Diaz-Rodriguez v. GarlandDiaz-Rodriguez v. Garland
- Reporters:
- Before:
- Mary H. Murguia, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Consuelo M. Callahan, Milan D. Smith Jr., Sandra S. Ikuta, Daniel P. Collins, Patrick J. Bumatay, Lucy H. Koh, Gabriel P. Sanchez (en banc)
FOR PUBLICATION
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted En Banc June 22, 2022 Pasadena, California
Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane
Opinion by Judge Ikuta; Concurrence by Judge Collins; Dissent by Judge Wardlaw
FILED DEC 8 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
SUMMARY*
Immigration
Denying Rafael Diaz-Rodriguez’s petition for review of a Board of Immigration Appeals’ decision in which the BIA concluded that he was removable under
Diaz-Rodriguez was convicted under
Applying the categorical approach to determine whether
Turning to the federal generic crimes encompassed by the phrase “child abuse, child neglect, or child abandonment,” a plurality of the en banc court concluded that the normal tools of statutory construction do not lead to an unambiguous interpretation. Because
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
committed with negligence, while others contemplated intentional conduct and injury. The dictionaries also did not limit the definition of “child neglect” to conduct committed by a parent or legal guardian. The plurality further explained that the surrounding provisions of the Immigration and Nationality Act (INA), and definitions in other federal statutes, are likewise inconclusive. Moreover, the plurality concluded that a survey of relevant state statutes did not reveal a uniform approach. Thus, the plurality concluded that the phrase is ambiguous, agreeing with this court’s sister circuits that have considered the issue.
Next, the plurality deferred to the BIA’s interpretation of the phrase. Under the BIA’s interpretation, as set out in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the term “child abuse,” or the unitary phrase “crime of child abuse, child neglect, or child abandonment,” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission (including acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing actual injury) that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. The plurality explained that the BIA’s definition is consistent with the text, nature, and purpose of the statute, and therefore is within the bounds of reasonable interpretation.
Finally, the en banc court concluded that
Concurring in part and concurring in the judgment, Judge Collins, joined by Judge Bumatay, agreed with the ultimate conclusion that the BIA did not err in concluding that Diaz-Rodriguez was removable, but did not join the plurality opinion in full because his reasoning differed from the plurality’s analysis. Specifically, Judge Collins disagreed with the plurality’s finding of ambiguity and concluded that
Judge Collins explained that ordinary principles of statutory construction lead to the conclusion that a “crime of . . . child neglect” is one that contains the following minimum elements: (1) the person had a duty towards a child; (2) the person breached that duty in a manner that constitutes a gross deviation from accepted standards; and (3) the person acts with criminal negligence – meaning that the person should have been aware that his or her conduct presented a substantial and unjustifiable risk of serious physical or emotional harm to the child. Applying that definition, Judge Collins explained that
Dissenting, Judge Wardlaw, joined by Judges Murguia, McKeown, Koh, and Sanchez, concluded that the text of
Judge Wardlaw further wrote that missing in the plurality’s anodyne analysis is recognition of a troubling fact: under the BIA’s interpretation, individuals who for reasons of poverty, cultural difference, work schedules, or bad luck make parenting mistakes may be permanently separated from their families. Observing that the court’s responsibility is to ensure that regulated parties know what conduct will trigger the “civil death penalty” of removal, Judge Wardlaw wrote that the BIA’s vague, sweeping interpretation of
COUNSEL
David J. Zimmer (argued), Edwina B. Clarke, and Jenna Welsh, Goodwin Procter LLP, Boston, Massachusetts; Jerry Shapiro, Law Offices of Jerry Shapiro, Encino, California; for Petitioner.
Erica B. Miles (argued), Senior Litigation Counsel; Ilissa M. Gould and Sara J. Bayram, Trial Attorneys; M. Jocelyn Lopez Wright, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General; Joyce R. Branda, Acting Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington D.C.; for Respondent.
Oliver Dunford, Pacific Legal Foundation, Palm Beach Gardens, Florida; Caleb Kruckenberg, Pacific Legal Foundation, Arlington, Virginia; for Amicus Curiae Pacific Legal Foundation.
Andrew Wachtenheim, Immigrant Defense Project, New York, New York; Sabrina Damast, American Immigration Lawyers Association, Washington, D.C.; Daniel Woofter, Goldstein & Russel P.C.; Bethesda, Maryland; for Amici Curiae Immigrant Defense Project and American Immigration Lawyers Association.
David J. Sutton, Public Defender; Rachael E. Keast, Deputy Public Defender; Marin County Office of the Public Defender; San Rafael, California; for Amici Curiae California Public Defenders Association, Marin County Office of the Public Defender, Santa Clara County Office of the Public Defender, Alameda County Office of the Public Defender, Sacramento County Office
OPINION
IKUTA, Circuit Judge, with whom GOULD, CALLAHAN, and M. SMITH, Circuit Judges, join:
This case raises the question whether an alien who has been convicted under
concluding that a conviction under
I
Rafael Diaz-Rodriguez, a native and citizen of Mexico, entered the United States in 1990 as a legal permanent resident.
Since his admission to the country, Diaz-Rodriguez has been convicted multiple times for driving while intoxicated, including at least two convictions for driving while intoxicated with a minor child in the vehicle. In November 2003, Diaz-Rodriguez was pulled over by a police officer as he was driving his five-year-old son home. Diaz-Rodriguez’s blood alcohol level was .20, over twice the legal limit. He was subsequently convicted under
In 2009, Diaz-Rodriguez was again pulled over by a police officer, this time while driving intoxicated with his six-year-old daughter. He was convicted for driving while intoxicated,
also convicted under
After this 2009 conviction, the government started removal proceedings, alleging that Diaz-Rodriguez had been convicted of the offense of child abuse in violation of
The IJ determined that Diaz-Rodriguez was removable as charged. In considering whether Diaz-Rodriguez’s conviction under
Diaz-Rodriguez filed an administrative appeal to the BIA, which agreed with the IJ that a violation of
Diaz-Rodriguez timely petitioned for review, challenging only the BIA’s determination that he was removable under
We have jurisdiction under
II
The question before us is whether Diaz-Rodriguez’s conviction under
federal generic offense, see Mellouli v. Lynch, 575 U.S. 798, 804–05 (2015).
Under this approach, we must identify the elements of both the state offense and the federal generic offense, because the consequences imposed by the federal statute are “triggered by crimes having certain specified elements, not by crimes that happen to be labeled [with the same terms as] the laws of the State of conviction.” Taylor, 495 U.S. at 588–89. In defining the elements of the state offense of conviction, we consider only “the least of the acts criminalized” by the state offense, Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (cleaned up), to ensure that “anyone convicted under [the state] law is necessarily guilty of all the generic crime’s elements,” Descamps v. United States, 570 U.S. 254, 261 (2013) (cleaned up). We then compare the elements of the state statute of conviction with the elements of the federal generic offense, as we have defined them. Id.; see also United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014). If the least state offense has the same elements as the generic federal crime, then the state statute of conviction is a categorical match to the federal generic offense. See Descamps, 570 U.S. at 261; see also Mathis v. United States, 579 U.S. 500, 505 (2016). But if the state statute of conviction “sweeps more broadly than the generic [federal] crime, a conviction under that law cannot count as” the generic federal offense “even if the defendant actually committed the offense in its generic
form.” Descamps, 570 U.S. at 261. An alien’s actual conduct is not relevant to this inquiry. See Moncrieffe, 569 U.S. at 190.
A
We begin by determining the least of the acts criminalized by
Any person who, under circumstances or conditions likely to produce great bodily harm or death, [1] willfully causes or permits any child to suffer, or [2] inflicts thereon unjustifiable physical pain or mental suffering, or [3] having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or [4] willfully causes or permits that child to be placed in a situation where his or her person or health is endangered.
The California Supreme Court has instructed that “two threshold considerations govern all types of conduct” under
First, the “conduct must be willful.” Id. Willfulness as used in the statute “does not require any intent to violate [the] law, or to injure another, or to acquire any advantage.” Valdez, 27 Cal. 4th at 788 (alteration in original). Rather, the term “implies simply a purpose or willingness to commit the act, or make the omission referred to.” Id. at 787–88. “Someone commits an act willfully when he or she does it willingly or on purpose.” People v. Chaffin, 173 Cal. App. 4th 1348, 1352 (2009); see also People v. Schneider, 6 Cal. App. 3d 983, 985–86 (1970) (reversing a conviction under
Second, the defendant’s act “must be committed ‘under circumstances or conditions likely to produce great bodily harm or death.’” Sargent, 19 Cal. 4th at 1216 (quoting
means there is “a substantial danger, i.e., a serious and well-founded risk.” People v. Wilson, 138 Cal. App. 4th 1197, 1204 (2006).3
The
because he took “it upon himself to control [her] environment and safety.” People v. Morales, 168 Cal. App. 4th 1075, 1084 (2008).
In addition to these elements, the California Supreme Court has determined that the fourth branch of
For example,
Amici California Public Defenders argue that
special (nongeneric) manner for which he argues“). Echoing amici’s argument, the dissent cites two federal district court cases that it claims show that
Under California courts’ construction of
B
Having determined the least act criminalized by
referencing another federal statute. See, e.g.,
Where, as here, Congress takes neither approach, we apply other tools of statutory construction. First, we consider “[t]he everyday understanding of” the terms, including the ordinary definitions of those words at the time the relevant provision was enacted. Esquivel-Quintana, 137 S. Ct. at 1569; see also Perrin v. United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.“). This textual analysis typically begins by cоnsulting contemporaneous dictionaries, because we are “bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used.” INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (cleaned up). Where the dictionary definitions point clearly in a single direction, they carry great weight in interpreting the scope of a generic offense. See Esquivel-Quintana, 137 S. Ct. at 1569; Kawashima v. Holder, 565 U.S. 478, 484 (2012); Lopez v. Gonzales, 549 U.S. 47, 53–54 (2006). But when the dictionary definitions point in conflicting directions, we look to other sources to determine the meaning of the statute. See Torres, 578 U.S. at 458–60.
We also consider “the structure of the INA,” including “surrounding provisions” of the terms at issue. Esquivel-Quintana, 137 S. Ct. at 1570; see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 578 (2010). Additionally, a court may consult relevant contemporaneous federal statutes that use the same language or relate to the same type of offenses. See Esquivel-Quintana, 137 S. Ct. at 1570-71; Carachuri-Rosendo, 560 U.S. at 574-75.
