RAFAEL DIAZ-RODRIGUEZ v. MERRICK B. GARLAND, Attоrney General
No. 13-73719
United States Court of Appeals for the Ninth Circuit
September 10, 2021
Agency No. A093-193-920
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of
Argued and Submitted January 13, 2021 Pasadena, California
Filed September 10, 2021
Opinion by Judge Watford; Dissent by Judge Callahan
SUMMARY**
Immigration
Granting Rafael Diaz-Rodriguez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of
In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).
The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court’s decision to designate that decision as non-precedential.
Applying the categorical approach, the panel identified the elements of
Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of
Because a violation of
Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority’s peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority’s suggestion that
COUNSEL
Jerry Shapiro (argued), Law Offices of Jerry Shapiro, Encino, California, for Petitioner.
Erica B. Miles (argued) and M. Jocelyn Lopez Wright, Senior Litigation Counsel; Sara J. Bayram, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
WATFORD, Circuit Judge:
We confront in this appeal the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018). There, a divided three-judge panel held that
I
Rafael Diaz-Rodriguez has been a lawful permanent resident of the United States since 1990. He and his partner have two children together, both of whom are U.S. citizens.
In 2003 and 2009, Diaz-Rodriguez was stopped by the police while driving under the influence of alcohol with one of his children in the car. On both occasions, he was сonvicted of felony child endangerment in violation of
In 2012, the Department of Homeland Security initiated removal proceedings against Diaz-Rodriguez based on his 2009 child endangerment conviction. The agency alleged that the conviction rendered Diaz-Rodriguez removable under
II
As noted at the outset, a prior panel of this court confronted the same issue before us. The three-judge panel in Martinez-Cedillo was asked to decide whether
held that the phrase is ambiguous as to whether it includes criminal offenses, such as
We are not bound by Martinez-Cedillo’s resolution of this issue. The three-judge panel’s decision was rendered non-precedential when the full court agreed to rehear the case en banc, 918 F.3d 601 (9th Cir. 2019), and the en banc court later vacated the panel’s decision when it dismissed the appeal as moot, 923 F.3d 1162 (9th Cir. 2019). Given these developments, all agree that Martinez-Cedillo itself is no longer binding precedent.
During the interval between the three-judge panel’s decision in Martinez-Cedillo and the full court’s decision to rehear the case en banc, two other panels issued published opinions that relied on Martinez-Cedillo in holding that the BIA’s decision in Soram is entitled to deference under Chevron. See Menendez v. Whitaker, 908 F.3d 467, 474 (9th Cir. 2018); Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781 (9th Cir. 2018). Those decisions have not been vacated. As a three-judge panel, we are ordinarily bound to follow published decisions issued by prior panels. See Miller v.
Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). The unusual circumstances presented here, however, lead us to conclude that this case falls outside the scope of the general rule.
Both Alvarez-Cerriteno and Menendez were decided shortly after issuance of the opinion in Martinez-Cedillo, during the period in which en banc review in Martinez-Cedillo was under consideration.2 Both decisions
In both cases, despite following Martinez-Cedillo and deferring to Soram’s definition of “a crime of child abuse, child neglect, or child abandonment,” the panels nonetheless ruled in the petitioners’ favor on the ground that the offenses in question were broader than the generic federal offense, even as defined by the BIA. Menendez, 908 F.3d at 474-75; Alvarez-Cerriteno, 899 F.3d at 783-84. Not surprisingly, neither of the petitioners sought en banc review. Nor was there any reason for an off-panel judge to call for rehearing en banc sua sponte so that those cases could be held pending
the outcome of en banc proceedings in Martinez-Cedillo. Even if the en banc court had ultimately adopted the position of the dissent in Martinez-Cedillo, doing so would not have affected the outcome in either Alvarez-Cerriteno or Menendez. Moreover, during the window in which a sua sponte en banc call could have been made in those cases, no one could have anticipated that Martinez-Cedillo would eventually be dismissed as moot, thereby precluding the full court from resolving whether the BIA’s decision in Soram should receive deference under Chevron.
