); United States v. Grisel, 488 F.3d 844,
850 (9th Cir. 2007) (en banc) (evaluating whether Oregon
second-degree burglary conviction fell under the ACCA’s
“violent felony” mandatory minimum, and noting “[w]here, as
here, a state statute explicitly defines a crime more broadly
than the generic definition, no ‘legal imagination’ is required
to hold that a realistic probability exists that the state will apply
its statute to conduct that falls outside the generic definition of
the crime.” (internal citation omitted)). But see United States
v. Castillo-Rivera, 853 F.3d 218, 222, 239 (5th Cir. 2017) (en
banc) (applying the “realistic probability” test to hold that a
Texas conviction for unlawful possession of a firearm
constituted an aggravated felony for sentencing purposes, even
though it would, as the dissent explained, “require a defendant
to disprove the inclusion of a statutory element that the statute
plainly does not contain”).
20
IV
For the foregoing reasons, we will grant the petition and
remand for the BIA to consider the alternative ground on which
the IJ found Liao removable.
21