Marcelo Martinez-Cedillo v. Jefferson Sessions , 896 F.3d 979 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCELO MARTINEZ-CEDILLO, No. 14-71742
AKA Marcelo Martinez,
Petitioner, Agency No.
A074-112-169
v.
JEFFERSON B. SESSIONS III, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 28, 2017
Pasadena, California
Filed July 23, 2018
Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit
Judges, and Susan Illston,* District Judge.
Opinion by Judge Bybee;
Dissent by Judge Wardlaw
*
The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
2 MARTINEZ-CEDILLO V. SESSIONS
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ determination that Marcelo Martinez-
Cedillo’s conviction for child endangerment, in violation of
California Penal Code § 273a(a), constitutes a crime of child
abuse that renders him removable under 8 U.S.C.
§ 1227(a)(2)(E)(i).
In 2008, Martinez-Cedillo was convicted of felony child
endangerment under California Penal Code § 273a(a) for
driving under the influence with a child in his car who was
not wearing a seatbelt.
In Matter of Velazquez-Herrera, 24 I. & N. Dec. 503
(BIA 2008), the Board interpreted the term ‘crime of child
abuse’ broadly to mean any offense involving an intentional,
knowing, reckless, or criminally negligent act or omission
that constitutes maltreatment of a child or that impairs a
child’s physical or mental well-being, including sexual abuse
or exploitation. In Matter of Soram, 25 I. & N. Dec. 378
(BIA 2010), the Board held that this definition is not limited
to offenses requiring proof of injury to the child and requires
a case-by-case analysis to determine whether the risk of harm
is sufficient to bring an offense within the definition of ‘child
abuse.’
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MARTINEZ-CEDILLO V. SESSIONS 3
The panel held that the Board’s interpretation in
Velazquez-Herrera and Soram is entitled to Chevron
deference. Applying that definition, the panel held that
California Penal Code § 273a(a) is a categorical match to the
crime of child abuse, neglect, or abandonment. The panel
also held that the Board’s interpretation applies retroactively
to Martinez-Cedillo’s 2008 conviction, which occurred before
the Board’s decisions in Velazquez-Herrera and Soram.
Dissenting, Judge Wardlaw would hold that the Board’s
interpretation is not entitled to Chevron deference, and that
even if it were, the new definition should not apply
retroactively to Martinez-Cedillo’s conviction.
COUNSEL
David Belaire Landry (argued), San Diego, California, for
Petitioner.
Brianne Whelan Cohen (argued), Senior Litigation Counsel;
John S. Hogan, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
4 MARTINEZ-CEDILLO V. SESSIONS
OPINION
BYBEE, Circuit Judge:
Marcelo Martinez-Cedillo was convicted of felony child
endangerment under California Penal Code § 273a(a) and
ordered removed on the grounds that his conviction qualified
as “a crime of child abuse, child neglect, or child
abandonment” under INA § 237(a)(2)(E)(i), 8 U.S.C.
§ 1227(a)(2)(E)(i). His petition for review requires us to
decide whether to defer to the Board of Immigration Appeals’
(“BIA’s”) interpretation of a crime of child abuse, neglect, or
abandonment under Chevron v. Natural Resources Defense
Council, 467 U.S. 837 (1984). Our sister circuits have split
on this precise issue. See Florez v. Holder, 779 F.3d 207 (2d
Cir. 2015) (deferring to the BIA); Ibarra v. Holder, 736 F.3d
903 (10th Cir. 2013) (not deferring); see also Mondragon-
Gonzalez v. Att’y Gen. of the United States, 884 F.3d 155 (3d
Cir. 2018) (deferring); Martinez v. U.S. Att’y Gen., 413 F.
App’x 163 (11th Cir. 2011) (deferring).
We join the Second Circuit in deferring to the BIA’s
reasonable interpretation. We further hold that California
Penal Code § 273a(a) is categorically a crime of child abuse,
neglect, or abandonment, as interpreted by the BIA. Finally,
we hold that the BIA’s interpretation applies retroactively to
Martinez-Cedillo’s conviction. Accordingly, we deny the
petition for review.
I. FACTUAL BACKGROUND
Marcelo Martinez-Cedillo is a citizen of Mexico and,
since 2005, has been a lawful permanent resident of the
United States. In August 2008, he was convicted of driving
MARTINEZ-CEDILLO V. SESSIONS 5
under the influence of alcohol (“DUI”) with two prior DUI
convictions. At the time of his final DUI, he had a child in
his car who was not wearing a seatbelt. For this reason, he
was also convicted of felony child endangerment under
California Penal Code § 273a(a).
The Department of Homeland Security initiated removal
proceedings on the grounds that Martinez-Cedillo’s
conviction under California Penal Code § 273a(a) was a
crime of child abuse, neglect, or abandonment under
§ 1227(a)(2)(E)(i). An Immigration Judge (“IJ”) entered a
final order of removal, which Martinez-Cedillo appealed to
the BIA, arguing that (1) California Penal Code § 273a(a) is
not a crime of child abuse, neglect, or abandonment, and
(2) he should be allowed to apply for cancellation of removal
under 8 U.S.C. § 1229b.
The BIA affirmed in part and remanded in part. The BIA
held that California Penal Code § 273a(a) was categorically
a crime of child abuse, neglect, or abandonment under its
prior interpretation of that phrase in two precedential
opinions: Matter of Velazquez-Herrera, 24 I. & N. Dec. 503
(BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA
2010). Nevertheless, the BIA remanded for the IJ to consider
Martinez-Cedillo’s eligibility for cancellation of removal.
On remand, Martinez-Cedillo initially requested
cancellation of removal but later conceded that recent
authority defeated his request. He then, for the first time,
moved for a continuance of removal proceedings based on a
pending visa petition his father had submitted on his behalf.
The IJ denied his motion for a continuance and again entered
a final order of removal. Martinez-Cedillo appealed to the
BIA a second time, and this time, the BIA affirmed in full.
6 MARTINEZ-CEDILLO V. SESSIONS
Martinez-Cedillo now petitions our court for review,
arguing that (1) the BIA’s interpretation of a crime of child
abuse, neglect, or abandonment to encompass criminally
negligent acts that do not result in actual injury to a child is
unreasonable; (2) California Penal Code § 273a(a) is not
categorically a crime of child abuse, neglect, or abandonment
even under the BIA’s interpretation; (3) the BIA’s
interpretation should not apply retroactively to his 2008
conviction; and (4) denial of his motion for a continuance was
an abuse of discretion.
We first review the history of the BIA’s interpretation of
§ 1227(a)(2)(E)(i), and then address each of Martinez-
Cedillo’s arguments in turn.
II. THE BIA’S INTERPRETATION
A. Rodriguez-Rodriguez
In 1996, Congress enacted the Illegal Immigration
Reform and Immigrant Responsibility Act (“IIRIRA”), which
added § 1227(a)(2)(E)(i) to the INA and made “a crime of
child abuse, child neglect, or child abandonment” a
deportable offense. Two years later, the BIA made a passing
reference to § 1227(a)(2)(E)(i) in Rodriguez-Rodriguez, 22 I.
& N. Dec. 991 (BIA 1999). At issue in that case was
8 U.S.C. § 1101(a)(43)(a), which makes “sexual abuse of a
minor” an “aggravated felony” for purposes of 8 U.S.C.
§ 1227(a)(2)(A)(iii). The BIA held that Texas’s offense of
indecency with a child was “sexual abuse of a minor” and
thus an aggravated felony under § 1227(a)(2)(A)(iii), even
though the Texas statute did not require physical contact with
a child. The BIA reasoned that the term “sexual abuse of a
MARTINEZ-CEDILLO V. SESSIONS 7
minor,” like the term “child abuse” in § 1227(a)(2)(E)(i),
could refer to conduct that did not involve physical contact:
We note that in including child abuse as a
ground of removal in section 237(a)(2)(E)(i)
of the Act, Congress likewise did not refer to
a particular statutory definition, although in
the same section it did designate a statutory
definition for the term “crime of domestic
violence.” By its common usage, “child
abuse” encompasses actions or inactions that
also do not require physical contact. See
[Child Abuse, BLACK’S LAW DICTIONARY
(6th ed. 1990)] (defining child abuse as “(a)ny
form of cruelty to a child’s physical, moral or
mental well-being”).
Id. at 996. Rodriguez’s passing reference to child abuse was
dictum and did not purport to offer a precedential
interpretation of what constitutes a crime of child abuse,
neglect, or abandonment under § 1227(a)(2)(E)(i).
For several years following Rodriguez, the BIA never
interpreted the phrase “a crime of child abuse, child neglect,
or child abandonment” in a precedential opinion, and its
unpublished decisions on the subject were equivocal. Some
unpublished decisions during this period stated that “child
abuse” means “the physical or mental injury, sexual abuse or
exploitation, or negligent treatment of a child.” In re Palfi,
2004 WL 1167145 (BIA 2004); In re Baez-Cazarez,
2004 WL 2952229 (BIA 2004). Other unpublished decisions
hewed to the Black’s Law Dictionary definition of “child
abuse” as “any form of cruelty to a child’s physical, moral or
mental well-being.” In re Pacheco Fregozo, 2005 WL
8 MARTINEZ-CEDILLO V. SESSIONS
698590 (BIA 2005); In re Maltez-Salazar, 2005 WL 952489
(BIA 2005); In re Manzano-Hernandez, 2005 WL 698392
(BIA 2005). In short, the BIA’s interpretation of a crime of
child abuse, neglect, or abandonment was unclear at this time.
B. Velazquez-Herrera
In 2006, we considered the BIA’s holding that a
conviction for assaulting a child under Washington’s fourth-
degree assault statute was a crime of child abuse. Velazquez-
Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006). We
recognized that the BIA had previously used at least two
definitions of “child abuse,” which were “not entirely
consistent” with each other. Id. at 783. We held that the
“cruelty” definition cited in Rodriguez’s dictum was not “a
statutory interpretation that carries the ‘force of law’” and
accordingly remanded “to allow the BIA in the first instance
to settle upon a definition of child abuse in a precedential
opinion.” Id. at 782–83.1
The BIA followed our instructions and, in May 2008,
issued its first precedential interpretation of what constitutes
a crime of child abuse. Velazquez, 24 I. & N. Dec. 503. The
BIA reasoned that, although § 1227(a)(2)(E)(i) defined “a
crime of domestic violence,” “other operative terms,
including ‘crime of child abuse,’ were left undefined,
1
Around this same time, two other Circuit Courts of Appeals reached
a different result. The Eighth and Tenth Circuits considered the “cruelty”
definition of “child abuse” and—even though the BIA had never adopted
it in a precedential opinion—held the definition reasonable and deserving
of deference. Loeza-Dominguez v. Gonzalez, 428 F.3d 1156 (8th Cir.
2005); Ochieng v. Mukasey, 520 F.3d 1110 (10th Cir. 2008). Neither
court took into account—as we did, correctly—that the “cruelty”
definition cited in Rodriguez was merely dictum.
MARTINEZ-CEDILLO V. SESSIONS 9
triggering the negative inference that Congress deliberately
left them open to interpretation.” Id. at 508. The BIA further
observed that, “[i]n view of the fact that [§ 1227(a)(2)(E)(i)]
is the product of a significant expansion of the grounds of
deportability and was aimed at facilitating the removal of
child abusers in particular,” Congress intended a crime of
child abuse to be interpreted “broadly in this context.” Id. at
509.