Finally, a court may consider “evidence from state criminal codes” to examine relevant state criminal laws in place at the time the relevant federal statute was enacted. See Esquivel-Quintana, 137 S. Ct. at 1571; Duenas-Alvarez, 549 U.S. at 190. While an analysis of contemporaneous state laws may shed light on what Congress meant in using specific terms, the Supreme Court has made clear that such an analysis is not required by the categorical approach. See Esquivel-Quintana, 137 S. Ct. at 1571 n.3.
If “Congress has supplied a clear and unambiguous answer to the interpretive question at hand,” we do not defer to the BIA‘s interpretation of the text at issue. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018) (discussing deference under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)); see also Johnson v. Guzman Chavez, 141 S. Ct. 2271, 2291 n.9 (2021).
Diaz-Rodriguez does not argue that the offenses “child abuse, child neglect, or child abandonment” under
Applying Esquivel-Quintana, we frame our inquiry by determining whether it is unambiguous that the generic federal offenses of “child abuse, child neglect, or child abandonment” in
1
We begin with the text of
Turning first to the term “child abuse,” the contemporaneous dictionaries do not clearly support Diaz-Rodriguez‘s claim that this term requires a mens rea of at least recklessness and an actual injury to the child. His best support for this claim comes from a 1990 edition of Black‘s Law Dictionary, which defined the term “child abuse” to mean an intentional injury to a child. Specifically, it stated that “child abuse” means “[a]ny form of cruelty to a child‘s physical, moral or mental well-being,” Black‘s Law Dictionary at 239 (6th ed. 1990), with “cruelty” defined as “[t]he intentional and malicious infliction of physical or mental suffering,” id. at 377. However, other dictionaries defined the term to mean injury to a child that could be inflicted intentionally or negligently, or did not specify the perpetrator‘s intent. Thus, a 1999 edition of Black‘s Law Dictionary defined the term “child abuse” to mean “an intentional or neglectful physical or emotional injury imposed on a child, including sexual molestation,” Black‘s Law Dictionary at 10 (7th ed. 1999), and the 1989 edition of the Oxford English Dictionary defined “child abuse”
abuse” with respect to these elements. Therefore, we reject Diaz-Rodriguez‘s argument that contemporaneous dictionary definitions of “child abuse” require actual harm to a child and do not include negligent acts that merely put a child at risk of harm.
We next turn to the term “child neglect.” The dictionaries generally define the term “child neglect” as failure by a responsible party to provide requisite care for a child, but they do not address whether the defendant‘s mental state must be criminally negligent, knowing, or intentional, whether the targeted conduct must actually injure the child, or whether the perpetrator must be a child‘s parent or legal guardian. Webster‘s II New College Dictionary defines the term “child neglect” as “failure on the part of a parent or parental substitute to supervise a child and provide requisite care and protection,” Webster‘s II New College Dictionary at 194 (1995), but does not indicate whether a “parental substitute” must be a legal guardian or could be a temporary caretaker. Nor does it indicate the requisite mental state of the parent or parental substitute or whether the child must be harmed by that person‘s failure to provide care. Other dictionaries are no more helpful. For instance, the relevant entry in Merriam-Webster‘s Dictionary of Law defines the term “neglect” as “a disregard of duty resulting from carelessness, indifference, or willfulness; esp: 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 at 324 (1996). Ballentine‘s Legal Dictionary and Thesaurus defines the term “child neglect” with a cross reference to the term “child abuse,” which is defined as “[t]he physical, sexual, verbal, or emotional abuse of a young person.” Ballentine‘s Legal Dictionary and Thesaurus at 96 (1995). Finally, the 1999 edition
By contrast, contemporaneous dictionaries support the conclusion that the term “child abandonment” means that a parent or legal guardian has failed to discharge a parent‘s legal duty. Merriam-Webster‘s Dictionary of Law defines “abandonment” with respect to children as “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 Law at 1 (1996). Likewise, Ballentine‘s Legal Dictionary and Thesaurus defines “abandonment of child” to occur when “a parent deserts [a child] with the intention of casting off all parental obligations,” Ballentine‘s Legal Dictionary and Thesaurus at 2 (1995), and the 1990 edition of Black‘s Law Dictionary defines the term as “foregoing parental duties,” Black‘s Law Dictionary at 2 (6th ed. 1990); see also Dictionary of Modern Legal Usage at 3 (2d ed. 1995) (defining “abandon” in the context of family law as leaving “children or a spouse willfully“). We have found no dictionary definitions to the contrary.
Based on our review of common usage, we conclude that a “crime of . . . child abandonment” in
Because the dictionaries do not point in one direction with respect to the terms “child abuse” and “child neglect,” we must look to other tools of statutory construction to determine whether Congress meant for the term “child abuse” to cover crimes that require only a mens rea of criminal negligence and do not require injury to the victim, and for the term “child neglect” to
2
We next turn to the “[s]urrounding provisions of the INA,” Esquivel-Quintana, 137 S. Ct. at 1570, to guide our interpretation. The terms “child abuse,” “child neglect,” and “child abandonment” in
Taking a broader view of the INA, Diaz-Rodriguez argues that the structure and purpose of the INA preclude interpreting
Second, in interpreting the INA, we are mindful that “providing relief to aliens with strong ties to the United States” and “promoting family unity” “are not the INA‘s only goals, and Congress did not pursue them to the n th degree.” Holder v. Martinez Gutierrez, 566 U.S. 583, 594 (2012). The Supreme Court provided one example of this principle: the INA makes certain lawful permanent residents who are “convicted of aggravated felonies ineligible for cancellation
3
We next consider other federal statutes that use similar terms, especially when those statutes are “closely related” to the statute at issue. Esquivel-Quintana, 137 S. Ct. at 1570. As a general rule, “statutes addressing the same subject matter” should be interpreted consistently with each other. Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006); see also United States v. Stewart, 311 U.S. 60, 64 (1940) (“[A]ll acts in pari materia are to be taken together, as if they were one law.” (emphasis added)). For example, Esquivel-Quintana identified a “closely related” federal statute that criminalized “[s]exual abuse of a minor or ward,” which is similar to the term “sexual abuse of a minor” in the INA, 137 S. Ct. at 1570 (quoting
Because the federal criminal code does not include a crime of “child abuse” or “child neglect,” we look to other parts of the federal code for evidence of Congress‘s meaning. The most relevant evidence comes from the National Child Protection Act of 1993 (NCPA), Pub. Law 103-209, 107 Stat. 2490 (Dec. 20, 1993), which was enacted “to establish procedures for national criminal background checks for child care providers.” Under the NCPA, states are required to provide records of convictions for child abuse crimes and to develop a system for ongoing reporting of such convictions through a “national criminal history background check system.”
Diaz-Rodriguez contends that we may not rely on federal civil statutes like the NCPA to interpret generic criminal offenses under the INA. According to Diaz-Rodriguez, civil statutes have a different purpose, such as determining “when social services may intervene” to help victims of child abuse, Ibarra v. Holder, 736 F.3d 903, 911 (10th Cir. 2013), and so are not a reliable indicator of how Congress would have understood the terms in the context of defining conduct subject to criminal penalties.9
We disagree. The NCPA defined the term “child abuse crimes” to describe convictions for a category of crimes against children, see
Other federal civil code sections defining “child abuse” in 1996 are also relevant. Two provisions,
child,” and
We also consider federal code provisions referencing “child neglect” as evidence of the ordinary meaning of that term. The handful of federal definitions of this term provide some support for the proposition that it was commonly understood that child neglect could be committed by someone other than a parent or legal guardian. As noted above, CAPTA defined the term “child abuse and neglect” to include the “negligent treatment, or maltreatment of a child by a person who is responsible for the child‘s welfare.”
4
Finally, we may “look to state criminal codes for additional evidence about the generic meaning” of “child abuse, child neglect, or child abandonment,” although this step “is not required by the categorical approach.” Id. at 1571 & n.3.
In determining the meaning of a generic federal offense, the Supreme Court has used multistate surveys in different ways. Id. In the decision first establishing the categorical approach to define federal generic offenses, the Supreme Court defined the generic federal crime of “burglary” in the Armed Career Criminal Act by reference to state law. Taylor, 495 U.S. at 598-99. The Court acknowledged that burglary was a crime аt common law, and that “[w]hatever else the Members of Congress might have been
In its subsequent interpretation of a generic federal offense, the crime of “sexual abuse of a minor,” which is not a traditional common-law crime, the Court placed far less emphasis on a state survey. Esquivel-Quintana, 137 S. Ct. at 1569. Rather than distilling the elements of the generic offense by surveying state criminal codes as Taylor did, Esquivel-Quintana used the “normal tools of statutory interpretation” to discern those elements, id., and looked to state criminal codes only “for additional evidence about the generic meaning of sexual abuse of a minor,” id. at 1571. This makes sense, because as our sister circuits have noted, in
interpreting a federal generic offense that is not a traditional common-law crime, but “could encompass multiple, divergent offenses in any given state,” it may be more difficult or impossible “to sift through the multitudes of qualifying state offenses and identify a consensus set of the minimum elements necessary to define the category.” United States v. Alfaro, 835 F.3d 470, 473 (4th Cir. 2016); see also United States v. Ramirez-Garcia, 646 F.3d 778, 782-83 (11th Cir. 2011).
In our case, Esquivel-Quintana provides more relevant guidance than Taylor for interpreting the federal generic crimes encompassed by the phrase “child abuse, child neglect, or child abandonment” under
And there is no “prevailing view” among the states—much less any generally shared elements—of what constitutes child abuse, child neglect, or child abandonment offenses. Taylor, 495 U.S. at 998. Rather, states have developed such divergent and overlapping definitions of these offenses as to preclude identifying consensus elements. See Alfaro, 835 F.3d at 473. In 1996, states took a wide variety of approaches to labeling, categorizing, and defining crimes against children. For instance, although many states described crimes against children using the terms “abuse” and “neglect,” at least 16 states used other terms, such as “criminal nonsupport,”
Even states that used the term “abuse” in describing crimes against children required different offense elements and did not agree on the combination of elements that constituted the crime of abuse. For instance, state offenses labeled “abuse” sometimes could be committed with a lesser standard of culpability than recklessness, but nevertheless required that the offense conduct result in actual injury to a child.14 By contrast, other state offenses labeled “abuse” required proof of a mens rea of recklessness or a higher standard of culpability, but did not require an actual injury.15
Likewise, state statutes labeled “neglect” included different combinations of elements. A “neglect” crime could be committed with a mens rea of criminal negligence, recklessness, or intent.16 And regardless of the mens rea, some neglect crimes required an injury to the child while others did not,17 and some “neglect” crimes required the defendant to have custody of the child while others did not.18
In light of these overlapping definitions, we review all relevant state statutes, even if they did not define the conduct at issue using the same terminology as
The dissent argues that a multi-state survey undermines our conclusion. Dissent at 46-49. While the dissent acknowledges that “the definitions of child abuse, child neglect, and child abandonment admit some overlap and ambiguity as to the elements of each offense,” it argues, based on an “inference” drawn from Esquivel-Quintana, that the multi-state survey provided in the vacated panel opinion shows that a majority of states “excluded negligent endangerment in the large majority of jurisdictions.” Dissent at 47-48. But Esquivel-Quintana provides no support for this conclusion. In Esquivel-Quintana, the Supreme Court‘s multi-state survey identified specific statutory language to the effect that “[w]hen “sexual abuse of a minor” was added to the INA in 1996, thirty-one States and the District of Columbia set the age of consent at 16 for statutory rape offenses that hinged solely on the age of the participants.” 137 S. Ct. 1571. The Court held that the express adoption of this age of consent in the statutes of a significant majority of states, which “point[ed] in the same generic direction as dictionaries and federal law,” was “additional evidence” supporting its interpretation of the federal offense. Id. at 1571-72.
