F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R C E L O M A R

T I N E Z

- C E D I L L O , AKA Marcelo Martinez
, P etitioner
,

v

.

J E F F E R S O N B

. S E S S I O N S I I I , Attorney General, Respondent. N o. 14-71742

Ag ency No. A074-112-169

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted Aug ust 28, 2017 Pasadena, California

F iled J uly 23, 2018

B efore: Kim McL a

ne W ardlaw and J ay

S. B y bee, Circuit J udg es, and Susan I llston, * District J udg e.
Opinion by

J udg e B y b e e; Dissent by

J udg e W a

rdlaw

* T h e Ho n o rab le Su san Illsto n, U ni t e d S tates District J u d g e f or th e No rth ern District o f

Calif o rn i a, sittin g b y

d esig n atio n

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 2

SUMMARY * *

Im m igration

The p anel denied a p e tition for review of the B o ard o f I mmig r a tion Appeals’ determination that Marcelo Martinez

Cedillo’s conviction for child endang erment, in violation o f California Penal Code § 273a(a), constitutes a crime of child abu s e that renders him removable under 8 U .S.C. § 1227(a)(2)(E)(i).

I n 2 008, Martinez -Cedillo was convicted of felony child endang erment under California Penal Code § 273a(a) for dr i v i n g u nder the influence with a child in his car who was not wearing

a seatbelt.

I n Matter of Vela z q u e

z-Herrera
, 24 I

. & N. Dec. 503 (B I A 2008), the B oard interpreted the term ‘cr i m e o f child abuse’ broadly to mean any offense involving an intentional, knowing
, reckless, or criminally neg lig ent a c t o r omission that constitutes maltreatment of a child or t h at impairs a child’s p hy sical or mental w ell-being
, including sex ual abuse

o r e x p loitation. I n Matter o f Soram
, 25 I

. & N. D e c

. 3 7 8 (B I A 2010), the B oard held that this definition is not limited
to offenses r equiring proof of injury to the child and requires

a case-by -case analy sis to determine whether the risk o f harm is sufficient to bring an offense within the definition of ‘ child abuse.’

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 3

The panel held that the B oard’s interpretation in Velazquez-Herrera and Soram is e n t itled to Chevron deference. Apply ing t h a t d e finition, the panel h eld that California Penal Code § 273a(a) is a categ orical match to the crime of child abuse, ne gl ect, or abandonment. The panel also held that the B oard’s interpretation applies retroactively
t o M a r t i n e z-Cedillo’s 2008 conviction, which oc c u r r e d b e f o r e the B oard’s decisions in Velazquez-Herrera and Soram

. Dissenting
, J udg e W ardlaw w o uld h old that the B oard’s interpretation is not entitled to Chevron deference, and that

even if it were, the new d efinition sh ould not a pply retroactively

to Martinez

- Cedillo’s conviction.

COUNSEL

David B elaire L andry (arg ued), San Dieg o, Ca l ifornia, for Petitioner.

B rianne Whelan Cohen (arg ued), Senior L itig ation Counsel; J o h n S. Hog an, Assistant Director; Office of I mmig ratio n L itig ation, Ci v i l Division, United States Department o f J ustice, W ashing ton, D.C.; for Respondent.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 4

OP INION

B YB EE, Circuit J udg e:

Marcelo Martinez -Cedillo was c onvicted of felony child endang erment under California Penal Code § 273a(a) a nd ordered removed on the g rounds that his conviction qualified

as “a crime of child a buse, child n e gl ect, or child abandonment” u nder I

NA § 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 B oard of I mmig ration Appeals’ (“B I A’s”) interpretation of a crime of child abuse, neg lect, o r aband o n m ent under Chevron v

. Natural Resources Defense Council
, 467 U.S. 837 (1984)

. Ou r sister c ircuits h ave split

on this precise issue. See Florez v. Holder
, 779 F .3d 207 (2d Cir. 2015) (deferring to the B I A ); I barra v. H

older
, 736 F .3d 903 (10th Cir. 2013) (not deferring ) ; s ee also MondragonGonzalez v. Att’y Gen. of the United States
, 884 F .3d 155 (3d Cir. 2018) ( deferring ); Martinez v. U.S. A t t ’ y G e n. , 413 F

. App’x 163 (11th Cir. 2011) (deferring ).

W e join the Second Circuit in deferring to the B I A ’s reasonable interpretation. W e further hold that California Penal Code § 2 73a(a) is categ o rically a c rime of child abuse,
neg lect, or a

bandonment, a s interpreted by the B I A

. F inally
, we hold that the B I A’s interpretation applies retroactively to Martine z

- Cedillo’s conviction. According ly
, we deny the petition for review.

I . F A CTUAL

B ACKGROUND

M a r c elo Martinez -Cedillo is a citiz en of Mex ico an d
, si n c e 2005, h as been a lawful permanent resident of the United States. I n A ug ust 2008, he was convicted of driv i ngM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 5

under the influence o f a l c o hol (“DUI ”) with two prior DUI convictions. At the time of his final DUI
, he h ad a c h i l d in his car who was not wearing a seatbelt. F or this reason, he

was also c onvicted of fel o n y c hild e ndang erment under California Penal Code § 273a(a).

The Department of Homeland Security initiated removal proceeding s on the g rounds that Martinez -Cedillo’s conviction under California Penal Code § 273a(a) was a crime of c hild abuse, neg lect, or abandonment under § 1227(a)(2)(E)(i). A n I mmig r ation J udg e (“I J ”) e ntered a final order of r emoval, which Martinez

- Cedillo a p pealed to the B I A
, arg uing that (1) California Penal Code § 2 73a(a) is
not a crime of child a

bu s e , neg lect, or abandonment, a nd (2) he should be allowed to apply for cancellation of removal under 8 U.S.C. § 1229b.

The B I A a ffirmed in part and remanded in part. T h e B I A held that California Penal Code § 273a(a) w a s categ orically

a crime o f child abuse, neg lect, or aba n d o n m ent u nder its
p r ior interpretation of that phrase in two precedent i al opinions: Matter of Velazquez-Herrera , 24 I

. & N . Dec. 503 (B I A 2008), and Matter of Soram
, 25 I

. & N. Dec. 378 (B I A 2010). N evertheless, the B I A remanded for the I J to consider Martinez -Cedillo’s elig ibility 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 proceeding s b ased on a pending visa petition his father had submitted on his behalf. The I J denied his motion for a c ontinuance and ag ain entered

a f i n al order of removal. Martinez -Cedillo appealed to the B I A a second time, and this time, the B I A affirmed in full.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 6

Martinez -Cedillo now p etitions o ur court for review,
arg uing that (1) the B I A’s interpretation of a c rim e o f child abuse, neg lect, or abandonment to e ncompass c riminally
neg lig ent acts that do not r e s u l t i n a ctual injury to a c hild is

u n r e asonable; (2) California Penal Code § 273a(a) is n o t categ orically a crime of c hild abuse, neg lect, or abandonment

even u n d e r the B I A’s interpretation; (3) the B I A ’s interpretation should not a p ply retroactively to his 2008 conviction; and (4) denial of h is motion for a continuance was an abuse of discretion.

W e first review the history of the B I A’s interpretation o f § 122 7 ( a ) (2)(E)(i), and then a d d ress each of Martinez

Cedillo’s arg uments in turn.

I I . THE B I A’S I

N TERPRETATI ON

A. Rodriguez-Rodriguez

I n 1 996, Cong ress ena c ted the I lleg al I mmig r ation Reform a nd I mmig rant Responsibility Act (“I I RI RA”), which added § 1227(a)(2)(E)(i) to the I NA a n d made “a c rime o f child abuse, child n eg le c t, or child abandonment” a deportable offense. Two y ears later, the B I A made a passing reference to § 1 227(a)(2)(E)(i) in Rodriguez-Rodriguez
, 22 I

. & N. D ec. 991 (B I A 1999). At issue in that case was 8 U.S.C. § 1101(a)(43)(a), which makes “sex ual a b u se of a mi n o r ” an “ag g ravated felony ” for purposes of 8 U .S.C. § 1227(a)(2) ( A ) ( i i i ). The B I A h eld that Tex as’s offense o f indecency with a child was “sex u al abuse of a minor” a nd thus an ag g ravated felony u n d er § 1227(a)(2)(A)(iii), even thoug h the Tex as statute did n ot require phy sical contact with

a c h i l d

. The B I A reasoned that the term “sex ual a buse of aM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 7

m inor,” like the term “child a b use” in § 1227(a)(2)(E)(i)
, could refer to conduct that did not involve phy sical contact:

W e note t hat in including child abuse as a g round of removal in section 2 37(a)(2)(E)(i) of the Act, Cong ress likewise did not refer to

a particular statutory d efinition, althoug h i n the same section it d id d es ig nate a statutory d e f i n ition for the term “crime of domestic violence.” B y it s c ommon usag e, “child abuse” encompasses actions or inactions that also do no t r e q uire phy sical contact. See [ Child Abuse
, B L

A C K ’ S L A W D I C T I O N A R Y (6th ed. 1990)] (defining child a buse as “(a)ny form o f cruelty to a child’s phy sical, moral o r mental well-being ”).

