Rafael Diaz-Rodriguez v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL DIAZ-RODRIGUEZ, No. 13-73719
Petitioner,
Agency No.
v. A093-193-920
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 13, 2021
Pasadena, California
Filed September 10, 2021
Before: Consuelo M. Callahan and Paul J. Watford, Circuit
Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Watford;
Dissent by Judge Callahan
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 DIAZ-RODRIGUEZ V. GARLAND
SUMMARY **
Immigration
Granting Rafael Diaz-Rodriguez’s petition for review of
a decision of the Board of Immigration Appeals, the panel
held that child endangerment, in violation of California
Penal Code § 273a(a), does not constitute “a crime of child
abuse, child neglect, or child abandonment” within the
meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir.
2018), a divided panel held to the contrary, and a majority of
the non-recused active judges voted to rehear the case en
banc. However, after the petitioner passed away, the en banc
court dismissed the appeal as moot and vacated the panel
decision. The panel here observed that Martinez-Cedillo is
no longer binding precedent, but explained that between its
issuance and the decision to rehear the case en banc, two
published opinions relied on it: Menendez v. Whitaker, 908
F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions,
899 F.3d 774 (9th Cir. 2018).
The panel concluded that the unusual circumstance here
led it to conclude that this case falls outside the scope of the
general rule that three-judge panels are bound to follow
published decisions of prior panels. The panel explained that
both Alvarez-Cerriteno and Menendez simply followed
Martinez-Cedillo as then-binding precedent without
engaging in independent analysis of the deference issue, and
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DIAZ-RODRIGUEZ V. GARLAND 3
both decisions were effectively insulated from en banc
review on that issue. The panel explained that both decisions
are irreconcilable with a subsequent decision of the court
sitting en banc because their reliance on Martinez-Cedillo is
in conflict with the en banc court’s decision to designate that
decision as non-precedential.
Applying the categorical approach, the panel identified
the elements of California Penal Code § 273a(a): causing or
permitting a child “to be placed in a situation where his or
her person or health is endangered,” committed with a mens
rea of criminal negligence. As to the federal offense, the
panel explained that Congress enacted the ground of
removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) and did not define the phrase “a crime
of child abuse, child neglect, or child abandonment.” In
Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however,
the BIA held that the phrase encompassed child
endangerment offenses committed with a mens rea of at least
criminal negligence. In considering whether Soram was
entitled to deference, the panel was guided by the Supreme
Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct.
1562 (2017), where the Court observed that the term “sexual
abuse of a minor” was undefined and then looked to normal
tools of statutory interpretation in concluding that the statute
unambiguously forecloses the BIA’s interpretation of it.
Applying this approach, the panel concluded that
deference was precluded at Chevron step one because the
text of § 1227(a)(2)(E)(i) unambiguously forecloses the
BIA’s interpretation as encompassing negligent child
endangerment offenses. First, the panel explained that
contemporary legal dictionaries from the time of IIRIRA’s
enactment indicate that child abuse, child neglect, and child
4 DIAZ-RODRIGUEZ V. GARLAND
abandonment were well-understood concepts with distinct
meanings that do not encompass one-time negligent child
endangerment offenses. Second, the panel explained that the
statutory structure suggested that Congress deliberately
omitted child endangerment from the list of offenses
specified in § 1227(a)(2)(E)(i). Third, the panel explained
that the general consensus drawn from state criminal codes
confirms that the phrase does not encompass negligent child
endangerment offenses. The panel noted that the fourth
source consulted in Esquivel-Quintana, related federal
criminal statutes, did not aid its analysis.
Because a violation of California Penal Code § 273a(a)
can be committed with a mens rea of criminal negligence,
the panel concluded that it is not a categorical match for “a
crime of child abuse, child neglect, or child abandonment.”
Accordingly, the panel concluded that Diaz-Rodriguez’s
conviction under that statute did not render him removable
under § 1227(a)(2)(E)(i).
Dissenting, Judge Callahan wrote that she was
compelled to dissent for two reasons. First, she did not agree
that the three-judge panel could disregard Menendez and
Alvarez-Cerriteno. Second, Judge Callahan did not agree
with the majority’s peculiar reading of the phrase as not
encompassing a child endangerment offense committed with
a mens rea of at least criminal negligence. Judge Callahan
wrote that majority’s suggestion that § 1227(a)(2)(E)(i) is
unambiguous is contrary to precedent and the unanimous
opinions of the court’s sister circuits. Moreover, she wrote
that the majority failed to recognize that the court’s task is
limited to reviewing the agency’s interpretation for
“reasonableness.” Instead, the majority proffered its own
definition based primarily on selected dictionary definitions
and its own research.
DIAZ-RODRIGUEZ V. GARLAND 5
COUNSEL
Jerry Shapiro (argued), Law Offices of Jerry Shapiro,
Encino, California, for Petitioner.
Erica B. Miles (argued) and M. Jocelyn Lopez Wright,
Senior Litigation Counsel; Sara J. Bayram, Trial Attorney;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
WATFORD, Circuit Judge:
We confront in this appeal the same issue that arose in
Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018).
There, a divided three-judge panel held that California Penal
Code § 273a(a) constitutes “a crime of child abuse, child
neglect, or child abandonment” within the meaning of
8 U.S.C. § 1227(a)(2)(E)(i). A majority of the non-recused
active judges voted to rehear Martinez-Cedillo en banc, but
before the en banc court could issue a decision, the petitioner
passed away. The en banc court therefore dismissed the
appeal as moot and vacated the three-judge panel decision.
Without binding precedent on point, we must revisit whether
California Penal Code § 273a(a) qualifies as “a crime of
child abuse, child neglect, or child abandonment.” We hold
that it does not.
I
Rafael Diaz-Rodriguez has been a lawful permanent
resident of the United States since 1990. He and his partner
have two children together, both of whom are U.S. citizens.
6 DIAZ-RODRIGUEZ V. GARLAND
In 2003 and 2009, Diaz-Rodriguez was stopped by the police
while driving under the influence of alcohol with one of his
children in the car. On both occasions, he was convicted of
felony child endangerment in violation of California Penal
Code § 273a(a). As relevant here, that statute punishes
anyone who, “having the care or custody of any child,” and
under circumstances likely to produce great bodily harm or
death, “willfully causes or permits that child to be placed in
a situation where his or her person or health is endangered.”
Cal. Penal Code § 273a(a). 1 Although the statute requires
the defendant to act “willfully,” the California Supreme
Court has held that criminal negligence suffices, such that
the defendant need not be subjectively aware of the risk of
harm involved. People v. Valdez, 42 P.3d 511, 513–14, 518–
19 (Cal. 2002).
1
California Penal Code § 273a(a) provides in full:
Any person who, under circumstances or conditions
likely to produce great bodily harm or death, willfully
causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or
having the care or custody of any child, willfully
causes or permits the person or health of that child to
be injured, or willfully causes or permits that child to
be placed in a situation where his or her person or
health is endangered, shall be punished by
imprisonment in a county jail not exceeding one year,
or in the state prison for two, four, or six years.
The statute contains a separate provision punishing as a misdemeanor the
same acts when committed “under circumstances or conditions other
than those likely to produce great bodily harm or death.” Cal. Penal
Code § 273a(b); see Fregozo v. Holder, 576 F.3d 1030, 1037–38 (9th
Cir. 2009).
DIAZ-RODRIGUEZ V. GARLAND 7
In 2012, the Department of Homeland Security initiated
removal proceedings against Diaz-Rodriguez based on his
2009 child endangerment conviction. The agency alleged
that the conviction rendered Diaz-Rodriguez removable
under 8 U.S.C. § 1227(a)(2)(E)(i), a provision of the
Immigration and Nationality Act (INA) authorizing the
removal of a non-citizen 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.” An immigration judge held that a conviction
under California Penal Code § 273a(a) qualifies as a
conviction for “a crime of child abuse, child neglect, or child
abandonment,” thus rendering Diaz-Rodriguez removable.
The judge also denied Diaz-Rodriguez’s application for
cancellation of removal under 8 U.S.C. § 1229b(a) as a
matter of discretion. The Board of Immigration Appeals
(BIA) affirmed the immigration judge’s rulings. Diaz-
Rodriguez petitions for review of the BIA’s decision,
challenging only the determination that he is removable
based on his conviction under California Penal Code
§ 273a(a).
II
As noted at the outset, a prior panel of this court
confronted the same issue before us. The three-judge panel
in Martinez-Cedillo was asked to decide whether California
Penal Code § 273a(a) qualifies as “a crime of child abuse,
child neglect, or child abandonment” under 8 U.S.C.
§ 1227(a)(2)(E)(i). 896 F.3d at 982. In determining the
elements of the generic federal offense described by the
phrase “a crime of child abuse, child neglect, or child
abandonment,” the panel applied the two-step framework
from Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). At step one, the panel
8 DIAZ-RODRIGUEZ V. GARLAND
held that the phrase is ambiguous as to whether it includes
criminal offenses, such as California Penal Code § 273a(a),
that punish negligent endangerment of a child. 896 F.3d
at 987. At step two, over a dissent by Judge Wardlaw, the
panel deferred to the BIA’s interpretation of that phrase in
Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). In Soram,
the BIA held that the phrase “a crime of child abuse, child
neglect, or child abandonment” is sufficiently capacious to
encompass child endangerment offenses committed with a
mens rea of at least criminal negligence. Id. at 380–81.