The BIA considered various federal statutes defining
“child abuse” and related concepts as of the date Congress
enacted IIRIRA and found that “the weight of Federal
authority . . . reflected an understanding that ‘child abuse’
encompassed the physical and mental injury, sexual abuse or
exploitation, maltreatment, and negligent or neglectful
treatment of a child.” Id. at 511. The BIA also considered
state criminal and civil statutes, concluding that “there was a
growing acceptance by 1996 that the concept of ‘child abuse’
included not just intentional infliction of physical injury, but
also acts of sexual abuse or exploitation, criminally negligent
acts, or acts causing mental or emotional harm.” Id. Finally,
the BIA noted that the most recent edition of Black’s Law
Dictionary—as opposed to the prior edition cited in
Rodriguez—defined “child abuse” as “[i]ntentional or
neglectful physical or emotional harm inflicted on a child,
including sexual molestation.” Id. (quoting Abuse, BLACK’S
LAW DICTIONARY (8th ed. 2004)).2
2
Black’s Law Dictionary had changed significantly between the two
decisions. The 6th edition published in 1990 and cited in Rodriguez had
not been fully modernized. The 7th edition published in 1999 (not long
after Congress passed IIRIRA) was the first to be edited by Brian A.
Garner and represented a “major overhaul” designed to bring Black’s into
conformance with modern developments in the law. Preface to the
Seventh Edition, BLACK’S LAW DICTIONARY (7th ed. 1999); see also Sarah
10 MARTINEZ-CEDILLO V. SESSIONS
Based on these considerations, the BIA “interpret[ed] the
term ‘crime of child abuse’ broadly to mean any offense
involving an intentional, knowing, reckless, or criminally
negligent act or omission that constitutes maltreatment of a
child or that impairs a child’s physical or mental well-being,
including sexual abuse or exploitation.” Id. at 512. The BIA
went on to note that:
At a minimum, this definition encompasses
convictions for offenses involving the
infliction on a child of physical harm, even if
slight; mental or emotional harm, including
acts injurious to morals; sexual abuse,
including direct acts of sexual contact, but
also including acts that induce (or omissions
that permit) a child to engage in prostitution,
pornography, or other sexually explicit
Yates, Black’s Law Dictionary: The Making of an American Standard,
103 Law Libr. J. 175, 197 (2011) (“Garner’s revision of Black’s was, in
fact, more of a rewriting than a revision.”). Accordingly, the 7th edition
changed the definition of “child abuse” to cover both “intentional” and
“neglectful” conduct. Abuse, BLACK’S LAW DICTIONARY (7th ed. 1999).
The 8th edition, published in 2004, continued in the same direction by
adding a second definition of “child abuse” as “[a]n act or failure to act
that presents an imminent risk of serious harm to a child.” Abuse,
BLACK’S LAW DICTIONARY (8th ed. 2004). Black’s progression between
1990 and 2004 toward greater recognition of criminally negligent “child
abuse” validates the BIA’s observation in Velazquez that “there was a
growing acceptance by 1996 that the concept of ‘child abuse’ included not
just intentional infliction of physical injury, but also . . . criminally
negligent acts.” 24 I. & N. Dec. at 511. The same progression also
validates the BIA’s finding that, to the extent the word “cruelty” in the
1990 definition “implied that an abusive act must be committed with the
specific intent to inflict suffering on a child, it was contrary to the weight
of Federal and State authority in effect in 1996, under which criminally
negligent acts sufficed.” Id. at 511 n.13.
MARTINEZ-CEDILLO V. SESSIONS 11
conduct; as well as any act that involves the
use or exploitation of a child as an object of
sexual gratification or as a tool in the
commission of serious crimes, such as drug
trafficking.
Id. (emphasis added). Significantly, however, the BIA did
not address whether a crime of child abuse required actual
injury to a child. A concurring opinion noted this very fact:
“It should be noted that, 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, concurring).
C. Pacheco Fregozo
We had our first opportunity to address Velazquez’s
definition of a crime of child abuse in Pacheco Fregozo v.
Holder, 576 F.3d 1030, 1033 (9th Cir. 2009). Ernesto
Pacheco Fregozo had been arrested for driving under the
influence of alcohol with two children in his car and
convicted of misdemeanor child endangerment under
California Penal Code § 273a(b). Id. at 1033–34. The BIA
held in an unpublished opinion—issued before it decided
Velazquez—that Pacheco Fregozo’s conviction was
categorically a crime of child abuse under the “cruelty”
definition cited in Rodriguez. Id. at 1034.
In granting Pacheco Fregozo’s petition for review, we
acknowledged that the BIA had recently interpreted “a crime
of child abuse” in Velazquez but held that it was unnecessary
12 MARTINEZ-CEDILLO V. SESSIONS
to remand for the BIA to apply Velazquez in the first instance.
Id. at 1036 (“We are convinced that a remand is not necessary
in this case. Aside from according Chevron deference to the
Board’s interpretation of a ‘crime of child abuse’ in the INA,
which we do, we review de novo whether the California
conviction is a removable offense.”). We interpreted
Velazquez as requiring conduct that “actually inflict[s] some
form of injury on a child,” without explaining where the
BIA’s decision imposed such a requirement. Id. at 1037.
Based on that questionable reading of Velazquez, we then
concluded that California Penal Code § 273a(b) was not a
categorical match for § 1227(a)(2)(E)(i) because it reached
conduct that “creates only potential harm to a child; no actual
injury to a child is required.” Id. at 1036–38.
We also held that § 273a(b) was not a categorical match
for a crime of child abuse for an independent reason. Unlike
the felony provision in the same statute, § 273a(b) does not
require “any particular likelihood of harm to a child”:
[U]nlike the analogous felony provision,
California Penal Code section 273a(a), the
misdemeanor provision [in section 273a(b)]
does not require that the perpetrator actually
endanger the health or safety of the child at
all—the misdemeanor provision applies where
the child’s health or safety “may be
endangered” by the circumstances. The
BIA’s definition of “child abuse,” requiring
some actual injury to a child, does not reach
conduct that merely could place a child’s
health and safety at risk.
MARTINEZ-CEDILLO V. SESSIONS 13
. . . . Negligent or intentional conduct that
places a child in situations in which serious
harm is imminently likely could fairly
constitute “impairment” of a child’s well-
being. The misdemeanor California statute
under which Pacheco was convicted,
however, does not conform to the alternative
definition, as it applies “under circumstances
or conditions other than those likely to
produce great bodily harm or death.” Cal.
Penal Code § 273a(b) (emphasis added).
Id. at 1037–38. This alternative basis for our holding in
Pacheco Fregozo appears to have been in tension with the
first, as it implied that Velazquez did not require actual injury
but only actual endangerment. At the very least, our
discussion in this regard suggested that, even though
misdemeanor child endangerment under § 273a(b) was not a
categorical match for a crime of child abuse as defined in
Velazquez, felony child endangerment under § 273a(a) likely
was.
D. Soram
The following year, the BIA responded to our decision in
Pacheco Fregozo. In Matter of Soram, the BIA “respectfully
clarif[ied] that the term ‘crime of child abuse,’ as described
in Velazquez-Herrera is not limited to offenses requiring
proof of injury to the child”:
[T]he United States Court of Appeals for the
Ninth Circuit has issued a decision addressing
this question. Fregozo v. Holder, 576 F.3d
1030 (9th Cir. 2009). The court interpreted
14 MARTINEZ-CEDILLO V. SESSIONS
our decision in Matter of Velazquez-Herrera
to require that a child must actually be injured
for a crime to constitute child abuse. . . .
However, as indicated above, we did not
directly address this issue in Velazquez-
Herrera. We do so now and find no
convincing reason to limit offenses under
section 237(a)(2)(E) of the Act to those
requiring proof of actual harm or injury to the
child.
25 I. & N. Dec. 378, 380–81 (BIA 2010). At the same time,
the BIA also clarified that “the phrase ‘a crime of child abuse,
child neglect, or child abandonment’ in section
237(a)(2)(E)(i) of the Act denotes a unitary concept and [its]
broad definition of child abuse [in Velazquez] describes this
entire phrase.” Id. at 381.
The BIA reasoned that “[a]s recently as July 2009, some
38 States [and several territories] . . . included in their civil
definition of ‘child abuse,’ or ‘child abuse or neglect,’ acts or
circumstances that threaten a child with harm or create a
substantial risk of harm to a child’s health or welfare.” Id. at
382. In this respect, the BIA noted that “endangering a child
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. at 381. A concurring opinion added
that: “A review of the criminal child abuse statutes of the
various States reveals that as of September 1996, a majority
of States—28—had criminal provisions punishing child
endangerment offenses as part of their criminal child abuse
statutes.” Id. at 388 (Filppu, concurring).
MARTINEZ-CEDILLO V. SESSIONS 15
The BIA also acknowledged that, although a crime of
child abuse, neglect, or abandonment required only a risk of
injury to a child, the risk had to be sufficiently great—thus
placing an outer limit on its broad definition. Id. at 382–83.
The BIA noted that different state statutes used different
terms (e.g., “realistic,” “serious,” or “substantial”) to describe
the requisite level of risk, and that even statutes with similar
terms were interpreted differently by various state courts. Id.
Rather than attempt to analyze “the myriad State formulations
of endangerment-type child abuse offenses” all at once, the
BIA decided a case-by-case analysis was appropriate “to
determine whether the risk of harm by the endangerment-type
language . . . is sufficient to bring an offense within the
definition of ‘child abuse’ under the Act.” Id. at 383.
Contrary to what the dissent argues, Dissenting Op. at 38,
Soram did not reflect a change in the BIA’s position but
rather addressed an issue that Velazquez had left open. The
concurring opinion in Velazquez had expressly noted that
whether a crime of child abuse required actual injury to a
child remained an open question. Moreover, Soram
responded to our court’s misinterpretation of the BIA’s prior
decision. Despite what we said in Pacheco Fregozo, the
BIA’s decision in Velazquez nowhere intimated that child
abuse required actual injury. At most, it noted that, “[a]t a
minimum,” child abuse included physical harm “even if
slight,” as well as mental or emotional harm, acts injurious to
morals, and use of a child “as an object of sexual
gratification.” Velazquez, 24 I. & N. Dec. at 512. The BIA’s
correction of our misinterpretation was not a change in
position but rather a clarifying, gap-closing measure.
16 MARTINEZ-CEDILLO V. SESSIONS
III. CHEVRON DEFERENCE
We apply Chevron’s two-step framework to the BIA’s
construction of the INA in precedential decisions. See, e.g.,
Reyes v. Lynch, 842 F.3d 1125, 1133 (9th Cir. 2016). “Under
the first step, we determine whether Congress has directly
spoken to the precise question at issue.” Perez-Guzman v.
Lynch, 835 F.3d 1066, 1073–74 (9th Cir. 2016) (quotation
marks omitted). If “Congress has not spoken to a particular
issue or the statute is ambiguous,” we pass to the second step
and consider the agency’s interpretation of the statute. Id. If
the “agency’s construction is reasonable, Chevron requires a
federal court to accept the agency’s construction of the
statute, even if the agency’s reading differs from what the
court believes is the best statutory interpretation.” Id.
(quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 980 (2005)).