Id. at 996. R odriguez ’s passing r eference to child abuse was dictum and did not p urport to offer a precedential interpretation of what constitutes a c r i m e o f child abuse,
neg lect, or abandonment under § 1227(a)(2)(E)(i).

F or several y ears following Rodriguez
, the B I A never interpreted the phrase “a crime of child abuse, child neg lect,

o r c hild abandonment” in a precedential o pinion, and its unpublished decisions on the subject were equivocal. Some unpublished decisions during this period stated that “child abuse” means “the phy sical or mental injury
, sex ual a buse o r

ex p loitation, or neg lig ent t r e atment of a child.” In re P alfi
, 2004 W L 1167145 (B I A 2 004); In re Baez-C a z a rez , 2004 W L 2952229 (B I A 2004). Other unpublished decisions hewed to the Black’s L a w D i c tionary definition of “child abuse” as “any form of cruelty to a child’s phy sical, moral o r mental well-be i n g.” In re Pacheco Fregozo
, 2005 W LM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 8

698590 (B I A 2005); In re Maltez-Salazar
, 2005 W L 952489 (B I A 2 0 0 5 ) ; In re Manzano-Hernandez
, 2005 W L 698392 (B I A 2005). I n short, the B I A’s interpretat i o n o f a c rime o f child a buse, neg lect, o r abandonment was unclear at this time.

B

. Velazquez-Herrera

I n 2 0 0 6, we considered the B I A ’s holding that a conviction for assaulting a child under W ashing ton’s fourthdeg ree assault statute was a crime o f child abuse. VelazquezHerrera v. Gonzales
, 466 F .3d 781 (9th Cir. 2 0 0 6 )

. W e recog niz ed that th e B I A h ad previously used at least two defin i t i ons of “child abuse,” which were “not entirely

c o n s i s tent” with each o ther. I d. a t 7 8 3. W e held that t h e “cruelty ” definition cited in Rodriguez ’s dictum was n o t “ a statutory inte r

p r etation that carries the ‘force o f law’” a nd according ly remanded “ to allow the B I A in the first instance
t o settle upon a definition of child abuse in a prec e d e n t i al opinion.” Id. at 782–83. 1

T h e BI A f

ollowed our instructions and, in May 200 8
, issued its first precedential interpretation of what constitutes

a crime of child a

buse. Velazquez
, 24 I

. & N. Dec. 503. The B I A reasoned that, althoug h § 1227(a)(2)(E) ( i ) defined “a crime of domestic v iolenc e , ” “other operative terms, including ‘crime of child abuse,’ were lef t u ndefined,

1 A ro u n d th is sam e tim e, tw o o t

h er Circu it Co u rts of A

p p eals reach ed

a d i f f eren t resu lt. T h e Eig h th an d T en th Circu i ts co n sid ered th e “ cru elty ” d ef in i tio n o f “ ch ild ab u se” an d—ev en th ou g h t h e B IA h ad n ev er ad op ted it in a p reced en tial o p in io n —h eld th e d ef

in i tio n reaso n ab le an d deserv in g

o f d ef eren ce. Lo eza -Do m in g u ez v. Go n za l e z , 4 2 8 F.3 d 1 1 5 6 (8 t h Cir. 2 0 0 5 ); Och ien g v. Mu ka sey , 52 0 F.3 d 1 11 0 (1 0 th Cir. 2 0 0 8 ). Neith er

co u rt t oo k i nt o acco u n t—as w e d id
, co rrectly —th at th e “ cru elty ” d ef in i tio n cited in Ro d

rig u ez w as m erely

d i ctu m

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 9

trig g ering the ne ga t i ve inference that Cong ress deliberately left them o pen to interpretation.” Id. at 508. The B I A f urther observed that, “[ i] n view of the fact that [ § 1227(a)(2)(E)(i)] is the p roduct of a sig nific a n t ex p ansion of the g rounds o f deportability and was aimed at facilitating the remov al o f

c hild abusers in particular,” Cong ress intended a cr i m e o f child abuse to be interpreted “broadly in this contex t.” Id. at 509.

The B I A c onsider e d various federal statutes d efining “child abuse” and related c o ncepts as of the da t e C o n gress enacted I I RI RA a

nd f ound that “the wei gh t of F ederal authority

. . . reflected an unders t anding that ‘child abuse’ encompassed the phy sical and mental injury
, sex ual abuse o r

ex p loitation, maltreat m e n t, and neg lig ent or neg lectful
tr e a t m e n t o f a child.” Id. at 511. The B I A also considered
state criminal and c ivil statutes, concluding that “there was a g rowing acceptance b y 1996 that the concept of ‘child abuse’ included n ot just intentional infliction of phy sical injury
, but also acts of sex ual abuse o r ex ploitation, criminally n eg lig ent acts, or acts c ausing mental o r emotional harm.” Id. F inally
, the B I A noted that the most r ecent editio n o f Black’s Law Dictionary— a s opposed to the prior edition c ited in Rodriguez

—defi n e d “child abuse” as “[ i] ntentional o r neg lectful phy sical or e m otional h arm inflicted on a child, including sex ual molestation.” Id. ( quoting Abuse
, B L A C K ’ S L A W D I C T I O N

A R Y (8th ed. 2004)). 2

2 Bla ck’s La w Dictio n a ry h ad ch an g ed s i g n if ican tly b etw een th e tw o d ecisio n s. T h e 6 th ed itio n p u b lish ed i n 1 9 9 0 an d cited in Ro d rig u ez h ad

n o t b een f

u lly m o d ern ized

. T h e 7 th ed itio n p u blish ed in 1 9 9 9 (n o t lo n g af ter Co n g ress passed IIRIRA ) w as th e fi r s t to b e ed ited b y B rian A

. Garn er an d rep resen ted a “ m aj o r o v erh au l ” d esig n ed to b rin g Bla ck’s in to

co n f o rm an ce w ith m o dern d ev elo p m en ts in th e law

. Prefa ce to th e S even t h Ed i tio n , B L

A CK ’ S L A W D I CT I ONA R Y (7 t h e d

. 1 9 9 9 ); see a lso SarahM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 10

B a sed o n these considerations, the B I A “interpret[ e d] the
term ‘crime o f c h ild abuse’ broadly to mean any offense involving an intentional, knowing
, reckless, or crimina lly

ne g l i gent act or omission that constitutes maltreatment of a child or that impairs a c h ild’s phy sical or mental well-being
, including sex ual abuse or e x ploitation.” Id. at 512. T h e B I A went on to note that:

At a mi n imum, this definition encompasses convic t ions for offenses involving the infliction on a child o f phy sical harm, even if slig ht; mental o r emotional ha r m , including
acts injuri o u s to morals; sex ual abuse, including direct a c t s of sex ual contact, but also including a c ts that induce (or omissions that permit) a child to e ng a g e in prostitution,
por nog raphy
, or other sex u ally ex plicit

Yates, Bla ck’s La w Dictio n a ry: Th e Ma kin g o f a n America n S ta nd

a rd
, 1 0 3 L aw L ib r. J

. 1 7 5, 1 9 7 (2 0 1 1) (“ Garn er’ s rev isio n o f Bla ck’s w as, in f act, m ore o f

a rew ritin g th an

a rev isio n .”). A cco rd in g ly , th e 7 th ed itio n ch an g ed th e d ef

in itio n o f “ ch i l d a b u s e” to co v er b o th “ in ten tio n al” an d

“ n eg lectf u l” co n d u ct. Ab u se , B L A CK ’ S L A W D I CT I ONA RY (7 t h ed