After deferring to the BIA’s definition of the generic federal
offense, the panel in Martinez-Cedillo concluded that a
conviction under California Penal Code § 273a(a) qualifies
categorically as a conviction for “a crime of child abuse,
child neglect, or child abandonment.” 896 F.3d at 992–94.
We are not bound by Martinez-Cedillo’s resolution of
this issue. The three-judge panel’s decision was rendered
non-precedential when the full court agreed to rehear the
case en banc, 918 F.3d 601 (9th Cir. 2019), and the en banc
court later vacated the panel’s decision when it dismissed the
appeal as moot, 923 F.3d 1162 (9th Cir. 2019). Given these
developments, all agree that Martinez-Cedillo itself is no
longer binding precedent.
During the interval between the three-judge panel’s
decision in Martinez-Cedillo and the full court’s decision to
rehear the case en banc, two other panels issued published
opinions that relied on Martinez-Cedillo in holding that the
BIA’s decision in Soram is entitled to deference under
Chevron. See Menendez v. Whitaker, 908 F.3d 467, 474 (9th
Cir. 2018); Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 781
(9th Cir. 2018). Those decisions have not been vacated. As
a three-judge panel, we are ordinarily bound to follow
published decisions issued by prior panels. See Miller v.
DIAZ-RODRIGUEZ V. GARLAND 9
Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc).
The unusual circumstances presented here, however, lead us
to conclude that this case falls outside the scope of the
general rule.
Both Alvarez-Cerriteno and Menendez were decided
shortly after issuance of the opinion in Martinez-Cedillo,
during the period in which en banc review in Martinez-
Cedillo was under consideration. 2 Both decisions simply
cited Martinez-Cedillo as having settled that Soram is
entitled to deference under Chevron; neither engaged in any
independent analysis of the issue. The panels were not free
to engage in any such analysis, for they were bound at the
time to follow Martinez-Cedillo. Indeed, one of the panel
members in Alvarez-Cerriteno expressly noted that, had she
not been bound by Martinez-Cedillo, she would have
“rule[d] in accord with Judge Wardlaw’s dissent in that
case.” 899 F.3d at 785 (Berzon, J., concurring).
In both cases, despite following Martinez-Cedillo and
deferring to Soram’s definition of “a crime of child abuse,
child neglect, or child abandonment,” the panels nonetheless
ruled in the petitioners’ favor on the ground that the offenses
in question were broader than the generic federal offense,
even as defined by the BIA. Menendez, 908 F.3d at 474–75;
Alvarez-Cerriteno, 899 F.3d at 783–84. Not surprisingly,
neither of the petitioners sought en banc review. Nor was
there any reason for an off-panel judge to call for rehearing
en banc sua sponte so that those cases could be held pending
2
Martinez-Cedillo was decided on July 23, 2018, Alvarez-Cerriteno
on August 8, 2018, and Menendez on November 8, 2018. The petitioner
in Martinez-Cedillo filed his petition for rehearing en banc on October
22, 2018, shortly before Menendez was decided. The full court agreed
to rehear Martinez-Cedillo en banc on March 18, 2019.
10 DIAZ-RODRIGUEZ V. GARLAND
the outcome of en banc proceedings in Martinez-Cedillo.
Even if the en banc court had ultimately adopted the position
of the dissent in Martinez-Cedillo, doing so would not have
affected the outcome in either Alvarez-Cerriteno or
Menendez. Moreover, during the window in which a sua
sponte en banc call could have been made in those cases, no
one could have anticipated that Martinez-Cedillo would
eventually be dismissed as moot, thereby precluding the full
court from resolving whether the BIA’s decision in Soram
should receive deference under Chevron.
Given this unique sequence of events, we do not think
Alvarez-Cerriteno or Menendez can now be viewed as
binding circuit precedent on whether Soram is entitled to
Chevron deference, any more than Martinez-Cedillo itself
can. Both Alvarez-Cerriteno and Menendez simply followed
Martinez-Cedillo as then-binding circuit precedent without
engaging in any independent analysis of the deference issue,
and both decisions were effectively insulated from en banc
review on the legal issue decided in Martinez-Cedillo. As a
result, their status as circuit precedent on whether Soram is
entitled to deference rises or falls with the status of Martinez-
Cedillo. Since the opinion in Martinez-Cedillo was vacated
and deemed non-precedential by the en banc court, we must
decide anew whether Diaz-Rodriguez’s conviction under
California Penal Code § 273a(a) renders him removable
under 8 U.S.C. § 1227(a)(2)(E)(i).
The dissent takes issue with this treatment of Alvarez-
Cerriteno and Menendez, arguing that it runs afoul of this
circuit’s rule “that a three-judge panel is ‘bound by the prior
decision of another three-judge panel,’” which “‘gives way
when, but only when, the earlier decision is clearly
irreconcilable with the holding or reasoning of intervening
authority from our court sitting en banc or the Supreme
DIAZ-RODRIGUEZ V. GARLAND 11
Court.’” Dissent at 32–33 (quoting Aleman Gonzalez v.
Barr, 955 F.3d 762, 765 (9th Cir. 2020), cert. granted, 2021
WL 3711642 (U.S. Aug. 23, 2021) (No. 20-322)). But the
decisions in Alvarez-Cerriteno and Menendez are in fact
irreconcilable with a subsequent decision of the court sitting
en banc: As already stated, their reliance on the decision of
the three-judge panel in Martinez-Cedillo is in direct conflict
with the en banc court’s decision to designate that decision
as non-precedential—a designation explicitly noted in the
order of the en banc court dismissing the appeal as moot. See
923 F.3d at 1162. As a result, the circumstances here,
though unusual, are such that the otherwise standard rule of
precedent gives way. 3
III
To determine whether a conviction under California
Penal Code § 273a(a) constitutes a conviction for “a crime
of child abuse, child neglect, or child abandonment,” we
employ the now-familiar categorical approach. Under that
approach, we ask whether “the least of the acts criminalized
by the state statute” falls within the definition of the federal
offense. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,
1568 (2017). If so, the two offenses are a categorical match
3
The dissent also claims that this approach to Alvarez-Cerriteno and
Menendez is “not sound as a practical matter” because an attorney
looking to see whether Martinez-Cedillo “remains good law” would
learn “only that [the decision] was vacated,” and not that an en banc
decision undercut it. Dissent at 34–35. But this is not correct. Because
the en banc order dismissing the appeal explicitly states that the “three-
judge panel disposition . . . was designated as non-precedential,” 923
F.3d at 1162, an attorney conducting an appropriate review of the
Martinez-Cedillo decision would be confronted with the fact that an en
banc court subsequently deemed the decision one that could not properly
be relied upon.
12 DIAZ-RODRIGUEZ V. GARLAND
and the state conviction may serve as a ground for removal.
Id.
Identifying the least of the acts criminalized under
California Penal Code § 273a(a) is straightforward. It
consists of causing or permitting a child “to be placed in a
situation where his or her person or health is endangered,”
committed with a mens rea of criminal negligence. 4 Such
an offense, involving a serious risk of harm to the child but
no resulting injury, is commonly referred to as a child
endangerment offense. That is the sense in which we use the
term “child endangerment” here.
Identifying the elements of the federal offense at issue is
more complicated. Congress enacted 8 U.S.C.
§ 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA). Pub.
L. No. 104-208, § 350(a), 110 Stat. 3009-546, 3009-640.
Without further defining the phrase, § 1227(a)(2)(E)(i)
added “a crime of child abuse, child neglect, or child
abandonment” to the list of offenses that render non-citizens
removable from the United States. When a federal statute
specifies an offense by name without further defining its
elements, we assume that Congress intended to rely on a
uniform, generic version of the offense, drawn from the
ordinary meaning of the term at the time Congress enacted
the statute. Esquivel-Quintana, 137 S. Ct. at 1569; Perrin v.
United States, 444 U.S. 37, 42 (1979). We share the task of
identifying the elements of the generic federal offense with
4
Because California Penal Code § 273a(a) is not divisible, see
Ramirez v. Lynch, 810 F.3d 1127, 1138 (9th Cir. 2016), we need not
consider application of the so-called modified categorical approach. See
Esquivel-Quintana, 137 S. Ct. at 1568 n.1.
DIAZ-RODRIGUEZ V. GARLAND 13
the BIA because it is the agency charged with implementing
statutory provisions specifying the grounds for removal.
In two decisions, the BIA has attempted to formulate a
definition of the generic federal offense described by the
phrase “a crime of child abuse, child neglect, or child
abandonment.” In Matter of Velazquez-Herrera, 24 I. & N.
Dec. 503 (BIA 2008), the agency interpreted “crime of child
abuse” to mean “any offense involving an intentional,
knowing, reckless, or criminally negligent act or omission
that constitutes maltreatment of a child or that impairs a
child’s physical or mental well-being, including sexual
abuse or exploitation.” Id. at 512. The Board left open
whether this definition included state offenses “in which a
child is merely placed or allowed to remain in a dangerous
situation, without any element in the statute requiring
ensuing harm.” Id. at 518 n.2 (Pauley, concurring). The BIA
answered that question soon afterward in Matter of Soram,
25 I. & N. Dec. 378 (BIA 2010), where it held that “the term
‘crime of child abuse,’ as described in Velazquez-Herrera, is
not limited to offenses requiring proof of injury to the child.”