A. Chevron Step One
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
MARTINEZ-CEDILLO V. SESSIONS 17
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.
B. Chevron Step Two
Step two is where our sister circuits have split. In Florez,
the Second Circuit held that the BIA’s interpretation was
reasonable and entitled to deference. 779 F.3d 207.3 Similar
to the instant case, Nilfor Yosel Florez had been convicted of
child endangerment under New York law for driving under
the influence with children in his car and had been ordered
removed under § 1227(a)(2)(E)(i). Id. at 208. The Second
Circuit reasoned that, as of 1996 when Congress passed
IIRIRA, “at least nine states had crimes called ‘child abuse’
(or something similar) for which injury was not a required
element.” Id. at 212. Although “even more states used a
definition that did require injury,” courts must not “look[ ] for
the best interpretation, or the majority interpretation—only a
reasonable one.” Id. The Second Circuit concluded that the
BIA acted reasonably in adopting a definition of child abuse
“consistent with the definitions used by the legislatures of
Colorado, Kentucky, Nebraska, New Jersey, New Mexico,
North Carolina, Ohio, Oklahoma, and Virginia.” Id.
3
The Third Circuit has twice reached this same conclusion in
unpublished opinions. Mondragon-Gonzalez, 884 F.3d at 159; Hackshaw
v. Att’y Gen. of the United States, 458 F. App’x 137, 138 (3d Cir. 2012).
In addition, the Eleventh Circuit has deferred to the BIA’s interpretation
in an unpublished opinion, where the parties did not dispute the
interpretation’s reasonableness. Martinez, 413 F. App’x 167.
18 MARTINEZ-CEDILLO V. SESSIONS
Moreover, Black’s Law Dictionary offered a definition of
“child abuse” that did not require injury. Id. (citing Abuse,
BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “child
abuse” as “[a]n act or failure to act that presents an imminent
risk of serious harm to a child”)). Finally, Soram’s
requirement of a sufficiently high risk of harm to a child
ensured that the BIA’s treatment of child-endangerment
statutes would remain “within the realm of reason.” Id.
In Ibarra, the Tenth Circuit reached the opposite
conclusion. The facts were extraordinarily sympathetic: Elia
Ibarra had unintentionally left her children home alone one
evening while she was at work and, as a result, had been
convicted of “child abuse—negligence—no injury” under
Colorado law. 736 F.3d at 905. In subsequent removal
proceedings, Ibarra conceded removability but sought
cancellation of removal. Id. The BIA held her ineligible for
cancellation on grounds that her conviction was a crime of
child abuse, neglect, or abandonment. Id. at 906. The Tenth
Circuit criticized the BIA for relying “primarily on
definitions of ‘child abuse’ and ‘child neglect’ from civil, not
criminal, law.” Id. at 912. The court held that the BIA
should have identified “the majority of states’ consensus as
of [the year Congress enacted IIRIRA] . . . to find the generic
meaning of criminal child abuse.” Id. at 914 (quotation
marks omitted). The court then did its own fifty-state survey
of state criminal laws, concluding that the majority of states
(thirty-three) required a higher mens rea than criminal
negligence for conviction of an offense not involving actual
injury to a child. Id. at 915. On this basis, the court rejected
the BIA’s interpretation of a crime of child abuse, neglect, or
abandonment as unreasonable. Id. at 915–16.
 MARTINEZ-CEDILLO V. SESSIONS 19
We agree with the Second Circuit and likewise hold that
the BIA’s interpretation of § 1227(a)(2)(E)(i) is reasonable
and entitled to deference. Velazquez and Soram are careful
decisions, and although they may not represent the only
permissible construction of the statutory language at issue,
the BIA was not unreasonable for the same reasons identified
by the Second Circuit. That the BIA’s interpretation does not
require intentional or actual injury to a child—the critical
distinctions in this case—would perhaps be troubling if the
BIA were only interpreting the term “child abuse,” but the
term “child neglect” surely admits of such conduct. See
Neglect, BLACK’S LAW DICTIONARY (10th ed. 2014)
(defining “child neglect” as “[t]he failure of a person
responsible for a minor to care for the minor’s emotional or
physical needs;” and defining “willful neglect” as “intentional
or reckless failure to carry out a legal duty, esp. in caring for
a child”).
Even as we agree with the Second Circuit, we decline to
follow the Tenth Circuit’s reasoning because we find it
flawed. First, there is no inherent problem in the BIA relying
partly on civil statutes to understand the phrase “a crime of
child abuse, child neglect, or child abandonment.” It would
be unreasonable for the BIA to interpret that phrase, which
refers to one who is “convicted of a crime,” to cover a purely
civil action, such as child neglect proceedings brought by a
state’s child protective services. We thus agree with the
dissent that it would be improper for the BIA to use “a civil
definition for a crime.” Dissenting Op. at 50; see also id. at
42, 49–50. But that is not what the BIA did. Rather, the BIA
used civil definitions to inform its understanding of which
convictions are crimes of child abuse, neglect, or
abandonment, and that is not unreasonable.
20 MARTINEZ-CEDILLO V. SESSIONS
A phrase such as “child neglect” surely can serve both
civil and criminal purposes, and there is nothing unreasonable
in trying to find a definition that would serve both
simultaneously. That the BIA looked to civil definitions of
abuse and neglect does not detract from the fact that an
alien’s deportability depends on having been convicted of a
crime. The only question is what crimes constitute child
abuse, neglect, or abandonment, and for that the BIA was
well within reason to look to civil definitions. In fact, civil
law makes a particularly apt comparison here: parental rights
adjudicated in civil child neglect proceedings implicate
serious due process concerns, and courts have sometimes
referred to terminating parental rights as a “civil death
penalty,” see, e.g., In re K.A.W., 133 S.W.3d 1, 12 (Mo.
2004); In re K.D.L., 58 P.3d 181, 186 (Nev. 2002), and have
required the state to satisfy a heightened burden of proof
before terminating those rights, see, e.g., In re E.A.F.,
424 S.W.3d 742, 746 (Tex. Ct. App. 2014); In re B.A.C.,
317 S.W.3d 718, 723–24 (Tenn. Ct. App. 2009).
Second, there is no requirement that the BIA interpret a
generic offense in the INA to conform to how the majority of
states might have interpreted that term at the time of
amendment. That is one reasonable aid to interpreting
statutes, but it is not the only reasonable method for doing
so.4 Contrary to the Tenth Circuit’s argument, the Supreme
4
The dissent cites several cases for the proposition that a survey of
state laws may be helpful in interpreting federal law—a proposition we do
not dispute. Dissenting Op. at 52–53. For example, the Supreme Court
surveyed state criminal codes to supply “additional evidence about the
generic meaning of sexual abuse of a minor.” Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1571 (2017). The Court ultimately found the
phrase unambiguous at Chevron step one, id. at 1572, but noted that
surveying state law, though “not required,” “can be useful insofar as it
MARTINEZ-CEDILLO V. SESSIONS 21
Court’s decision in Taylor has no bearing on this issue. See
Ibarra, 736 F.3d at 913 (“Taylor instructs courts to find that
‘generally accepted contemporary meaning’ by looking to
‘the criminal codes of most States.’”). In Taylor, the Court
interpreted the word “burglary” in a federal sentence
enhancement statute and determined “that Congress meant by
‘burglary’ the generic sense in which the term is now used in
the criminal codes of most States.” 495 U.S. at 598. The
Court relied on the “generally accepted contemporary
meaning” and looked to elements common to the state
definitions. Id. at 596, 598. The Court was not, however,
reviewing an agency’s interpretation of an ambiguous statute
and did not purport to offer any guidance to lower courts
employing Chevron’s two-step framework. Nothing in
Taylor requires that the BIA conduct a fifty-state survey and
agree with the majority approach among the states every time
helps shed light on the common understanding and meaning of the federal
provision being interpreted.” Id. at 1571 n.3 (citation and quotation marks
omitted)). None of the cases cited by the dissent suggest that the majority
approach among states is the only reasonable way of interpreting an
ambiguous generic offense. Notably, almost all of the cases that the
dissent cites in this regard do not involve Chevron deference at all but are
instead instances of a court interpreting a statute in the first instance. See,
e.g., Nijhawan v. Holder, 557 U.S. 29, 47 (2009); United States v. Garcia-
Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015); United States v. Esparza-
Herrera, 557 F.3d 1019, 1025 (9th Cir. 2009).
Elsewhere, the dissent calls into question whether the BIA—or any
agency—should receive deference from the courts in interpreting statutes.
See Dissenting Op. at 53 (citing Pereira v. Sessions, No. 17-459, slip op.
at 2 (Kennedy, J., concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d
1142, 1149, 1152, 1156 (10th Cir. 2016) (Gorsuch, J., concurring)). The
origins and legitimacy of the Chevron doctrine provide interesting fodder
for further thought, see Aditya Bamzai, The Origins of Judicial Deference
to Executive Interpretation, 126 Yale L.J. 908 (2017), but revisiting
Chevron is beyond our power.
22 MARTINEZ-CEDILLO V. SESSIONS
it interprets an ambiguous generic offense in the INA. And
recently the Court has referred to this methodology as an “aid
[to] our interpretation . . . offering useful context.” Esquivel-
Quintana, 137 S. Ct. at 1571 n.3. The BIA’s statutory
construction is not constrained to a mere head-counting
exercise.
Taylor’s methodology worked in context: “burglary” is a
well-recognized legal term in the common law, the MPC, and
state law.5 By contrast, child abuse, neglect, and
abandonment are not common law crimes; they are twentieth-
century crimes. According to Black’s Law Dictionary, the
first prosecution for child abuse was in 1874, when “[a]n
eight-year-old girl named Mary Ellen was found to have been
severely abused. Her abusers were prosecuted under the law
for prevention of cruelty to animals since no law protecting
children then existed.” Abuse, BLACK’S LAW DICTIONARY
(10th ed. 2014) (emphasis added). Similarly, the MPC offers
virtually no clue to the terms in § 1227(a)(2)(E)(i). See MPC
5
Similarly, our decision in United States v. Garcia-Santana employed
Taylor’s methodology to interpret the term “conspiracy”—a term that,
much like “burglary,” has a long history in the common law and is the
subject of wide modern consensus. 774 F.3d 528, 534–35 (9th Cir. 2014).
In Garcia-Santana, we surveyed definitions of conspiracy in state and
federal statutes, the Model Penal Code (“MPC”), and scholarly
commentary and concluded that all of these indicia pointed toward an
overt act element in the generic definition of conspiracy. Id. In light of
this widespread agreement on conspiracy requiring an overt act, we
concluded that the BIA’s contrary interpretation was not entitled to
deference. Id. at 542. We did not hold, however, that Taylor prescribes
the exclusive methodology for interpreting the INA’s language in every
case—and certainly not the exclusive methodology for interpreting the
language at issue here. Unlike conspiracy, there is significant ambiguity
in the phrase a crime of child abuse, neglect, or abandonment, as every
court to consider the issue has recognized.
MARTINEZ-CEDILLO V. SESSIONS 23
§ 230.4 (Endangering Welfare of Children). The notes to the
MPC explain: “The crimes of endangering the welfare of
children and persistent nonsupport represent substantial
modification and consolidation of offenses that were
variously treated in prior law and that have also received
widely differing treatment in recent revisions.” MPC Pt. II,
Art. 230, Refs. & Annos. (emphasis added).
