12 F.4th 1126
9th Cir.2021Background
- Petitioner Rafael Diaz-Rodriguez, a lawful permanent resident, was convicted twice (2003, 2009) under Cal. Penal Code § 273a(a) for driving under the influence with a child in the vehicle (felony child endangerment).
- § 273a(a) punishes one who, "having the care or custody of any child," willfully causes or permits a child to be placed in a situation where the child’s person or health is endangered; California law treats criminal negligence as sufficient mens rea.
- DHS initiated removal proceedings based on the 2009 conviction under INA § 1227(a)(2)(E)(i) ("a crime of child abuse, child neglect, or child abandonment"); the IJ and BIA agreed and denied cancellation of removal as discretionary.
- A prior Ninth Circuit three-judge panel (Martinez-Cedillo) had held that negligent child endangerment falls within the INA phrase and deferred to the BIA’s interpretation in Matter of Soram; that opinion was later vacated when the en banc court dismissed the case as moot.
- This three-judge Ninth Circuit panel reexamined whether negligent child-endangerment statutes like § 273a(a) categorically constitute "a crime of child abuse, child neglect, or child abandonment," and concluded they do not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 273a(a) is a categorical match to INA § 1227(a)(2)(E)(i) | Diaz: § 273a(a) criminalizes child abuse/neglect and thus triggers removability | Gov: § 273a(a) fits the BIA’s broad definition of child abuse/neglect/abandonment | Held: Not a categorical match; § 273a(a) criminalizes negligent child endangerment outside the generic definition |
| Whether the BIA’s interpretation in Matter of Soram is entitled to Chevron deference on whether negligence-based child endangerment is covered | Diaz: Even if ambiguous, BIA interpretation is reasonable and entitled to deference | Gov: Soram controls; phrase covers negligent child endangerment | Held: Chevron step one — statute unambiguously forecloses BIA’s inclusion of negligent endangerment; no deference to Soram on that question |
| Proper method to define the generic federal offense | Diaz: Use agency deference and precedential Ninth Circuit decisions that followed Soram | Gov: Prior Ninth Circuit panels bind this court | Held: Court applies categorical approach and statutory tools (dictionaries, statutory structure, state-law survey) to conclude negligence-based endangerment not within ordinary meaning of the INA phrase |
Key Cases Cited
- Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (framework for judicial deference to agency interpretations)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (U.S. 2017) (use traditional tools to decide whether statute unambiguously forecloses agency reading)
- Pereira v. Sessions, 138 S. Ct. 2105 (U.S. 2018) (agency deference unavailable if Congress supplied clear answer)
- Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018) (prior three-judge panel held § 273a(a) matched INA phrase; later vacated)
- Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018) (panel followed Martinez-Cedillo re: deference to BIA)
- Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018) (panel followed Martinez-Cedillo and analyzed categorical match)
- Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (held negligent child endangerment not necessarily covered; did not defer to BIA)
- Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (upheld reasonable BIA definition of child abuse as not requiring injury)
- Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020) (declined to adopt Ibarra; deferred to BIA as reasonable)