. 1 9 9 9 ). T h e 8 th ed itio n , p u

blish ed in 2 0 0 4
, co n t in

u ed in th e sam e d irectio n b y ad d in g a seco n d d e f

in itio n o f “ ch ild ab u se” as “ [a]n act o r f ailu re to act th at p resen t s a n i m m in en t risk o f serio u s h arm to a ch ild .” Ab u se , B L A CK ’ S L A W D I CT I ONA RY (8 th ed

. 2 0 0 4 ). Bla ck ’ s pro g ressio n b etw een 1 9 9 0 an d 2 00 4 to w ard g reater reco g n itio n o f crim in ally

n eg l ig en t “ ch ild ab u se” v alid ates th e BIA ’ s ob serv atio n in V e l a zq u ez th at “ th ere w as a g ro w in g accep tan ce b y 19 9 6 th at th e co n cep t o f ‘ ch ild ab u se’ i n clu d ed n o t j u st in t en tio n al in f

lictio n o f p h y s ical in

j u ry , b u t also

. . . crim in ally

n eg lig en t acts.” 2 4 I. & N

. Dec. at 5 1 1

. T h e sa m e p r o gr e ssio n also

v alid ates th e BIA ’ s f

in d i n g t h at, to t

h e ex ten t th e w o rd “ cru elty ” in th e 1 9 9 0 d ef in itio n “ im p lied th at an ab u siv e act m u st b e co m

m itted w ith th e sp ecif ic in ten t to in f

lict su f f erin g o n a ch i ld
, it w as co n trary to th e w eig h t

o f Fed eral an d Stat e au th o rity in ef f ect in 1 9 96
, u n d er w

h ich crim in ally

n eg lig en t acts su f

f iced .” Id

. at 5 1 1 n .1 3

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 11

conduct; as well as any a ct that involves the

use or ex ploitation of a c hild as an object o f

sex ual g ratification or as a tool in the commission o f serious crimes, such as d rug trafficking

.

Id. (emphasis added). Sig nificantly
, however, the BI A did
not address whether a crime o f child abuse r equire d a ctual injury to a child. A concurr i n g opinion noted this very fact: “I t should be noted that, broad thoug h the defi nition is, it is unclear whether i t ex tends to crimes in which a child is merely p laced or allowed to remain in a dang erous situation, without a ny element in the statute requiring e n s u i n g harm,
e.g ., a g eneral c hild endang erment statute, or selling liquor to

an underag e minor, o r f a i ling to secure a child with a seatbelt.” Id. at 518 n.2 (Pauley , concurring ).

C. Pacheco Fregozo

W e h ad our first opportunity to a ddr e s s Velazquez ’s definition of a crime of child abuse i n Pacheco F regozo v

. Holder
, 576 F .3d 1030, 1033 (9th Cir. 2009). Ernesto Pacheco Fr e goz o had been arrested for driving under the influence of alcohol with two children in his c ar and convicted of misdemeanor child endang erment under California Penal Code § 273a(b)

. Id. at 1033–34. The B I A held in a n unpublished opin i o n —issued before it decided V e l a z q u e z

— t h a t P a c h e c o Fr e go z o ’ s co n viction w a s categ orically a c rime of child a buse under the “cruelty ” definition cited in Rodriguez. Id. at 1034.

I n g ranting Pacheco F reg oz o’s petition for review, we acknowledg ed that the B I A had r ecently interpreted “a crime of child a buse” in Velazquez but held that it was unnecessaryM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 12

to remand f

or the B I A to apply Velazquez in the first instance. Id. at 1 036 (“W e are c onvinced that a r emand is not necessary in this case. Aside from according Chevron d eference to the B oard’s interpretation o f a ‘ crime of child abuse’ in the I NA, which we do, we review de novo whe t h e r t h e California conviction is a r emovable offense.”). W e interpreted Velazquez as requiring conduct that “actually inflict[ s] some form o f injury on a child,” without ex plaining w here the B I A’s dec i s i o n imposed such a requirement. Id. at 1037. B ased on tha t q u es tionable reading of Velazquez
, we then concluded that California Penal Code § 273a(b) w as not a cate go rical 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.” I

d. at 1036–38.

W e also held that § 2 73a(b) was not a categ orical match for a crime of child abuse f o r an independent reason. Unlike the felony provision in the same statute, § 273a(b) d o e s not require “any

particular likelihood of harm to a child”:

[ U] nlike the analog o u s felony provisi o n , California Penal Code sect i o n 273a(a), the misdemeanor pro vision [ in section 2 73a(b)] does not require that t h e perpetrator actually

en d a ng er the health or safety of the child at all—th e m i s d e m e a

n o r p r o v i s i o n a

p plies where the chi l d ’s health o r safety “may be endang ered” by the circu m s t ances. The B I A’s definition of “ c hild ab u se,” requiring

some actual injury to a c hild, does n o t reach conduct that merely c o u ld place a child’s health and safety

at risk.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 13

. . . . Neg lig ent or i n t e n tional conduct that places a c hi l d in situations in which serious h a r m is imminently likely c ould fairl y constitute “im p a irment” of a child’s wellbeing

. The misdemeanor California statute

u n d e r w h i c h P achec o wa s c o n v i c t ed
, however, does not conform to the alternative definition, as it applies “under circumstances

or conditions other than those likely to produce g reat b odily harm or dea t h

. ” Cal. Penal Code § 273a(b) (emphasis added).

Id. at 1037–38. This alternative basis for o u r holding in Pacheco Fregozo appears t o have been in tension with the first, as it implied that V

elazquez did not require a ctual injury but only actual endangermen t

. At the very least, our discussion in this reg ard sug g ested t h a t , e ven thoug h misdemeanor child endang erment under § 273a(b) w as n o t a categ orical match for a crime of child a b use a s defined in Velazquez
, felony child endang erment under § 273a(a) likely

was.

D. Soram

The f ollowing y ear, the B I A responded to our decision in Pacheco Fregozo

. I n Matter of Soram
, the B I A “respectfully clarif[ ied] that the term ‘crime of child abuse,’ as described in Velazquez-Herrera is n ot limited to offenses requiring proof of injury

to the child”:

[ T] he U nited States Court of Appeals for the Ninth Circuit has issued a decision addressing this question. Fregozo v. Holder
, 57 6 F. 3 d 1030 (9th Cir. 2009). The court i n t erpretedM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 14

our decision in Matter of Velazquez-Herrera
to require that a child must actually be injured for a crime to constitute child a b u se.

. . . However, as indicated above, w e did not directly a d dress this issue in VelazquezHerrera

. W e do so n o w a nd find no convincing reason to limit offenses under

se c t i on 237(a)(2)(E) of the Act to those requiring proof of actual h arm or injury to the child.

25 I

. & N. Dec. 378, 380–81 (B I A 2010). At the same time, the B I A also clarified that “the p hrase ‘a crime of child abuse,

c h i l d n e g l e c t , o r c h i l d a b a n d o n m e n t ’ i n s e c t i o n 237(a)(2)(E)(i) of the Act denotes a u nitary concept and [ its] broad definition of child abuse [ in Velazquez ] describes this entire phrase.” Id. at 381.

The B I A reasoned that “[ a] s recently as J uly 2009, some 38 States [ and several territories]

. . . included in their civil definition of ‘child a

b use,’ or ‘child abuse or neg lect,’ acts o r circumstances that threaten a child with h ar m or c reate a substantial risk of harm to a child’s health or welfare.” Id. at 382. I n this respect, the B I A noted that “endang e ring a child

can reasonably be viewed as either abuse or neg lect” and that “some States include c hild e ndang erment in their definition

o f ‘child a

buse,’ while a number of others consider it ‘chi l d ab u se or n eg lect.’” I

d. at 381. A concurring o pinion added that: “A r ev i ew of the criminal child abuse statutes of the various States reveals that as of September 1996, a m a jority of States—28—had c riminal provisions punishing child endang erment offenses as part of their criminal c hild abuse statutes.” Id. at 388 (F ilppu, concurring ).M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 15

The B I A also acknowledg ed that, althoug h a crime o f child abuse, neg lect, or abandonment r equired only a risk o f injury to a child, the risk had to be suffic i ently g reat—thus placing an outer limit on its broad definition. Id. at 382–83. The B I A noted that different state statutes used different
terms (e.g
., “ realistic,” “serious,” or “substantial”) to d escribe the requisite level of risk, and that even statutes with similar
terms were interpreted differently by various state courts. Id. Rather than attempt to a

naly ze “the my

riad State formulations of endang e rment-ty

pe child a b use offenses” all at once, the B I A decided a case-by -case analy sis was appropriate “to determine whether the risk of harm by the endang erment-ty pe l a n gu a ge

. . . is sufficient to b ring an offense w ithin the definition of ‘child abuse’ under the Act.” Id. at 383.