Moreover, states have developed different and varied
terms in this area, thus complicating Congress’s task in
describing what crimes involving children count as crimes of
child abuse, neglect, or abandonment. Indeed, it seems that
Congress purposefully employed the overlapping concepts of
child abuse, neglect, and abandonment to denote a broad
array of crimes. As a BIA member’s concurring opinion in
Velazquez noted, “crimes of child neglect or abandonment are
a subset of ‘child abuse’ and, although technically redundant,
were likely inserted by Congress to assure coverage of such
crimes, however denominated by the State.” 24 I. & N. Dec.
at 519 (Pauley, concurring) (emphasis added). In short, the
lack of a common source for the terms and the varied ways in
which states have addressed the problem of child
abuse—however it is denominated—only reinforces the
ambiguity in what constitutes a crime of child abuse, neglect,
or abandonment. It is precisely because of that ambiguity
that we must proceed to Chevron step two, where there is no
single methodology for resolving ambiguity in a statute.
Third, the Tenth Circuit’s ambitious, fifty-state survey
was itself problematic. The court categorized state laws
according to the minimum mens rea they required for
24 MARTINEZ-CEDILLO V. SESSIONS
conviction of a crime not resulting in injury to a child.6 It
found twenty-seven jurisdictions requiring “a minimum mens
rea of knowingness or intent for crimes not appearing to
require a resulting injury to the child;” six requiring “a
minimum mens rea of criminal negligence for crimes not
requiring a resultant injury;” eleven requiring “criminal
negligence” or something less for crimes not a resultant
injury; and five that had no clear standard. Id. at 915,
918–21. The court concluded that, because “a clear majority
of states did not criminalize such conduct when it was
committed with only criminal negligence and resulted in no
injury,” the BIA’s construction of § 1227(a)(2)(E)(i) fell
“outside the interpretive ‘gap’ left by Congress.” Id. at 918.
The Tenth Circuit’s methodology fails even under its own
rules, and we need look no further than the California statute
at issue here. According to the Tenth Circuit, § 273a(a)
“required a minimum mens rea of knowingness or intent for
crimes not appearing to require a resulting injury to the
child.” Ibarra, 736 F.3d at 918. The Tenth Circuit therefore
included California in its “majority” of states that supposedly
contradicted the BIA’s interpretation. According to the
6
The Tenth Circuit included in its survey crimes labeled “child
abuse,” “child neglect,” and “child abandonment” because these were
“well-known terms of art” that Congress employed. Id. at 914. The court
also added “child endangerment,” “cruelty to children,” and “unlawful
conduct toward child” to its survey because they “reflect[ed] the ‘cluster
of ideas’ behind the terms Congress actually used.” Id. But it chose not
to include crimes of “nonsupport,” “contributing to delinquency,”
“enticement,” or “other sundry crimes involving children that state
criminal codes may include.” Id. The court made no real effort to explain
these seemingly arbitrary distinctions. In any event, it strikes us as very
odd that the court would feel free to add phrases to a statutory list of
“well-known terms of art.”
MARTINEZ-CEDILLO V. SESSIONS 25
California Supreme Court, however, California Penal Code
§ 273a(a) requires only a minimum mens rea of “criminal
negligence.” People v. Valdez, 42 P.3d 511, 517 (Cal. 2002)
(“[F]or 25 years, the lower courts have identified criminal
negligence as the relevant standard of culpability for section
273a . . . , and this court has applied that same standard.”).
The Tenth Circuit’s mistake in this regard reinforces that a
fifty-state survey—particularly one of difficult to discern
mens rea categories—is not the only reasonable way to
interpret the INA.
Fourth, an agency need not give an answer to every
conceivable question in one decision. The BIA noted in
Soram that different state statutes employ different language
regarding their requisite level of risk and that even similar
statutes have been interpreted differently by various state
courts. 25 I. & N. Dec. at 382–82. Further, the BIA held that
the risk of injury to a child must be sufficiently great, and it
carefully explained why the Colorado statute at issue met that
requirement. Id. at 383–86. It was reasonable for the BIA to
decline to analyze all at once “whether the myriad State
formulations of endangerment-type child abuse offenses
come within the ambit of ‘child abuse’ under . . . the Act.”
Id. at 383. Indeed, the Tenth Circuit’s flawed fifty-state
survey shows the danger of a contrary approach.7
7
In this regard, we disagree with the dissent’s suggestion that the
BIA’s definition “is so imprecise, it violates ‘essential’ tenets of due
process,” such as the void-for-vagueness doctrine. Dissenting Op. at 41
(quoting Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018)). The
Supreme Court’s decision in Dimaya does not support the dissent’s
position. There, the Court held that the residual clause incorporated in
§ 1101(a)(43)(f)’s definition of “a crime of violence” was void for
vagueness. 138 S. Ct. at 1216. The residual clause made any “offense
that is a felony and that, by its nature, involves a substantial risk that
26 MARTINEZ-CEDILLO V. SESSIONS
Finally, this is not a case of the BIA changing positions
without explaining its rationale for doing so. For one, the
BIA did not change its position: Rodriguez’s brief discussion
of § 1227(a)(2)(E)(i) was dictum; Velazquez gave the first
precedential interpretation of § 1227(a)(2)(E)(i) but left the
issue of actual injury undecided; and Soram merely filled the
gap that Velazquez left open. The dissent’s strained reading
of Rodriguez and Velazquez tries to hold the BIA to an
interpretation that was never in fact the agency’s position.
More importantly, even if one thought the BIA had changed
its position, the BIA has explained its reasoning. See Brand
X, 545 U.S. at 981. It is only an “[u]nexplained
inconsistency” that is a reason for finding an interpretation
unreasonable. Id.; Encino Motorcars, LLC v. Navarro, 136 S.
Ct. 2117, 2125–26 (2016). Indeed, in Chevron itself, the
Supreme Court “deferred to an agency interpretation that was
a recent reversal of agency policy.” Brand X, 545 U.S. at 981
(citing Chevron, 467 U.S. at 857–58). The BIA’s
interpretation in Soram was a response to our decision in
Pacheco Fregozo and gave sufficient reason for why the
agency believed a crime of child abuse, neglect, or
abandonment did not require proof of actual injury. This was
physical force against the person or property of another” a deportable
offense. Id. at 1211 (quoting 18 U.S.C. § 16(b)). Here, although
§ 1227(a)(2)(E)(i) is ambiguous, neither the parties nor any prior court has
suggested that the statute is somehow void for vagueness. Indeed, the
dissent takes no issue with the statute itself but only with the BIA’s
interpretation of it. By interpreting § 1227(a)(2)(E)(i), the BIA gave more
specificity to the statute, not less.
MARTINEZ-CEDILLO V. SESSIONS 27
not a change in the BIA’s position, but even if it had been, it
was suitably explained.8
In sum, we hold that the BIA’s interpretation of a crime
of child abuse, neglect, or abandonment in Velazquez and
Soram is a reasonable construction of ambiguous statutory
language. We therefore join the Second Circuit in deferring
to the BIA’s interpretation.
IV. THE CATEGORICAL APPROACH
We next consider whether Martinez-Cedillo’s conviction
under California Penal Code § 273a(a) is categorically a
crime of child abuse, neglect, or abandonment, as interpreted
by the BIA. We apply Skidmore deference to the BIA’s
nonprecedential holding in this case that § 273a(a) is
categorically such a crime. See Marmolejo-Campos v.
Holder, 558 F.3d 903, 909 (9th Cir. 2009). “Under Skidmore,
the measure of deference afforded to the agency varies
depending upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and
later pronouncements, and all those factors which give it
8
The dissent argues that the BIA in Soram “reversed its own long-
standing precedent instructing that the generic definition of a federal crime
should reflect a uniform, national standard.” Dissenting Op. at 45. To the
contrary, Soram reaffirmed that “the term ‘crime of child abuse’ will be
determined by reference to a ‘flexible, uniform standard . . . .’” 25 I. & N.
Dec. at 381 (quoting Velazquez, 24 I. & N. Dec. at 508). Soram retained
the same uniform, national definition that the BIA had adopted in
Velazquez, while clarifying that the definition admitted of child
endangerment offenses. The fact that the BIA chose not to apply its
uniform, national definition to every state child endangerment statute all
at once does not reflect a change in the agency’s position.
28 MARTINEZ-CEDILLO V. SESSIONS
power to persuade, if lacking power to control.” Id.
(alteration and quotation marks omitted).
Under the categorical approach, we look “not to the facts
of the particular prior case” but to whether “the state statute
defining the crime of conviction” categorically fits within the
“generic” federal offense. Moncrieffe v. Holder, 569 U.S.
184 (2013). The relevant section of the California statute
states:
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.
Cal. Penal Code § 273a(a). As noted above, the California
Supreme Court has interpreted § 273a(a) to cover criminally
negligent conduct resulting in risk of “great bodily harm or
death” to a child. Valdez, 42 P.3d at 517; see also Ramirez v.
Lynch, 810 F.3d 1127 (9th Cir. 2016).9
9
In Ramirez, we held that § 273a(a) is not categorically a “crime of
violence” but did not address whether it is categorically a crime of child
abuse, neglect, or abandonment. 810 F.3d at 1127.
MARTINEZ-CEDILLO V. SESSIONS 29
Even before the BIA decided Soram, our decision in
Pacheco Fregozo strongly suggested that felony child
endangerment under § 273a(a) was categorically a crime of
child abuse, neglect, or abandonment.10 576 F.3d at 1037–38.
After Soram, the result is all the more clear. Unlike
§ 273a(b), § 273a(a) requires criminally negligent conduct
under “conditions likely to produce great bodily harm or
death” to a child. See id.; People v. Sargent, 159 Cal. Rptr.
771 (Cal. Ct. App. 1979) (holding that § 273a(a) is “intended
to protect a child from an abusive situation in which the
probability of serious injury is great”).11 This high degree of
risk brings the crime completely within the ambit of the
BIA’s broad interpretation. See Soram, 25 I. & N. Dec. at
378; Velazquez-Herrera, 24 I. & N. Dec. at 512.
10
Martinez-Cedillo incorrectly suggests that, because the facts
underlying his conviction are similar to the facts in Pacheco Fregozo,
§ 273a(a) is not categorically a crime of child abuse, neglect, or
abandonment. This misunderstands the categorical approach, which looks
to elements, not facts. See Moncrieffe, 569 U.S. at 184. Section 273a(a)
requires proof of “circumstances or conditions likely to produce great
bodily harm or death.” Section 273a(b), by contrast, covers only those
acts “other than those likely to produce great bodily harm or death.”
Section 273a(a) is a felony; § 273a(b) is a misdemeanor. The dissent fails
to address this distinction when it claims that there is “no consistency in
our current approach” because in two cases in which a father drove drunk
with children in the car “one was deemed removable and the other was
not.” Dissenting Op. at 44.
11
California’s jury instructions for § 273a(a) require the jury to find
that “[t]he defendant . . . caused or permitted the child to (suffer/ [or] be
injured/ [or] be endangered)) under circumstances or conditions likely to
produced (great bodily harm/ [or] death).” Judicial Council of California
Criminal Jury Instruction 821.