Given this unique sequence of events, we do not think Alvarez-Cerriteno or Menendez can now be viewed as binding circuit precedent on whether Soram is entitled to Chevron deference, any more than Martinez-Cedillo itself can. Both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding circuit precedent without engaging in any independent analysis of the deference issue, and both decisions were effectively insulated from en banc review on the legаl issue decided in Martinez-Cedillo. As a result, their status as circuit precedent on whether Soram is entitled to deference rises or falls with the status of Martinez-Cedillo. Since the opinion in Martinez-Cedillo was vacated and deemed non-precedential by the en banc court, we must decide anew whether Diaz-Rodriguez’s conviction under
The dissent takes issue with this treatment of Alvarez-Cerriteno and Menendez, arguing that it runs afoul of this circuit’s rule “that a three-judge panel is ‘bound by the prior decision of another three-judge panel,’” which “‘gives way when, but only when, the earlier decision is clearly irreconcilable with the holding or reasoning of intervening authority from our court sitting en banc or the Supreme
Court.’” Dissent at 32-33 (quoting Aleman Gonzalez v. Barr, 955 F.3d 762, 765 (9th Cir. 2020), cert. granted, 2021 WL 3711642 (U.S. Aug. 23, 2021) (No. 20-322)). But the decisions in Alvarez-Cerriteno and Menendez are in fact irreconcilable with a subsequent decision of the court sitting en banc: As already stated, their reliance on the decision of the three-judge panel in Martinez-Cedillo is in direct conflict with the en banc court’s decision to designate that decision as non-precedential—a designation explicitly noted in the order of the en banc court dismissing the appeal as moot. See 923 F.3d at 1162. As a result, the
III
To determine whether a conviction under
and the state conviction may serve as a ground for removal. Id.
Identifying the least of the acts criminalized under
Identifying the elements of the federal offense at issue is more complicated. Congress enacted
the BIA because it is the agency charged with implementing statutory provisions specifying the grounds for removal.
In two decisions, the BIA has attempted to formulate a definition of the generic federal offense described by the phrase “a crime of child abuse, child neglect, or child abandonment.” In Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), the agency interpreted “crime of child abuse” to mean “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.” Id. at 512. The Board left open
Unlike the three-judge panel in Martinez-Cedillo, we do not think the BIA’s decision in Soram is entitled to deference on the question whether negligent child endangerment offenses are encompassed within the phrase “a crime of child abuse, child neglect, or child abandonment.” In our view, as to that specific question, “Congress has supplied a clear and
unambiguous answer,” precluding deference under Chevron step one. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018).
In deciding whether deference is owed under Chevron, we are guided by the Supreme Court’s resolution of a similar issue in Esquivel-Quintana. There, the Court addressed another conviction-based provision enacted as part of IIRIRA, this one making conviction for “sexual abuse of a minor” grounds for removal.
Although the precise holding of Esquivel-Quintana has no direct bearing on the issue before us, the Court’s reasoning is nonetheless highly instructive. After observing that Congress had not defined the term “sexual abuse of a minor,” id. at 1569, the Court did not throw up its hands and declare the statute ambiguous with respect to the specific question raised there. The Court instead relied on “the normal tools of statutory interpretation” to determine whether the statute provided a clear answer. Id. The Court looked to definitions from contemporary legal dictionaries, statutory structure, state criminal codes in effect at the time of IIRIRA’s enactment, and a related federal criminal
statute. Id. at 1569-72. Based on its review of those sources, the Court concluded that “the statute, read in context, unambiguously forecloses the Board’s interpretation,” rendering deference to the agency under Chevron unwarranted. Id. at 1572.
As discussed below, three of the four sources of statutory meaning the Court consulted in Esquivel-Quintana—contemporary legal dictionaries, statutory structure, and contemporary state criminal codes—suppоrt the conclusion that
Legal dictionaries. Contemporary legal dictionaries from shortly before and after IIRIRA’s enactment indicate that child abuse, child neglect, and child abandonment were well-understood concepts with distinct meanings that do not encompass negligent child endangerment offenses.