Id. at 381. The agency also clarified that, in its view, the
phrase “a crime of child abuse, child neglect, or child
abandonment” “denotes a unitary concept,” such that the
agency’s “broad definition of child abuse describes the entire
phrase.” Id. After Soram, then, non-citizens convicted of
negligent child endangerment offenses were subject to
removal under 8 U.S.C. § 1227(a)(2)(E)(i).
Unlike the three-judge panel in Martinez-Cedillo, we do
not think the BIA’s decision in Soram is entitled to deference
on the question whether negligent child endangerment
offenses are encompassed within the phrase “a crime of child
abuse, child neglect, or child abandonment.” In our view, as
to that specific question, “Congress has supplied a clear and
14 DIAZ-RODRIGUEZ V. GARLAND
unambiguous answer,” precluding deference under Chevron
step one. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018).
In deciding whether deference is owed under Chevron,
we are guided by the Supreme Court’s resolution of a similar
issue in Esquivel-Quintana. There, the Court addressed
another conviction-based provision enacted as part of
IIRIRA, this one making conviction for “sexual abuse of a
minor” grounds for removal. 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1101(a)(43)(A). The question before the Court was whether
the generic federal definition of this offense, as applied to
the crime of statutory rape, requires the victim to be younger
than 16. The BIA had held that the generic federal definition
included crimes in which the victim was 16 or 17, as long as
there was “a meaningful age difference between the victim
and the perpetrator.” Esquivel-Quintana, 137 S. Ct. at 1567(quoting Matter of Esquivel-Quintana, 26 I. & N. Dec. 469,
477 (BIA 2015)). The Court rejected the BIA’s
interpretation under Chevron step one and held that the
generic federal definition of sexual abuse of a minor
“requires the age of the victim to be less than 16.” Id.at 1572–73.
Although the precise holding of Esquivel-Quintana has
no direct bearing on the issue before us, the Court’s
reasoning is nonetheless highly instructive. After observing
that Congress had not defined the term “sexual abuse of a
minor,” id. at 1569, the Court did not throw up its hands and
declare the statute ambiguous with respect to the specific
question raised there. The Court instead relied on “the
normal tools of statutory interpretation” to determine
whether the statute provided a clear answer. Id. The Court
looked to definitions from contemporary legal dictionaries,
statutory structure, state criminal codes in effect at the time
of IIRIRA’s enactment, and a related federal criminal
DIAZ-RODRIGUEZ V. GARLAND 15
statute. Id. at 1569–72. Based on its review of those sources,
the Court concluded that “the statute, read in context,
unambiguously forecloses the Board’s interpretation,”
rendering deference to the agency under Chevron
unwarranted. Id. at 1572.
As discussed below, three of the four sources of statutory
meaning the Court consulted in Esquivel-Quintana—
contemporary legal dictionaries, statutory structure, and
contemporary state criminal codes—support the conclusion
that § 1227(a)(2)(E)(i) unambiguously forecloses the BIA’s
interpretation of the statute in Soram. (The fourth source,
related federal criminal statutes, does not aid our analysis.
While there are various federal statutes defining child abuse
and neglect, see Velazquez-Herrera, 24 I. & N. Dec. at 509–
11, they all arise in the civil context and do not purport to
define criminal conduct.)
Legal dictionaries. Contemporary legal dictionaries
from shortly before and after IIRIRA’s enactment indicate
that child abuse, child neglect, and child abandonment were
well-understood concepts with distinct meanings that do not
encompass negligent child endangerment offenses.
The common meaning of “child abuse” in 1996 required
the infliction of some form of injury upon the child. One of
the principal dictionaries cited by the Court in Esquivel-
Quintana defines the term as “the infliction of physical or
emotional injury” on a child, including sexual abuse.
Merriam-Webster’s Dictionary of Law 4, 76 (1996). The
two editions of Black’s Law Dictionary that bookend
IIRIRA’s enactment contain similar definitions. The Sixth
Edition defines “child abuse” as “[a]ny form of cruelty to a
child’s physical, moral or mental well-being,” with “cruelty”
defined as “[t]he intentional and malicious infliction of
physical or mental suffering.” Black’s Law Dictionary 239,
16 DIAZ-RODRIGUEZ V. GARLAND
377 (6th ed. 1990) (Black’s Sixth Edition). The Seventh
Edition defines “child abuse” as “[a]n intentional or
neglectful physical or emotional injury imposed on a child,
including sexual molestation.” Black’s Law Dictionary 10,
233 (7th ed. 1999) (Black’s Seventh Edition). Each of these
definitions excludes the child endangerment offense
described in California Penal Code § 273a(a) because that
offense does not require the infliction of any injury on the
child.
The common meaning of the term “child neglect” in
1996 required a sustained failure by a child’s caregiver to
provide for the child’s basic needs. For example, Merriam-
Webster’s defines “neglect” to mean “a failure to provide a
child under one’s care with proper food, clothing, shelter,
supervision, medical care, or emotional stability.” Merriam-
Webster’s Dictionary of Law 324. The Sixth Edition of
Black’s Law Dictionary does not define the term “child
neglect” directly, but it defines “neglected child” to mean a
child whose “parent or custodian, by reason of cruelty,
mental incapacity, immorality or depravity, is unfit properly
to care for him, or neglects or refuses to provide necessary
physical, affectional, medical, surgical, or institutional or
hospital care for him, or he is in such condition of want or
suffering, or is under such improper care or control as to
endanger his morals or health.” Black’s Sixth Edition 1032.
The Seventh Edition defines “child neglect” to mean “[t]he
failure of a person responsible for a minor to care for the
minor’s emotional or physical needs.” Black’s Seventh
Edition 233; see also id. (defining “neglected child” as: “1.
A child whose parents or legal custodians are unfit to care
for him or her for reasons of cruelty, immorality, or
incapacity. 2. A child whose parents or legal custodians
refuse to provide the necessary care and medical services for
the child.”). These definitions exclude child endangerment
DIAZ-RODRIGUEZ V. GARLAND 17
offenses, such as California Penal Code § 273a(a), that
punish one-time negligent acts or omissions exposing a child
to the risk of harm.
The same is true of the common meaning in 1996 of
“child abandonment,” a term that was understood to involve
the forsaking of one’s parental duties. As relevant here,
Merriam-Webster’s defines “abandonment” as the “failure
to communicate with or provide financial support for one’s
child over a period of time that shows a purpose to forgo
parental duties and rights.” Merriam-Webster’s Dictionary
of Law 1; see also Black’s Sixth Edition 2 (defining
“abandonment” with respect to children as “[d]esertion or
willful forsaking”; “[f]oregoing parental duties”). The
Seventh Edition of Black’s Law Dictionary defines
abandonment more simply as “[t]he act of leaving a spouse
or child willfully and without an intent to return.” Black’s
Seventh Edition 2; see also Bryan A. Garner, A Dictionary
of Modern Legal Usage 3 (2d ed. 1995) (abandon: “in family
law, to leave children or a spouse willfully and without an
intent to return”). No one contends that one-time negligent
acts or omissions exposing a child to the risk of harm fall
within the common meaning of “child abandonment.”
Statutory structure. The contemporary definitions of
child abuse, child neglect, and child abandonment make
clear that the ordinary meaning of those terms in 1996 did
not encompass negligent child endangerment offenses. The
question becomes whether Congress’s omission of child
endangerment from the list of crimes specified in
§ 1227(a)(2)(E)(i) was the product of deliberate choice or
instead mere inadvertence, thereby leaving a gap in the
statute for the BIA to fill. Statutory structure sheds light on
that inquiry.
18 DIAZ-RODRIGUEZ V. GARLAND
Under the common meaning of the terms child abuse,
child neglect, and child abandonment discussed above, non-
citizens convicted of those crimes have either inflicted harm
on a child or forsaken their parental responsibilities
altogether. Making such conduct a ground for removal will
in many cases result in separation of the victims of those
offenses from the convicted parent, at least in cases where
(as here) the children are U.S. citizens or otherwise have
lawful status in the United States. Congress could readily
have viewed the forced separation of parent and child—and
its impact on the child’s future well-being—with less
concern when the child has been abused, neglected, or
abandoned by the very parent facing removal.
We do not think the same can be said when the parent in
question has been convicted of negligent child
endangerment. That offense can be predicated on a single
lapse in parental judgment, such as leaving young children
at home alone while the parent is at work. See, e.g., Ibarra
v. Holder, 736 F.3d 903, 905 & n.3 (10th Cir. 2013). It is
easy to see why Congress could have viewed this less-
serious form of misconduct as an unacceptable basis under
the immigration laws for separating parents from their
children.
A neighboring provision of the INA suggests that
Congress deliberately omitted child endangerment from the
list of offenses specified in § 1227(a)(2)(E)(i). To
ameliorate the harshness of the removal sanction, Congress
has provided a form of discretionary relief known as
cancellation of removal. See 8 U.S.C. § 1229b. Non-
citizens who are not lawful permanent residents are eligible
for cancellation of removal if they can show, among other
things, that their removal would result in “exceptional and
extremely unusual hardship” to their child, provided the
DIAZ-RODRIGUEZ V. GARLAND 19
child is a U.S. citizen or lawful permanent resident.