30 MARTINEZ-CEDILLO V. SESSIONS
V. RETROACTIVITY
Martinez-Cedillo argues that he pled guilty of violating
§ 273a(a) before the BIA decided Soram and that therefore
Soram should not apply to his conviction. We apply the five-
factor Montgomery Ward test to address “the situation when
a ‘new administrative policy [is] announced and implemented
through adjudication.’” Garfias-Rodriguez v. Holder,
702 F.3d 504, 518 (9th Cir. 2012) (en banc) (quoting
Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1328 (9th
Cir. 1982)). The five factors are:
(1) whether the particular case is one of first
impression, (2) whether the new rule
represents an abrupt departure from well
established practice or merely attempts to fill
a void in an unsettled area of law, (3) the
extent to which the party against whom the
new rule is applied relied on the former rule,
(4) the degree of the burden which a
retroactive order imposes on a party, and
(5) the statutory interest in applying a new
rule despite the reliance of a party on the old
standard.
Id. Although the Montgomery Ward test was developed in
the context of an agency overturning its own rule, it also
applies where, as here, an agency disagrees with a court’s
decision. Id.
The first factor is generally not “well suited to the context
of immigration law” and does not weigh either for or against
retroactivity. Id. at 521. The second and third factors “are
closely intertwined” and do support retroactivity here. Id.
MARTINEZ-CEDILLO V. SESSIONS 31
The BIA’s decision in Soram was not an abrupt departure
from a well established practice but rather a clarification of a
prior uncertainty. As explained above, a concurring opinion
in Velazquez expressly noted that whether § 1227(a)(2)(E)(i)
required actual injury was an open question. Soram thus
“fill[ed] a void in an unsettled area of law” and cannot have
come as “a complete surprise” to Martinez-Cedillo. Id. at
521–22. Although the fourth factor favors non-retroactive
application because deportation is unquestionably a
substantial burden, the fifth factor cuts in the other direction
because “non-retroactivity impairs the uniformity of a
statutory scheme, and the importance of uniformity in
immigration law is well established.” Id. at 523. In sum, the
second, third, and fifth factors of the Montgomery Ward
analysis favor retroactive application of Soram, and the BIA
properly applied Soram to Martinez-Cedillo’s conviction in
this case.12
12
The dissent cites Montgomery Ward but fails to adequately address
all of its five factors. Dissenting Op. at 55–57. Instead, the dissent
focuses on only two of the five factors, arguing that, because defendants
are “acutely aware of the immigration consequences of their convictions,”
and because deportation is “a particularly severe penalty,” the BIA’s
interpretation should not apply retroactively. Id. Importantly, the two
factors the dissent relies upon would apply any time the BIA interprets a
generic offense, such that no BIA decision would ever apply retroactively.
This is inconsistent with how our court applies Montgomery Ward. See
Garfias-Rodriguez, 702 F.3d at 519 (“In every case in which we have
applied the Montgomery Ward test, we have done so on a case-by-case
basis . . . .”). Indeed, the dissent’s analysis would have required a
different result in the very en banc decision in which we decided to apply
Montgomery Ward to BIA decisions. See id. at 523 (holding BIA decision
applied retroactively).
32 MARTINEZ-CEDILLO V. SESSIONS
VI. REQUEST FOR A CONTINUANCE
Finally, Martinez-Cedillo challenges the denial of his
request for a continuance. An IJ may grant a continuance for
“good cause shown.” 8 C.F.R. § 1003.29. “We review the
denial of a continuance for an abuse of discretion.” Id. Here,
Martinez-Cedillo requested a continuance based on his
pending visa application. The IJ denied his request based on
the untimeliness of the request, the remoteness of Martinez-
Cedillo’s priority date for a visa, and the speculative nature
of his eligibility for adjustment of status, and the BIA
affirmed for the same reasons. There was no abuse its
discretion.
VII. CONCLUSION
For the foregoing reasons, we DENY the petition for
review.
MARTINEZ-CEDILLO V. SESSIONS 33
WARDLAW, Circuit Judge, dissenting:
I respectfully dissent. The Board unreasonably
interpreted the phrase “crime of child abuse, child neglect,
and child abandonment,” having inexplicably changed its
generic definition three times in the past two decades. Its
current definition is not entitled to Chevron deference. And
even if it were, the new definition should not apply
retroactively to Martinez.
I.
Martinez immigrated to the United States from Mexico in
1992, when he was sixteen years old. He became a lawful
permanent resident in 2005, and thus was lawfully in the
United States residing and working for more than fifteen
years before the Department of Homeland Security (DHS)
commenced these removal proceedings. Martinez has two
U.S. citizen children, a son born in 2002 and a daughter in
2008. In August 2007 and April 2008, Martinez drove drunk
near his home outside San Diego. Martinez’s son was in the
car without a seatbelt during those incidents.
In August 2008, Martinez pleaded guilty to violating
California Penal Code section 273a(a) for the April 2008
incident and to violating California Vehicle Code section
23152(b) for driving under the influence of alcohol (DUI)
with two or more prior DUIs. See Cal. Vehicle Code
§ 23152(b). The state judge sentenced Martinez to 364 days
in jail and five years of probation. At the time, Martinez
received a form, prepared by the San Diego Superior Court,
that listed “Aggravated Felonies,” as defined under 8 U.S.C.
§ 1101(a)(43) that “will result in Removal/Deportation” if the
34 MARTINEZ-CEDILLO V. SESSIONS
noncitizen is convicted.1 The list of deportable aggravated
felonies, however, included neither a conviction under
California Penal Code section 273a(a) nor crimes of child
abuse, child neglect, or child abandonment, though Martinez
acknowledged elsewhere that his guilty plea could result in
removal from the United States.
Three months after his guilty plea, DHS commenced
removal proceedings against Martinez, charging removability
as an immigrant “convicted of” a “crime of child abuse, child
neglect, or child abandonment.”2 8 U.S.C. § 1227(a)(2)(E)(i).
Martinez moved to terminate the proceedings, arguing that a
conviction under California Penal Code section 273a(a) was
not categorically a crime of child abuse under Matter of
Velazquez-Herrera (Velazquez II), 24 I. & N. Dec. 503
(B.I.A. 2008), the BIA definition in effect at the time he
pleaded guilty. The Immigration Judge (IJ) disagreed and
entered a final order of removal.
Martinez then appealed to the BIA. The Board concluded
that California Penal Code section 273a(a) was a categorical
match for the “crime of child abuse, child neglect, or child
abandonment” under Matter of Soram, 25 I. & N. Dec. 378
(B.I.A. 2010), the definition the Board newly adopted while
1
The form has a revised date of “12-07” or December 2007, a period
of time during which the BIA required physical, mental, or emotional
harm to a child for a conviction of child abuse, child neglect, or child
abandonment to qualify as a deportable offense.
2
Our court, sitting en banc, has recognized that drunk driving, by
itself, is not a deportable offense because it is not a crime involving moral
turpitude, see Marmolejo-Campos v. Holder, 558 F.3d 903, 913 (9th Cir.
2009) (en banc), so the agency could not have charged Martinez on that
basis.
MARTINEZ-CEDILLO V. SESSIONS 35
Martinez’s petition awaited appeal. The Board affirmed the
IJ’s removal order and, after a partial remand to the IJ,
concluded that Martinez was ineligible for voluntary
departure.
Martinez now petitions for relief from the removal order.
He argues that he is not removable because the definition of
“crime of child abuse, child neglect, and child abandonment”
in Soram is overbroad and an unreasonable interpretation of
congressional intent, and because a conviction under
California Penal Code section 273a(a) is not categorically a
crime of child abuse under Velazquez II. Martinez argues, in
the alternative, that, even if Soram is a reasonable
interpretation of congressional intent, the Board should not
have applied Soram retroactively to his 2008 conviction.
II.
“Vague laws invite arbitrary power,” Sessions v. Dimaya,
138 S. Ct. 1204, 1223 (2018) (Gorsuch, J., concurring), as the
Board’s ever-changing definition of the “crime of child
abuse, child neglect, or child abandonment” illustrates. In
1998, the BIA defined a crime of child abuse 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). That definition required intentional infliction of injury
on the child. See id. (citing to Black’s Law Dictionary (8th
ed. 2014), which defined “cruelty” as an intentional and
malicious act). In 2006, we concluded that the Rodriguez
definition 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 I), 466 F.3d 781, 782–83 (9th Cir.
2006). But, in the years between Rodriguez and Velazquez I,
36 MARTINEZ-CEDILLO V. SESSIONS
and even after, several circuit courts of appeal accepted
Rodriguez as a reasonable interpretation of § 1227(a)(2)(E)(i),
Ochieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th Cir.
2008); Nguyen v. Chertoff, 501 F.3d 107, 114 n.9 (2d Cir.
2007); Loeza-Dominguez v. Gonzales, 428 F.3d 1156 (8th
Cir. 2005), and many lawful permanent residents relied on the
definition to make decisions about how to plead in criminal
proceedings, see INS v. St. Cyr, 533 U.S. 289, 322 (2001)
(“There can be little doubt that, as a general matter, alien
defendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their
convictions.”). After Velazquez I, we remanded the petition
to the BIA with an invitation to issue a precedential decision.
466 F.3d at 782–83.
In response, the Board held that the generic definition of
crime of child abuse includes crimes committed with a mens
rea of criminal negligence so long as the convictions involve
“the infliction on a child of physical harm, even if slight” or
“mental or emotional harm, including acts injurious to morals
. . . .” Velazquez II, 24 I. & N. Dec. at 512. The Board
recognized that its generic definition had to reflect a
“flexible, uniform standard,” applicable nationwide, and
could not make reference to “legal classifications that vary
from State to State.” Id. at 508 (citing Kahn v. INS, 36 F.3d
1412, 1414–15 (9th Cir. 1994)).
At the time, a concurring Board member, Roger Pauley,
wrote separately to point out that the Board’s definition was
incomplete and confusing. It was “unclear,” Pauley wrote,
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,” and Pauley included the example of
MARTINEZ-CEDILLO V. SESSIONS 37
“failing to secure a child with a seatbelt.” Id. at 518 n.2
(Pauley, concurring). Pauley also noted that the Board’s
definition ignored the statutory text, defining only the “crime
of child abuse” without acknowledging that the phrase
enacted by Congress included the “crime of child abuse, child
neglect, and child abandonment.” Id. at 518. Nevertheless,
the Board issued its definition without adjusting or clarifying
the meaning of the phrase.
After Velazquez II, we granted a petition for review in
Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), holding
that the Velazquez II definition requires injury to the child.
Id. at 1036. There, Fregozo, a permanent resident, pleaded
guilty to child endangerment under California Penal Code
section 273a, subsection (b), after he drove drunk with his
wife and two children in the car. Id. at 1033–34. We
concluded that a conviction under section 273a(b) is not
categorically a crime of child abuse under Velazquez II
because the Board’s then-interpretation required “some form
of injury on a child” while section 273a(b) required only a
potential harm to the child for a conviction, rendering the
state statute broader than the generic federal crime. Id. at
1037.