The common meaning of “child abuse” in 1996 required the infliction of some form of injury upon the child. One of the principal dictionaries cited by the Court in Esquivel-Quintana defines the term as “the infliction of physical or emotional injury” on a child, including sexual abuse. Merriam-Webster’s Dictionary of Law 4, 76 (1996). The two editions of Black’s Law Dictionary that bookend IIRIRA’s enactment contain similar definitions. The Sixth Edition defines “child abuse” as “[a]ny form of cruelty to a child’s physical, moral or mental well-being,” with “cruelty” defined as “[t]he intentional and malicious infliction of physical or mental suffering.” Black’s Law Diсtionary 239,
377 (6th ed. 1990) (Black’s Sixth Edition). The Seventh Edition defines “child abuse” as “[a]n intentional or neglectful physical or emotional injury imposed on a child, including sexual molestation.” Black’s Law Dictionary 10, 233 (7th ed. 1999) (Black’s Seventh Edition). Each of these definitions excludes the child endangerment offense described in
The common meaning of the term “child neglect” in 1996 required a sustained failure by a child’s caregiver to provide for the child’s basic needs. For example, Merriam-Webster’s defines “neglect” to mean “a failure to provide a child under one’s care with proper food, clothing, shelter, supervision, medical care, or emotional stability.” Merriam-Webster’s Dictionary of Law 324. The Sixth Edition of Black’s Law Dictionary does not define the term “child neglect” directly, but it defines “neglected child” to mean a child whose “parent or custodian, by reason of cruelty, mental incapacity, immorality or depravity, is unfit properly to care for him, or neglects or refuses to provide necessary physical, affectional, medical, surgical, or institutional or hospital care fоr him, or he is in such condition of want or suffering, or is under such improper care or control as to endanger his morals or health.” Black’s Sixth Edition 1032. The Seventh Edition defines “child neglect” to mean “[t]he failure of a person responsible for a minor to care for the minor’s emotional or physical needs.” Black’s Seventh Edition 233; see also id. (defining “neglected child” as: “1. A child whose parents or legal custodians are unfit to care for him or her for reasons of cruelty, immorality, or incapacity. 2. A child whose parents or legal custodians refuse to provide the necessary care and medical services for the child.“). These definitions exclude child endangerment
offenses, such as
The same is true of the common meaning in 1996 of “child abandonment,” a term that was understood to involve the forsaking of one’s parental duties. As relevant here, Merriam-Webster’s defines “abandonment” as the “failure to communicate with or provide financial support for one’s child over a period of time that shows a purpose to forgo parental duties and rights.” Merriam-Webster’s Dictionary of Lаw 1; see also Black’s Sixth Edition 2 (defining “abandonment” with respect to children as “[d]esertion or willful forsaking“; “[f]oregoing parental duties“). The
Statutory structure. The contemporary definitions of child abuse, child neglect, and child abandonment make clear that the ordinary meaning of those terms in 1996 did not encompass negligent child endangerment offenses. The question becomes whether Congress’s omission of child endangerment from the list of crimes specified in
Under the common meaning of the terms child abuse, child neglect, and child abandonment discussed above, non-сitizens convicted of those crimes have either inflicted harm on a child or forsaken their parental responsibilities altogether. Making such conduct a ground for removal will in many cases result in separation of the victims of those offenses from the convicted parent, at least in cases where (as here) the children are U.S. citizens or otherwise have lawful status in the United States. Congress could readily have viewed the forced separation of parent and child—and its impact on the child’s future well-being—with less concern when the child has been abused, neglected, or abandoned by the very parent facing removal.
We do not think the same can be said when the parent in question has been convicted of negligent child endangerment. That offense can be predicated on a single lapse in parental judgment, such as leaving young children at home alone while the parent is at work. See, e.g., Ibarra v. Holder, 736 F.3d 903, 905 & n.3 (10th Cir. 2013). It is easy to see why Congress could have viewed this less serious form of misconduct as an unacceptable basis under the immigration laws for separating parents from their children.
A neighboring provision of the INA suggests that Congress deliberаtely omitted child endangerment from the list of offenses specified in
child is a U.S. citizen or lawful permanent resident.
In 1996, only a handful of States criminalized conduct that would constitute child endangerment under statutes proscribing “abuse,” “neglect,” or “abandonment.” But to
err on the side of caution, we conducted a survey of state criminal codes to identify any State that criminalized negligent child endangerment irrespective of the label used. Such a survey confirms that, even when broadly construed, the phrase “a crime of child abuse, child neglect, or child abandonment” does not encompass negligent child endangerment offenses.
