899 F.3d 774
9th Cir.2018Background
- Petitioner Lorenzo Alvarez-Cerriteno, a Mexican national and U.S. lawful permanent resident, pleaded guilty in 2011 to Nevada child abuse/neglect under Nev. Rev. Stat. § 200.508(2)(b)(1) for punching his 14‑year‑old son and received nine months’ imprisonment.
- DHS charged him removable under INA § 237(a)(2)(E)(i) as having been convicted of a "crime of child abuse, child neglect, or child abandonment." He admitted the facts but contested removability and sought cancellation of removal.
- The IJ found him removable categorically under the INA (relying on Matter of Soram), denied cancellation of removal as a matter of discretion, and the BIA affirmed removal on the same basis.
- Alvarez-Cerriteno petitioned for review in the Ninth Circuit, which reviewed de novo the legal question whether Nevada § 200.508(2) is categorically broader than the INA’s generic "crime of child abuse."
- The Ninth Circuit concluded the BIA erred: the INA (as given Chevron deference to Matter of Soram) requires conduct creating at least a "reasonable probability" or likelihood of harm, while Nevada § 200.508(2) criminalizes conduct that creates only a "reasonable foreseeability" (a lower risk) of harm.
- The court granted the petition and remanded for further proceedings; it lacked jurisdiction to review the discretionary denial of cancellation of removal.
Issues
| Issue | Alvarez-Cerriteno's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Nevada § 200.508(2) is categorically a "crime of child abuse" under INA § 1227(a)(2)(E)(i) | Nevada statute criminalizes only conduct that may foreseeably cause harm and thus is broader than the INA generic crime — conviction does not categorically qualify | The Nevada statute requires "abuse or neglect" and can be read to require a risk comparable to the INA (no realistic probability it reaches less serious conduct) | Nevada statute is broader; BIA erred in finding categorical match; remand required |
| Proper mens rea comparison between statutes | Nevada's negligence/knowledge standards differ from INA's required culpability | Mens rea aligns sufficiently | Court found both include negligence but differ in required quantum of risk; mens rea not dispositive |
| Whether there is a realistic probability Nevada would prosecute conduct outside the INA generic crime | Yes — state cases show convictions on lesser-risk conduct (e.g., absenteeism/neglect) | No — speculative or not realistic | Court held a realistic probability exists based on Nevada case law; supports finding of overbreadth |
| Jurisdiction to review IJ's denial of discretionary cancellation of removal | N/A — petitioner challenged weighing of factors | N/A — DHS argued merits are discretionary | Court lacks jurisdiction to review discretionary denial; that issue not decided on merits |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishing the categorical and modified categorical approaches)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (requiring a "realistic probability" inquiry when comparing state statutes to federal generic offenses)
- Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009) (addressing whether a state child endangerment statute is broader than the INA generic child‑abuse crime)
- Ling Huang v. Holder, 744 F.3d 1149 (9th Cir. 2014) (standard of review when BIA adopts IJ and adds analysis)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (binding precedent rule)
- Vilchez v. Holder, 682 F.3d 1195 (9th Cir. 2012) (no jurisdiction to review discretionary denial of cancellation of removal)
- Andia v. Ashcroft, 359 F.3d 1181 (9th Cir. 2004) (remand principles when agency reasoning is inadequate)