In light of our decision in Fregozo, the BIA again
revisited its definition of the crime of child abuse in
December 2010. Soram, 25 I. & N. Dec. at 380. Changing
course from its prior position that a crime of child abuse
requires “infliction on a child of physical harm, even if
slight,” or “mental or emotional harm,” Velazquez II, 24 I. &
N. at 512, the BIA found “no convincing reason” to limit
deportable offenses under § 1227(a)(2)(E)(i) to “those
requiring proof of actual harm or injury to the child,” Soram,
25 I. & N. Dec. at 378. The Board inexplicably looked to the
38 MARTINEZ-CEDILLO V. SESSIONS
civil child abuse statutes in force in thirty-eight states as of
2009, not the criminal laws in effect in 1996 when Congress
enacted IIRIRA. Id. at 382 (citing a 2009 Department of
Health and Human Services compendium of the civil laws of
thirty-eight states). A concurring board member, Lauri
Filppu, remarked on the problem, and stated, “I find it most
relevant to look to the criminal statutes of the various States
in 1996, rather than the civil statutes.” Id. at 386–87 (Filppu,
concurring).
The Board changed its position between Velazquez II and
Soram in two other respects as well. First, where the Board
had rejected a state-by-state analysis in Velazquez II, it
approved a state-by-state analysis in Soram, instructing IJs to
look to state statutes “to determine whether the risk of harm
required by the endangerment-type language” in the state
statute is “sufficient to bring an offense within the definition
of ‘child abuse.’” Id. at 383 (“We find that a State-by-State
analysis is appropriate to determine whether the risk of harm
required . . . is sufficient.”). After surveying state laws, the
Board confirmed that states use different terms, like
“realistic,” “serious,” “reasonably foreseeable,” “substantial,”
and “genuine” to describe the level of risk required, and
“approximately half of the States that include endangerment-
type offenses in their definitions of ‘child abuse’ or ‘child
abuse or child neglect’ [did] not specify the degree of threat
required.” See id. at 382–83 (collecting terms). But,
eschewing its prior command to create a uniform, national
definition, the Board left it to courts to decide “whether the
risk of harm required by the endangerment-type language in
any given State statute is sufficient to bring an offense within
the definition of ‘child abuse’ under the Act.” Id. at 383.
 MARTINEZ-CEDILLO V. SESSIONS 39
Second, the Board changed its position on whether the
phrase “crime of child abuse, child neglect, or child
abandonment” described a unitary concept. Where the Board
in Velazquez II decided to define only the “crime of child
abuse,” the Board now confirmed that its new definition
covered the entire scope of the deportable offense “a crime of
child abuse, child neglect, or child abandonment.” Id.
III.
We review the Board’s generic definition of a “crime of
child abuse, child neglect, or child abandonment” announced
in Soram under Chevron USA, Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–43 (1984). First,
we ask “whether Congress has directly spoken to the precise
question at issue,”—that is, whether the statute is ambiguous.
Id. “If the intent of Congress is clear, that is the end of the
matter.” Id. But “if the statute is silent or ambiguous,” the
second question we must consider is “whether the agency’s
answer is based on a permissible construction of the statute.”
Id. at 843; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424
(1999) (“It is clear that principles of Chevron deference are
applicable to [the INA’s] statutory scheme.”).
A.
The majority correctly notes that all of the circuits to
examine the issue agree that the phrase “crime of child abuse,
child neglect, or child abandonment” in § 1227(a)(2)(E)(i) is
ambiguous. See Florez v. Holder, 779 F.3d 207, 211 (2d Cir.
2015); Ibarra v. Holder, 736 F.3d 903, 910 (10th Cir. 2013);
Hackshaw v. Att’y Gen. of U.S., 458 F. App’x 137, 139 (3d
Cir. 2012); Martinez v. U.S. Att’y Gen., 413 F. App’x 163,
166 (11th Cir. 2011). Section 1227(a)(2)(E)(i) defines the
40 MARTINEZ-CEDILLO V. SESSIONS
term “crime of domestic violence,” but it does not define the
phrase “crime of child abuse, child neglect, or child
abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). Because
Congress did not speak to the question and each state defines
the crimes of child abuse, child neglect, and child
abandonment differently, the phrase is ambiguous.
B.
The majority and I part ways at Chevron’s second step.
The Board unreasonably changed the definition of the phrase
“crime of child abuse, child neglect, and child abandonment,”
departing from standard rules of statutory construction to
include “crimes” resulting in no injury to a child and by
requiring a state-by-state risk analysis. Moreover, the Board
unreasonably disregarded the Supreme Court’s clear
instructions as to how to determine the generic definition of
a crime.
1.
As a matter of statutory interpretation, we must review the
statute’s language, purpose, history, and the agency’s past
decisions and controlling law to determine whether the
Board’s definition is reasonable. See Taylor v. United States,
495 U.S. 575, 581 (1990). To determine Congress’s intent,
we begin with the language of the statute—something neither
the majority nor the Board did here. See Mendez-Garcia v.
Lynch, 840 F.3d 655, 663 (9th Cir. 2016).
Section 1227(a) is structured around a list of seven
“classes of deportable aliens,” each “class” setting forth a
distinct basis for removal of an “alien” from the United
States. 8 U.S.C. § 1227(a). Section 1227(a)(2), the second of
MARTINEZ-CEDILLO V. SESSIONS 41
the seven classes, lists “criminal offenses” for which an alien
may be removed from the country. Id. § 1227(a)(2). This
criminal offense class in turn lists five subsets of deportable
crimes. Id. Section 1227(a)(2)(E)(i), the subsection
applicable to Martinez, is within the category of “crimes of
domestic violence, stalking, or violation of a protection order,
[and] crimes against children.” Id. Martinez was deemed
removable for having been “convicted” of a “crime of child
abuse, child neglect, or child abandonment,” one of the
generic crimes under this subsection. Id. § 1227(a)(2)(E)(i).
As its focus on “criminal offenses,” convictions, and
crimes indicates, the statute requires the Board to define the
elements of a crime. See Hartford Underwriters Ins. Co. v.
Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“Congress
‘says in a statute what it means and means in a statute what
it says there.’” (quoting Connecticut Nat’l Bank v. Germain,
503 U.S. 249, 254 (1992)); Bailey v. United States, 516 U.S.
137, 145 (1995) (recognizing that proper statutory
construction also requires considering a phrase’s “placement
and purpose in the statutory scheme”). Yet, the Board’s
generic definition of the “crime of child abuse” is so
imprecise, it violates “essential” tenets of due process, most
specifically “the prohibition of vagueness in criminal
statutes.” Dimaya, 138 S. Ct. at 1212. The Board explains
that the generic definition of the “crime of child abuse, child
neglect, or child abandonment” includes any “intentional,
knowing, reckless, or criminally negligent” mens rea. Soram,
25 I. & N. Dec. at 380 (citing Velazquez II, 24 I. & N. Dec. at
512). The Board’s actus reus test is even more vague. It
includes conduct that does not result in any injury to the
child, and the Board does not define the level of risk to which
the child must have been exposed. See id. at 381, 382–83.
The definition sweeps widely to include “mental or emotional
42 MARTINEZ-CEDILLO V. SESSIONS
harm,” “acts injurious to morals,” “sexual abuse,” and
“sexually explicit conduct,” combining multiple crimes and
including terms covered elsewhere in the immigration codes.
Id. at 380 (citing Velazquez II, 24 I. & N. Dec. at 512).
Because the statutory language required the Board to define
the elements of a specific crime—the “crime of child abuse,
child neglect, or child abandonment”—this definition is an
unreasonable interpretation of statutory text.
While the Board was supposed to define a criminal act, it
instead swept into its definition statutes that are civil in
nature, and in so doing, unreasonably read a term into the
statute that is not there—endangerment. As discussed in
greater detail in Part III.B.2, the Board relied on civil child
endangerment statutes to craft the definition of “crime of
child abuse, child neglect, or child abandonment,” because it
believed that “endangering a child can reasonably be viewed
as either abuse or neglect” and because some states included
endangerment as part of their child abuse and child neglect
statutes. Soram, 25 I. & N. Dec. at 381. But there is a
difference between these civil statutes and the crime of child
endangerment. While child endangerment statutes share
some elements with child abuse, neglect, and abandonment
statutes, the crime of child endangerment, unlike the crime of
child abuse, neglect, or abandonment, is chiefly concerned
with the level of risk to the child, and it is, therefore, a
different crime altogether.
Despite acknowledging that including endangerment
offenses in the generic definition of the crime would require
it to assess the level of risk to the child, id. at 382, the Board
failed to define the precise level of risk required to render a
state conviction a crime of child abuse, neglect, and
abandonment, id. This is problematic not only because it
MARTINEZ-CEDILLO V. SESSIONS 43
further unmoors the Board’s definition from the statutory text
but also because it leaves the definition judicially
unadministrable and overly vague, along the lines the
Supreme Court recently critiqued in Dimaya, 138 S. Ct. at
1213–15. The Board’s definition creates uncertainty about
how a court is to estimate the “degree of threat” to the child,
particularly where the state statute does not specify the
“degree of threat” required for a conviction. Cf. id. at
1213–14. Because the reviewing court must use the
categorical approach to determine whether the statute of
conviction is overbroad, the court will need to identify the
level of risk of the “ordinary case” under the state statute of
conviction and determine whether that level of risk is
sufficiently high to meet the federal generic offense. The
Supreme Court rejected a statute requiring similar analysis as
unconstitutionally vague in Dimaya, and the Board’s
definition suffers from the same defects.3
The Board’s vague definition makes it unreasonably
difficult for a lawful permanent resident to predict whether he
will be subject to immigration consequences as a result of a
state court conviction, particularly for a child endangerment
conviction where the state statute allows for a conviction
without any resulting injury to the child. Is it enough that the
statute criminalizes conduct that is “likely to produce great
bodily harm or death[?]” Cf. Cal. Penal Code § 273a(a). Or,
must the statute specify that the petitioner placed the child in
3
Contrary to the majority’s suggestion, Dimaya is not distinguishable
merely because the ambiguity there appeared in a statute while the
ambiguity here appears in the Board’s definition. Where the ambiguity
appears makes no practical difference for the IJs required to apply the rule
or the immigrants who must rely on it—the definition is confusing all the
same.
44 MARTINEZ-CEDILLO V. SESSIONS
conditions where the child is at a “substantial risk of
imminent death or physical injury[?]” Cf. Ariz. Rev. Stat.
§ 13-1201. What about just a “substantial risk of injury[?]”
Cf. Alaska Stat. § 11.51.100. The Board’s unreasonable
failure to specify the level of risk required, coupled with its
impermissible expansion into civil law, creates a quagmire
that will confound our court for years to come. There truly is
no consistency in our current approach. To date, our closest
precedents involve two other fathers who drove drunk with
their children in the car; one was deemed removable and the
other was not. Cf. Florez, 779 F.3d 207; Fregozo, 576 F.3d
at 1030.
The majority makes the same mistake as the Board when
it plucks the term “child neglect” out of the statute and
suggests that this term, alone, is broad enough to support the
Board’s definition. The majority concedes that the Board
definition in Soram “would perhaps be troubling if the BIA
were only interpreting the term ‘child abuse,’” but it assures
itself that, by including the term “child neglect,” the
definition “surely admits of such conduct.” This contention
is distinctly at odds with the Board’s conclusion that the
phrase “crime of child abuse, child neglect, or child
abandonment” has one meaning that pertains, in the same
way, to all removal proceedings with national uniformity.