Contrary to what the dissent a rg ues, Dissenting Op. at 38, Soram did not r eflect a chang e in the B I A’s position but rather addressed an issue that Velazquez had left op en

. The concurring opinion in Velazquez had e x p r essly noted that whether a crime of child abuse required a ctual injury to a child remained an open question. More over, S oram responded to our court’s misinterpretation of the B I A’s prior decisio n

. Despite what we said in Pacheco F regozo , the BI A ’ s decision in Velazquez nowhere intimated that chi l d abuse required actual injury

. At most, it noted that, “[ a] t a minimum,” c h i l d abuse included p hy sical harm “even if slig ht,” as well as mental or emotional harm, acts injurious to morals, a

nd use of a ch i l d “as an object of sex ual
g ratification.” Velazquez
, 24 I

. & N. Dec. at 512. The B I A ’s correction of our misinterpretation was no t a chang e in position but rather a clarify ing , g ap-closing measure.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 16

I I I

. CHEVRON DEF ERENCE

W e apply Chevron ’s two-step framework to the B I A’s construction of the I

N A in precedential decisions. See, e.g. , Reyes v

. Lynch
, 842 F .3d 1125, 1 1 33 (9th Cir. 2016). “Under the first step, we determine whether Cong ress has di rectly spoken to the precise question a t issue.” Perez-Guz m a n v

. Lynch
, 8 3 5 F .3d 1066, 1073–74 (9th Cir. 2016) ( quotation marks o mitted). I f “Cong ress has not s p o ken to a particular issue or the statute is ambig uous,” we pass to the second step and consider the ag ency ’s interpretation of the statute. Id. I f the “ag ency ’s c onstruction is reasonable, Chevron requires a federal court to a ccept the ag ency ’s construction o f the statute, even if the ag e ncy ’s reading differs f rom what t he
court believes is the best statutory interpretation.” Id. (quoting Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs. , 545 U.S. 967, 980 (2005)).

A. Chevron Step One

Section 1227(a)(2)(E)(i) states that “[ a] ny al ien who at any time a fter admission is convicted of a crime of domestic violence, a crime of stalking
, or a c r ime of child abuse, child
neg lect, or child abandonment is deportable

. ” Unlike the
term “crime of domestic v i o l e n ce,” no part of the phrase “a crime of child abuse, child neg lect, or child a bandonment” is defined in the I

NA. T here are no federal crim e s o f child abuse, neg lect, or abandonment to prov i d e analog ous definitio n s , and unlike certain common-law crimes like burg lary or assault, there are no wide l y a ccepted definitions of child abuse, neg lect, or abandonment.

Section 1227(a)(2)(E)(i)’s lang uag e is broad a nd susceptible to multiple interpretations. E very circuit court toM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 17

have considered it has noted its ambig uity

. See Florez
, 779 F .3d at 211 (“[ W ] e have little trouble concluding that the statutory provision is ambig uous.”); Ibarra , 736 F .3d at 910 (rejecting t h e BI A ’ s i n t e rp r et a t i o n b u t o n l y a fter acknowledg ing that “the statutory lang uag e is ambig uo u s”). W e ag r ee and therefore pass to step two.

B

. Chevron Step Two

Step two is where our sister c ircuits have split. I n Florez
, the Second Circuit held that the B I A’s interpretation was reasonable a

nd entitled to deference. 779 F .3d 207. 3 Similar
to the instant case, Nilfor Yosel F lorez had been convicted o f child endang e rmen t under New York law for driving under
t he influence with children in his car and had been or d e r e d removed under § 1227(a)(2)(E)(i). Id. at 2 0 8

. T he Second Circuit reasoned that, as of 1 996 w h e n Cong ress passed I I R I R A
, “at least nine states had crimes called ‘ child a buse’ (or something similar) for which injury w a s not a r equired element.” Id. at 2 12. Althoug h “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 B I A acted reasonably in adopting a definition of child abuse “consistent with the definitions used by the leg islatures o f Colorado, K e n tucky
, Nebraska, New J ersey , New Mex ico, North Carolina, Ohio, Okl ah o ma, and Virg inia.” Id.

3 T h e T h i rd Circu it h as tw ice reach ed th is sam e co n clu sio n in

u n p u b lish ed o p in io n s. M

o n d ra g o n -Go nza lez
, 8 8 4 F.3 d at 1 5 9 ; Ha cksh aw

v. Att’y Gen

. o

f th e Un ited Sta tes , 4 5 8 F. A p p ’ x 1 3 7
, 1 3 8 (3 d Cir. 2 0 1 2 ). In ad d itio n , th e Elev en th

Circu it h as d ef

erred to th e B IA ’ s in terp retatio n in an u n p u blish ed o p in io n , w

h ere th e p arties d id n o t d isp u te th e in terp retatio n ’ s reaso n ab len ess. Ma rtin ez , 4 1 3 F. A p p ’ x 1 6 7

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 18

Moreover, Black’s Law Dictionary offered a definition o f “child abuse” that did not req u i r e i n j ury

. Id. (citing Abuse
, B L A C K ’ S L A W D I C T I O N A R Y (9th ed. 2009) (defi n ing “child abuse” a s “[ a] n act or failure to act that p resents an imminent risk of serious harm to a child”))

. Fi n a lly
, Soram ’s requirement o f a sufficiently high risk of harm to a c h ild ensured that the BI A ’s treatment of child-endang erment statutes would remain “within the realm of reason.” Id.

I n Ibarra
, the Tenth Circuit reached the opposi t e conclusion. The facts w ere ex traordinarily sy mpathetic: Elia I bar ra had u nintentionally left h e r children h ome alone o ne evening while she was a t work and, as a result, h ad been convicted of “child abuse—neg lig ence—no injury ” under Colorado law. 736 F .3 d at 905. I n subsequent removal proceeding s, I

barra conceded r emovability but soug ht cancellation of removal. Id. The B I A held her inelig ible for cancellation on g rounds that her convict ion was a crime o f child a buse, neg lect, or abandonment. Id. at 906. The T e nth Circuit criticiz e d the BI A for rely ing “primarily on definitions o f ‘child abuse’ and ‘child neg lect’ from civil, not criminal, law.” Id. at 912. The c ourt h e l d t h a t the B I A should have identified “the majority of states’ consensus a s of [ the y ear Cong ress enacted I I RI RA]

. . . to find the g eneric

m e a n i n g o f c riminal child abuse.” Id. at 914 ( quotation marks omitted). The court then d id its own f ifty -state survey of state criminal laws, concluding that the majority o f states (thirty -three) required a hig her mens rea than criminal

n e g lig ence for conviction of an offense not involving act u al injury to a child. Id. at 915. On this basis, the court rejected the B I A’s interpretation of a crime of child abuse, neg lect, o r abandonment as unreasonable. Id. at 915–16.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 19

W e ag r ee with the Second Circuit and likewise hold that the B I A ’s in t erpretation of § 1 227(a)(2)(E)(i) is reasonable and entitled to deference. Vel a z q u e z and Soram are careful decisions, and although t h ey may not represent the only permissible c onstruction of the statutory lang uag e at issue, the B I A was not unreasonable for the same reasons identified by the Second Circuit. That the B I A’s interpretation does not require intentional or actual injury to a child—the critical distinctions in this case—would p erhaps be troubling if the B I A were only interpreting the term “child abuse
, ” b u t the
term “child negl ect” surely admits of such conduct. See Neglect
, B L

A C K ’ S L A W D I C T I O N A R Y (10th e d

. 2 014) (defining “c h ild neg lect” as “ [ t] h e f ailure of a person responsible for a minor to care for the minor’s emotional o r phy sical n e eds;” a

nd defining “ willful neg lect” as “int e n t i o n al or reckless failure to carry out a leg al d uty , esp. in caring

for a child”).

