Velazquez-Herrera v. Gonzales , 466 F.3d 781 ( 2006 )

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