At the time of IIRIRA’s enactment, only 14 States criminalized child endangerment committed with a mens rea of criminal negligence. See Appendix A. The other 36 States did not criminalize such conduct. Twenty-three States, along with the District of Columbia, criminalized child endangerment only if committed with a mens rea of at least recklessness, see Appendix B, while the remaining 13 States did not criminalize child endangerment at all, see Appendix C.5
The general consensus drawn from state criminal codes supports the conclusion that
define the generic offense of sexual abuse of a minor to include an age of consent of 18. Id. at 1571-72. Here, the consensus view of the States cuts even more strongly against the BIA’s interpretation, as 36 States and the District of Columbia excluded negligent child endangerment from the realm of conduct that could bе deemed covered by the phrase “a crime of child abuse, child neglect, or child abandonment.”
* * *
We conclude that the text of
While several of our sister circuits have deferred to the BIA’s decision in Soram, we find those decisions both distinguishable and unpersuasive. They are distinguishable because none involved a negligent child endangerment offense, the specific offense addressed here, and they are unpersuasive because none engaged in any meaningful analysis of the text of
Because
PETITION FOR REVIEW GRANTED.
APPENDIX A
In 1996, the following 14 States criminalized child endangerment committed with a mens rea of negligence:
| | |
| Arizona | |
| California | |
| Colorado | |
| Missouri | |
| Nebraska | |
| New Mexico | |
| New York | |
| Oregon | |
| South Carolina | |
| South Dakota | |
| Texas | |
| Virginia | |
| Wyoming |
APPENDIX B
In 1996, the following 23 States and the District of Columbia criminalized child endangerment if committed with a mens rea of at least recklessness:
| | |
| Connecticut | |
| Delaware | |
| District of Columbia | |
| Hawaii | |
| Idaho | |
| Illinois | |
| Indiana | |
| Iowa | |
| Kansas | |
| Kentucky | |
| Maine | |
| Minnesota | |
| | |
| New Hampshire | |
| North Carolina | |
| Ohio | |
| Oklahoma | |
| Pennsylvania | |
| Tennessee | |
| Vermont | |
| Washington | |
| West Virginia | |
| Wisconsin |
APPENDIX C
In 1996, the following 13 States did not criminalize child endangerment at all. The cited statutory provisions refer to the
| Alaska | |
| Florida | |
| Georgia | |
| Louisiana | |
| Maryland | Md. Code Ann., Art. 27, § 35C (abuse); Cts. & Jud. Proc. § 3-831 (contribution to delinquency); Fam. Law §§ 10-203 (nonsupport and desertion), 10-219 (desertion) |
| Massachusetts | |
| Michigan | |
| Mississippi | |
| Nevada | |
| New Jersey | |
| North Dakota | |
| Rhode Island | |
| Utah |
CALLAHAN, Circuit Judge, dissenting:
I am compelled to dissent for two reasons. First, I do not agree thаt despite the “unique sequences of events” resulting in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), being vacated, 918 F.3d 601 (9th Cir. 2019), we as a three-judge panel may disregard our published decisions in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018). Second, even if the issue were properly before us, I do not agree with the majority’s peculiar reading of “a crime of child abuse, child neglect, or child abandonment” as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. The majority’s suggestion that
I.
Although the majority is concerned that a “single lapse in parental judgment” might force the separation of parent and child (Maj. at 18), this is not such a case. Diaz-Rodriguez has an extensive history of alcohol abuse and has been convicted twice for felony child abuse. In 1989, Diaz-Rodriguez pleaded guilty to driving drunk with a blood alcohol content (BAC) of .16. In 1994, he pleaded guilty to driving drunk when his BAC was .12. In 2003, Diaz-Rodriguez drove drunk with his five-year-old son, Rafael, in the car with a blood alcohol level of .20, over twice the legal limit. As a result, he was convicted of drunk driving and felony child abuse under
II.
In Martinez-Cedillo, 896 F.3d 979 (9th Cir. 2018), vacated 923 F.3d 1162 (9th Cir. 2019), we held that
We revisited Soram in Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018). We applied the Chevron two-step analysis which “asks if (1) the INA is ambiguous with regard to what constitutes a “crime of child abuse” and (2) the BIA’s construction in Soram reasonably resolves the ambiguity.” Id. at 781. We then recognized that, in Martinez-Cedillo, we had held that “the BIA’s interpretation of the generic crime in Soram is entitled to Chevron deference” and that we were bound by this precedent. Id. (citing Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)). Thus, the generic ““crime of child abuse,” as used in the INA, includes acts and omissions that (1) are criminally negligent and (2) create at least a “reasonable probability” that a child will be harmed.” Id. (citing Soram, 25. I & N. Dec. at 385-86).