Even as we ag

ree with the Second Circuit, we decline to follow the Tenth Circuit’s reasoning because we fi n d it flawed. F irst, there is no inherent p roblem in the B I A rely ing partly on civil statutes to under s t a n d the phrase “a crime o f child abuse, child neg lect, o r child abandonment.” I t would be unreasonable for the B I A t o i n t erpret that phrase, which refers to one who is “convicted of a c r ime,” to cover a purely civil action
, s u c h as child n eg lect proceeding s broug ht by a state’s c hild protective servic e s. W e thus ag ree with the d issent that it w ould be improper f or the B I A to use “ a ci v i l definition for a crime.” Dissenting O p. at 50; see also id. at 42, 49–50. B ut that is n ot what the B I A did. Rather, the B I A used ci v il definitions to inform its u nderstanding of which convictions are crimes o f child ab u s e, neg lect, o r abandonment, and that is not unreasonable.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 20

A phrase such as “ child neg le c t ” surely can serve both civil and criminal purposes, and there is nothing unreasonable in try ing to find a definition that would s e r v e both si m u l t a n eously

. That the B I A looked to civil definitions o f abuse and neg lect does not d etract from the fact that an alien’s deportability depends on having been c onvicted of a crime. T he only question i s what c rimes constitute child abuse, neg lect, or abandonment, and f or that the B I A was well within reason to loo k t o c ivil d efinitions. I n fact, civil law makes a particularly a p t comparison here: p arental rig hts adjudicated in civil c hild neg lect proceeding s implicate serious d u e process concerns, and courts have sometimes referred to terminating parental r ig hts as a “civil death penalty
, ” see, e.g. , I

n re K.A.W

., 1 33 S.W .3d 1, 12 (Mo. 2004); In re K.D.L.
, 5 8 P.3d 181, 186 ( Nev. 2002), and have required the state to satisfy a heig htened b urden of proof before terminating those rig h ts, see , e

. g. , In re E.A.F.
, 424 S.W .3d 742, 746 (Tex

. Ct. A pp. 20 1 4 ) ; I n re B.A.C.
, 317 S.W .3d 718, 723–24 (Tenn. Ct. App. 2009).

Second, there is n o requirement that the B I A i n t er p r e t a g eneric offense in the I

N A to c onform to how the majority o f
states mig ht have int e r p r e ted that term a t the time o f 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 arg ument, the Supreme

4 T h e d issen t cites sev eral cases f o r th e p ro p o sitio n th at a su rv ey of
state law s m ay b e h elp f

u l in in terp retin g f

ed eral l aw

—a p ro p o sitio n w e d o

n o t d i sp u te. Dissen tin g Op

. at 5 2 –5 3. Fo r ex am p le, th e Su

p rem e Co u rt

su rv ey ed st a t e c r im in al co d es to su p p ly “ ad ditio n al ev i d en ce ab o u t th e g en eric m ean in g o f sex u al ab u se o f a m in o r.” E sq u i vel-Qu in ta n a v. S essio n s , 1 37 S. Ct. 1 56 2 , 1 5 7 1 (2 0 1 7 ). T h e Co u rt u ltim ately f o u n d th e p h rase u n am

b ig u o u s at Ch evro n s t ep o n e, id

. at 1 5 7 2
, b u t n o ted th at

su rv ey in g state law
, th o u g h “ n o t req u i red ,” “c a n b e u sef u l in so f ar as i tM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 21

Court’s d ecision in Taylor has no bearing on this issue. See Ibarra , 736 F .3d at 913 ( “ Taylor instructs courts to find that ‘g enerally accept e d c o ntemporary meaning ’ by looking to ‘the criminal codes of most States.’” )

. I n Taylor
, the Court interpreted the word “burg lary ” in a federal sentence enhancement statute a

nd determined “that Cong ress meant b y ‘burg lary ’ the g eneric sense in which the term is now used in the criminal codes of most States.” 495 U.S. at 5 9 8

. The Court re l ied on the “g enerally a c cepted contemporary meaning ” an d l ooked to elements c o mmon to the state definit i o n s

. I

d. at 596, 598. The Court was not, however, reviewing an ag ency ’s interpretation of an ambig uous statute and d id not purport to offer any gu i d ance to lower courts employ ing Chevron ’s two-step framework. Nothing in Taylor r equires that the B I A conduct a fifty -state survey

and
ag ree with the majority approach among the states every time

h elp s sh ed lig h t o n th e co m m o n u n derstan d in g an d m ean in g of th e f ed eral
p ro v isio n b ein g in terp reted .” Id

. at 1 5 7 1 n .3 (citatio n an d q u otatio n m ark s

o m itted )). No n e o f th e cases cited by th e d issen t su g g est th at th e m aj o rity
ap p r o ach am o n g states is th e on ly reaso n ab le w ay o f in terp retin g an

am b i g u o u s g en eric o f

f en se. No tab ly
, alm o st all o f th e cases t h a t t h e d issen t cites in th is reg ard d o n o t in v o lv e C h evro n d ef

eren ce at all b u t are in stead in stan ces o f a co u rt in t erp retin g a statu te in th e f irst in stan ce. S

ee, e.g

. , Nijh awa n v. H

o ld er , 55 7 U.S. 29
, 4 7 (2 00 9); Un ited S ta tes v. Ga r cia

Jimen ez , 8 0 7 F.3 d 1 0 7 9
, 10 8 4 (9 th Cir. 2 0 1 5 ); Un ited S ta tes v. Esp a r za

Herrera , 5 5 7 F.3 d 1 0 1 9 , 1 0 2 5 (9 t h Cir. 2 0 09 ).

Elsew h ere, th e d issen t calls i n t o q u estio n w h eth er th e B IA

— o r an y ag en cy —sh o u ld receiv e d ef

eren ce f ro m th e co u rts in i n terp retin g statu tes. S ee Dissen tin g Op

. at 53 (citin g Pereira v. S essio n s , No

. 1 7

- 4 5 9
, slip o p

. at 2 (Ken n ed y , J
., co n cu rrin g ); Gu tierrez-Brizu ela v

. L y n c h
, 8 3 4 F.3 d 1 1 4 2
, 1 1 49
, 11 5 2
, 1 1 5 6 (1 0 th Cir. 2 0 1 6) (Go rsu ch
, J
., co n cu rrin g )). T h e

o rig in s an d leg itim acy o f th e C h evro n d o ctrin e p ro v id e i n terestin g f o d der f o r f u rth er th o u g h t, see A d ity a B am zai, Th e Orig in s o f Ju d icia l Deferen ce to Execu tive In terp reta tio n , 1 2 6 Yale L .J

. 90 8 (2 0 1 7 ), b u t rev isitin g Ch evro n is b ey o n d o u r p o w er.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 22

it interprets an ambig uous g eneric of f e n s e i n the I

NA. A nd recently the Court has referred to this methodolog y a s an “aid [ to] our interpretation

. . . o f fering useful contex t.” EsquivelQuintana
, 137 S. Ct. at 1571 n.3. The B I A’s statu tory construction is not constra i n ed to a mere head-counting

ex e r cise.

