04-72417 | 9th Cir. | Oct 18, 2006
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT V ICTOR R AMON V ELAZQUEZ - H ERRERA ,
No. 04-72417 Petitioner, Agency No. v. A35-874-084 A LBERTO R. G ONZALES , Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 28, 2006—Seattle, Washington Filed October 19, 2006 Before: J. Clifford Wallace, Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges. Per Curiam Opinion 17643 17644 V ELAZQUEZ -H ERRERA v. G ONZALES
COUNSEL
Matthew B. Weber, Weber & Marks, PLLC, Seattle, Wash- ington, for the petitioner. Susan K. Houser and Leslie McKay (argued), Attorneys, Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
V ELAZQUEZ -H ERRERA v. G ONZALES 17645 OPINION PER CURIAM: Victor Ramon Velazquez-Herrera petitions for review of the decision of the Board of Immigration Appeals (BIA) adopting and affirming the decision of the Immigration Judge (IJ), who determined that petitioner’s conviction under Wash- ington’s fourth degree assault statute, Wash. Rev. Code § 9A.36.041, constituted a crime of child abuse under 8 U.S.C. § 1227(a)(2)(E)(i), thereby making petitioner remov- able and ineligible for discretionary relief. We grant the peti- tion and remand to the BIA so that it may issue a precedential decision defining what constitutes a crime of child abuse for purposes of § 1227(a)(2)(E)(i) and apply that definition to petitioner’s conviction in accordance with Taylor v. United States , 495 U.S. 575 (1990).
We have jurisdiction to review questions of law raised in a petition for review. See 8 U.S.C. § 1252(a)(2)(D). [1] The Immigration and Nationality Act does not define the term “child abuse” in 8 U.S.C. § 1227(a)(2)(E)(i) (“Any alien who at any time after admission is convicted of . . . a crime of child abuse . . . is deportable.”), nor has our case law defined the term as it is used in that statute. The BIA has described child abuse in another context as “[a]ny form of cruelty to a child’s physical, moral or mental well-being,” relying on Black’s Law Dictionary. See In re Rodriguez- Rodriguez , 22 I. & N. Dec. 991, 996 (BIA 1999) (alteration in original). This language, however, was dictum not essential to the Board’s holding, which concerned the definition of “sexual abuse of a minor.” Id.
The IJ in the case before us found that “assault on a child is abuse, even if it is only a minor touching, as comprehended by the statute, because of the unfair advantage that an adult has over a child . . . .” The IJ never mentioned Rodriguez- 17646 V ELAZQUEZ -H ERRERA v. G ONZALES Rodriguez in his decision. The BIA, in a short, nonpreceden- tial decision, “adopt[ed] and affirm[ed] the decision of the Immigration Judge.”
The Rodriguez-Rodriguez definition of child abuse — “cru- elty to a child’s physical, moral or mental well-being” — and the definition the IJ and the BIA adopted in this case are not entirely consistent. The source Rodriguez-Rodriguez con- sulted, Black’s Law Dictionary 405 (8th ed. 2004), defines “cruelty” as “[t]he intentional and malicious infliction of men- tal or physical suffering on a living creature.” Under Wash- ington law, fourth degree assault includes conduct such as nonconsensual, offensive touching or spitting. See State v. Aumick , 894 P.2d 1325, 1328 n.12 (Wash. 1995) (en banc); State v. Humphries , 586 P.2d 130, 133 (Wash. Ct. App. 1978). Therefore, Washington’s fourth degree assault statute criminalizes conduct that falls short of the “cruelty” standard in Rodriguez-Rodriguez . [1] In contrast, the IJ’s definition of child abuse that the BIA approved in this case is broader and would categorically classify all assaults against children as child abuse. So long as the victim is a child, a conviction under Washington’s fourth degree assault statute would there- fore fall within this second definition.
[2] We decline to reach the question whether either of these two definitions (or any other definition) is a permissible con- struction of 8 U.S.C. § 1227(a)(2)(E)(i) because neither the dictum in Rodriguez-Rodriguez nor the definition the BIA adopted in this case constitutes “a statutory interpretation that carries the ‘force of law.’ ” Miranda Alvarado v. Gonzales , 449 F.3d 915, 922 (9th Cir. 2006) (discussing United States [1] However, the definition of “child abuse” in the most recent Black’s Law Dictionary does not use the term “cruelty.” See Black’s Law Dictio- nary 10 (8th ed. 2004) (defining “child abuse” as “[i]ntentional or neglect- ful physical or emotional harm inflicted on a child, including child molestation” or alternatively as “[a]n act or failure to act that presents an imminent risk of serious harm to a child”).
V ELAZQUEZ -H ERRERA v. G ONZALES 17647 v. Mead Corp. , 533 U.S. 218" date_filed="2001-06-18" court="SCOTUS" case_name="United States v. Mead Corp.">533 U.S. 218, 226-27, 233 (2001)); see gener- ally Shivaraman v. Ashcroft , 360 F.3d 1142, 1145 (9th Cir. 2004) (“We review de novo an agency’s construction of a statute that it administers, subject to established principles of deference.”). Given that the Board has twice touched upon the issue of child abuse without authoritatively defining the term, and that the Board’s two definitions are not consistent with each other, we think it prudent to allow the BIA in the first instance to settle upon a definition of child abuse in a prece- dential opinion.
Accordingly, we GRANT the petition for review and REMAND this case to the BIA to allow it an opportunity to issue a precedential opinion regarding the definition of “child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). Cf. INS v. Ventura , 537 U.S. 12" date_filed="2002-11-04" court="SCOTUS" case_name="Immigration & Naturalization Service v. Ventura">537 U.S. 12, 16-17 (2002) (per curiam). We also REMAND so that the BIA may determine whether the full range of con- duct proscribed by Washington’s fourth degree assault statute falls within the definition of “child abuse” and, if necessary, may apply that definition to the conviction record in this case. See Taylor , 495 U.S. at 599-602; Cisneros-Perez v. Gonzales , 451 F.3d 1053, 1059 (9th Cir. 2006) (“Under the modified categorical approach, the IJ [and the BIA] could look only to the record of conviction . . . , not to the underlying facts.”).