Alvarez-Cerriteno proceeded to hold that the Nevada statute in issue was broader than the federal generic crime because it included instances in which there was only a ““reasonably foreseeable” risk of harm to a child.” Id. at 784.
We also considered deference to the BIA’s interpretation in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018). One issue concerned whether a conviction under
Menendez ultimately found that
The three-judge panel’s opinion in Martinez-Cedillo was declared non-precedential when we voted to rehear it en banc, 918 F.3d 601 (9th Cir. 2019), and the opinion was then vacated after the petitioner died. 923 F.3d 1162 (9th Cir. 2019). But both Alvarez-Cerriteno and Menendez remain
The majority nonetheless holds that Alvarez-Cerriteno and Menendez, do not establish “binding circuit precedent” because the opinions simply follow Martinez-Cedillo “without engaging in any independent analysis of the deference issue,” and because “both decisions were effectively insulated from en banc review on the legal issue decided in Martinez-Cedillo.” Maj. at 10.
The majority cites no authority for its approach which is contrary to our established case law on precedent. In Gonzalez v. Barr, 955 F.3d 762, 765 (9th Cir. 2020), we reiterated that a three-judge panel is “bound by the prior decision of another three-judge panel” and “gives way whеn, but only when, the earlier decision is clearly irreconcilable with the holding or reasoning of intervening authority from our court sitting en banc or the Supreme Court.” See also Miller v. Gammie, 335 F.3d 889, 893, 899-90 (9th Cir. 2003). Moreover, the “clearly irreconcilable” requirement is a “high standard,” and when “we can apply our precedent consistently with that of the higher authority, we must do so.” Id. (quoting FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019)) (emphasis added). Here, there is no intervening irreconcilable decision by the Supreme Court or the Ninth Circuit. Indeed, if we are going to adopt a new exception to our approach to precedent, such a departure should itself be made by an en banc panel.2
Relatedly, the majority’s approach is contrary to the principle of stare decisis. See In re NCCA Athletic Grant in Aid Cap Antitrust Litigation, 958 F.3d 1239, 1253 (9th Cir. 2020) (reiterating that stare decisis binds today’s court to yesterday’s decision). In S & H Packing & Sales v. Tanimura Dist. Inc., 850 F.3d 446, 450 (9th Cir. 2017), vacated and reheard en banc 883 F.3d 797 (9th Cir. 2018), we cited United States v. Lucas, 963 F.2d 243, 247 (9th Cir. 1992), as “noting that subsequent panels are bound by prior panel decisions and only the en banc court may overrule panel precedent.” We explained:
In some cases, an earlier panel’s election not to discuss an argument may prevent future panels from concluding thе earlier panel implicitly accepted or rejected an argument. After all, “under the doctrine of stare decisis a case is important only for what it decides—for the “what,” not for the “why,” and not for the “how.“” In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996) (“[T]he doctrine of stare decisis concerns the holdings of previous cases, not the rationales[.]“).
850 F.3d at 450. The majority, without any supporting authority, ignores “what” Alvarez-Cerriteno
Moreover, the proposal is not sound as a practical matter. How is one to determine whether the holding in Alvarez-Cerriteno that the Ninth Circuit defers to the BIA’s reasonable interpretation of “crime of child abuse” is not precedential? The opinion remains extant and has even been cited by the Ninth Circuit as supporting deference to the BIA’s interpretation. See Cortes-Maldonado, 978 F.3d at 648.3 Nor can the deference be dismissed as dictum because deference to the BIA’s decision is central to the panel’s explanation for why the Nevada statute there at issue does not come within the BIA’s definition of “crime of child abusе.” The majority presumably requires that an attorney look to see if the authority cited in Alvarez-Cerriteno (here Martinez-Cedillo) remains good law. But this research would disclose only that Martinez-Cedillo was vacated. It would not disclose a contrary Ninth Circuit opinion, because there is no such opinion.
The majority’s holding that Alvarez-Cerriteno and Menendez may be dismissed as precedent because Martinez-Cedillo, which Alvarez-Cerriteno and Menendez cite as authority, was vacated, is contrary to the Ninth Circuit’s position on precedent, beyond the authority of a three-judge panel, and wrong.4
III.