Taylor ’s methodolog y worked in contex t: “burg lary ” is a well-recog

niz ed leg al term in the common law, the MPC, a nd
state law. 5 B y contrast, child abuse, neg lect, a nd abandonment are not common law crimes; they are twentiethcentury crimes. According to B l a c k ’s Law Dictionary
, the first prosecution for child abus e w a s i n 1874, when “[ a] n eig ht-y ear-old g irl named Mary E llen w as found to have been severely abused. Her abusers were prosecuted under the law fo r p r e v ention of cruelty to animals since no law p rotecting children then existed .” Abuse
, B L A C K ’ S L A W D I C T I O N A R Y (10th ed. 2014) (emphasis added). Similarly
, the MPC offers virtually no c lue to the terms in § 1227(a)(2)(E)(i). S ee MPC

5 S i m ilarly
, ou r d ecisio n in Un ited S ta tes v. Ga rcia -S a n ta n a e m

p l o y e d Ta ylo r ’s m eth o d o lo g y to in terp ret t h e term “ co n sp iracy ”—a term t h at,

m u ch lik e “ b u rg lary ,” h as a l o n g h isto ry in th e c o m m o n l a w an d i s th e

su b j ect o f w id e m od ern co n s en su s. 7 7 4 F.3 d 5 2 8
, 5 3 4

– 35 (9 th C ir. 2 0 1 4 ). In Ga rcia -S

a n ta n a , w e su

rv ey ed d e fi ni tio n s o f co n sp iracy in state an d f ed eral statu tes, th e Mo d el Pen al Co d e (“M P C ” )
, an d sch o larly

co m m en t a r y a n d co n clu d ed th at all o f th ese in d icia p o i n ted to w ard an

o v ert act elem en t in th e g en eric d ef in i tio n of co n sp iracy

. Id

. In lig h t of th is w i d esp read ag reem en t o n co n sp iracy req u irin g an o v ert act, w e

co n clu d ed th at th e B IA ’ s co n trary in terp retatio n w as n o t en titled to d ef eren ce. Id

. at 5 4 2 . W e d id n o t h o ld , h o w ev er, th at Ta

ylo r p rescrib es th e ex clu si v e m e t h o d olo g y f o r i n terp retin g th e INA ’ s lan g u ag e i n ev ery

case—an d certain ly n o t th e ex clu s i v e m eth o do lo g y f o r in terp retin g th e lan g u ag e at issu e h ere. Un l ik e co n sp iracy , th ere is sig n if ican t am big u ity in th e p h rase a c r i m e o f c h ild ab u se, n eg lect, o r ab an d o n m en t, as ev ery

co u rt to co n sid er th e issu e h as reco g n ized

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 23

§ 230.4 (Endang ering W elfare of Children). The notes to the MPC ex plain: “The crimes of e n dang er i n g the w elfare o f children and persistent n onsupport represent su b s tantial

mo d i f ication and c onsolidation of offenses that were

v a riously treated in prior law and that have also rec ei v e d widely differing treatment in recent revisions.” MPC Pt. I I
, Art. 230, Refs. & Annos. (emphasis added).

Moreover, states h ave developed different and varied
terms in thi s area, thus complicating Cong ress’s task in describing what crimes involving children count as c rimes o f child abuse, neg lect, o r abandonment. I ndeed, it seems that Cong r ess purposefully employ ed the overlapping concepts o f child abuse, neg l e ct, and abandonment to denote a broad
array o f crimes. As a B I A member’ s c o n c urring opinion in Velazquez noted, “crimes of c hild neg lect or abandonment a re

a subset o f ‘child abuse’ and, althoug h 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 adde d )

. I n short, the lack of a common source for the terms and the v aried way s in which states h ave a d dressed the p r o b l em o f child abuse—however it is deno minated—only reinforces the ambig uity in what c onstitutes a crime of child abuse, n eg lect,

or abandonment. I t is precisely b e c a u se of that ambig uity that we must proceed to Chevron step two, where there is no sing le methodolog y

for resolving ambig uity

in a statute.

Third, the Te n th Circuit’s ambitious, fifty -state survey

was itself problematic. The court categ oriz ed st a t e l aws according to the minimum m e n s rea they required forM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 24

c onviction of a crime not resulting in injury to a child. 6 I t found twenty -seven jurisdictions requiring “a minimum mens

rea of k nowing ness or intent for crimes not app ea ring to

r equire a resulting injury to the child;” six requirin g “ a min i m u m mens rea of c r iminal neg lig ence for crimes not requiring a resultant inj ury ;” eleven requiring “criminal negl i g e nce” or something less for c rimes not a resultant injury ; and five that had n o c lear standard. Id. a t 915, 918–21. The court concluded that, b ecause “a clear majority of states d id not c r iminaliz e such con d u c t when it was committed with only criminal neg lig ence and res u lted in no injury ,” the B I A’s construction o f § 1 227(a)(2 ) ( E)(i) fell “outside the interpretive ‘g ap’ left by Cong ress.” Id. at 918.

The Tenth Circuit’s methodolog y fails even under its o wn rules, and we need look no further than the California statute at issue here. According to the Ten t h Circuit, § 273a(a) “required a minimum mens rea o f knowing ness or intent for crimes not a

ppearing to require a resu l ting injury to the child.” Ibarra
, 736 F .3d at 9 1 8. The Tenth Circuit therefore included California in its “majority ” of states that supposedly contradicted the B I A ’s interpretation. Accordin g t o the

6 T h e T en th Circu it in clu d ed in its s u rv ey crim es lab eled “ ch ild ab u se,” “ ch ild n eg lect,” an d “ ch ild ab an d o n m en t” b ecau se th ese w ere

“ w ell- k n o w n term s o f art” th at Co n g ress em p lo y ed

. Id

. at 91 4

. T h e co u rt also ad d ed “ ch ild en d an g erm en t ,” “ cru elty t o c h ild ren ,” an d “ u n l aw f u l

co n d u ct to w ard ch ild ” to its su rv ey b ecau se th ey

“ ref l ect[ed ] th e ‘ clu s ter

o f id eas’ b eh in d th e term s Co n g ress actu ally u sed .” Id

. B u t it ch o s e n o t to in clu d e crim es o f “ n o n su pp o rt,” “ co n t

rib u tin g to d el i n q u en cy ,”

“ en ticem en t , ” o r “ o th er su n d ry crim es in v o lv in g ch ild ren th at state crim in al co d es m ay i n clu d e.” Id

. T h e co u rt m ad e n o real ef

f ort to ex p lain th ese seem in g ly arb itrary d i s t in ctio n s. In an y ev en t, it strik es u s as v ery

o d d th at th e co u rt w o u ld f eel f ree t o ad d ph rases to a statu to ry list of

“ w ell- k n o w n term s o f art.”M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 25

California Supreme Court, however, Califo rnia Penal Code § 273a(a) requires only a minimum mens rea o f “criminal
neg lig ence.” People v. Valdez
, 42 P.3d 511, 517 (Cal. 2 002) (“[ F ] or 25 y ears, the lower courts have identified criminal
neg lig ence as the relevant standard of culpability for section 273a

. . . , and this court has applied that same standa r d

. ” ). The Tenth Circuit’s mistake in this reg ard r ein f o r c es that a fifty -state surv e y

— particularly one of difficult to discern

mens rea categ ori es

— i s n ot the only reasonable way to interpret the I

NA.

F ourth, a n ag ency need n ot g ive an a nswer to every conceivable q u estion in one d ecision. The B I A noted in Soram that different state statutes employ different lang uag e reg arding their requisite level of risk and that even similar
statutes have been interpreted d ifferently by vario u s s t ate courts. 25 I

. & N. Dec. at 382–82. F u rther, the B I A held that the risk of injury to a child must b e s u f fi c i e ntly g reat, and it carefully ex plained why the Colorado statute at issue met that requirement. I

d. at 383–86. I t was reasonable for the B I A to decline to analy

z e all at o nce “whether the my riad State formulations o f endang erment-ty pe child abuse o ffenses

come within the ambit of ‘c h i l d abuse’ under

. . . the Act.” Id. at 383. I ndeed, the Te n t h Circuit’s flawed fifty -state survey shows the dang e r of a contrary approach. 7

7 In th is reg ard
, w e d isag ree w ith t h e d i s s e n t’ s su g g estio n th at th e B IA ’ s d ef

in itio n “ is s o i m

p recise, it v io lates ‘ essen tial’ ten ets of du e p ro cess,” su ch as th e v oid

- f o r- v ag u en ess d octrin e. Dissen tin g Op . at 4 1 (q u o tin g S

essio ns v. Dima

ya , 1 3 8 S. C t. 1 2 0 4
, 1 2 1 2 (2 0 18 )). T h e Su p rem e Co u rt’ s d ecis i o n in Dima ya d o es n ot su

p p o rt th e d i ssen t’ s p o sitio n

. T h ere, th e Co u rt h eld th at th e resid u al c l a u s e in co rp orated in § 1 1 01 (a)(4 3 )(f

)’ s d ef in itio n o f “ a crim e o f v io len ce” w as v o id f or

v ag u en ess. 1 3 8 S

. Ct

. a t 1 2 1 6

. T h e resid u al clau se m ad e an y “ o f f en s e th at i s a f

elo n y an d th at, b y i ts n atu re, in v o l v es a s u b s t a n t i al risk th atM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 26