§ 1229b(b)(1)(D). However, a conviction for “a crime of
child abuse, child neglect, or child abandonment” under
§ 1227(a)(2)(E)(i) not only renders a non-citizen removable
but also makes him or her statutorily ineligible for this
discretionary form of relief. § 1229b(b)(1)(C). Thus, under
the BIA’s reading of § 1227(a)(2)(E)(i), a non-citizen
convicted of negligently endangering her child on a single
occasion is categorically ineligible for cancellation of
removal even if she can prove that “separation would cause
‘exceptional and extremely unusual hardship’ to that same
child.” Matthews v. Barr, 927 F.3d 606, 625 (2d Cir. 2019)
(Carney, J., dissenting). Mandating separation of parent and
child in those circumstances would be decidedly at odds with
the otherwise child-protective aim of § 1227(a)(2)(E)(i).
State criminal codes. The Supreme Court has held that
a survey of state criminal codes as they stood at the time
Congress enacted the statute in question provides useful
context when arriving at the generic federal definition of an
offense. See, e.g., Esquivel-Quintana, 137 S. Ct. at 1571 &
n.3; Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189–90
(2007); Perrin, 444 U.S. at 44–45. Here, we need not
consult state criminal codes to decide whether all child
endangerment offenses are included within the generic
federal definition of “a crime of child abuse, child neglect,
or child abandonment.” The narrower question in this case
is whether negligent child endangerment offenses are
included within the generic definition, since that is the least
of the acts criminalized under California Penal Code
§ 273a(a).
In 1996, only a handful of States criminalized conduct
that would constitute child endangerment under statutes
proscribing “abuse,” “neglect,” or “abandonment.” But to
20 DIAZ-RODRIGUEZ V. GARLAND
err on the side of caution, we conducted a survey of state
criminal codes to identify any State that criminalized
negligent child endangerment irrespective of the label used.
Such a survey confirms that, even when broadly construed,
the phrase “a crime of child abuse, child neglect, or child
abandonment” does not encompass negligent child
endangerment offenses.
At the time of IIRIRA’s enactment, only 14 States
criminalized child endangerment committed with a mens rea
of criminal negligence. See Appendix A. The other
36 States did not criminalize such conduct. Twenty-three
States, along with the District of Columbia, criminalized
child endangerment only if committed with a mens rea of at
least recklessness, see Appendix B, while the remaining
13 States did not criminalize child endangerment at all, see
Appendix C. 5
The general consensus drawn from state criminal codes
supports the conclusion that § 1227(a)(2)(E)(i)
unambiguously forecloses the BIA’s interpretation of the
statute in Soram. See Esquivel-Quintana, 137 S. Ct. at 1572.
In Esquivel-Quintana, 16 States set the age of consent for
statutory rape offenses at 17 or 18, whereas 31 States and the
District of Columbia set the age of consent at 16. Id. at 1571.
The Supreme Court held that the consensus view of 31 States
and the District of Columbia supported the conclusion that
Congress unambiguously foreclosed the BIA’s attempt to
5
The Tenth Circuit reported slightly different numbers in Ibarra
because its survey focused on all offenses against children not requiring
a resulting injury to the child, including offenses constituting child
neglect or child abandonment. See Ibarra, 736 F.3d at 918–21. Our
survey, by contrast, focuses solely on child endangerment offenses
because that is the offense for which Diaz-Rodriguez was convicted.
DIAZ-RODRIGUEZ V. GARLAND 21
define the generic offense of sexual abuse of a minor to
include an age of consent of 18. Id. at 1571–72. Here, the
consensus view of the States cuts even more strongly against
the BIA’s interpretation, as 36 States and the District of
Columbia excluded negligent child endangerment from the
realm of conduct that could be deemed covered by the phrase
“a crime of child abuse, child neglect, or child
abandonment.”
* * *
We conclude that the text of 8 U.S.C. § 1227(a)(2)(E)(i)
unambiguously forecloses the BIA’s interpretation of “a
crime of child abuse, child neglect, or child abandonment”
as encompassing negligent child endangerment offenses.
See Ibarra, 736 F.3d at 917–18 (reaching same conclusion);
cf. Zarate-Alvarez v. Garland, 994 F.3d 1158, 1164–65
(10th Cir. 2021) (per curiam) (reaching opposite conclusion
as to child endangerment offense requiring knowing or
reckless conduct). As in Esquivel-Quintana, 137 S. Ct.
at 1572, deference under Chevron is therefore unwarranted.
While several of our sister circuits have deferred to the
BIA’s decision in Soram, we find those decisions both
distinguishable and unpersuasive. They are distinguishable
because none involved a negligent child endangerment
offense, the specific offense addressed here, and they are
unpersuasive because none engaged in any meaningful
analysis of the text of § 1227(a)(2)(E)(i) at step one of the
Chevron analysis. See Garcia v. Barr, 969 F.3d 129, 133–
34 & n.1 (5th Cir. 2020); Mondragon-Gonzalez v. Attorney
General, 884 F.3d 155, 158–59 (3d Cir. 2018); Pierre v. U.S.
Attorney General, 879 F.3d 1241, 1249–50 (11th Cir. 2018);
Florez v. Holder, 779 F.3d 207, 209, 211 (2d Cir. 2015).
After noting that Congress did not define the phrase “a crime
of child abuse, child neglect, or child abandonment,” they
22 DIAZ-RODRIGUEZ V. GARLAND
declared the statute ambiguous without first “exhaust[ing]
all the ‘traditional tools’ of construction.” Kisor v. Wilkie,
139 S. Ct. 2400, 2415 (2019) (quoting Chevron, 467 U.S.
at 843 n.9). In our view, this “cursory analysis” of statutory
text, Pereira, 138 S. Ct. at 2120 (Kennedy, J., concurring),
cedes too much power to the BIA to expand the grounds for
removal beyond those specified by Congress. We agree with
the Tenth Circuit’s observation that “while the statutory text
at issue here does contain some ambiguity, Congress’s intent
is not so opaque as to grant the BIA the sweeping
interpretive license it has taken.” Ibarra, 736 F.3d at 910. 6
Because California Penal Code § 273a(a) criminalizes
conduct that falls outside the generic federal definition, it is
not a categorical match for “a crime of child abuse, child
neglect, or child abandonment.” Contrary to the BIA’s
ruling, Diaz-Rodriguez’s conviction under that statute does
not render him removable from the United States under
8 U.S.C. § 1227(a)(2)(E)(i).
PETITION FOR REVIEW GRANTED.
6
The dissent suggests that the Tenth Circuit, in Ibarra, “implicitly
recognized the statute’s ambiguity” even as it ultimately declined to
defer to the BIA’s interpretation. Dissent at 38 (citing Ibarra, 736 F.3d
at 910). However, while the Ibarra court did recognize that the statute
contains “some ambiguity,” it ultimately held that the “plain language of
the statute”—a Chevron step one inquiry—precluded deference to the
BIA on the interpretation of the particular language at issue. 736 F.3d
at 910.
DIAZ-RODRIGUEZ V. GARLAND 23
APPENDIX A
In 1996, the following 14 States criminalized child
endangerment committed with a mens rea of negligence:
Ala. Code §§ 12-15-1(10)(f), 13A-13-
Alabama 6(a)(2); see Pearson v. State, 601 So. 2d
1119, 1126 (Ala. Crim. App. 1992)
Ariz. Rev. Stat. Ann. § 13-3623(B)(3),
Arizona
(C)(3)
Cal. Penal Code § 273a; see People v.
California
Valdez, 42 P.3d 511, 517–18 (Cal. 2002)
Colo. Rev. Stat. Ann. § 18-6-401(1),
Colorado
(7)(b)(II)
Missouri Mo. Rev. Stat. § 568.050(1)
Nebraska Neb. Rev. Stat. § 28-707(1)(a)
New
N.M. Stat. Ann. § 30-6-1(C)(1)
Mexico
N.Y. Penal Law § 260.10(2); N.Y. Fam. Ct.
New York Act § 1012(e), (f); see People v. Scully, 513
N.Y.S.2d 625, 627 (Crim. Ct. 1987)
Oregon Or. Rev. Stat. § 163.545(1)
S.C. Code Ann. § 20-7-50(A)(1); see State
South
v. Fowler, 470 S.E.2d 393, 396 (S.C. Ct.
Carolina
App. 1996)
South
S.D. Codified Laws §§ 26-8A-2(6), 26-9-1
Dakota
24 DIAZ-RODRIGUEZ V. GARLAND
Texas Tex. Penal Code Ann. § 22.041(c)
Va. Code Ann. §§ 16.1-228(1), 18.2-371;
Virginia see Miller v. Commonwealth, 769 S.E.2d
706, 713–14 (Va. Ct. App. 2015)
Wyoming Wyo. Stat. Ann. § 6-4-403(a)(ii)
DIAZ-RODRIGUEZ V. GARLAND 25
APPENDIX B
In 1996, the following 23 States and the District of
Columbia criminalized child endangerment if committed
with a mens rea of at least recklessness:
Arkansas Ark. Code Ann. § 5-27-204(a)
Conn. Gen. Stat. § 53-21(1); see State
Connecticut v. Dennis, 188 A.2d 65, 66–67 (Conn.