The majority recognizes the two-step framework set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), see Maj. at 7, and purports to disapprove of the BIA’s definition of “crime of child abuse” under the first Chevron prong. Its analysis of “crime of child abuse” starts with a discussion of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). There the Court held that a “state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old” does not qualify “as sexual abuse of a minor under the INA.” Id. at 1567. The Court concluded that “the statute, read in context, unambiguously forecloses the Board’s interpretation.” Id. at 1572. Contrary to the majority’s reading, it is not clear whether the Supreme Court held the federal statute to be unambiguous (the first prong) or that the Board’s interpretation of an ambiguous statute was unreasonable (the second prong).
The majority insists that its analysis proceeds under the first prong of Chevron. First, the majority states that Soram is not entitled to deference because “[i]n our view, as to that specific question, “Congress has supplied a clear and unambiguous answer” precluding deference under Chevron step one.” Maj. at 13-14 (quoting Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018)). Second, it asserts that in Esquivel-Quintana, 137 S. Ct. at 1567, the Supreme Court
To the extent that the majority asserts that
Initially, it should be noted that the majority’s opinion is the first suggestion that the statute is unambiguous. In Martinez-Cedillo, 896 F.3d at 987, we agreed with “[e]very circuit court to have considered it” that
Thus, despite the majority’s contrary assumption, our decision to rehear Martinez-Cedillo en banc did not undermine the determination that the statute was ambiguous.
Our sister circuits uniformly agree that the statue is ambiguous. The Fifth Circuit in Garcia v. Barr, 969 F.3d 129, 133 (5th Cir. 2020), opined that “Congress left the term “crime of child abuse” undefined, and the legislative history doesn’t plainly express its meaning,” that there is not “any widely accepted definition of that term,” and that “the statute doesn’t speak unambiguously to the question at issue.” Id. The Third Circuit in Mondragon-Gonzalez v. Attorney General, 884 F.3d 155, 158-59 (3d Cir. 2018), held that “[t]he crime of child abuse is not defined in the INA. Moreover, the meaning of the phrase, “crime of child abuse,” as used in
Even the Tenth Circuit in Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013), the only case that agrees with the majority’s bottom line, implicitly recognized the statute’s ambiguity. Id. at 910 (“We apply Chevron deference to precedential BIA interpretations of ambiguous federal immigration statutes so long as the Board’s interpretation does not contravene Congressional intent.“).
To the extent that the majority asserts that
IV
Nor is the majority opinion persuasive when viewed through Chevron’s second prong. It ignores the reasoning in the majority opinion in Martinez-Cedillo, as well as the reasoning of our sister circuits, and seeks to limit the agency’s discretion to the majority’s reading of dictionary definitions and its supposition of what Congress might have thought. Furthermore, the majority’s approach is violative of our limited review of an agency decision.
In Chevron, 467 U.S. at 843-44, the Supreme Court held that where “Congress has not directly addressed the precise question at issue,” then the agency’s regulations “arе given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” The Court commented that where “a reasonable accommodation of conflicting policies . . . [are] committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.” Id. at 845 (quoting United States v. Shimer, 367 U.S. 374, 382-83 (1961)). We have adhered to this standard. In Henriquez-Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en banc), we held that “the BIA’s construction of ambiguous statutory terms in the INA . . . is entitled to deference under Chevron” and “[i]f the BIA’s construction is reasonable, we must accept that construction under Chevron, even if we believe the agency’s reading is not the best statutory interpretation.”
Although the opinion was vacated, Judge Bybee’s reasoning in Martinez-Cedillo offers substantial guidance. His majority opinion moved quickly to Chevron step two because “[t]here are no federal crimes of child abuse, neglect, or abandonment to provide analogous definitions, and unlike certain common-law crimes like burglary or assault, there are no widely accepted definitions of child abuse, neglect, or abandonment.” 896 F.3d at 987. The majority agreed with the Second Circuit’s opinion in Florez v. Holder, 779 F.3d 207 (2d Cir. 2015), reasoning:
Similar to the instant сase, Nilfor Yosel Florez had been convicted of child endangerment under New York law for driving under the influence with children in his car and had been ordered removed under
§ 1227(a)(2)(E)(i) . Id. at 208. The Second Circuit reasoned that, as of 1996 when Congress passed IIRIRA, “at least nine states had crimes called “child abuse” (or something similar) for which injury was not a required element.” Id. at 212. Although “even more states used a definition that did require injury,” courts must not “look [ ] for the best interpretation, or the majority interpretation—only a reasonable one.” Id. The Second Circuit concluded that the BIA acted reasonably in adopting a definition of child abuse “consistent with the definitions used by the legislatures of Colorado, Kentucky, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, and Virginia.” Id. Moreover, Black’s Law Dictionary offered a definition of “child abuse” that did not require injury. Id.