F inally
, this is not a case o f the B I A chang ing positions without ex pl a ining its rationale for doing so. F or one, the B I A d id not chang e its p osition: Rodriguez ’s brief discussion of § 1227(a)(2)(E)(i) was dictum; Velazquez g ave the f i r s t pre c edential interpretation of § 1227(a)(2)(E)(i) but left the issue of actual injury undecided; and Soram merely filled the
g ap that V

elazquez left open. The dissent’s strained r eading of Rodriguez and Velazqu e z t r ies to hold the B I A to an interpretation that was never in fact the ag ency ’s position. More importantly
, even if one thoug ht the B I A had chang ed its position, the B I A has ex plained its reasoning

. See Brand X
, 545 U.S. at 981. I t is only a n “[ u] nex p lained inconsistency ” that is a reason for finding an interpretation unreasonable. Id. ; E

ncino M otorcars, LLC v. Navarro
, 1 36 S. Ct. 2117, 2125–26 (2016). I ndeed, in Chevron itself, the Supreme Court “deferred to an ag ency interpretation that was

a recent r eversal of ag ency policy .” Brand X
, 5 4 5 U.S. at 981 (cit ing Chevron
, 467 U.S. at 857–58). The B I A ’s interpretation in Soram was a r esponse to our decision in P a c h eco Fregozo and g ave sufficient reason f or why the

a ge n c y believed a crime of child abuse, neg lect, o r abandonment did not require proof of actual injury

. This was

p h y sical f

orce ag ain st th e perso n o r p ro perty o f an oth er” a d ep o rtab le

o f f en se. Id

. at 1 2 11 (q u otin g 1 8 U.S.C. § 1 6 (b )). H ere, alth o u g h § 1 22 7(a)(2 )(E)(i) is am

b i g u o u s, n eith er th e p arties n o r an y p rio r co u rt h as

su g g ested th at th e statu te is so m eh o w v o id f o r v ag u en ess. In deed
, th e d issen t tak es n o issu e w ith th e statu te itself b u t o n ly w ith t h e B IA ’ s in terp retatio n o f i t. B y i n terp retin g § 12 2 7(a)(2 )(E)(i), th e B IA g av e m ore sp ecif icity to th e statu te, n o t less.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 27

not a chang e in the B I A’s position, but even if it had been, it was suitably

ex plained. 8

I n sum, we hold that the B I A’s interpretation of a c ri m e of child abuse, neg lect, or abandonment in Velazquez a nd Soram is a reasonable con s truction of ambig uous statutory lang uag e. W e therefore join the Second Circuit in deferring to the B I A’s interpretation.

I V. THE CATEGORI CAL APPROACH

W e nex t consider whether Martinez

- Cedillo’s conviction under California Pena l C o d e § 273a(a) is categ orically a crime of child abuse, neg lect, o r abandonment, as interpreted by the B I A. W e ap p l y Skidmore deference to the B I A ’s nonprecedential h olding in this case that § 273a(a) is categ orically such a crime. See Marmolej o

- Ca m pos v

. Holder
, 558 F .3d 903, 909 (9th Cir. 2009). “Under Skidmore
, the measure of deference afforded to the a g ency varies depending upon the thoroug hness evident in its c o n s ideration, the validity of its reasoning
, its consistency with e ar l i e r a nd later pronouncements, and all those facto r s w hich g ive it

8 T h e d i ssen t arg u es th at th e B IA in S o ra m “ rev ersed its o w

n lo n g

stan d in g p reced en t in stru ctin g th at th e g en eric def in itio n o f a f

ed eral crim e sh o u ld ref lect a u n if o rm , n atio n al stan d ard .” Dissen tin g Op

. at 4 5

. T o th e

co n trary , S

o ra m reaf f i r m e d t h a t “ th e term ‘ crim e o f ch ild ab u s e’ w ill b e d eterm in ed b y ref

eren ce to a ‘ f

lex ib le, u n if

o rm stan d ard

. . . .’ ” 2 5 I. & N. Dec. at 3 8 1 (q u o t in g Vela zq u ez , 2 4 I. & N. Dec. at 5 0 8 ). S o r a m retain ed th e sam e u n if

orm , n at i o n a l d ef

i n itio n th at th e B IA h ad ad o p t ed in Vela zq u ez , w

h i le clarif

y in g th at th e d ef

i n itio n ad m i t ted o f ch ild

e n d a n g erm en t o f

f en ses. T h e f

act t h at th e B IA ch o se n o t to ap ply i t s

u n if o rm , n atio n al d ef

in itio n to ev ery

state ch i ld en d an g erm en t statu te all
at o n ce d o es n o t

ref l ect a ch an g e in th e ag en cy ’ s p o sitio n

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 28

p o wer to persuade, if lacking power to control.” I d

. (alteration and quotation marks omitted).

Under the categ orical approach, we look “not to the facts of the p articular prior case” b ut to wh e t h e r “the state statute defining the crime of c o nviction” categ orically fits w ithin the “g eneric” federal offense. M oncrieffe v. Holder
, 5 6 9 U.S. 184 (2013). The r e l evant section o f the California statute states:

Any person w h o , u nder circumstances o r conditions likely to produce g reat bodily harm

or death, willfully causes or permits any child
to suffer, or inflicts thereon unjustifiable phy sical pain or mental suffering
, or h aving the care or custo d y of any child, willfully

causes or permits the person or health of tha t child to be injured, or willfull y causes o r p e rmits that c hild to be placed in a situatio n where his or her p erson or hea l t h is

e n d a n g e r e d
, s h a l l b e p u n i s h e d b y imprisonment in a c o unty jail not ex ceeding

one y e a r , or in the state prison for two, four, or six y ears.

Cal. Penal Code § 273a(a). As n oted above, the California Supreme Court has interpreted § 273a(a) to cover criminally

ne g lig ent c onduct resulting in risk o f “g reat bodily harm o r death” to a child. Valdez
, 4 2 P.3d at 517; see also Ramirez v

. Lynch , 810 F .3d 1127 (9th Cir. 2016). 9

9 In Ra m irez , w e h eld th at § 2 7 3 a(a) is n o t categ orically a “ crim e o f

v io len ce” b u t d id n o t ad d ress w h eth er it is categ o rically a crim e of ch ild ab u se, n eg lect, o r ab an d on m en t. 8 1 0 F.3 d at 1 1 2 7

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 29

Even before the B I A decided Soram
, our decision in Pacheco Fregozo strong ly sug g est e d that felony child endang erment under § 2 7 3 a(a) w as categ orically a crime o f child a buse, neg lect, or a

b andonment. 1 0 576 F .3d at 1037–38. Aft e r S o ram , the result is all the more clear. Unlike § 273a(b), § 273a(a) requires criminally neg lig ent c onduct und e r “ conditions likely to produce g reat bodily harm o r death” to a child. See id. ; P e ople v. Sargent
, 1 59 Cal. Rptr. 771 (Cal. Ct. App. 1979) (holding that § 273a(a) is “intended
to protect a c hild from an a b u s i v e s i tuation in w hich the probability of serious injury is g r eat”). 1 1 This hig h d eg ree o f risk bring s the c r i m e completely within the ambit of the B I A’s broad interpretation. See Soram
, 25 I

. & N. Dec. at 378; Velazquez-Herrera , 24 I . & N. Dec. at 512.

10 Martin ez- Ced illo in co rrectly su g g ests th at, b ecau se th e f acts

u n d erly in g h is co n v ictio n a re sim ilar to th e f acts in Pa ch eco Freg o zo , § 2 7 3 a(a) is n o t categ o rically a crim e o f ch ild ab u s e , n e g l ect, or ab an d o n m en t. T h is m isu

n d erstan d s th e categ o rical ap p ro ach
, w h ich lo o k s to elem en ts, n o t f

acts. S ee Mo n crieffe
, 5 6 9 U.S. at 1 8 4

. Sectio n 2 7 3a(a)
req u ires pro o f o f “ circu m stan ces o r co n d itio n s lik ely to p r o d u ce g reat b o d ily h arm o r d eath .” S ec tio n 2 7 3 a(b ), b y co n trast, co v ers on ly th ose acts “ o th er th an th o se lik e l y t o p ro d u ce g reat b o d ily h arm o r d eath .” Sectio n 2 7 3 a(a) is a f

elo n y ; § 2 7 3a(b ) is a m isd em ean o r. T h e d i ssen t f ails
to ad d ress th is d is tin ctio n w h en it claim s th at th ere is “ n o co n sisten cy in

o u r cu rren t ap p ro ach ” b ecau se in tw o cases in w h ich a f ath er d ro v e d ru n k

w ith ch ild ren in th e car “ o n e w as d eem ed rem o v ab le an d th e o t h e r w as

n o t.” Dissen tin g Op . at 4 4

.

