LORENZO ALVAREZ-CERRITENO v. JEFFERSON B. SESSIONS III, United States Attorney General
No. 16-73486
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
August 8, 2018
Agency No. 091-009-097
FOR PUBLICATION
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
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
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 omissiоns 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 “reаsonable foreseeability” of harm to a child, while the 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 Offiсes 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.
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
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
B. Procedural History
DHS issued a Notice to Appear (“NTA“) and charged that Alvarez-Cerriteno was removable pursuant to
On June 6, 2016, the Immigration Judge (IJ) issued a written decision, which (1) found that Alvarez-Cеrriteno 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 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
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.”
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
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 deportable.”
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.
We proceed in three steps. First, we determine the elements of the federal generic crime. See Section III.B, infra. Second, we analyze
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 plaсed in a situation where his or her person or health may be endangered,” was categorically a “crime of child abuse” under the INA.
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 Nevаda 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 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 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
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
C. Scope of the Nevada “Statute of Conviction”
We next consider the elements of the
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.”
However, section 200.508(2) does not specify what probability of harm to the child the “situation” in which the child is
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
Third, the Supreme Court of Nevada has noted that § 200.508 is “very similar” to the California child abuse statute at issue in Fregozo,
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 requirement may be satisfied by proof of “negligent treatmеnt . . . under circumstances which indicate that the child‘s health or welfare is harmed or threatened with harm.”
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 foreseeаbility” 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 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 thе 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
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 аbuse” 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 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, wе 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
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. 2010), is not a reasonable interpretation of the phrase “crime of child abuse” under