Zhi Liao v. Attorney General United States
910 F.3d 714
| 3rd Cir. | 2018Background
- Zhi Fei Liao, a lawful permanent resident, was convicted in Pennsylvania of endangering the welfare of a child (18 Pa. Cons. Stat. § 4304(a)(1)) after an incident in which an infant fell from a bed during a domestic altercation.
- DHS charged Liao with removability under INA § 1227(a)(2)(E)(i) as having committed a “crime of child abuse, child neglect, or child abandonment.”
- An IJ ordered removal, and the single-member BIA affirmed, holding Pennsylvania’s child-endangerment statute qualified as INA “child abuse,” reasoning the INA definition is broad and need not require proof of actual harm.
- Liao petitioned for review in the Third Circuit, arguing the elements of the Pennsylvania statute do not categorically match the INA’s required risk-of-harm element.
- The Third Circuit considered exhaustion, the proper categorical approach, the BIA’s interpretations (Velazquez-Herrera, Soram, Mendoza Osorio), and whether a “realistic probability” inquiry was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Liao’s § 4304(a)(1) conviction is categorically a “crime of child abuse” under INA § 1227(a)(2)(E)(i) | Pennsylvania statute requires only conduct that "could threaten" a child’s welfare and thus does not require the higher likelihood-of-harm element the INA demands | The BIA/Government contends the statute fits within the BIA’s broad definition of child abuse and that a realistic-probability inquiry may show it is applied consistent with INA meaning | Held: The statutes’ elements do not match; Pennsylvania’s provision criminalizes a lower risk (mere potential to threaten welfare) than the INA requires, so § 4304(a)(1) is not categorically an INA child-abuse offense. |
| Whether Liao exhausted administrative remedies on the element/risk argument | Liao argued in his BIA brief that the Pennsylvania duty-of-care offense did not require the risk level the INA requires | Government argued exhaustion inadequate | Held: Exhaustion satisfied — Liao’s BIA submissions put the Board on adequate notice of the risk-level argument. |
| Whether a "realistic probability" inquiry is required when statutory elements do not match | Liao: No; when elements themselves encompass broader conduct, no further realistic-probability inquiry is necessary | Government: Duenas-Alvarez requires realistic-probability analysis to see if statute is applied to non-matching conduct | Held: No realistic-probability test required where elements plainly cover conduct outside the federal definition; here elements themselves show the mismatch. |
| Remedy | N/A | N/A | Held: Petition granted; case remanded to the BIA to consider the IJ’s alternative removal ground (terroristic threats). |
Key Cases Cited
- Mahn v. Att’y Gen., 767 F.3d 170 (3d Cir.) (deference rules when BIA issues its own opinion)
- Moncrieffe v. Holder, 569 U.S. 184 (categorical approach for comparing state and federal offenses)
- Descamps v. United States, 570 U.S. 254 (describing categorical approach)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 ("realistic probability" formulation)
- Fregozo v. Holder, 576 F.3d 1030 (9th Cir.) (California child endangerment statute does not categorically define INA child abuse)
- Singh v. Att’y Gen., 839 F.3d 273 (3d Cir.) (no realistic-probability inquiry where elements do not match)
- Florez v. Holder, 779 F.3d 207 (2d Cir.) (recognizing reasonable limitation on INA child-abuse scope)