Of course, there is no similar statutory evidence in the multi-state survey here to support the dissent‘s conclusion that the states intended to exclude the offense of “negligent endangerment” from its definitions of child abuse, child neglect, and child abandonment. Rather, the survey shows that the three elements of what the dissent terms the offense of child endangerment,
C
Having applied all the “traditional tools of statutory construction,” Chevron, 467 U.S. at 843 n.9, we conclude that the generic offenses of “child abuse” and “child neglect” in
As discussed in our review of dictionaries contemporaneous with the enactment of
The surrounding provisions of the INA, and definitions of the terms “child abuse” and “child neglect” in other federal statutes, are likewise inconclusive as to the elements of those offenses and do not clearly foreclose either interpretation.
Congress did not reference a federal criminal statute to supply the meaning of the terms in
Moreover, our survey of state statutes relating to crimes against children does not reveal a uniform approach to criminalizing the relevant conduct. See id. at 1571-72; Duenas-Alvarez, 549 U.S. at 189. Only a minority of states in 1996 defined crimes against children as including offenses with a mens rea of criminal negligence and conduct that merely put a child at risk of harm, which supports Diaz-Rodriguez‘s argument. But it is significant that this minority of states included some 45 percent of the nation‘s population. This fact demonstrates that state statutes criminalizing this category of conduct were neither extraordinary nor rare, which bolsters the conclusion that Congress meant its phrase “crime of child abuse, child neglect, or child abandonment” to include such offenses. Further, the overlapping state offenses can be analyzed in many different ways, and therefore do not foreclose Diaz-Rodriguez‘s interpretation.
In sum, the normal tools of statutory construction do not lead to a single interpretation of the language that “unambiguously forecloses” all others. Esquivel-Quintana, 137 S. Ct. at 1572. We therefore agree with our sister circuits that have considered this issue, and conclude that the phrase “crime of child abuse, child neglect, or child abandonment” is ambiguous because it is susceptible to multiple, plausible interpretations. See, e.g., Bastias v. U.S. Att‘y Gen., 42 F.4th 1266, 1272 (11th Cir. 2022); Zarate-Alvarez v. Garland, 994 F.3d 1158, 1164 (10th Cir. 2021); Garcia v. Barr, 969 F.3d 129, 134 (5th Cir. 2020); Mondragon-Gonzalez v. U.S. Att‘y Gen, 884 F.3d 155, 158-59 (3d Cir. 2018); Florez v. Holder, 779 F.3d 207, 211 (2d Cir. 2015).
D
Both the concurrence and dissent disagree with our conclusion that the phrase “child abuse, child neglect, or child abandonment” is ambiguous, but reach opposite conclusions. The concurrence concludes that the phrase “crime of child neglect” is unambiguous and a categorical match to section 273a(a) while the dissent concludes that the phrase “crime of child abuse, child neglect, or child abandonment” is unambiguous and not a categorical match for section 273a(a). Neither the concurrence nor dissent‘s view is persuasive.
1
The concurrence claims that the term “child neglect” is unambiguous and “§ 273a(a) is a categorical match for the [term] . . . crime . . . of child neglect.” Concur. at 6. This claim is based on the following interpretative steps. First, the concurrence adopts a definition of “neglect” as failure to perform a duty, and determines that “neglect” of a “child” means “the failure to perform one‘s legal duty towards a child.” Concur. at 6-7. The concurrence then infers that because
While the concurrence‘s interpretation of the phrase “crime . . . of child neglect” is reasonable, it is not required by the normal tools of statutory construction to
crime through a process of legal reasoning does not preclude other reasonable interpretations that discern different elements, and therefore does not make the term “child neglect” unambiguous.
The concurrence also relies on CAPTA, to support its interpretation of “child neglect.” Concur. at 13-14. We agree that federal civil statutes are relevant in showing the common understanding of terms in the INA. Supra 32. But because “the unique interests at stake in a criminal action do not parallel the duties and interests at stake in a civil . . . proceeding,” Costanich v. Dep‘t of Soc. & Health Servs., 627 F.3d 1101, 1115 (9th Cir. 2010), the definition of “child neglect” in a federal civil statute such as CAPTA does not remove ambiguity from the term “crime of child neglect.” Civil offenses do not impose criminal penalties or define criminal conduct, so the definition of a purely civil offense is merely suggestive of the elements of a criminal offense. Supra 31. In short, the term “crime of child neglect” is susceptible to more than one reasonable interpretation, and is therefore ambiguous. Kisor v. Wilkie, 139 S. Ct. 2400, 2410 (2019) (stating that a regulation “susceptible to more than one reasonable reading” is “genuinely ambiguous“).
2
By contrast, the dissent claims that the statutory phrase “crime of child abuse, child neglect, or child abandonment” establishes Congress‘s unambiguous intent not to criminalize a crime of “child endangerment.” The dissent starts from the premise that child abuse, child neglect, child abandonment, and child endangerment each have “distinct” meanings, Dissent at 33-34, 50, and “discrete definitions,” Dissent at 21, which make them “separate,” Dissent at 34, 42, and “discrete crimes,” Dissent at 19, 21.23 The dissent claims that “child endangerment” is commonly understood to refer to
This analysis fails because its premise is incorrect. As explained above, the common law did not include categories of crimes against children with generally recognized elements. There was no common-law “child endangerment” offense. Supra 37. When states enacted modern laws criminalizing crimes against children, they developed multiple divergent offenses incorporating different conduct, mental states, and defendants. Supra 37-40. Based on our review of offenses against children in the 50 states, the elements the dissent claims are specific to a “child endangerment” can be found only in the crimes listed in the Appendix. These crimes are referred to by a range of labels, including child abuse, cruelty to persons, abandonment, and child neglect, as well as child endangerment.24 Otherwise, states mix and match the elements identified by the dissent.25 Nor are state crimes labeled “child endangerment” limited to the three elements identified by the dissent. State statutes criminalizing “child endangerment” include strict
liability, ordinary negligence, intent, and knowledge, not just criminal negligence.26 The
Because there was no discrete, well-understood offense of “child endangerment,” just as there were no discrete offenses of “child abuse, child neglect, or child abandonment,” in 1996, it is not possible to infer that Congress‘s failure to use the phrase “child endangerment” meant that Congress did not intend262728
its overlapping definitions to cover crimes involving the elements of the least offense criminalized by section 273a(a).
III
In light of our conclusion that the statutory language is ambiguous, we next turn to the question whether the BIA‘s interpretation of the statute is permissible, and therefore compels our deference under the principles described in Chevron, 467 U.S. 837.29
A
The deference accorded the BIA‘s interpretation of ambiguous provisions
(...continued) typically mutually exclusive.“). Indeed, in Esquivel-Quintana, 137 S. Ct. at 1572. Because the application of Chevron would obviate the need to apply the rule of lenity, the dissent errs in suggesting that the ““long standing” immigration rule of lenity” would necessarily apply in this case—even assuming Diaz-Rodriguez had not forfeited the argument. Dissent at 55.
Accordingly, “where a statute‘s plain terms admit of two or more reasonable ordinary usages,” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 989 (2005), we “may not substitute [our] own construction of [that] statutory provision for a reasonable interpretation made by” the BIA, Chevron, 467 U.S. at 844. We must defer to the BIA if its “answer is based on a permissible construction of the statute.” Aguirre-Aguirre, 526 U.S. at 424. To be sure, the agency‘s construction must be reasonable: we do not accept an agency‘s interpretation that is foreclosed by any fair reading of the statute, or that “departs so sharply from the statute‘s text and history that it cannot be considered a permissible reading.” Mellouli, 575 U.S. at 813. Nor do we defer to “an agency interpretation that is inconsistent with the design and structure of the statute as a whole.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014) (alterations omitted). Nevertheless, if the agency‘s construction is reasonable, then the agency‘s “position prevails . . . whether or not it is the only possible interpretation
or even the one a court might think best.” Martinez Gutierrez, 566 U.S. at 591 (unanimously reversing the Ninth Circuit’s determination that the BIA’s construction of the INA was not permissible).30
In applying these principles of deference, our first step is to discern how the BIA has interpreted the relevant phrase in
In reaching this conclusion, the BIA considered the “ordinary, contemporary and common meaning of the term ‘child abuse’” as well as “the term’s established legal usage.” Id. at 508. The BIA also considered the federal policies underlying
Matter of Velazquez-Herrera left a number of open questions. First (as noted by a concurring board member in the opinion), “broad though the definition is, it is unclear whether it extends to crimes in which a child is merely placed or allowed to remain in a dangerous situation, without any element in the statute requiring ensuing harm, e.g., a general child endangerment statute, or selling liquor to an underage minor, or failing to secure a child with a seatbelt.” Id. at 518 n.2 (Pauley, Board Member, concurring). Second, the BIA refrained from applying its definition “to encompass the entire statutory phrase ‘crime of child abuse, child neglect, or child abandonment.’” Id. at 512 n.14. Rather, it stated that while the “definition is comprehensive enough to subsume most, if not all, crimes of ‘child neglect,’ it is not as evident to us that crimes of ‘child abandonment’ would be so encompassed,” and therefore left that question open. Id.