1963)
Delaware Del. Code Ann. tit. 11, § 1102(a)
District of
D.C. Code § 22-1101(b)
Columbia
Hawaii Haw. Rev. Stat. § 709-904(2)
Idaho Code § 18-1501(1)–(2); see
Idaho State v. Young, 64 P.3d 296, 299
(Idaho 2002)
720 Ill. Comp. Stat. 5/12-21.6; see
Illinois People v. Jordan, 843 N.E.2d 870,
879 (Ill. 2006)
Indiana Ind. Code § 35-46-1-4(a)(1)
Iowa Iowa Code § 726.6(1)(a)
Kansas Kan. Stat. Ann. § 21-3608(a)
Ky. Rev. Stat. Ann. §§ 530.060(1),
Kentucky
600.020(1)
Maine Me. Stat. tit. 17-A, § 554(1)(C)
Minnesota Minn. Stat. § 609.378(b)(1)
26 DIAZ-RODRIGUEZ V. GARLAND
Montana Mont. Code Ann. § 45-5-622(1)
New Hampshire N.H. Rev. Stat. Ann. § 639:3(I)
N.C. Gen. Stat. § 14-318.2(a); see
North Carolina State v. Hunter, 270 S.E.2d 120, 122
(N.C. Ct. App. 1980)
Ohio Rev. Code Ann. § 2919.22(A);
Ohio see State v. Barton, 594 N.E.2d 702,
707 n.1 (Ohio Ct. App. 1991)
Okla. Stat. tit. 10, §§ 7102(B)(1),
Oklahoma 7115; see Ball v. State, 173 P.3d 81,
92 (Okla. Crim. App. 2007)
Pennsylvania 18 Pa. Cons. Stat. § 4304(a)
Tenn. Code Ann. §§ 37-1-102(b)(1),
(b)(12)(G); 37-1-157(a); see
Tennessee Konvalinka v. Chattanooga-Hamilton
County Hospital Authority, 249
S.W.3d 346, 357 (Tenn. 2008)
Vt. Stat. Ann. tit. 13, § 1304; see
Vermont State v. Amsden, 75 A.3d 612, 624
(Vt. 2013)
Washington Wash. Rev. Code § 9A.42.030(1)
W. Va. Code Ann. §§ 61-8D-1(6), 61-
West Virginia
8D-4(e); see 2014 W. Va. Acts 451Wisconsin Wis. Stat. §§ 948.03(4), 948.04(2)
DIAZ-RODRIGUEZ V. GARLAND 27
APPENDIX C
In 1996, the following 13 States did not criminalize child
endangerment at all. The cited statutory provisions refer to
the jurisdiction’s other crimes against children.
Alaska Stat. §§ 11.51.100 (intentional
Alaska desertion), 11.51.120 (criminal
nonsupport)
Fla. Stat. §§ 39.01 (definitions), 827.04
Florida
(abuse), 827.05 (neglect)
Ga. Code Ann. §§ 16-5-70 (abuse and
Georgia
neglect), 19-10-1 (abandonment)
Louisiana La. Stat. Ann. § 14:79.1 (abandonment)
Md. Code Ann., Art. 27, § 35C (abuse);
Cts. & Jud. Proc. § 3-831 (contribution
Maryland to delinquency); Fam. Law §§ 10-203
(nonsupport and desertion), 10-219
(desertion)
Mass. Gen. Laws ch. 119, § 39; ch.
Massachusetts
273, § 1 (abandonment)
Mich. Comp. Laws §§ 750.135Michigan
(abandonment), 750.136b (abuse)
Miss. Code Ann. §§ 43-21-105(m)
(defining “abused child”); 97-5-1
Mississippi
(abandonment); 97-5-39(1), (2)
(contributing to neglect; abuse)
Nev. Rev. Stat. §§ 200.508, 432B.140
Nevada
(abuse and neglect)
28 DIAZ-RODRIGUEZ V. GARLAND
N.J. Stat. Ann. §§ 2C:24-4 (moral or
sexual endangerment); 9:6-1, 9:6-3
New Jersey
(abuse, abandonment, cruelty, and
neglect)
N.D. Cent. Code §§ 14-07-15North Dakota (abandonment), 14-09-22 (abuse and
neglect)
R.I. Gen. Laws §§ 11-2-1
Rhode Island (abandonment), 11-9-5 (cruelty and
neglect), 11-9-5.3 (abuse)
Utah Utah Code Ann. § 76-5-109 (abuse)
DIAZ-RODRIGUEZ V. GARLAND 29
CALLAHAN, Circuit Judge, dissenting:
I am compelled to dissent for two reasons. First, I do not
agree that despite the “unique sequences of events” resulting
in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir.
2018), being vacated, 918 F.3d 601 (9th Cir. 2019), we as a
three-judge panel may disregard our published decisions in
Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and
Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).
Second, even if the issue were properly before us, I do not
agree with the majority’s peculiar reading of “a crime of
child abuse, child neglect, or child abandonment” as not
encompassing a child endangerment offense committed with
a mens rea of at least criminal negligence. The majority’s
suggestion that 8 U.S.C. § 1227(a)(2)(E)(i) 1 is unambiguous
is contrary to our precedent and the unanimous opinions of
our sister circuits. Moreover, the majority fails to recognize
that our task is limited to reviewing the agency’s
interpretation for “reasonableness.” Instead, the majority
proffers its own definition of “crime of child abuse,” based
primarily on selected dictionary definitions and its own
research. The majority justifies its creative approach by
urging that negligent child endangerment should not be a
basis for separating parents from their children. But this is
an issue on which reasonable minds may differ and the
majority’s approach misperceives our limited role in
reviewing agency decisions.
1
The statute provides that a person shall be removed “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.”
30 DIAZ-RODRIGUEZ V. GARLAND
I.
Although the majority is concerned that a “single lapse
in parental judgment” might force the separation of parent
and child (Maj. at 18), this is not such a case. Diaz-
Rodriguez has an extensive history of alcohol abuse and has
been convicted twice for felony child abuse. In 1989, Diaz-
Rodriguez pleaded guilty to driving drunk with a blood
alcohol content (BAC) of .16. In 1994, he pleaded guilty to
driving drunk when his BAC was .12. In 2003, Diaz-
Rodriguez drove drunk with his five-year-old son, Rafael, in
the car with a blood alcohol level of .20, over twice the legal
limit. As a result, he was convicted of drunk driving and
felony child abuse under Cal. Penal Code (CPC) § 273a(a).
Diaz-Rodriguez picked up another DUI conviction that same
year. In 2009, six years later, Diaz-Rodriguez committed the
same crime when he drove drunk with his six-year-old
daughter, Paula, in the car. As a result, he was again
convicted of child abuse under CPC § 273a(a) and drunk
driving. When asked why he would drive drunk with his
child in the car after being convicted for that same offense
before, he reasoned, “I wasn’t feeling like I was drunk or I
wasn’t feeling bad as far as after having had those beers.”
The Department of Homeland Security initiated removal
proceedings against Diaz-Rodriguez based on his 2009 child
endangerment conviction.
II.
In Martinez-Cedillo, 896 F.3d 979 (9th Cir. 2018),
vacated 923 F.3d 1162 (9th Cir. 2019), we held that
California Penal Code § 273a(a) was “categorically a crime
of child abuse, neglect, or abandonment as interpreted by the
BIA.” Id. at 981. We found that the BIA’s opinions in
Matter of Velasquez-Herrera, 24 I. & N. Dec. 503 (BIA
2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010),
DIAZ-RODRIGUEZ V. GARLAND 31
which expanded the definition of child abuse to include an
offense that did not result in actual harm or injury to the
child, were reasonable constructions of ambiguous statutory
language. Martinez-Cedillo, 896 F.3d at 992.
We revisited Soram in Alvarez-Cerriteno v. Sessions,
899 F.3d 774 (9th Cir. 2018). We applied the Chevron two-
step analysis which “asks if (1) the INA is ambiguous with
regard to what constitutes a ‘crime of child abuse’ and
(2) the BIA’s construction in Soram reasonably resolves the
ambiguity.” Id. at 781. We then recognized that, in
Martinez-Cedillo, we had held that “the BIA’s interpretation
of the generic crime in Soram is entitled to Chevron
deference” and that we were bound by this precedent. Id.(citing Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003)
(en banc)). Thus, the generic “‘crime of child abuse,’ as used
in the INA, includes acts and omissions that (1) are
criminally negligent and (2) create at least a ‘reasonable
probability’ that a child will be harmed.” Id. (citing Soram,
25. I & N. Dec. at 385–86).
Alvarez-Cerriteno proceeded to hold that the Nevada
statute in issue was broader than the federal generic crime
because it included instances in which there was only a
‘“reasonably foreseeable’ risk of harm to a child.” Id. at 784.
We also considered deference to the BIA’s interpretation
in Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018). One
issue concerned whether a conviction under California Penal
Code § 288(c)(1) was a crime of child abuse. We deferred
to the BIA’s definition of “crime of child abuse” as set out
in Velazquez-Herrera, 24 I. & N. Dec. 503, and Soram, 25 I.