25 I. & N. Dec. at 381. Congress could have crafted separate
removable offenses for the “crime of child abuse,” “crime of
child neglect,” and “the crime of child abandonment” that
very well might have been a categorical match for section
273a(a). But Congress, and the Board following its lead,
chose to view the phrase as a “unitary concept,” and so the
Board definition should have reflected each term in the
phrase together, rather than singling out the broadest among
MARTINEZ-CEDILLO V. SESSIONS 45
them, as the majority suggests was appropriate. Soram, 25 I.
& N. Dec. at 381.
The Board’s unexplained change to its definition of what
amounts to a crime of child abuse, neglect, or abandonment
also underscores the irrationality of its current position. See
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125
(2016); see also Perez-Guzman v. Lynch, 835 F.3d 1066,
1078 (9th Cir. 2016) (applying Chevron and Encino
Motorcars to interpret an INA provision). The Board
changed its generic definition of the crime of child abuse
three times in the last two decades, each time disrupting the
expectations of the lawful permanent residents who rely on
the Board’s definitions. In 2008, at the time it promulgated
its first precedential definition in Velazquez II, the Board
knew that its definition was incomplete and confusing, see
24 I. & N. Dec. at 518 & n.2, but refused to adjust or clarify
it. After our decision in Fregozo, where we confirmed that
the Board’s definition did not require actual injury, 576 F.3d
at 1037, the Board revisited its prior definition and, knowing
what it had known all along, adopted the concurring Board
member’s suggestions. The Board also reversed its own
long-standing precedent instructing that the generic definition
of a federal crime should reflect a uniform, national standard,
see Velazquez II, 24 I. & N. Dec. at 508 (quoting Kahn,
36 F.3d at 1414–15), electing instead to instruct IJs and
reviewing courts to look to different state statutes to
determine whether the level of risk is “sufficient,” without
defining what specific level of risk satisfies the generic
definition of the federal crime, Soram, 25 I. & N. Dec. at 383.
This case illustrates how the Board’s ever-changing
definitions harm lawful permanent residents, who rely on the
Board’s definitions. We know that Martinez pleaded guilty
46 MARTINEZ-CEDILLO V. SESSIONS
to a violation of section 273a(a) at the time that the Board’s
definition of “crime of child abuse” required an injury for
purposes of deportation, and we know that Martinez’s son
was not injured. Because Martinez had been here lawfully
for more than fifteen years and had received information from
the state court that told him that his crime was not among the
list of removable offenses, when Martinez pleaded guilty he
had reason to believe that his conviction would not render
him removable—reason supported by the Board’s then-
current definition of the crime. Because this reliance interest
is substantial in Martinez’s case and in other cases like his,
the Board should not be allowed to arbitrarily change its
definition without explaining the need for a change. See
Encino Motorcars, 136 S. Ct. at 2126 (“In explaining its
changed position, an agency must also be cognizant that
longstanding practices may have ‘engendered serious reliance
interests that must be taken into account.” (quoting FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009))).
The majority insists that Board has not changed its
definition from Rodriguez to Soram, but the majority’s
position is as baffling as it is wrong. Under Rodriguez4 and
Velazquez II, Martinez was not removable for having been
convicted of a crime of child abuse, neglect, or abandonment,
but under Soram, he is removable for the same crime. The
Board’s 1998 definition in Rodriguez required a minimum
mens rea of “intentional and malicious” infliction of pain on
the child, 22 I. & N. Dec. at 996, and that generic definition
of the federal crime was not a categorical match for
California Penal Code section 273a(a), which requires a
minimum mens rea of criminal negligence, see People v.
4
Although the definition in Rodriguez was dicta, it was accepted by
the Second, Eighth, and Tenth Circuits as the operative agency definition.
MARTINEZ-CEDILLO V. SESSIONS 47
Valdez, 27 Cal. 4th 778, 783–84 (2002). Similarly, the
Board’s 2008 definition in Velazquez II, as interpreted in
Fregozo, required injury to the child, 24 I. & N. Dec. at 512;
see also Fregozo, 576 F.3d at 1037, and that definition too
was not a categorical match for California Penal Code section
273a(a), which does not require injury to the child, see People
v. Toney, 76 Cal. App. 4th 618, 622 (1999). But, under the
Board’s 2010 definition in Soram, California Penal Code
section 273a(a), for the first time, is a categorical match for
the federal generic definition. Having dispensed with its prior
requirement that the child suffer an injury, the Board, in this
case, concluded that the elements of Martinez’s state statute
of conviction fell within the overbroad federal definition.
The majority’s willfully blind characterization of the Board’s
dithering definitions of this deportable offense does not
match reality.
Nor does section 1227(a)(2)(E)(i)’s limited legislative
history and purpose support the government’s position that a
crime of child abuse, child neglect, or child abandonment
should include convictions that do not result in injury to the
child. See Taylor, 495 U.S. at 581 (finding it “helpful” to
review legislative history when determining whether an
agency construction is reasonable); see Ibarra, 736 F.3d at
912 n.12. As originally enacted in 1952, the INA did not
treat child abuse as an independent ground for deportability.5
This ground did not appear until 1996 when Congress enacted
IIRIRA, to, among other things, provide immigration
consequences for “child abuse” and “child sexual abuse.”
5
Rather, such an offense may have been presumed a ground for
deportation under the existing category of crimes involving moral
turpitude. See 142 Cong. Rec. 8706 (Apr. 24, 1996) (statement of Sen.
Coverdell).
48 MARTINEZ-CEDILLO V. SESSIONS
142 Cong. Rec. 10,067 (May 2, 1996) (statement of Sen.
Dole). Speaking in favor of the Dole-Coverdell Amendment,
which added the section at issue to the INA, Senator Dole
remarked that “[i]t is long past time to stop the vicious acts of
stalking, child abuse, and sexual abuse.” 142 Cong. Rec.
S4613 (daily ed. May 2, 1996) (statement of Sen. Dole). The
Board subsequently interpreted the statutory goal of the Dole-
Coverdell Amendment as “singl[ing] out those who have
been convicted of maltreating or preying upon children” and
“facilitating the removal of child abusers in particular.”
Velazquez II, 24 I. & N. Dec. at 509.
The broadened definition of “crime of child abuse, child
neglect, and child abandonment” in Soram does not further
the statutory purposes of § 1227(a)(2)(E)(i), evinced by this
legislative history and the statutory goals announced in the
bill. Convictions for criminally negligent acts that do not
result in any injury to a child cannot categorically be said to
“prey[] upon” or “maltreat[]” children. Id. Indeed, the
expansive definition that the Board adopted in Soram
encompasses conduct that is neither vicious nor predatory,
including conduct driven by poverty, such as leaving a child
at home alone while a parent leaves for a brief errand or
unintentionally failing to secure a babysitter for a child while
the parent is at work. See Ibarra, 736 F.3d at 905. The
Board’s unreasonable sweep turns away from one of the
fundamental tenets of our immigration law—“keeping
families of United States citizens and immigrants united.”
Fiallo v. Bell, 430 U.S. 787, 795 n.6 (1977). It should not be
lost on us that, while we fault Martinez for endangering his
son, we simultaneously condone the separation of a family,
exiling a father of two children who has resided in the United
States lawfully for more than twenty-five years. That
MARTINEZ-CEDILLO V. SESSIONS 49
Congress did not intend such a result is apparent from these
facts.
2.
The Board’s failure to follow legal precedent to derive the
generic definition of a “crime of child abuse, child neglect, or
child abandonment” resulted in a deeply flawed and arbitrary
rule. The Board inexplicably and unreasonably looked to the
civil child abuse statutes in thirty-eight states in force as of
2009, not the criminal laws in effect in 1996 when Congress
enacted the statute. Soram, 25 I. & N. Dec. at 382 (citing a
2009 Department of Health and Human Services
compendium of the civil laws of thirty-eight states). In
Velazquez II, the Board made the same mistake, relying on
federal civil statutes that were designed to protect child abuse
victims and to encourage reporting of child abuse, and a 2004
edition of Black’s Law Dictionary, which defined child abuse
as the “[i]ntentional or neglectful physical or emotional harm
inflicted on a child, including sexual molestation.” See
Velazquez II, 24 I. & N. Dec. at 509–11 (reviewing
contemporaneous federal civil statutes and the dictionary).
The majority fails to acknowledge the unorthodoxy of the
Board’s reliance on civil law, yet cannot cite a single case
approving of the use of civil law to provide the generic
definition of a crime. While it may be true that “a phrase
such as ‘child neglect’ surely can serve both civil and
criminal purposes,” it is a non-sequitur to conclude that “[i]t
is not unreasonable for the BIA to use civil definitions to
inform its understanding of which convictions are crimes of
child abuse, neglect, or abandonment.”
50 MARTINEZ-CEDILLO V. SESSIONS
The majority asserts that civil child abuse laws are not
meaningfully distinguishable from criminal child abuse laws,
reasoning that, because state courts in Missouri, Nevada,
Texas, and Tennessee have suggested that the termination of
parental rights is the equivalent of the “civil death penalty,”
the Board’s use of civil law in this context is “particularly
apt.” But we have long recognized the difference between
civil child custody proceedings and criminal prosecutions.
See, e.g., Costanich v. Dep’t of Social & Health Servs.,
627 F.3d 1101, 1115–16 (9th Cir. 2010) (“The special duties
of prosecutors and the unique interests at stake in a criminal
action do not parallel the duties and interests at stake in a
civil child custody proceeding.”). And rightly so, given that
the process of civil adjudication is forward looking and
focused on the protection of the child, with the ultimate goal
of family reunification, whereas the criminal codes are
backward looking and driven by purposes of punishment,
retribution, and deterrence. See Ibarra, 736 F.3d at 911
(“The purpose of civil definitions is to determine when social
services may intervene. The purpose of criminal definitions
is to determine when an abuser is criminally culpable.”).
It was unreasonable for the Board to craft what amounts
to a civil definition for a crime. Looking to civil code
sections to define the “crime of child abuse, child neglect, or
child abandonment” unreasonably widens the net of people
subject to removal proceedings. The civil codes encompass
a broader array of conduct than their parallel criminal codes,
which generally require a higher standard of culpability or a
higher risk to the child. See id. at 911 n.9. In California, for
example, an “endangered child” for purposes of child
dependency proceedings includes a child who has “suffered”
or is at “substantial risk” of suffering “serious physical harm
or illness . . . as a result of the failure or inability of his or her
MARTINEZ-CEDILLO V. SESSIONS 51
parent or guardian to adequately supervise or protect the child
. . . .” Cal. Welf. & Inst. Code § 300. In contrast, to incur
criminal liability, the California penal codes require the
parent or guardian to have a mens rea of criminal negligence.
See Valdez, 27 Cal. 4th at 783–84 (explaining that “willfully”
in California Penal Code 273a means criminal negligence).
The majority excuses the Board’s foray into civil law by
concluding that the crimes of child abuse, neglect, and
abandonment are “not common law crimes” but “twentieth-
century crimes,” not defined in the Model Penal Code, where
states have “developed different and varied terms” to describe
criminal conduct. But, that still does not explain why the
Board looked to civil law to define criminal conduct. The
majority laments that there is a “lack of a common source”
for the criminal terms for child abuse, child neglect, and child
abandonment, but the majority unreasonably ignores federal
and state criminal laws, which could have served as just such
a source. Had the Board examined the state criminal child
abuse statutes, it would have found that the majority of states
require a mens rea greater than criminal negligence or a
greater risk of injury to the child before criminalizing the
conduct. See Ibarra, 736 F.3d at 910–11, 916 (collecting
state criminal statutes and concluding that, in 1996, thirty-
three states required a minimum mens rea of recklessness,
knowledge, or intent for crimes not involving a resulting
injury to the child, while eight states required a mens rea of
criminal negligence for crimes not resulting in injury, two
states required a mens rea of tort negligence for no-injury
conduct, and one state imposed strict liability). Even the
Second Circuit, which the majority joins, recognized as
much, as it identified only nine states that define criminal
child abuse as broadly as the Board. See Florez, 779 F.3d at
212.