We subsequently interpreted Matter of Velazquez-Herrera as holding “that, although
Two years later, the BIA answered the open question recognized by the concurrence in Velazquez-Herrera, and clarified that the term “child abuse” in
The BIA held that the term “crime of child abuse,” as defined in Matter of Velazquez-Herrera, “is not limited to offenses requiring proof of injury to the child.” Id. at 381. The BIA reasoned that its definition of child abuse in Matter of Velazquez-Herrera included the phrase “an act or omission that constitutes maltreatment of a child,” and that phrase “encompasse[s] endangerment-type crimes,” id. at 383, that is, “acts or circumstances that threaten a child with harm or create a substantial risk of harm to a child’s health or welfare,” id. at 382. The BIA declined to specify the level of threat required for such an offense to qualify as child abuse, because many states had overlapping definitions of crimes against children and adopted terminology relating to the degree of risk that “could be subject to different interpretations by courts in each state.” Id. at 383. Therefore, the BIA chose instead to make a case-by-case analysis “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.
In connection with this analysis, the BIA also addressed the second question left open in Matter of Velazquez-Herrera, and concluded that the definition of the term “crime of child abuse” applied to the entire phrase of “crime of child аbuse, child neglect, or child abandonment.” See id. at 381. The BIA took this approach because of the overlapping nature of those definitions. See id. It noted that an endangerment-type offense of putting a child in dangerous circumstances “can reasonably be viewed as either abuse or neglect, and that some States include child endangerment in their definition of ‘child abuse,’ while a number of others consider it ‘child abuse or neglect.’” Id.
Applying its interpretation to the Colorado statute, the BIA concluded that the Colorado offense was encompassed by the generic federal offense of “child abuse, child neglect, or child abandonment.” See id. at 383. In this regard, the BIA determined, that the Colorado statute had a mens rea of “knowingly or recklessly,” and an actus reus of permitting a child to be unreasonably placed in a situation that posed a threat of injury to the life or
In sum, under the BIA’s interpretation, the term “child abuse,” or the unitary phrase “crime of child abuse, child neglect, or child abandonment,” means any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or impairs a child’s physical or mental well-being, including sexual abuse or exploitation. An “act or omission that constitutes maltreatment of a child” includes acts or circumstances that create a substantial risk of harm to a child’s health or welfare.32 See id. at 380–82.
C
Our next step is to determine whether the BIA’s interpretation is permissible, and therefore owed deference under Chevron. This step involves two main inquiries.
First, we consider whether the BIA’s interpretation of the statute is consistent with the statute’s text. Our review of dictionaries, statutory context, other provisions in federal civil codes, and state criminal statutes showed that crimes of child abuse and child neglect can include offenses that may be committed with criminal negligence, where a child is not injured but placed at a substantial risk of harm, and where the perpetrator may be someone other than a parent or legal guardian. Therefore, the BIA’s interpretation does not sharply depart from the relevant federal and state laws in place in 1996, or from other established sources of statutory meaning. Supra Section II.B.33 In particular, Congress’s contemporaneous definition of “child abuse crime” in the NCPA provides strong support for the BIA’s definition. Supra Section II.B.3.
Second, we consider whether the BIA’s interpretation is consistent with the authority
Because the BIA’s interpretation of
In reaching this conclusion, we join the Eleventh Circuit, which likewise deferred to the BIA’s interpretation of
We also join the conclusion of the Second, Third, Fifth, and Tenth Circuits that the BIA was reasonable in interpreting
Despite this weight of authority, Diaz-Rodriguez urges us to follow the Tenth Circuit, which has declined to defer to the BIA’s interpretation of “crime of child abuse, child neglect, or child abandonment” as including criminally negligent conduct that does not result in injury. See Ibarra, 736 F.3d at 905.36 In Ibarra, the Tenth Circuit held that
The Tenth Circuit determined that the statutory text of
We disagree with the Tenth Circuit because it applied the wrong standard. Once a court has determined that the statutory phrase “crime of child abuse, child neglect, or child abandonment” is ambiguous, the court must defer to the BIA’s reasonable interpretation. See Aguirre-Aguirre, 526 U.S. at 424. As stated in Martinez-Cedillo, 896 F.3d at 989; see also Bastias, 42 F.4th at 1274 (stating that “it would likely contravene Chevron and its progeny to hold that when states have varying formulations of a crime, the only permissible interpretation open to an agency at Chevron step two is that adopted by the majority of jurisdictions”). An agency’s deviation from interpretations of a majority of states—or even from the interpretation “a court might think best,” Martinez Gutierrez, 566 U.S. at 591—does not make the agency’s construction unreasonable or relieve us of
But even if the Tenth Circuit’s preference for its own interpretation of
We also reject Diaz-Rodriguez’s additional arguments as to why we should not defer to the BIA’s reasoning and conclusion in Matter of Velazquez-Herrera and Matter of Soram. First, Diaz-Rodriguez argues that the BIA unreasonably relied on dictionary definitions and state laws that post-dated the enactment of
We also reject Diaz-Rodriguez’s argument that the BIA’s treatment of the phrase “crime of child abuse, child neglect, or child abandonment” as a unitary concept makes its decision unreasonable. As our analysis showed, supra Sections II.B.4, II.D, states in 1996 took a varied approach in criminalizing similar conduct, using a variety of terminology and elements. Given the lack of uniformity and clarity among contemporary definitions, supra Section II.B.1, the INA’s structure, supra Section II.B.2, other federal civil statutes, supra Section II.B.3, and the states’ criminal law, supra Sections II.B.4, II.D, the BIA’s decision
Finally, Diaz-Rodriguez argues that the BIA’s interpretation of
Accordingly, we defer to the BIA’s interpretation of the unitary phrase “crime of child abuse, child neglect, or child abandonment” to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission (including acts or circumstances that create a substantial risk of harm to a child’s health or welfare) that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation.
IV
We now turn to the question whether the BIA erred in determining that Diaz-Rodriguez’s statute of conviction,
In considering Diaz-Rodriguez’s petition, the BIA stated that
The BIA’s reasoning and conclusion were correct. To obtain a conviction under
PETITION DENIED.
1996 State Statutes Analogous to Section 273a(a) of the California Penal Code
1. Arizona:
2. California: The current version of
3. Colorado:
- Connecticut:
Conn. Gen. Stat. § 53-20 (“Cruelty to persons“) covers “[a]ny person who, having the control and custody of any child under the age of sixteen years, and in any capacity whatsoever, maltreats, tortures, overworks, cruelly or unlawfully punishes or willfully or negligently deprives such child of necessary food, clothing, or shelter.” The requirement of “control and custody” is comparable toCalifornia Penal Code section 273a(a) ‘s “care or custody requirement,” and it has been applied to defendants who were not the victim‘s parent. See State v. Patterson, 308 Conn. 835, 838 (2013); State v. Smith, 37 Conn. Supp. 664, 665 (1981). The Connecticut Supreme Court has held that “negligently” in this statute refers to criminal negligence. See State v. Clark, 5 Conn. Cir. Ct. 699, 706–07, 709 (1969). - Florida:
Fla. Stat. § 827.04(1) (“Child abuse“) states “[w]hoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment . . . shall be guilty of a felony of the third degree.” - Kansas:
Kan. Stat. Ann. § 21-3608(a) (“Endangering a child“) states: “Endangering a child is intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child‘s life, body or health may be injured or endangered.” The Kansas Supreme Court interpreted the term “unreasonably” to mean “the doing or omitting of some action contrary to reason, the doing of or omitting to do something that the average person, possessing ordinary mental faculties, would not have done or would not have omitted under all of the attendant and known circumstances.” State v. Fisher, 230 Kan. 192, 194 (1981) (interpreting an earlier version of the statute). In interpreting the current version of the statute, an appellate court in Kansas held that the term “intentionally” makes this offense “a general intent crime,” so “all that is required is proof that the person acted intentionally in the sense that he [or she] was aware of what he [or she] was doing.” State v. Cummings, 45 Kan. App. 2d. 15, 18 (2010), rev‘d on other grounds, 297 Kan. 716 (2013). - Missouri:
Mo. Rev. Stat. § 568.050(1) (“Endangering the welfare of a child in the second degree“) covers any person who“with criminal negligence acts in a manner that creates a substantial risk to the life, body or health of a child less than seventeen years old . . .” - Nebraska:
Neb. Rev. Stat. Ann. § 28-707(1) (“Child abuse“) states: “A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a child to be . . . [p]laced in a situation that endangers his or her life or physical or mental health . . .” - Nevada:
Nev. Rev. Stat. Ann. § 200.508(1)(a) (“Abuse, neglect or endangerment of child“) covers “[a] person who . . . [w]illfully causes a child who is less than 18 years of age . . . to be placed in a situation where the child may suffer physical pain or mental suffering as the result of abuse or neglect.” In Childers v. State, the Nevada Supreme Court clarified that the term “willfully” “implies simply a purpose or willingness to commit the act or to make the omission in question,” and “does not require in its meaning any intent to violate the law, or to injure another, or to acquire any advantage.” 100 Nev. 280, 283 (1984). The court further stated that this offense “is a general intent crime.” Id. - New Mexico:
N.M. Stat. § 30-6-1(C) (“Abandonment or abuse of a child“) states: “Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be . . . placed in a situation that may endanger the child‘s life or health.” The New Mexico Supreme Court has held that this statute “is a strict liability offense.” State v. Lucero, 98 N.M. 204, 206 (1982). - New York:
N.Y. Penal Law § 260.10(2) (“Endangering the welfare of a child“) states: “A person is guilty of endangering the welfare of a child” when “being a parent, guardian, or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an ‘abused child,’ a ‘neglected child,’ a ‘juvenile delinquent,’ or a ‘person in need of supervision,’ as those terms are defined in articles ten, three and seven of the family court act.” A person is “legally charged” with a child‘s care if the person is “legally responsible” for a child under article ten of the Family Court Act, which includes “the child‘s custodian, guardian [or] any other person responsible for the child‘s care at the relevant time.” People v. Carroll, 93 N.Y.2d 564, 568 (1999) (quotingFamily Ct. Act § 1012(g) ). This crime is a “strict liability” offense. People v. Scully, 134 Misc. 2d 906, 908 (1987). - Oregon:
Or. Rev. Stat. § 163.545 (“Child neglect in the second degree“) states: “A person having custody or control of a child under 10 years of age commits the crime of child neglect in the second degree if, with criminal negligence, the person leaves the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of the child.” The phrase “having control of a child” as used in§ 163.545 refers to “temporary custodian[s],” including individuals who are not parents or guardians, such as a “baby-sitter, relative, [or] teacher.” State v. Sparks, 267 Or. App. 181, 203 (2014). - Texas:
Tex. Penal Code Ann. § 22.041(c) (“Abandoning or Endangering Child“) states: “A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminentdanger of death, bodily injury, or physical or mental impairment.” - Utah:
Utah Code Ann. § 76-5-109(3) (“Child abuse“) covers “[a]ny person who inflicts upon a child physical injury.” The term “physical injury” includes “any other condition which imperils the child‘s health or welfare.”Utah Code Ann. § 76-5-109(1)(b)(iv) . The Utah Supreme Court has confirmed that for purposes of this section, “physical injury can include acts that imperil or threaten a child‘s health or welfare without an actual physical impact on the child.” Provo City v. Cannon, 994 P.2d 206, 2010 (Utah 1999). “[I]f done with criminal negligence, the offense is a class C misdemeanor.”Utah Code Ann. § 76-5-109(3)(c) . - Virginia:
Va. Code Ann. § 40.1-103 (“Cruelty and injuries to children“) states: “It shall be unlawful for any person employing or having the custody of any child willfully or negligently to cause or permit the life of such child to be endangered . . .” The Virginia Supreme Court has interpreted “custody,” in a materially identical version of the statute, as “not restricted in application to those having legal custody of children.” Lovisi v. Commonwealth, 212 Va. 848, 850 (1972). For example, the court stated that “teachers, athletic instructors and baby-sitters” would qualify. Id.