The majority found the Tenth Circuit’s contrary conclusion flawed. First, it commented that “there is no inherent problem in the BIA relying partly on civil statutes to understand the phrase “a crime of child abuse, child neglect, or child abandonment,“” in part because “the BIA used civil definitions to inform its understanding
Most recently the Fifth Circuit, in Garcia v. Barr, 969 F.3d 129 (5th Cir. 2020), considered and deferred to the BIA’s interpretation of “crime of child abuse.” It first agreed with its sister circuits that the statute was ambiguous. Id. at 133. The Fifth Circuit declined to follow Ibarra, 736 F.3d 903, noting that the “Tenth Circuit’s reading of a “crime of child abuse” may be reasonable; it might even be more reasonable than the Board’s. But the question isn’t whether the Board’s interpretation is the best—only whether it is reasonable.” Id. at 134. The Fifth Circuit also rejected the petitioner’s argument that the Board should reconsider its definition of “crime of child abuse” in light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562. It reasoned:
Esquivel-Quintana has no application here. The Court’s narrow holding didn’t relate to the child-abuse provision in
§ 1227(a)(2)(E)(i) , mandate a particular approach to statutory interpretation, or cast doubt on the Board’s definition of a crimе of child abuse. See Matthews v. Barr, 927 F.3d 606, 614-16 (2d Cir. 2019). And because the statutory text there was unambiguous—
unlike the child-abuse provision here—that case doesn’t affect our Chevron analysis.
Similarly, in Mondragon-Gonzalez, 884 F.3d 155, the Third Circuit found that the BIA’s interpretation of “crime of child abuse” was reasonable. It noted that the BIA had explained that the statue “was enacted . . . as part of an aggressive legislative movement to expand the criminal grounds of deportability in general and to create a “comprehensive statutory scheme to cover crimes against children” in particular.” Id. at 159 (quoting Velasquez-Herrera, 24 I. & N. Dec. at 508-09). The court concluded that “[g]iven Congress’ evident intent to make crimes that harm children deportable offenses, we do not find the BIA’s interpretation in this regard to be “arbitrary, capricious, or manifestly contrary to the statute.“” Id. (quoting Chen v. Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004)); see also Pierre v. U.S. Attorney General, 879 F.3d 1241, 1249-50 (11th Cir. 2018).
The Second Circuit in Florez v. Holder, 779 F.3d 207, also found the BIA’s definition of “crime of child abuse” to be a permissible construction of the statute. Id. at 211. The court commented that the definition—broad as it is—is at least grounded in reason. “When Congress amended the INA in 1996 to make child abuse a removable offense, at least nine states had crimes called “child abuse” (or something similar) for which injury was not a required element.” Id. at 312.
Of course, as Martinez-Cedillo has been vacated, it is not binding on us, nor are our sister circuits’ opinions, but the majority’s failure to address the reasoning in these cases undermines its analysis. The majority does not consider the legislative history of
The majority proceeds down the wrong path in arguing that Esquivel-Quintana, which it admits “has no direct bearing on the issue before us,” is highly instructive. Maj. at 14. It reasons that in Esquivel-Quintana when the Court observed that Congress had not defined the critical term, the Court “did not throw up its hands and declare the statute ambiguous,” but instead “relied on “the normal tools of statutory interpretation” to determine whether the statue provided a clear answer.” Maj. at 14 (quoting Esquivel-Quintana, 137 S. Ct. at 1569). It then concludes that “three of the four sources of statutory meaning the Court consulted in Esquivel-Quintana—contemporary legal dictionaries, statutory structure, and contemporary state criminal codes—support the conclusion that
In addition to being the wrong question based on an inapplicable case (as the Fifth Circuit noted in Garcia, 969 F.3d at 134), the majority’s analyses of legal dictionaries, statutory structure, and state criminal codes is less than persuasive.