& N. 370, citing Martinez-Cedillo. Id. at 474. We held that,
read together, “Velazquez-Herrera and Soram require (1) a
mens rea that rises at least to the level of criminal negligence;
32 DIAZ-RODRIGUEZ V. GARLAND
and (2) ‘maltreatment’ that results in either actual injury to a
child, or a ‘sufficiently high risk of harm’ to a child.” Id.Menendez ultimately found that § 288(c)(1) was broader
than the generic federal definition of “crime of child abuse”
because it did not require a mens rea of at least criminal
negligence and did not require proof of actual injury “or a
‘sufficiently high risk of harm’ as an element of the offense.”
Id. at 475.
The three-judge panel’s opinion in Martinez-Cedillo was
declared non-precedential when we voted to rehear it en
banc, 918 F.3d 601 (9th Cir. 2019), and the opinion was then
vacated after the petitioner died. 923 F.3d 1162 (9th Cir.
2019). But both Alvarez-Cerriteno and Menendez remain
good law. We have cited Alvarez-Cerriteno as supporting
deference to the BIA’s interpretation, Cortes-Maldonado v.
Barr, 978 F.3d 643, 648 (9th Cir. 2020), as has the Fifth
Circuit, Garcia v. Barr, 969 F.3d 129, 132, 134 (5th Cir.
2020) (citing Alvarez-Cerriteno as deferring to the BIA’s
interpretation of “crime of child abuse” and ultimately
joining “the Second, Third, Ninth, and Eleventh Circuits in
holding that the Board’s interpretation is entitled to Chevron
deference”).
The majority nonetheless holds that Alvarez-Cerriteno
and Menendez, do not establish “binding circuit precedent”
because the opinions simply follow Martinez-Cedillo
“without engaging in any independent analysis of the
deference issue,” and because “both decisions were
effectively insulated from en banc review on the legal issue
decided in Martinez-Cedillo.” Maj. at 10.
The majority cites no authority for its approach which is
contrary to our established case law on precedent. In
Gonzalez v. Barr, 955 F.3d 762, 765 (9th Cir. 2020), we
DIAZ-RODRIGUEZ V. GARLAND 33
reiterated that a three-judge panel is “bound by the prior
decision of another three-judge panel” and “gives way when,
but only when, the earlier decision is clearly irreconcilable
with the holding or reasoning of intervening authority from
our court sitting en banc or the Supreme Court.” See also
Miller v. Gammie, 335 F.3d 889, 893, 899–90 (9th Cir.
2003). Moreover, the “clearly irreconcilable” requirement
is a “high standard,” and when “we can apply our precedent
consistently with that of the higher authority, we must do
so.” Id. (quoting FTC v. Consumer Def., LLC, 926 F.3d
1208, 1213 (9th Cir. 2019)) (emphasis added). Here, there
is no intervening irreconcilable decision by the Supreme
Court or the Ninth Circuit. Indeed, if we are going to adopt
a new exception to our approach to precedent, such a
departure should itself be made by an en banc panel. 2
Relatedly, the majority’s approach is contrary to the
principle of stare decisis. See In re NCCA Athletic Grant in
Aid Cap Antitrust Litigation, 958 F.3d 1239, 1253 (9th Cir.
2020) (reiterating that stare decisis binds today’s court to
yesterday’s decision). In S & H Packing & Sales v.
Tanimura Dist. Inc., 850 F.3d 446, 450 (9th Cir. 2017),
vacated and reheard en banc 883 F.3d 797 (9th Cir. 2018),
2
The majority’s argument that Alvarez-Cerriteno and Menendez
“are in fact irreconcilable with a subsequent decision of the court sitting
en banc” (Maj. at 11) mischaracterizes the en banc court orders in
Martinez-Cedillo. The first order, 918 F.3d 601, noted that the case
would be reheard en banc and stated that the three-judge disposition
“shall not be cited as precedent.” The second order, 923 F.3d 1162,
reiterated that the three-judge disposition, which had been designated as
non-precedential was vacated and the appeal dismissed. The en banc
panel never reached the merits of the Martinez-Cedillo opinion.
Certainly, the opinion relied upon by Alverez-Cerriteno and Menendez
was vacated but their continued deference to Soram is not
“irreconcilable” to any Ninth Circuit en banc opinion or order.
34 DIAZ-RODRIGUEZ V. GARLAND
we cited United States v. Lucas, 963 F.2d 243, 247 (9th Cir.
1992), as “noting that subsequent panels are bound by prior
panel decisions and only the en banc court may overrule
panel precedent.” We explained:
In some cases, an earlier panel’s election not
to discuss an argument may prevent future
panels from concluding the earlier panel
implicitly accepted or rejected an argument.
After all, “under the doctrine of stare decisis
a case is important only for what it decides—
for the ‘what,’ not for the ‘why,’ and not for
the ‘how.’” In re Osborne, 76 F.3d 306, 309
(9th Cir. 1996) (“[T]he doctrine of stare
decisis concerns the holdings of previous
cases, not the rationales[.]”).
850 F.3d at 450. The majority, without any supporting
authority, ignores “what” Alvarez-Cerriteno and Menendez
decided because it does not agree with the “why” of those
opinions. Again, even if this were a sound approach, it is a
decision reserved for an en banc panel.
Moreover, the proposal is not sound as a practical matter.
How is one to determine whether the holding in Alvarez-
Cerriteno that the Ninth Circuit defers to the BIA’s
reasonable interpretation of “crime of child abuse” is not
precedential? The opinion remains extant and has even been
cited by the Ninth Circuit as supporting deference to the
BIA’s interpretation. See Cortes-Maldonado, 978 F.3d
at 648. 3 Nor can the deference be dismissed as dictum
3
Because Cortes-Maldonado was decided well after Martinez-
Cedillo was dismissed, it rebuts the majority’s suggestion that Alvarez-
DIAZ-RODRIGUEZ V. GARLAND 35
because deference to the BIA’s decision is central to the
panel’s explanation for why the Nevada statute there at issue
does not come within the BIA’s definition of “crime of child
abuse.” The majority presumably requires that an attorney
look to see if the authority cited in Alvarez-Cerriteno (here
Martinez-Cedillo) remains good law. But this research
would disclose only that Martinez-Cedillo was vacated. It
would not disclose a contrary Ninth Circuit opinion, because
there is no such opinion.
The majority’s holding that Alvarez-Cerriteno and
Menendez may be dismissed as precedent because Martinez-
Cedillo, which Alvarez-Cerriteno and Menendez cite as
authority, was vacated, is contrary to the Ninth Circuit’s
position on precedent, beyond the authority of a three-judge
panel, and wrong. 4
III.
The majority recognizes the two-step framework set
forth in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), see Maj. at 7, and
purports to disapprove of the BIA’s definition of “crime of
child abuse” under the first Chevron prong. Its analysis of
“crime of child abuse” starts with a discussion of Esquivel-
Cerriteno’s precedential value is undercut because it was decided while
en banc proceedings were pending in Martinez-Cedillo.
4
The majority’s cure seems more viral than the disease. If Alvarez-
Cerriteno and Menendez need to be overruled, the majority could seek
to have this appeal heard en banc. Such an approach is consistent with
our approach to precedent. Nor is this a situation that is likely to reoccur
as it arises out of a relatively unusual situation in which an appeal
becomes moot between the time that we vote to grant rehearing en banc
and when we hear the case en banc.
36 DIAZ-RODRIGUEZ V. GARLAND
Quintana v. Sessions, 137 S. Ct. 1562 (2017). There the
Court held that a “state statute criminalizing consensual
sexual intercourse between a 21-year-old and a 17-year-old”
does not qualify “as sexual abuse of a minor under the INA.”
Id. at 1567. The Court concluded that “the statute, read in
context, unambiguously forecloses the Board’s
interpretation.” Id. at 1572. Contrary to the majority’s
reading, it is not clear whether the Supreme Court held the
federal statute to be unambiguous (the first prong) or that the
Board’s interpretation of an ambiguous statute was
unreasonable (the second prong).
The majority insists that its analysis proceeds under the
first prong of Chevron. First, the majority states that Soram
is not entitled to deference because “[i]n our view, as to that
specific question, ‘Congress has supplied a clear and
unambiguous answer’ precluding deference under Chevron
step one.” Maj. at 13–14 (quoting Pereira v. Sessions,
138 S. Ct. 2105, 2113 (2018)). Second, it asserts that in
Esquivel-Quintana, 137 S. Ct. at 1567, the Supreme Court
rejected the BIA’s interpretation “under Chevron step one.”
Maj. at 14. Third, the majority dismisses contrary decisions
by our sister circuits as not having “engaged in any
meaningful analysis of the text of § 1227(a)(2)(E)(i) at step
one of the Chevron analysis.” Maj. at 21.
To the extent that the majority asserts that
§ 1227(a)(2)(E)(i) is unambiguous, it is wrong.
Furthermore, its failure to recognize the differences between
the approaches mandated by the first and second prongs of
Chevron contributes to its failure to appreciate our duty to
defer to an agency’s reasonable interpretation of an
ambiguous statute.