COLLINS, Circuit Judge, with whom BUMATAY, Circuit Judge, joins, concurring in part and concurring in the judgment:
I agree that Diaz-Rodriguez’s conviction under
I
Under the relevant language of
Where a state statute’s language covers a range of different conduct in a single indivisible offense, the inquiry focuses on whether “the least of the acts criminalized by the state statute falls within the generic federal definition.” Esquivel-Quintana, 137 S. Ct. at 1568 (emphasis added). The apparent theory behind this lesser-includes-the-greater approach is that, when there is a broad general area of overlap between the state offense and the generic federal definition, a disqualifying mismatch will be found, if at all, at the outer limits of the state offense rather than at its more serious core. But this consideration of “the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’” Moncrieffe, 569 U.S. at 191 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
Here, all members of the en banc court agree that the least of the conduct covered by
The remaining question, then, is whether the offense defined by these elements categorically constitutes a “crime of child abuse, child neglect, or child abandonment” within the meaning of INA
II
As with all cases of statutory construction, we must “begin by analyzing the statutory language, assuming that the ordinary meaning of that language accurately expresses the legislative purpose.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010) (simplified). And if, after “‘exhaust[ing] all the traditional tools of construction,’” the “intent of Congress is clear from the terms of the statute,” then we proceed no further and afford no deference to the agency’s reading of that language under Chevron, U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). Medina Tovar v. Zuchowski, 982 F.3d 631, 634 (9th Cir. 2020) (en banc) (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019)); see also id. at 639 (Collins, J., concurring in the judgment). In my view, the traditional tools of statutory construction suffice to confirm that the federal statutory phrase “crime of child abuse, child neglect, or child abandonment” categorically embraces the above-described “least” offense covered by
The relevant sentence of INA
A
The INA does not define the term “child neglect,” but the ordinary meaning of this term is readily discernible. “Child neglect”
From this core concept of the “neglect” of a “child,” two key elements thus emerge: (1) the person must have a “duty” or “responsibility” owed to the child; and (2) the person failed to perform that duty toward the child. But the statute requires more than “child neglect“; it requires the “crime of . . . child neglect.” Requiring that the breach of the duty toward the child rise to the level of a “crime” indicates that, with respect to both the actus reus and the mens rea, there must be a sufficient level of culpability to implicate criminal responsibility.
Where a statutory phrase is silent as to mens rea,3 the Court has “often” read into the statute a mens rea of “knowledge or intent.” Ruan v. United States, 142 S. Ct. 2370, 2377 (2022). But there is a compelling textual reason not to construe “crime . . . of child neglect” as requiring either knowledge or intent. The operative term, after all, is “neglect,” and the relevant offense is the “crime of . . . child neglect.” “Nothing” in that language “indicates that [it] applies exclusively to knowing or intentional” acts or omissions. Voisine v. United States, 579 U.S. 686, 692 (2016). On the contrary, the very concept of criminal neglect clearly indicates that criminal negligence is sufficient.
Criminal negligence is present when a person “‘should be aware’ of such a ‘substantial and unjustifiable risk’” that “attache[s] to his [or her] conduct” but the person acts in “‘gross deviation’ from accepted standards.” Borden v. United States, 141 S. Ct. 1817, 1824 (2021) (citation omitted). But in the context of “child neglect,” not just any “substantial and unjustifiable risk” is sufficient; rather, to qualify as the “crime . . . of child neglect,” the relevant “substantial and unjustifiable risk” that must be occasioned by the person‘s criminal
Accordingly, consideration of the relevant words in the phrase “crime of . . . child neglect” leads to the conclusion that this category embraces crimes that include the following minimum elements: (1) the person had a duty towards a child; (2) the person breached that duty in a manner that constitutes a gross deviation from accepted standards; and (3) the person should have been aware that his or her conduct presented a substantial and unjustifiable risk of serious physical or emotional harm to the child.
B
Neither the plurality opinion nor the dissenting opinion provides any persuasive basis for reading the phrase “crime of . . . child neglect” differently. The plurality‘s finding of textual ambiguity rests largely on the premise that the phrase is “susceptible” to Diaz-Rodriguez’s “interpretation of ‘child neglect’” as requiring the violation of the special duty a “parent or legal guardian” owes to a child in his or her care. See Opin. at 45 (emphasis added). But the plurality itself ably debunks this textual argument. As the plurality explains, only one of the major contemporaneous dictionaries even mentions “parents” in defining “child neglect,” and it refers to a “failure on the part of a parent or parental substitute.” Id. at 22–23 (emphasis added) (quoting Child Neglect, WEBSTER’S II NEW COLLEGE DICTIONARY (1995)). And as the plurality correctly notes, a “parental substitute” could readily refer to either a “legal custodian” or a “temporary caretaker.” See id at 23.
Indeed, there is no reason to think that a breach of duty toward a child by a “parental substitute” constitutes “child neglect” only if the person acting in place of the parents is a formal legal guardian. Lots of persons act, on occasion, as “parental substitutes” without being legal guardians in the formal sense, such as babysitters, daycare workers, and teachers. Cf. Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 654 (1995) (“When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them.“); MODEL PENAL CODE § 3.08(1), (2) (AM. L. INST. 1985 ed.) (including, within the class of persons who may exercise force in the discipline of children, “the parent or guardian or other person similarly responsible for the general сare and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person” and “a teacher or a person otherwise entrusted with the care or supervision for a special purpose of a minor“). There is thus no basis for concluding that this particular dictionary even used “parental substitute” in the narrow sense of formal legal guardians. And even if it did, that view finds no support (as the plurality notes) in any of the other available major dictionaries of the time, see Opin. at 23, and one variant dictionary is not enough to displace an otherwise clear meaning, or even to
As I noted earlier, see supra note 3, the plurality also makes the irrelevant observation that the definitions of “child neglect” in contemporaneous dictionaries do not “address whether the mental state must be criminally negligent, knowing, or intentional” or “whether the targeted conduct must actually injure the child.” See Opin. at 22. The dissent makes a similar claim as well, noting that the relevant dictionary definitions of child neglect “are silent as to the requisite mens rea.” See Dissent at 29. But as I have explained, the mental-state and degree-of-risk-of-harm elements arise, not from the concept of “child neglect” simpliciter, but from the composite notion of “crime of . . . child neglect.” See supra at 8–9. To say that a “crime” involving “neglect” denotes criminal negligence seems almost tautological and can hardly be considered to be ambiguous or uncertain. It is that latter concept of criminal negligence that supplies the additional minimum elements of “crime of . . . child neglect” that the plurality and the dissent, with their unduly narrow focus, think are missing from “child neglect” considered in isolation.
The dissent, by contrast, agrees that the phrase “crime of . . . child neglect” is not ambiguous, but it insists that it has at least one additional element—namely, the neglect must be “sustained” rather than a “one-time” action. See Dissent at 25–31.5 The dissent says that this follows from dictionary definitions describing “child neglect” as “a failure to provide a child under one’s care with proper food, clothing, shelter, supervision, medical care, or emotional stability,” Neglect, MERRIAM-WEBSTER’S DICTIONARY OF LAW 324 (1996), or as a “[f]ailure on the part of a parent or parental substitute to supervise a child and provide requisite care and protection,” Child Neglect, WEBSTER’S II NEW COLLEGE DICTIONARY (1995). See Dissent at 25–31. I have read the same definitions, and I do not see where they suggest that the failure must be “sustained” to count as child neglect. A babysitter who observes that a child is running a 105-degree fever and is convulsing, but who then simply goes back to binge-watching Netflix while the child suffers has certainly committed “a failure to provide a child under one’s care with proper . . . supervision, [or] medical care” in the most literal sense of those terms. The dissent asserts that the mere reference to a “‘proper’ or ‘necessary’ standard of care” denotes “a relationship of care persisting beyond a one-time instance of minor neglectful conduct.” See Dissent at 26–27 n.8. But that is obviously wrong, as any perusal of mine-run tort cases makes clear. The dissent also relies on the definition of “neglected child,” which does indeed carry a connotation of a condition that is ongoing. See Dissent at 25–26. But that, of course, is not the phrase used in the statute, and so the additional connotation that is distinctively associated with that phrase is irrelevant here.
The additional materials discussed by the plurality and the dissent do not warrant any different conclusions from what I have set forth above. In particular, to the extent that contemporaneous federal statutes provide any guidance as to Congress’s understanding of the term “child neglect,” that consideration reinforces my reading of
[T]he term ‘child abuse and neglect’ means, at a minimum, any recent act or failure to act on the part of a parent or caretаker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.