The majority purports to hunt for the “common meaning in 1996” of “child abuse,” “child neglect,” and “child abandonment.” Maj. at 15-17. But this presumes that the BIA’s definition of crime of child abuse is limited to a “common meaning.” Among the dictionary definitions the majority cites for “child neglect” (perhaps the most relevant of the three terms) is “[t]he failure of a person responsible for a minor to care for the minor’s emotional or physical needs.” Maj. at 16. The majority then concludes that such a definition “excludes child endangerment offenses . . . that punish one-time negligent acts or omissions exposing a child to the risk of harm.” Maj. at 16-17. But this conclusion is hardly compelled. Why isn’t it “child neglect” to with at least “criminal negligence,” subject a child to the risk of serious physical or emotional harm? After all, Diaz-Rodriquez’s conviction of felony child endangerment required a finding of criminal willfulness. See
The majority’s sеction on “statutory structure” is likewise less than compelling. The majority suggests that Congress omitted “child endangerment from the list of crimes specified in
The majority’s discussion of state criminal codes also does not support its assertion of a single compelling interpretation of the statute. The majority, having done its own research, states that in 1996 “only a handful of States criminalized conduct that would constitute child endangerment under states proscribing “abuse,” “neglect” or “abandonment;“” “only 14 States criminalized child endangerment committed with a mens rea of criminal negligence,” and “36 States did not criminalize such conduct.” Maj. at 19-20. According to the majority, this “general consensus . . . unambiguously forecloses the BIA’s interpretation of the statute in Soram.” Maj. at 20. This is so, the majority reasons, because in Esquivel-Quintana, “the Supreme Court held that the consensus view of 31 States and the District of Columbia supported the conclusion that Congress unambiguously foreclosed the BIA’s attempt to define the generic offense of sexual abuse of a minor to include an age of consent of 18.” Maj. at 20-21.
This line of reasoning is far from compelling. As noted, our task is not to determine the best interpretation of “crime of child abuse,” but whether the BIA’s interpretation is reasonable. Indeed, the majority’s own research disclosed that in 1996 “14 States criminalized child endangerment committed with a mens rea of criminal negligence.” Maj. at 19-20. The majority does not explain why these states’ definitions are unreasonable or why the BIA’s interpretation of child abuse must conform to that of the majority of the states in 1996. The majority has strayed far from our task of determining whether the agency’s position is reasonable, “even if we believe the agency’s reаding is not the best statutory interpretation.” Henriquez-Rivas, 707 F.3d at 1087.
Basically, the ultimate question is whether the BIA could reasonably interpret “crime of child abuse, child neglect, or child abandonment” to encompass a child endangerment offense committed with a mens rea of at least criminal negligence. The majority does not appear to be arguing that the statute did not require a sufficient mens rea and high risk of harm to the child, as were the issues in Alvarez-Cerriteno8 and Menendez, but that the statute cannot be construed to include “negligent child endangerment.” Maj. at 21. This conclusion is not sound: it strays from our limited task of reviewing the reasonableness of the BIA’s determination and is contrary to the opinions of most of our sister circuits. The BIA’s determination in Soram that the crime of child abuse encompassed the crime of child endangerment committed with a mens rea of criminal negligence was the product of over a decade of efforts by the agency and the courts to interpret the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See Martinez-Cedillo, 896 F.3d at 982-87; Garcia, 969 F.3d at 132-133.
In Martinez-Cedillo we held that the BIA’s determination was a reasonable interpretation of an ambiguous statute, we
But even if we were not bound by our prior opinions, I would still dissent because I agree with our sister circuits that the statute is ambiguous, and that the BIA’s interpretation of the statute is reasonable. In concluding otherwise, the majority confuses the first and second prongs of Chevron and seeks to impose its definitive interpretation of the statute on us and the agency. I cannot agree. The majority presumes that the definition of crime of child abuse is limited to the common meaning in 1996 of child abuse, child neglect, and child abandonment. But its own research reveals that in 1996 the states had different criminal codes and that 14 states criminalized child endangerment committed with a mens rea of criminal negligence. The majority’s review of selected dictionary definitions cannot obscure the fact that in 1996, indeed even today, there is no singular definition of “crime of child abuse.” I agree with the Second, Third, Fifth, and Eleventh Circuits that the BIA’s interpretation of
Notes
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
The statute contains a separate provision punishing as a misdemeanor the same acts when committed “under circumstances or conditions other than those likely to produce great bodily harm or death.”