Initially, it should be noted that the majority’s opinion is
the first suggestion that the statute is unambiguous. In
DIAZ-RODRIGUEZ V. GARLAND 37
Martinez-Cedillo, 896 F.3d at 987, we agreed with “[e]very
circuit court to have considered it” that § 1227(a)(2)(E)(i) is
ambiguous. Indeed, Judge Wardlaw in her dissent
commented “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.” Id. at 998. Similarly, in
Alvarez-Cerriteno, 899 F.3d 774, both the majority and the
dissenting opinions agreed that the statute was ambiguous.5
Thus, despite the majority’s contrary assumption, our
decision to rehear Martinez-Cedillo en banc did not
undermine the determination that the statute was ambiguous.
Our sister circuits uniformly agree that the statue is
ambiguous. The Fifth Circuit in Garcia v. Barr, 969 F.3d
129, 133 (5th Cir. 2020), opined that “Congress left the term
‘crime of child abuse’ undefined, and the legislative history
doesn’t plainly express its meaning,” that there is not “any
widely accepted definition of that term,” and that “the statute
doesn’t speak unambiguously to the question at issue.” Id.The Third Circuit in Mondragon-Gonzalez v. Attorney
General, 884 F.3d 155, 158–59 (3d Cir. 2018), held that
“[t]he crime of child abuse is not defined in the INA.
Moreover, the meaning of the phrase, ‘crime of child abuse,’
as used in § 1227(a)(2)(E)(i) is not plain and unambiguous.”
The Eleventh Circuit in Pierre v. U.S. Attorney General,
879 F.3d 1241, 1249 (11th Cir. 2018), stated that “[t]he INA
does not define ‘child abuse’” and thus, “[b]ecause the
statute is silent on the issue, we may defer to the BIA’s
interpretation of the INA, so long as that interpretation is
5
Menendez, 908 F.3d 467, seems to accept that 8 U.S.C.
§ 1182(a)(2)(A)(i) is ambiguous in concluding that California Penal
Code § 288(c)(1) “is broader than the generic definition of a ‘crime of
child abuse’ in two ways.” Id. at 474.
38 DIAZ-RODRIGUEZ V. GARLAND
reasonable and consistent with the statute.” The Second
Circuit in Florez v. Holder, 779 F.3d 207, 211 (2d Cir.
2015), had “little trouble concluding that the statutory
provision is ambiguous.” It noted that “the statute does not
define the term ‘crime of child abuse,’” “state and federal
statutes, both civil and criminal, offer varied definitions of
child abuse, and the related concepts of child neglect,
abandonment, endangerment and so on,” and “it is difficult
to know precisely which sort of convictions Congress had in
mind when it used the phrase ‘a crime of child abuse.’” Id.Even the Tenth Circuit in Ibarra v. Holder, 736 F.3d 903(10th Cir. 2013), the only case that agrees with the majority’s
bottom line, implicitly recognized the statute’s ambiguity.
Id. at 910 (“We apply Chevron deference to precedential
BIA interpretations of ambiguous federal immigration
statutes so long as the Board’s interpretation does not
contravene Congressional intent.”).
To the extent that the majority asserts that
§ 1227(a)(2)(E)(i) is unambiguous, the conclusion is
contrary to our prior opinions and creates a split with all of
our sister circuits that have considered the issue.
IV
Nor is the majority opinion persuasive when viewed
through Chevron’s second prong. It ignores the reasoning in
the majority opinion in Martinez-Cedillo, as well as the
reasoning of our sister circuits, and seeks to limit the
agency’s discretion to the majority’s reading of dictionary
definitions and its supposition of what Congress might have
thought. Furthermore, the majority’s approach is violative
of our limited review of an agency decision.
DIAZ-RODRIGUEZ V. GARLAND 39
In Chevron, 467 U.S. at 843–44, the Supreme Court held
that where “Congress has not directly addressed the precise
question at issue,” then the agency’s regulations “are given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.” The Court commented
that where “a reasonable accommodation of conflicting
policies . . . [are] committed to the agency’s care by the
statute, we should not disturb it unless it appears from the
statute or its legislative history that the accommodation is
not one that Congress would have sanctioned.” Id. at 845(quoting United States v. Shimer, 367 U.S. 374, 382–83
(1961)). We have adhered to this standard. In Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en
banc), we held that “the BIA’s construction of ambiguous
statutory terms in the INA . . . is entitled to deference under
Chevron” and “[i]f the BIA’s construction is reasonable, we
must accept that construction under Chevron, even if we
believe the agency’s reading is not the best statutory
interpretation.”
Although the opinion was vacated, Judge Bybee’s
reasoning in Martinez-Cedillo offers substantial guidance.
His majority opinion moved quickly to Chevron step two
because “[t]here are no federal crimes of child abuse,
neglect, or abandonment to provide analogous definitions,
and unlike certain common-law crimes like burglary or
assault, there are no widely accepted definitions of child
abuse, neglect, or abandonment.” 896 F.3d at 987. The
majority agreed with the Second Circuit’s opinion in Florez
v. Holder, 779 F.3d 207 (2d Cir. 2015), reasoning:
Similar to the instant case, Nilfor Yosel
Florez had been convicted of child
endangerment under New York law for
driving under the influence with children in
40 DIAZ-RODRIGUEZ V. GARLAND
his car and had been ordered removed under
§ 1227(a)(2)(E)(i). Id. at 208. The Second
Circuit reasoned that, as of 1996 when
Congress passed IIRIRA, “at least nine states
had crimes called ‘child abuse’ (or something
similar) for which injury was not a required
element.” Id. at 212. Although “even more
states used a definition that did require
injury,” courts must not “look [ ] for the best
interpretation, or the majority
interpretation—only a reasonable one.” Id.
The Second Circuit concluded that the BIA
acted reasonably in adopting a definition of
child abuse “consistent with the definitions
used by the legislatures of Colorado,
Kentucky, Nebraska, New Jersey, New
Mexico, North Carolina, Ohio, Oklahoma,
and Virginia.” Id. Moreover, Black’s Law
Dictionary offered a definition of “child
abuse” that did not require injury. Id.
896 F.3d at 987–88.
The majority found the Tenth Circuit’s contrary
conclusion flawed. First, it commented that “there is no
inherent problem in the BIA relying partly on civil statutes
to understand the phrase ‘a crime of child abuse, child
neglect, or child abandonment,’” in part because “the BIA
used civil definitions to inform its understanding of which
convictions are crimes of child abuse, neglect, or
abandonment, and that is not unreasonable.” Id. at 988–89.
“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
DIAZ-RODRIGUEZ V. GARLAND 41
statutes, but it is not the only reasonable method for doing
so.” Id. at 989. Third, the majority found that the Tenth
Circuit’s fifty-state survey was problematic and
misconstrued some state laws. 6 Id. at 991.
Most recently the Fifth Circuit, in Garcia v. Barr,
969 F.3d 129 (5th Cir. 2020), considered and deferred to the
BIA’s interpretation of “crime of child abuse.” It first agreed
with its sister circuits that the statute was ambiguous. Id.
at 133. The Fifth Circuit declined to follow Ibarra, 736 F.3d
903, noting that the “Tenth Circuit’s reading of a ‘crime of
child abuse’ may be reasonable; it might even be more
reasonable than the Board’s. But the question isn’t whether
the Board’s interpretation is the best—only whether it is
reasonable.” Id. at 134. The Fifth Circuit also rejected the
petitioner’s argument that the Board should reconsider its
definition of “crime of child abuse” in light of Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562. It reasoned:
Esquivel-Quintana has no application here.
The Court’s narrow holding didn’t relate to
the child-abuse provision in
§ 1227(a)(2)(E)(i), mandate a particular
approach to statutory interpretation, or cast
doubt on the Board’s definition of a crime of
child abuse. See Matthews v. Barr, 927 F.3d
606, 614–16 (2d Cir. 2019). And because the
statutory text there was unambiguous—
6
For example, the majority thought that the Tenth Circuit had
misunderstood the mens rea required by California Penal Code § 273a.
Martinez-Cedillo, 896 F.3d at 991.
42 DIAZ-RODRIGUEZ V. GARLAND
unlike the child-abuse provision here—that
case doesn’t affect our Chevron analysis.
969 F.3d at 134.
Similarly, in Mondragon-Gonzalez, 884 F.3d 155, the
Third Circuit found that the BIA’s interpretation of “crime
of child abuse” was reasonable. It noted that the BIA had
explained that the statue “was enacted . . . as part of an
aggressive legislative movement to expand the criminal
grounds of deportability in general and to create a
‘comprehensive statutory scheme to cover crimes against
children’ in particular.” Id. at 159 (quoting Velasquez-
Herrera, 24 I. & N. Dec. at 508–09). The court concluded
that “[g]iven Congress’ evident intent to make crimes that
harm children deportable offenses, we do not find the BIA’s
interpretation in this regard to be ‘arbitrary, capricious, or
manifestly contrary to the statute.’” Id. (quoting Chen v.
Ashcroft, 381 F.3d 221, 224 (3d Cir. 2004)); see also Pierre
v. U.S. Attorney General, 879 F.3d 1241, 1249–50 (11th Cir.
2018).
The Second Circuit in Florez v. Holder, 779 F.3d 207,
also found the BIA’s definition of “crime of child abuse” to
be a permissible construction of the statute. Id. at 211. The
court commented that the definition—broad as it is—is at
least grounded in reason. “When Congress amended the INA
in 1996 to make child abuse a removable offense, at least
nine states had crimes called “child abuse” (or something
similar) for which injury was not a required element.” Id. at
312.