See 110 Stat. at 3078. Every aspect of that definition coheres with what I have set forth earlier: it applies to a single “act or failure to act,” and not just a pattern of behavior; it extends to a “caretaker” (who has obvious duties towards the child), and not merely to a parent or legal guardian; and it applies if the conduct entails an “imminent risk of serious harm.” As the nearest contemporaneous expression of Congress’s understanding of the terminology in this area, the CAPTA Amendments Act strongly reinforces the correctness of the understanding of “crime . . . of child neglect” that I described above. See Erlenbaugh v. United States, 409 U.S. 239, 243–44 (1972) (noting that, when statutes on the same subject are “enacted by the same legislative body at the same time,” one act can assist in “ascertaining the meaning of the words as used in their contemporary
setting” in the other act).7Both the plurality and the dissent also rely on surveys of state legislation, but the Supreme Court has made clear that such a multi-state survey “is not required by the categorical approach.” Esquivel-Quintana, 137 S. Ct. at 1571 n.3. The Court recognized that such a survey might nonetheless be useful if it meaningfully “helps shed light on the common understanding and meaning of the federal provision being interpreted,” id. (emphasis added) (citations and internal quotation marks omitted), but that is not the case here. As the plurality‘s and the dissent‘s surveys show, the various state approaches are too disparate to support any inference that, in deploying the phrase “crime of . . . child neglect,” Congress intended to adopt any particular variant of these approaches. Cf. id. at 1571 (noting that, in Taylor v. United States, 495 U.S. 575 (1990), the Court had “interpret[ed] ‘burglary’ under the Armed Career Criminal Act of 1984 according to the generic sense in which the term is now used in the criminal codes of most States” (quoting Taylor, 495 U.S. at 598) (further quotation marks omitted)). If anything, the wide disparity among States simply reinforces the view that, as the plurality aptly notes, Congress “purposefully employed” a series of overlapping terms in
The dissent argues that construing
The dissent also argues that, because the composite phrase “crime of child abuse, child neglect, or child abandonment” is paired together in the same statutory provision with “crime of domestic violence” and “crime of stalking,” elements assertedly common to the latter two (such as intent) must be read into the third. See Dissent at 29 n.9. But the principle invoked by the dissent—i.e., “[t]hat several items in a list share an attribute counsels in favor of interpreting the other items as possessing that attribute as well“—“is by no means a hard and fast rule,” Beecham v. United States, 511 U.S. 368, 371 (1994), and there are good reasons not to apply it here. The three “crime of” phrases in
Finally, one might be tempted to think that the phrase “child neglect” must be deemed to be ambiguous simply because so many judges in multiple cases have disagreed as to its meaning. But such a show-of-hands approach to statutory interpretation and to the applicability of Chevron
[D]isagreements between judges at most suggest ambiguity. They do not prove it. If they did, the agency would win every circuit split about whether a federal law authorizes its regulation, but see, e.g., Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002) (agency loses); the State would win every circuit split about whether a federal law preempts its statute, but see, e.g., Northwest, Inc. v. Ginsberg, 572 U.S. 273 (2014) (State loses); and the criminal defendant would win every circuit split about whether a federal law punishes his conduct, but see, e.g., United States v. Castleman, 572 U.S. 157 (2014) (criminal defendant loses).
Sexton v. Panel Processing, Inc., 754 F.3d 332, 341 (6th Cir. 2014) (emphasis added) (parallel citations omitted).
C
Accordingly, ordinary principles of statutory construction lead to the conclusion that a “crime of . . . child neglect,” within the meaning of INA
III
For the foregoing reasons, I agree with the ultimate conclusion in Part IV of Judge Ikuta‘s opinion that “the BIA did not err in concluding that Diaz-Rodriguez was removable” under
I respectfully dissent. Congress “supplied a clear and unambiguous answer” to the question before us. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018).
I.
Rafael Diaz-Rodriguez has lived in the United States for more than thirty years. He has been a lawful permanent resident since 1990. He and his partner have two children together. Both children are U.S. citizens. Diaz-Rodriguez‘s parents and eight siblings live in the United States; his mother is a United States citizen, and his father is a lawful permanent resident.
In 2003 and 2009, Diaz-Rodriguez was stopped by police while driving under the influence of alcohol with one of his children in the car. Each arrest resulted in convictions for felony child endangerment in violation of
Although the statute states that the defendant must act “willfully,” the California Supreme Court has held that a mens rеa of criminal negligence suffices, such that the state need not prove that the defendant was subjectively aware of the risk of harm involved to obtain a conviction. People v. Valdez, 27 Cal.4th 778, 790 (2002).
In 2012, the Department of Homeland Security (DHS) initiated removal proceedings against Diaz-Rodriguez based on his 2009 child endangerment conviction. The agency charged that the conviction rendered Diaz-Rodriguez removable under
II.
The issue whether “a crime of child abuse, child neglect, or child abandonment” in
A.
Over the last two decades, the BIA has haphazardly revised its interpretation of “a crime of child abuse, child neglect, or child abandonment.” The agency began with the plain text of the statute and contemporaneous dictionaries. But it quickly pivoted to dubious sources of statutory meaning, consulting civil definitions of child abuse and relying on state-by-state risk assessments to expand the scope of
In 1998, the BIA defined a crime of child abuse with reference to the Sixth Edition of Black‘s Law Dictionary as “any form of cruelty to a child‘s physical, moral[,] or mental well-being.” In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (B.I.A. 1999) (citing Black‘s Law Dictionary 1375 (6th Ed. 1990)). That definition required the intentional infliction of injury on the child. See id. (holding that child abuse refers to “physical or mental maltreatment” and “encompasses actions or inactions that also do not require physical contact“).
In 2006, we concluded that the BIA‘s definition in Rodriguez-Rodriguez was dicta, not precedential, and not entitled to deference because it was announced in an appeal about the separate crime of child sexual abuse. See Velazquez-Herrera v. Gonzales (Velazquez-Herrera I), 466 F.3d 781, 782–83 (9th Cir. 2006). But, in the years between Rodriguez-Rodriguez and Velazquez-Herrera I, and even after, several circuit courts of appeal accepted Rodriguez-Rodriguez as a reasonable interpretation of
In response, the BIA held that the generic definition of a crime of child abuse now extended to crimes against children committed with a mens rea of criminal negligence so long as the convictions involve “the infliction on a child of physical
At the time, a concurring BIA member, Roger Pauley, wrote separately to note that the BIA‘s definition was incomplete and confusing: it was “unclear” whether the Board‘s new definition extended to “crimes in which a child is merely placed or allowed to remain in a dangerous situation, without any element in the statute requiring ensuing harm.” Id. at 518 n.2. Pauley cited the example of “failing to secure a child with a seatbelt.” Id. Pauley further noted that the BIA‘s definition ignored the statutory text, defining only the “crime of child abuse” without acknowledging that the crimes Congress listed included the “crime of child abuse, child neglect, and child abandonment.” Id. at 518 (Pauley, concurring). Nevertheless, the BIA issued its definition in Velasquez-Herrera II without adjusting or clarifying the meaning of the phrase.
After Velazquez-Herrera II, we granted a petition for review in Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009). We held that the Velazquez-Herrera II definition requires injury to the child. Id. at 1037. There, Fregozo, a permanent resident, pleaded nolo contendere to child endangerment under
After Fregozo, the BIA once again revisited its definition of the crime of child abuse. See Matter of Soram, 25 I. & N. Dec. 378, 380 (BIA 2010). Shifting from its conclusion that a crime of child abuse requires “infliction on a child of physical harm, even if slight,” or “mental or emotional harm,” Velazquez-Herrera II, 24 I. & N. Dec. at 512, the BIA now found “no convincing reason to limit [deportable] offenses under [
Soram broke from Velasquez-Herrera II in two other respects. First, where the BIA rejected a state-by-state analysis in Velasquez-Herrera II, it approved a state-by-state analysis in Soram. Id. at 383. After surveying state laws, the BIA noted that states use different terms, like “realistic,” “serious,” “reasonably foreseeable,”
Second, where the BIA in Velazquez-Herrera II decided to define only the “crime of child abuse,” the BIA now confirmed that its new definition applied to the phrase “a crime of child abuse, child neglect, or child abandonment.” Soram, 25 I. & N. Dec. at 381 (holding that the phrase “denotes a unitary concept“). In Soram, the BIA chose to read “child neglect” and “child abandonment” out of the statute, reasoning that the phrase as a whole referred to the various ways that states chose to criminalize crimes against children. Id.
B.
We have twice agreed to consider en banc the BIA‘s most recent refashioning of
In Martinez-Cedillo, the panel unanimously held at step one that the phrase “a crime of child abuse, child neglect, and child abandonment” in
When a majority of the active judges agreed to rehear the case en banc, we withdrew the panel opinion, rendering it non-precedential. Martinez-Cedillo v. Barr, 918 F.3d 601 (9th Cir. 2019). We subsequently vacated the panel‘s decision when the en banc court dismissed the appeal as moot. Martinez-Cedillo, 923 F.3d at 1162. Given these developments, Martinez-Cedillo
We now confront this issue again. Diaz-Rodriguez, 12 F.4th at 1132. Contrary to the panel in Martinez-Cedillo, the panel majority in Diaz-Rodriguez held at step one of Chevron that the phrase “a crime of child abuse, child neglect, and child endangerment” does not encompass a crime of negligent child endangerment. Id. at 1128. Guided by the Supreme Court‘s analysis in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the panel majority found that “three of the four sources of statutory meaning the Court consulted in [that case]—contemporary legal dictionaries, statutory structure, and contemporary state criminal codes—support the conclusion that
III.
We apply the categorical approach to determine whether “the least of the acts criminalized by the state statute,”
A.
Determining the least of the acts criminalized under
Second, that child must be placed “in a situation where his or her person or health is endangered.”
Third, the statute requires a defendant to act “willfully.”
must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.
Valdez, 27 Cal.4th at 788 (citations omitted).
The plurality opinion waves off concerns that the criminal negligence standard embraces “‘poor housekeeping’ or everyday parenting decisions.” Plurality 12 (citation omitted). The plurality draws on lurid examples to argue that the statute only extends to serious, aberrant conduct: a father “shaking a four-and-a-half-month-old infant . . . with the force equivalent to dropping him out of a second story window,” Sargent, 19 Cal. 4th, at 1222 (1999); a father storing dangerous chemicals, exposed electrical wires, and weapons at home and within reach of his children, People v. Odom, 226 Cal. App. 3d 1028, 1033–34 (1991); and a mother confining her eight-and-a-half-year-old daughter in the home since she was only six-months old, including keeping her in a closet for at least a six-month period. People v. Hernandez, 111 Cal. App. 3d 888, 894–95 (1980).
We acknowledge that
The concurrence and plurality opinion wrongly dismiss these examples—chiding amici for failing to provide citations to court proceedings, Plurality 13, and arguing that “the limited information that is selectively presented in the [amicus]
brief is so devoid of foundation that we cannot take judicial notice of the claims made in it.,” Concurrence 17 n. 8. The plurality
Moreover, regardless of how high the criminal negligence standard has been set by the California Supreme Court, there are numerous examples in our circuit of actors in the criminal justice system finding that poor parenting decisions satisfy the criminal negligence mens rea required for arrests, prosecutions, or convictions under
In Andre-Lucas v. Mayorkas, No. 3:21-cv-01121, 2021 WL 3929686, at *1 (S.D. Cal. Sept. 2, 2021), a father pleaded guilty to child endangerment allegedly for trying to calm down and discipline his four-year old son who was throwing a temper tantrum. His son was allegedly upset at receiving the wrong flavor of ice cream. Id.
