FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCELO MARTINEZ-CEDILLO,

AKA Marcelo Martinez,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 14-71742

Agency No.

A074-112-169

OPINION

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 MartinezCedillo’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

toMartinez-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 MondragonGonzalez 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 MartinezCedillo’s arguments in turn.

II. THE BIA’S INTERPRETATION

A. Rodriguez-Rodriguez

In 1996, Congress enacted the Illegal Immigration

Reform and Immigrant ResponsibilityAct (“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 fourthdegree assault statute was a crime of child abuse. VelazquezHerrera 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 LAWDICTIONARY (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 applyVelazquezin 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—themisdemeanor 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 wellbeing. 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 VelazquezHerrera. 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.

(quotingNat’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 quotationmarks

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. GarciaJimenez, 807 F.3d 1079, 1084 (9th Cir. 2015); United States v. EsparzaHerrera, 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.” EsquivelQuintana, 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 twentiethcentury crimes. According to Black’s Law Dictionary, the

first prosecution for child abuse was in 1874, when “[a]n

eight-year-old girl named MaryEllen 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

5Similarly, our decision inUnited 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.6It

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 ofit. 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 longstanding 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.10576 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 misunderstandsthe 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 fivefactor 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 (holdingBIA 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 MartinezCedillo’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 byCongress 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,” “reasonablyforeseeable,” “substantial,”

and “genuine” to describe the level of risk required, and

“approximately half of the States that include endangermenttype 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 statutoryinterpretation, 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 criminallynegligent” 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 thencurrent 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 mayhave ‘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 Rodriguez4and

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 DoleCoverdell 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 “twentiethcentury 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, thirtythree 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.” MarmolejoCampos 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 sincerevised 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),

retroactivitymust 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

“contraryto ‘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

manystates, includingCalifornia, 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 retroactivelytoMartinez’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.