52 MARTINEZ-CEDILLO V. SESSIONS
The majority criticizes the Tenth Circuit for performing
a multi-jurisdictional analysis in the first instance, but the
majority disregards that this is the very same methodology
that the Supreme Court used just last year to define “sexual
abuse of a minor,” a phrase that appears in an adjacent INA
code section. See Esquivel-Quintana v. Sessions, 137 S. Ct.
1562, 1571–72 (2017). While the Supreme Court
acknowledged that “this sort of multi-jurisdictional analysis”
is “not required,” it found it “useful insofar as it help[ed] shed
light on the ‘common understanding and meaning’ of the
federal provision being interpreted.” Id. at 1571 n.3. Like
the Ibarra court, the Supreme Court prepared its own
Appendix of state laws, id. at 1573, and found it persuasive
that, in 1996, when Congress added the term “sexual abuse of
a minor” to the INA, a “significant majority of jurisdictions”
had set the age of consent at sixteen for statutory rape
offenses. Id. at 1571. Indeed, far from being an outlier, the
use of fifty-state surveys of contemporaneous state criminal
laws, as in Esquivel-Quintana and Ibarra, is a methodological
hallmark of the categorical approach, regularly employed to
derive the generic definition of a federal crime. See, e.g.,
United States v. Garcia-Jiminez, 807 F.3d 1079, 1084 (9th
Cir. 2015) (quoting United States v. Garcia-Santana,
774 F.3d 528, 534 (9th Cir. 2014)); see also Nijhawan v.
Holder, 557 U.S. 29, 47 (2009) (“We examined state statutes
. . . in effect in 1996, when Congress [enacted IIRIRA].”);
Perrin v. United States, 444 U.S. 37, 42–45 (1979); United
States v. Esparza-Herrera, 557 F.3d 1019, 1025 (9th Cir.
2009) (holding that thirty-three jurisdictions is a sufficient
consensus to establish the federal generic definition of a
crime); Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152
(9th Cir. 2008) (en banc) (“In the absence of specific
congressional guidance as to the elements of a crime, courts
have been left to determine the ‘generic sense in which the
MARTINEZ-CEDILLO V. SESSIONS 53
term is now used in the criminal codes of most States.’”),
overruled on other grounds as recognized by United States v.
Rivera-Constantino, 798 F.3d 900, 904 (9th Cir. 2015).
3.
This case perfectly illustrates why we should be skeptical
of ceding broad powers of interpretation to agencies with the
authority to impose a “civil death penalty.” “The BIA has no
special expertise by virtue of its statutory responsibilities in
construing state or federal criminal statutes.” Marmolejo-
Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en
banc) (clarifying the standard of review). We do not defer to
agencies, including the Board, when they construe state
criminal statutes. See id.; see also Uppal v. Holder, 605 F.3d
712, 714 (9th Cir. 2010). And, at least two prominent jurists
have questioned the “reflexive deference” that appellate
courts have given to the Board, see Pereira v. Sessions, No.
17-459, slip op. at 2 (U.S. June 21, 2018) (Kennedy, J.,
concurring); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,
1149, 1152, 1156 (10th Cir. 2016) (Gorsuch, J., concurring),
particularly in the immigration context, where our modern
administrative state enjoys the power “to penalize persons in
ways that can destroy their livelihoods and intrude on their
liberty even when exercising only purely civil powers,” see
Gutierrez-Brizuela, 834 F.3d at 1156 (Gorsuch, J.,
concurring). And while we defer to the Board when it
construes an ambiguous term in the INA, the act it is charged
with administering, Marmolejo-Campos, 558 F.3d at 910–11,
we must not cease to question why that is so and whether it
is warranted, id. at 910; see also Pereira, slip op. at 2–3
(Kennedy, J., concurring) (calling for reconsideration of
Chevron deference in immigration context).
54 MARTINEZ-CEDILLO V. SESSIONS
And the Board utterly failed to perform a statutory
interpretation analysis consistent with Supreme Court
teachings. See Pereira, slip op. at 9 (majority opinion).
When the Board here said that the “crime of child abuse”
should be interpreted “broadly,” it was not deploying any
insights that it might have obtained from adjudicating
immigration cases. It was “parroting” what it had found in its
own survey of federal and state civil statutes and a since-
revised Black’s Law Dictionary. See Velazquez II, 24 I. & N.
Dec. at 510; cf. Mei v. Ashcroft, 393 F.3d 737, 739 (7th Cir.
2004) (“Since the Board hasn’t done anything to particularize
the meaning of ‘crime involving moral turpitude,’ giving
Chevron deference to its determination of that meaning has
no practical significance.”).
The goal of establishing a uniform framework for the
determination of the “crime of child abuse, child neglect, or
child abandonment” might have been one reason for deferring
to the Board, but the ship has sailed on this justification. The
circuit split described in the majority opinion means that
people convicted of identical crimes in states in the Tenth
Circuit will be permitted to remain in the United States, while
those in states in the Second and Ninth Circuits will be
removed. The majority acknowledges this result, and yet
permits the Board to proceed without correcting course.
Courts have a role in correcting arbitrary and capricious
agency action, particularly where the agency has not used its
expertise to develop its current approach. The majority
follows the “troubling” path of the six circuit courts of
appeals that were reversed in Pereira v. Sessions, in “an
abdication of the Judiciary’s proper role in interpreting
federal statutes.” Pereira, slip op. at 2 (Kennedy, J.,
concurring). An Article III court may not be equipped to
MARTINEZ-CEDILLO V. SESSIONS 55
define, in the first instance, what the “crime of child abuse,
child neglect, and child abandonment” should mean for the
fifty states, but it is well within our authority to require the
Board to do it properly. Here, where the Board strayed far
from congressional intent, adopted a definition that misrelied
on non-contemporaneous civil code sections, failed to follow
Supreme Court authority instructing courts how to define
generic criminal offenses, changed its position without
adequate explanation, and ignored the context, language, and
purpose of the statute, deference is not appropriate. The
BIA’s generic definition of the crime of child abuse, neglect,
and abandonment in Soram is unreasonable and an
impermissible interpretation of the statute.
IV.
Even if Soram were due the deference the majority
concedes, the new definition should not apply retroactively to
Martinez, who pleaded guilty to violating California Penal
Code section 273a(a) in 2008, when Velazquez II was the
Board’s interpretation. Although, in general, “retroactive
application is the presumptive norm,” Garfias-Rodriguez v.
Holder, 702 F.3d 504, 517 (9th Cir. 2012) (en banc),
retroactivity must be “balanc[ed] [against] a regulated party’s
interest in being able to rely on the terms of a rule as it is
written,” Montgomery Ward & Co. v. FTC, 691 F.2d 1322,
1333 (9th Cir. 1982).
In the immigration context, we have determined that it is
“contrary to ‘familiar considerations of fair notice, reasonable
reliance, and settled expectations’” to allow a newly enacted
law to deprive non-citizens who have already pleaded guilty
to certain crimes of the possibilities available to them at the
time of their plea. See St. Cyr, 533 U.S. at 323–33; see also
56 MARTINEZ-CEDILLO V. SESSIONS
Judulang v. Holder, 565 U.S. 42, 63 n.12 (suggesting that
anti-retroactivity principles could apply equally to BIA
decisions); Landgraf, 511 U.S. at 270 (stating that
retroactivity analysis focuses on “considerations of fair
notice, reasonable reliance, and settled expectations”). And
many states, including California, the State in which Martinez
pleaded guilty, require that trial judges advise defendants that
immigration consequences may result from accepting a plea
agreement. See, e.g., Cal. Penal Code § 1016.5. Here, the
Board’s definition is particularly undeserving of retroactive
application, given the Board’s refusal to clarify its definition
despite knowing it was confusing at the time it was made, and
its changed position since. And, because our law requires us
to assume that immigrant defendants will be “acutely aware
of the immigration consequences of their convictions” when
they enter plea agreements, see St. Cyr, 533 U.S. at 322, and
because deportation is “‘a particularly severe penalty,’ which
may be of greater concern to a convicted sentence than ‘any
potential jail sentence,’” Dimaya, 138 S. Ct. at 1213, the
majority of the Montgomery Ward retroactivity factors weigh
against retroactive application in this instance.6
Because the Board abused its discretion in applying
Soram retroactively to Martinez’s 2008 conviction, Velazquez
II should have been the basis for a categorical analysis to
determine whether Martinez’s conviction under California
Penal Code section 273a(a) is a categorical match for the
generic definition of a crime of child abuse. California Penal
Code section 273a(a) criminalizes conduct that does not result
in injury to a child. Under Velazquez II, the federal generic
definition of a “crime of child abuse” criminalizes conduct
6
Factor one is neutral; factors two, three, and four favor Martinez;
and factor five favors the government.
MARTINEZ-CEDILLO V. SESSIONS 57
that results in injury to a child. 24 I. & N. Dec. at 512; see
also Fregozo, 576 F.3d at 1037.7 Because section 273a(a)
criminalizes more conduct than Velazquez II’s federal generic
definition of the crime, the California statute is not a
categorical match to the federal generic definition. And
because we previously concluded that section 273a(a) is not
divisible, see Ramirez v. Lynch, 810 F.3d 1127, 1138 (9th Cir.
2016), the analysis should have stopped there, see Sandoval
v. Yates, 847 F.3d 697, 704 (9th Cir. 2017) (“Only divisible
statutes are subject to the modified categorical approach.”).
Under the categorical approach, California Penal Code
section 273a(a) is broader than Velazquez II’s definition of
“crime of child abuse,” so Martinez’s conviction under
California Penal Code section 273a(a) was not a crime of
child abuse. Martinez is not removable under Velazquez II
based on his 2008 conviction, and we should have vacated his
removal order.
V.
The majority ignores controlling precedent to legitimize
the Board’s novel, and impermissible, approach to
determining the generic definition of crimes listed in the INA.
The Board’s reliance on civil codes and Black’s Law
Dictionary leads it to an overbroad definition of the crime of
child abuse, neglect, and abandonment that does not reflect
7
The majority relies on dicta from Fregozo to support its argument
that section 273a(a) is a categorical match for the federal generic offense
of a crime of child abuse as defined in Velazquez II. But, as the majority
concedes, to perfect its argument, it must ignore the dicta’s “tension” with
Fregozo’s central holding, which was that the federal generic definition
of the crime of child abuse requires actual injury to the child. We should
follow Fregozo’s holding—not its dicta.
58 MARTINEZ-CEDILLO V. SESSIONS
state criminal laws and is contrary to what Congress meant by
the use of the phrase “crimes of.” We should grant
Martinez’s petition, and hold that the generic definition of
“crime of child abuse, child neglect, or child abandonment”
in Soram is an unreasonable interpretation of the INA, or, at
the very least, that it should not apply retroactively to
Martinez.