In Sky N. v. Becerra, No. 2:21-cv-507, 2021 WL 3744383, at *2–3 (C.D. Cal. June 22, 2021), a father was charged with child endangerment after leaving a child in their family car for a short period while he returned to a restaurant. The father was charged with violating
Calming a child upset about his ice cream choice hardly seems “incompatible with a proper regard for human life or an indifference to consequences.” Valdez, 27 Cal.4th at 788 (internal citations omitted). These examples suggest that, notwithstanding the harsh language California courts use in describing the criminal negligence standard, prosecutors, arresting officers, and juries have found parents criminally negligent and liable for child endangerment for ordinary parenting mistakes.
B.
Congress enacted
C.
“Before we addrеss whether in the statute Congress has spoken clearly, we must identify the precise question at issue.” Fournier v. Sebelius, 718 F.3d 1110, 1118 (9th Cir. 2013) (quoting Chevron, 467 U.S. at 842–43). Once we identify that question, we use the normal tools of statutory construction to determine if Congress adopted language which unambiguously provides an answer, evincing Congress’s intent to foreclose alternatives proposed by an agency. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Fournier, 718 F.3d at 1118 (citations omitted).
The question at issue is what Congress meant when it said “a crime of child abuse, child neglect, or child abandonment.” We must answer this question with reference to the contemporaneous, ordinary meaning of these three crimes. At step one, we independently evaluate what the statute means, whether it is ambiguous, and whether that ambiguity evinces an intent to leave an interpretive gap for the agency to fill. Here, we conclude that Congress meant what it said when it identified three discrete crimes in
The plurality goes astray by beginning with the wrong question. It asks “whether Congress meant the offenses listed in
IV.
We conclude that the text of
A.
“Our analysis begins with the language of the statute.” Leocal v. Ashcroft, 543 U.S. 1, 8 (2004). In interpreting such language, a court references the “ordinary meaning” of terms included in a statute “at the time Congress enacted the statute.” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (citation omitted). Reviewing dictionaries published shortly before and after IIRIRA’s enactment, we find that the crimes of child abuse, child neglect, and child abandonment had discrete definitions. These definitions suggest that the ordinary meaning of such terms did not encompass negligent child endangerment offenses.
1.
The ordinary meaning of “child abuse” in 1996 involved the infliction of some form of injury upon the child. One of the principal dictionaries consulted by the Court in Esquivel-Quintana defines “child abuse” as “the infliction of physical or emotional injury,” including sexual abuse. Child Abuse, Merriam-Webster’s Dictionary of Law, 4, 76 (1996); Esquivel-Quintana, 137 S. Ct. at 1569 (citing Merriam-Webster’s Dictionary of Law (1996)). The two editions of Black’s Law Dictionary published shortly before and after IIRIRA’s enactment similarly define child abuse as requiring some infliction of injury: the Sixth Edition of Black’s Law Dictionary defines “child abuse” as “[a]ny form of cruelty to a child’s physical, moral, or mental well-being,” and defines “cruelty” as “[t]he intentional and malicious infliction of physical or mental suffering.” Child Abuse, Black’s Law Dictionary 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.” Child Abuse, Black’s Law Dictionary 10, 233 (7th ed. 1999) (Black’s Seventh Edition). And the 1989 edition of the Oxford English Dictionary defines “child abuse” as the “maltreatment of a child, esp[ecially] by beating, sexual interference, or neglect.” Child Abuse, Oxford English Dictionary 114 (2d ed. 1989).
The plurality opinion asserts first, that these definitions are ambiguous as to the requisite mens rea, and, second, that “[s]ome contemporaneous dictionaries defined ‘child abuse’ without specifying the role of . . . injury.” Plurality 21. Although the mens rea elements may not have been defined clеarly7, what is clear is that at the time IIRIRA was enacted, for an act to constitute child abuse, injury to the child was required.
The plurality opinion relies entirely on two dictionary definitions for its conclusion that injury was not commonly understood as an element of child abuse in 1996. Plurality 21–22. It cites the 1995 edition of Ballentine’s Law Dictionary for a definition of child abuse as “[t]he physical, sexual, verbal, or emotional abuse of a young person,” including neglect of a child. Child Abuse, Ballentine’s Legal Dictionary 96 (1995). It also cites the 1995 edition of Webster’s II New College Dictionary, which includes in the definition of child abuse “toleration and complicity in conditions injurious to the child’s health.” Child Abuse, Webster’s II New College Dictionary 194 (1995). Plurality 21–22.
However, both definitions in fact require injury. As to Ballentine’s, the modifiers “physical, sexual, verbal, or emotional” indicate that the abuse has an effect on the child. A child adversely affected in a
As to Webster’s II, child abuse covers toleration of “conditions injurious to the child’s health.” Child Abuse, Webster’s II New College Dictionary 194 (emphasis added). On its face, this definition requires that injury be present. The definition does not include situations in which a parent tolerates conditions that may, at some point in the future, become injurious to the child’s health, such as failure to restrain a child properly in a car seat where no harm results. Cal. Defenders Br. at 9.
These definitions in fact support our conclusion that the ordinary meaning of child abuse in 1996 requires some form of injury.
2.
The ordinary meaning of “child neglect” in 1996 required a sustained failure by a child’s caregiver to provide for the child’s basic needs based on a standard of proper care. Merriam-Webster’s Dictionary of Law defines child “neglect” as “failure to provide a child under one’s care with proper food, clothing, shelter, supervision, medical care, or emotional stability,” cross-referencing the definition of “child abuse.” Neglect, Merriam-Webster’s Dictionary of Law 324. Black’s Sixth Edition does not define “child neglect,” but defines a “neglected child” as one 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 for 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.
Neglected Child, Black’s Sixth Edition 1032.
The Seventh Edition defines “child neglect” as “[t]he failure of a person responsible for a minor to care for the minor’s emotional or physical needs.” Child Neglect, Black’s Seventh Edition 233; see also
Based on these definitions, child neglect occurs when a parent or guardian fails to perform essential parental duties, assessed against a standard of proper care. This implies a sustained failure to meet a child’s needs and would exclude situations in which an otherwise caring parent or guardian makes a mistake.8 A busy parent
The concurrence agrees that “child neglect” is unambiguous but argues that the ordinary meaning of child neglect encompasses negligent child endangerment. Viewing the same set of definitions, the concurrence deduces three elements:
- the person had a duty towards a child;
- the person breached that duty in a manner that constitutes a gross deviation from accepted standards; and
- the person should have been aware that his or her conduct presented a substantial and unjustifiable risk of serious physical or emotional harm to the child.
Concurrence 9.
The concurrence’s first element is consistent with the definitions discussed above. Its second and third elements are not. The concurrence reasons that because
The plurality opinion, by contrast, focuses primarily on refuting Diaz-Rodriguez’s argument that the term “child neglect” ordinarily refers to an offense that could be committed only by a parent or guardian rather than divining the ordinary meaning of the term in 1996. Plurality 23–24. The plurality opinion notes that only Webster’s II New College Dictionary specifies that a parent or guardian can commit child neglect, defined as a “[f]ailure on the part of a parent or parental substitute to supervise a child and provide requisite care and protection.” Child Neglect, Webster’s II New College Dictionary 194 (1995). Other dictionary definitions, the plurality contends, are less clear. See Neglect, Merriam-Webster’s Dictionary of Law 324 (not specifying who can commit child neglect); Child Neglect, Black’s Seventh Edition 199 (same); Child Neglect, Ballentine’s Legal Dictionary 96 (defining child neglect by cross referencing child abuse which does not specify relationship between abuser and abused); Plurality 22–23.
We do not find these definitions ambiguous as to whether a non-parent or guardian can commit child neglect. The types of duties referenced—provision of proper food, water, medical care, emotional support, and shelter—are commonly associated with parents and legal guardians. Neglect, Merriam-Webster’s Dictionary of Law 324; Neglected Child, Black’s Sixth Edition 1032; Child Neglect, Black’s Seventh Edition 233.
But even if the plurality reading is correct, this observation fails to buttress its conclusion that the ordinary meaning of “child neglect” is ambiguous enough to encompass negligent child endangerment offenses such as
3.
The ordinary meaning of “child abandonment” in 1996 is similar to that of child neglect. Both terms involve forsaking one’s parental duties. Merriam-Webster’s Dictionary of Law defines “abandonment” with respect to a child as “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.” Abandonment, Merriam-Webster’s Dictionary of Law 1. Black’s Sixth Edition defines abandonment with respect to children as “[d]esertion or willful forsaking” and “[f]oregoing parental duties.” Abandonment, Black’s Sixth Edition 2. The Seventh Edition simplifies this to “[t]he act of leaving a spouse or child willfully and without an intent to return.” Abandonment, Black’s Seventh Edition 2; see also Bryan A. Garner, A Dictionary of Modern Legal Usage 3 (2d ed. 1995) (abandon: “in family law, to leave children or a spouse willfully and without an intent to return”). Each definition references intent: child abandonment must be committed with a “purpose” to forgo such duties, Abandonment, Merriam-Webster’s Dictionary of Law 1, or be done “willfully,” Abandonment, Black’s Seventh Edition 2; Abandonment, Black’s Sixth Edition 2. While child neglect occurs over a sustained period, child abandonment may be permanent, or committed with the intent to abandon permanently.
We conclude that the ordinary meaning of child abandonment requires not only that the crime be committed by a child’s parent or legal guardian, but also involves the intentional forsaking of parental duties, over a long period of time or permanently. Negligent child endangerment offenses do not fit within this ordinary understanding of child abandonment. As such,
The plurality agrees that child abandonment is not a categorical match for
We take no issue with the plurality opinion’s conclusion on this point but question its methodology. As with child neglect, the plurality opinion does not draw an explicit conclusion regarding the ordinary meaning of child abandonment, merely finding a mismatch between one element of
4.
The “reliable dictionaries” consulted by the Court in Esquivel-Quintana clarify the ordinary meanings of child abuse, child neglect, and child abandonment, and demonstrate that these distinct definitions do not encompass negligent child endangerment as criminalized under California law. 137 S. Ct. at 1569. Some overlap between the elements of such offenses exists. For
Notably, instead of adopting language that would embrace eаch of these offenses as one concept—“crimes against children” or, as the plurality opinion might suggest, “crimes against children that require only a mens rea of criminal negligence, do not require injury to the victim, and do not require the perpetrator to be a parent or legal guardian, but could include persons temporarily responsible for a child,” Plurality 19–20, —Congress chose to separately identify each criminal offense. The canon of “expressio unius est exclusio alterius as applied to statutory interpretation creates a presumption that when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions.” See Silvers v. Sony Pictures Ent., Inc., 402 F.3d 881, 885 (9th Cir. 2005) (en banc) (internal quotation marks and citation omitted). This canon applies only where items in the list are “members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence,” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002)), and “can be overcome by ‘contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion,’” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 (2013) (quoting Vonn, 535 U.S. at 65).