Of course, as Martinez-Cedillo has been vacated, it is not
binding on us, nor are our sister circuits’ opinions, but the
majority’s failure to address the reasoning in these cases
undermines its analysis. The majority does not consider the
DIAZ-RODRIGUEZ V. GARLAND 43
legislative history of § 1227(a)(2)(E)(i), or Congress’ intent
in enacting the statute, or whether there are multiple
reasonable interpretations of “crime of child abuse.”
Instead, citing Esquivel-Quintana, 137 S. Ct. 1562 (2017), it
seeks to find a single compelling definition of the generic
federal offense. Maj. at 11–12. But this is leading with the
wrong foot. Under Chevron we are not tasked with defining
the elements of the generic federal offense but in
determining whether the agency’s definition of the generic
federal offense is reasonable.
The majority proceeds down the wrong path in arguing
that Esquivel-Quintana, which it admits “has no direct
bearing on the issue before us,” is highly instructive. Maj.
at 14. It reasons that in Esquivel-Quintana when the Court
observed that Congress had not defined the critical term, the
Court “did not throw up its hands and declare the statute
ambiguous,” but instead “relied on ‘the normal tools of
statutory interpretation’ to determine whether the statue
provided a clear answer.” Maj. at 14 (quoting Esquivel-
Quintana, 137 S. Ct. at 1569). It then concludes that “three
of the four sources of statutory meaning the Court consulted
in Esquivel-Quintana—contemporary legal dictionaries,
statutory structure, and contemporary state criminal codes—
support the conclusion that § 1277(a)(2)(E)(i)
unambiguously forecloses the BIA’s interpretation of the
statue in Soram.” 7 Maj. at 15.
7
It may be reasonable to use “the normal tools of statutory
interpretation” under step one to determine the parameters of Congress’
delegation to the agency, but these tools are less compelling when
employed to determine whether the agency’s interpretation of an
ambiguous statute is permissible or reasonable.
44 DIAZ-RODRIGUEZ V. GARLAND
In addition to being the wrong question based on an
inapplicable case (as the Fifth Circuit noted in Garcia,
969 F.3d at 134), the majority’s analyses of legal
dictionaries, statutory structure, and state criminal codes is
less than persuasive.
The majority purports to hunt for the “common meaning
in 1996” of “child abuse,” “child neglect,” and “child
abandonment.” Maj. at 15–17. But this presumes that the
BIA’s definition of crime of child abuse is limited to a
“common meaning.” Among the dictionary definitions the
majority cites for “child neglect” (perhaps the most relevant
of the three terms) is “[t]he failure of a person responsible
for a minor to care for the minor’s emotional or physical
needs.” Maj. at 16. The majority then concludes that such a
definition “excludes child endangerment offenses . . . that
punish one-time negligent acts or omissions exposing a child
to the risk of harm.” Maj. at 16–17. But this conclusion is
hardly compelled. Why isn’t it “child neglect” to with at
least “criminal negligence,” subject a child to the risk of
serious physical or emotional harm? After all, Diaz-
Rodriquez’s conviction of felony child endangerment
required a finding of criminal willfulness. See CPC
§ 273a(a).
The majority’s section on “statutory structure” is
likewise less than compelling. The majority suggests that
Congress omitted “child endangerment from the list of
crimes specified in § 1227(a)(2)(E)(i)” because “Congress
could have viewed this less-serious form of misconduct
[“negligent child endangerment” rather that child neglect] as
an unacceptable basis under the immigration laws for
separating parents from their children.” Maj. at 17–18
(emphasis added). While this may be a noble sentiment,
reasonable minds may differ as to whether any child should
DIAZ-RODRIGUEZ V. GARLAND 45
be left with a criminally negligent parent and there is
certainly nothing to suggest that what “Congress could have
viewed” was what Congress did view or was compelled to
view. In other words, the majority’s approach to “statutory
structure” is, at best, one reasonable perspective that does
not foreclose the existence of other reasonable perspectives.
The majority’s discussion of state criminal codes also
does not support its assertion of a single compelling
interpretation of the statute. The majority, having done its
own research, states that in 1996 “only a handful of States
criminalized conduct that would constitute child
endangerment under states proscribing ‘abuse,’ ‘neglect’ or
‘abandonment;’” “only 14 States criminalized child
endangerment committed with a mens rea of criminal
negligence,” and “36 States did not criminalize such
conduct.” Maj. at 19–20. According to the majority, this
“general consensus . . . unambiguously forecloses the BIA’s
interpretation of the statute in Soram.” Maj. at 20. This is
so, the majority reasons, because in Esquivel-Quintana, “the
Supreme Court held that the consensus view of 31 States and
the District of Columbia supported the conclusion that
Congress unambiguously foreclosed the BIA’s attempt to
define the generic offense of sexual abuse of a minor to
include an age of consent of 18.” Maj. at 20–21.
This line of reasoning is far from compelling. As noted,
our task is not to determine the best interpretation of “crime
of child abuse,” but whether the BIA’s interpretation is
reasonable. Indeed, the majority’s own research disclosed
that in 1996 “14 States criminalized child endangerment
committed with a mens rea of criminal negligence.” Maj.
at 19–20. The majority does not explain why these states’
definitions are unreasonable or why the BIA’s interpretation
of child abuse must conform to that of the majority of the
46 DIAZ-RODRIGUEZ V. GARLAND
states in 1996. The majority has strayed far from our task of
determining whether the agency’s position is reasonable,
“even if we believe the agency’s reading is not the best
statutory interpretation.” Henriquez-Rivas, 707 F.3d
at 1087.
Basically, the ultimate question is whether the BIA could
reasonably interpret “crime of child abuse, child neglect, or
child abandonment” to encompass a child endangerment
offense committed with a mens rea of at least criminal
negligence. The majority does not appear to be arguing that
the statute did not require a sufficient mens rea and high risk
of harm to the child, as were the issues in Alverez-Cerriteno 8
and Menendez, but that the statute cannot be construed to
include “negligent child endangerment.” Maj. at 21. This
conclusion is not sound: it strays from our limited task of
reviewing the reasonableness of the BIA’s determination
and is contrary to the opinions of most of our sister circuits.
The BIA’s determination in Soram that the crime of child
abuse encompassed the crime of child endangerment
committed with a mens rea of criminal negligence was the
product of over a decade of efforts by the agency and the
courts to interpret the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996. See Martinez-
Cedillo, 896 F.3d at 982–87; Garcia, 969 F.3d at 132–133.
8
Diaz was convicted under CPC § 273a(a) which covers “[a]ny
person who, under circumstances likely to produce great bodily harm or
death.” (Emphasis added). The panel in Alvarez-Cerriteno, in holding
that the Nevada statute there at issue did “not require a sufficiently high
risk of harm to a child to meet the definition of child abuse, neglect, or
abandonment,” 899 F.3d at 783, misinterpreted the BIA’s decision in
Matter of Mendoza Osorio as referring to § 273a(a). In fact, Mendoza
Osorio concerned CPC § 273a(b) which applies to “[a]ny person who,
under circumstance or conditions other than those likely to produce great
bodily harm or death.” (Emphasis added).
DIAZ-RODRIGUEZ V. GARLAND 47
In Martinez-Cedillo we held that the BIA’s determination
was a reasonable interpretation of an ambiguous statute, we
reiterated that position in Alvarez-Cerriteno, 899 F.3d
at 781, and Menendez, 908 F.3d at 474, and we referred to
the deference noted in Alvarez-Cerriteno in Cortes-
Maldonado, 978 F.3d. at 648. Although our opinion in
Martinez-Cedillo was withdrawn, Alvarez-Cerriteno and
Menendez remain extant. The majority’s determination that
it can ignore these opinions as precedent is unprecedented,
contrary to Ninth Circuit case law on precedent, contrary to
the principle of stare decisis, and impractical. I would hold
that as a three-judge panel we are bound by the holdings in
Alvarez-Cerriteno and Menendez that the BIA reasonably
concluded that § 1227(a)(2)(E)(i) encompasses child
endangerment. Accordingly, I dissent.
But even if we were not bound by our prior opinions, I
would still dissent because I agree with our sister circuits that
the statute is ambiguous, and that the BIA’s interpretation of
the statute is reasonable. In concluding otherwise, the
majority confuses the first and second prongs of Chevron
and seeks to impose its definitive interpretation of the statute
on us and the agency. I cannot agree. The majority
presumes that the definition of crime of child abuse is limited
to the common meaning in 1996 of child abuse, child neglect,
and child abandonment. But its own research reveals that in
1996 the states had different criminal codes and that 14 states
criminalized child endangerment committed with a mens rea
of criminal negligence. The majority’s review of selected
dictionary definitions cannot obscure the fact that in 1996,
indeed even today, there is no singular definition of “crime
of child abuse.” I agree with the Second, Third, Fifth, and
Eleventh Circuits that the BIA’s interpretation of 8 U.S.C.
§ 1227(a)(2)(E)(i) as encompassing the crime of child
endangerment committed with the mens rea of criminal
48 DIAZ-RODRIGUEZ V. GARLAND
negligence is a reasonable interpretation of an ambiguous
statute. For this reason, as well, I respectfully dissent.