Child abuse, child neglect, and child abandonment are members of an associated group of crimes against children. Even assuming the dictionary
definitions of child abuse and child neglect somewhat overlap, child endangerment was recognized as an independent offense in dictionaries bookending IIRIRA’s enactment. Endangerment, Merriam-Webster’s Dictionary of Law 160 (defining endangerment as “the crime or tort of exposing others to possible harm or danger”); Child Endangerment, Black’s Seventh Edition 233 (defining “child endangerment” as “the placing of a child in a place or position that exposes him or her to danger to life or health”); see also Child Endangerment, Black’s Law Dictionary (11th ed. 2019) (stating that earliest usage of the term “child endangerment” was in 1981, defined as “the placing of a child in a place or position that exposes him or her to danger to life or health”). The fact that Congress enumerated three related crimes against children and failed to enumerate a fourth independently defined crime justifies the inference that this omission was the product of deliberate choice, not mere inadvertence. There is no contrary textual indication that Congress did not intend to “signal any exclusion.” For example,
B.
The structure of the INA provides further evidence that Congress’s omission of child endangerment from the list of crimes against children in
1.
As part of IIRIRA, Congress created a discretionary form of relief intended to ameliorate the harshness of removal for noncitizen children and their families: cancellation of removal.10 Noncitizens who are not lawful permanent residents may seek cancellation of removal if they can show, among other things, that their removal would result in “exceptional and extremely unusual hardship” to their child, provided the child is a United States citizen or lawful permanent resident.
discretionary form of relief.
But even if
However, the plurality misses a key difference between cancellation of removal for legal permanent residents and noncitizens lacking such status. These are two distinct forms of relief under the INA. Cancellation of removal for legal permanent residents may incidentally promote family unity by allowing long-term legal permanent residents to remain with their family members, provided such noncitizens have lived in the United States continuously for at least seven years, remained in legal permanent resident status for five years, and have not committed an aggravated felony. See
2.
The plurality’s efforts to find helpful meaning in the structure of the INA is
The plurality opinion homes in on the National Child Protection Act of 1993 (NCPA), a statute enacted “to establish procedures for national criminal background checks for child care providers.”
“Child abuse” as defined in NCPA encompasses a bevy of crimes against children—“any” state criminal law targeting “maltreatment” of “a child by any person.”
These civil definitions do not illuminate how Congress intended to punish individuals convicted of such
The plurality opinion replicates the BIA’s freewheeling analysis from Velasquez-Herrera II to Soram, consulting a similar set of contemporaneous civil statutes to illuminate the federal generic definition of a crime. Velasquez-Herrera II, 24 I. & N. Dec. at 510 nn.5-6; see also Soram, 25 I. & N. Dec. at 382 n.3. But looking to federal civil statutes unreasonably widens the net of crimes against children that may expose a noncitizen to removability under
C.
In Esquivel-Quintana, the Supreme Court acknowledged that a multi-state survey of state criminal codes as they stood at the time Congress enacted the statute in question “helps shed light on the common understanding and meaning of the federal provision being interpreted.” 137 S. Ct. at 1571 n.3 (internal quotation marks omitted).
The Court relied in part on its determination that “the general consensus from state criminal codes points to the same generic definition as dictionaries and federal law” to determine that the federal generic offense of “sexual abuse of a minor” in the INA included as an element that the victim was under sixteen years old. Id. at 1572.
Relying on the original panel majority’s survey of criminal codes including negligent child endangerment offenses irrespective of the label used, we conclude that the phrase “a crime of child abuse, child neglect, or child abandonment” does not encompass negligent child endangerment offenses. In 1996, only fourteen states criminalized child endangerment committed with a mens rea of criminal negligence—the least of the acts criminalized under
The plurality conducts its own survey and arrives at a different number (15) and list of states that criminalized negligent child endangerment.13 Plurality 40.
Faced with the realization that a small minority of jurisdictions criminalized negligent child endangerment in 1996, the plurality pivots and obfuscates—arguing that its multijurisdictional analysis merely illustrates the “wide variety of approaches [states took] to labeling, categorizing, and defining crimes against children.” Plurality 38. This in turn, the plurality claims, supports the inference that “‘Congress purposefully employed the overlapping concepts of child abuse, neglect, and abandonment [in
We agree that states took a variety of approaches in defining crimes against children at the time of IIRIRA’s enactment. Both our and the plurality’s analysis of jurisdictions criminalizing negligent child endangerment reference statutes labeled abuse15, neglect,16 and abandonment.17 We
The inference we draw follows from the Supreme Court’s teaching in Esquivel-Quintana. The Supreme Court acknowledged that states criminalizing sexual abuse of a minor used different labels and included different elements—observing that only two states “had offenses labeled ‘sexual abuse of a minor’ in 1996,” and that “[m]any jurisdictions set a different age of consent for offenses that include an element apart from the age of participants, such as offenses that focus on whether the perpetrator is in some special relationship of trust with the victim.” 137 S. Ct. at 1572; see also Plurality 40.
The Supreme Court did not, at that juncture, throw up its hands and declare that “sexual abuse of a minor” had no settled meaning at the time of IIRIRA’s enactment. Cf. Plurality 53 (“[T]here was no discrete, well-understood offense of ‘child endangerment,’ just as there were no discrete offenses of ‘child abuse, child neglect, and child abandonment,’ in 1996[.]”); id. 51–53. Nor did it suggest that the states’ varying approaches revealed that Congress could have intended for “sexual abuse of a minor” in
We apply the Supreme Court’s logic to the results of our multijurisdictional analysis. The generic federal definition of a “crime of child abuse, child neglect, or child abandonment” accords with the approach taken by a majority of states, which
D.
We conclude that the text of
Respectfully, none of our sister circuits has applied the rigorous methodology dictated by the Supreme Court in Esquivel-Quintana. Courts have found
Our analysis, by contrast, is responsive to the Supreme Court’s admonition that reviewing courts must ensure that our “legal toolkit is empty and the interpretive question still has no single right answer” before deferring to an agency’s construction. Kisor, 139 S. Ct. at 2415. Having found no genuine ambiguity in
E.
In light of our conclusion that the statute is unambiguous at step one, “[w]e have no need to resolve whether the rule of lenity or Chevron receives priority in this case because the statute, read in context, unambiguously forecloses the Board’s interpretation. Therefore, neither the rule of lenity nor Chevron applies.” Esquivel-Quintana, 137 S. Ct. at 1572. The plurality finds ambiguity, and then concludes that the BIA’s interpretation is reasonable. I disagree.20
The plurality sidesteps any substantive discussion of the immigration rule of lenity, “the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the [noncitizen].” INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“[S]ince the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings of the words used.”). The plurality opinion, via footnote, dismisses this longstanding principle on procedural grounds. Plurality 54 n.29
The plurality opinion assumes that because the Supreme Court has yet to apply the immigration rule of lenity and Chevron in the same case, it cannot do so. But the fact that there is an open question about how to harmonize the two venerable principles of statutory construction is not a reason to ignore binding precedent on the immigration rule of lenity. Cf. I.N.S. v. St. Cyr, 533 U.S. 289, 320 (2001) (applying presumption against retroactivity alongside immigration rule of lenity). There is no doubt that applying the rule in this context would require the plurality to arrive at a conclusion more favorable to petitioner than it does. The plurality provides no persuasive justification for its refusal to apply the “long standing” immigration rule of lenity at Chevron step two.
V.
The plurality opinion picks at dictionary definitions, disregards statutory structure, and obfuscates the results of its multijurisdictional survey, all to prop up the BIA’s impermissible approach to determining the generic definition of a “crime of child abuse, child neglect, or child abandonment.”
Missing in the plurality opinion’s anodyne analysis is recognition of a troubling fact: under the BIA’s overbroad interpretation of
Our responsibility as a reviewing court is to ensure that regulated parties—here, noncitizen families—know what conduct will trigger the “civil death penalty” of removal. Martinez-Cedillo, 896 F.3d at 989. The BIA’s vague, sweeping interpretation of
APPENDIX A
In 1996, the following 14 States criminalized child endangerment committed with a mens rea of negligence:
Alabama
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:
Arkansas
Connecticut
Delaware
District of Columbia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Maine
Minnesota
Montana
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 jurisdiction’s other crimes against children.
Alaska
Florida
Georgia
Louisiana
Maryland
Massachusetts
Michigan
Mississippi
Nevada
New Jersey
North Dakota
Rhode Island
Utah
Notes
Although we have said that(E ) Crimes of domestic violence, stalking, or violation of protection order, crimes against children and
(i) Domestic violence, stalking, and child abuse
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in
section 16 of title 18 ) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
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.”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.
Although the four branches of conduct are phrased in the disjunctive, we have previously held that they are alternative means for accomplishing the same offense, rather than different offenses, and therefore
Diaz-Rodriguez argues that the term “likely” requires that the risk of harm to a child be only “reasonably foreseeable,” relying on a state appellate court decision stating that “reasonably construed, [section 273a(a)] condemned the intentional placing of a child, or permitting him or her to be placed, in a situation in which serious physical danger or health hazard to the child is reasonably foreseeable.” People v. Hansen, 59 Cal. App. 4th 473, 479–80 (1997). We reject this argument, because Hansen was superseded by the California Supreme Court’s subsequent determination that “likely” as used in
In Andres-Lucas, the court merely recited a habeas petitioner’s version of the events that led to his guilty plea under
A noncitizen without lawful permanent resident status does not invoke “his or her deficient caregiving responsibility as a shield against deportation” when seeking cancellation of removal. Concurrence 16. Such noncitizens establish eligibility for relief from removal by demonstrating that their removal will result in “extreme and exceptional hardship” to their “spouse, parent, or child.”
The absurdity of this result is apparent in view of the otherwise consistent purposes of California’s child endangerment statute and
Section 1227(a)(2)(E)(i) states that “[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.” Unlike the term “crime of domestic violence,” no part of the phrase “a crime of child abuse, child neglect, or child abandonment” is defined in the INA. There 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.
Section 1227(a)(2)(E)(i)’s language is broad and susceptible to multiple interpretations. Every circuit court to have considered it has noted its ambiguity. See Florez, 779 F.3d at 211 (“[W]e have little trouble concluding that the statutory provision is ambiguous.”); Ibarra, 736 F.3d at 910 (rejecting the BIA’s interpretation but only after acknowledging that “the statutory language is ambiguous”). We agree and therefore pass to step two.
896 F.3d at 987.