11 Calif o rn ia’ s j u ry

in stru ctio n s f

o r § 2 7 3 a(a) req u ire th e j u ry to f in d th at “ [t]h e d ef

en d an t . . . cau sed o r p erm itted th e ch ild to (su f f er/ [o r] b e in j u red / [o r] b e en d an g ered )) u n d er circu m stan ces o r co n d itio n s l ik ely to p ro d u ced (g reat b o d ily h arm / [o r] d eath ).” J u d icial Co u n cil o f C alif o rn ia Crim in al J u ry

In stru ctio n

8 2 1

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 30

V. RETROACTI VI TY

Martinez -Cedillo arg ues that he pled g u ilty of violating § 273a(a) b efore the B I A d e c i ded Soram and that therefore Soram should not apply to his conviction. W e a pply the fivefactor Montgomery W

ard test to address “the situation when

a ‘new administrative policy [ is] announced and implemented throug h a djudication.’” Garfias-Rodriguez v. H older
, 702 F. 3 d 5 0 4
, 518 (9th Cir. 2012) (en banc) (quoting Montgomery W

ard & Co. v. FTC
, 691 F .2d 1322, 1 328 (9th Cir. 1982)). The five factors are:

(1) whether the particular c a se is one of first impression, (2) whether the new rule represents a

n abrupt departure from well established practice or merely attempts to fill

a v o i d in an unsettled area of law, (3) the

ex tent to which the p arty aga i nst whom the

n ew rule is applied relied on the former rule
, (4) the deg ree o f the burden w h i ch a retr o a ctive order imposes o n a party , a nd (5) the statutory interest in apply ing a new rule d e spite the reliance of a party on the old standard.

Id. A lthoug h the Mont

g omery W

ard test was developed in the contex t o f an ag ency overtu r n i n g i t s own rule, it also applies where, as here, an ag e n c y disag rees w ith a court’s decision. Id.

The first factor is g enerally not “well suited to the c ontex t of immig r ation law” a

n d does not weig h either for or ag ainst

r e t roactivity

. Id. at 521. The second a nd third factors “ar e closely intertwined” and do support r etroactivity here. Id.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 31

The B I A’s decision in Soram was not an abrupt departure from a well established p r actice but rather a clarification of a prior uncertainty

. As ex plained above, a concurring opinion in Velazquez ex pressly noted that whether § 1227(a)(2)(E)(i)

r e q u i red actual injury was an open question. Soram t h u s “fill[ e d] a void in a

n u nsettled area of law” and cannot have

come a s “a complete surprise” to Martinez -Cedillo. Id. at 521–22. Althoug h the fourth factor favors non-ret r o a ctive application because deportation is unquestiona b ly a substantial burden, the fifth factor cuts in the other direction because “non-retroactivity impairs the unifor m i ty of a statutory scheme, and the importance of unif ormity in immig ration law is well established.” Id. at 5 23. I n sum, the second, third, an d fifth factors of the Montgomery W ard analy sis favor retroactive application of Soram , and the B I A properly applied Soram to Martinez -Cedillo ’ s conviction in this case. 1 2

12 T h e d issen t cites Mo n tg o mery W a rd b u t f ails to ad eq u ately ad d ress all o f its f

iv e f acto rs. D i s s e n tin g O p

. at 5 5

– 57

. In stead
, th e d issen t f o cu ses on o n ly tw o o f

th e f iv e f acto rs, arg u in g th at, becau se def en d an ts

are “ acu tely aw are o f th e im m ig ratio n co n seq u en ces o f th eir co n v ictio n s,”

an d becau se d ep o rtatio n i s “ a p articu larly s ev ere p en alty
, ” t h e B IA ’ s in terp retatio n sh o u ld n o t ap p ly retro activ ely

. Id

. Im p o rtan t l y , th e tw o f acto rs th e dissen t relies u

p o n w o u ld ap p ly

an y tim e th e B IA in terp rets a g en eric o f f en se, su ch th at n o B IA d ecisio n w o u ld ev er ap p ly retro activ ely

. T h is i s in co n sisten t w ith ho w o u r co u rt ap p lies Mo n tg omery W a rd

. S ee Ga rfia s -Ro d

rig u ez , 7 0 2 F .3 d at 5 1 9 (“ In ev ery cas e i n w h i ch w e h av e ap p lied th e M

o n tg o mery W

a rd test, w e h av e d on e so o n a case- b y

- case b asis

. . . .”). In d eed
, th e d issen t ’s an aly sis w o u ld h av e req u ired a d if f eren t resu l t in th e v ery en ban c d ecisio n in w h ich w e d ecid ed to ap p ly Mo n tg o mery W

a rd to B IA d ecisio n s. S

ee id

. at 5 2 3 (h o ld in g BIA d ecisio n ap p lied retro activ ely ).M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 32

VI . REQUEST F OR A CONTI NUANCE

F inally
, Martinez -Cedillo challeng e s the denial of his request for a continuance. An I J may g rant a continuance for

“ go o d cause shown.” 8 C.F .R. § 1003.29. “W e review t h e denial o f a continuance for an abuse o f discretion.” Id. Here, M a r t inez -Cedillo requested a continuance based on hi s pending visa application. The I J denied his request based on the untimeliness of the request, the remoteness of Martinez

Cedillo’s p riority d a t e f

o r a visa, and the speculative nature of his elig ibil i ty for adjustment of status, and the B I A affirmed for the same r easons. There was no abuse i ts discretion.

VI I . CONCL USI ON

F or the foreg oing reasons, we DENY the petition for review.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 33

W A RDL AW , Circuit J udg e, dissenting :

I respectfully d issent. The B oard un r e a s onably in t e r preted the phrase “crime of child abuse, child n eg lect, and child abandonment,” hav i ng inex p licably chang ed its
g eneric definition three times in the past two decad e s

. I ts current definition is not entitled to Chevron deference. A nd

even if it were, the new d efinition should not a pply retroactively

to Martinez

.

I

.

Martinez immig r ated to the United States from Mex ico in 1992, when he was six tee n y e a rs old. He became a lawful permanent resident in 2005, a n d thus was lawfully in the United States residing and wor k i ng for more than fifteen
y ears before the Department o f Ho m e l a n d Security (DHS) commenced these r emoval proceeding s. Ma r t i n ez has two U.S. citiz en children, a son born in 2002 a n d a d a ug hter in 2008. I n A ug ust 2007 and April 2008, Martinez drove d runk

near his home outside San D ieg o. Martinez ’ s son was in the car without a seatbelt during those incidents.

I n Aug u st 2008, Martinez pleaded g uilty to violating C a l i f o rnia Penal Code section 273a(a) for the April 2008 incident and to violating California Vehicle C o d e section 23152(b) for driving under the influence of al c o h ol (DUI ) with two or more prior DUI s. See Cal. V e h i c l e Code § 23152(b). The state judg e sentenced Martinez to 364 day s in jail a n d five y ears o f probation. A t the time, Martinez received a form, prepared by the San Dieg o Superior Court, that listed “Ag g ravated F elonies,” as d efined under 8 U .S.C. § 1101(a)(43) that “ will result in Removal/Deportation” if theM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 34

noncitiz en is convicted. 1 The list of deportable ag g ravated felonies, however, included neither a c o nviction under California Penal Code s e ct ion 273a(a) nor crimes of child abuse, child neg lect, o r child abandonment, thoug h Martinez acknowledg ed elsewhere th a t h is g uilty plea could result in removal from the United States.

Three months a f

t e r his g uilty plea, DHS c ommenced removal proce e d i n g s ag ainst Martinez
, charg ing r emovability

as an immig rant “convicted of” a “crime of child abuse, child
neg lect, or child abandonment.” 2 8 U.S.C. § 1227(a)(2)(E)(i). Martinez moved to terminate the proceeding s, arg uing that a conviction under California Penal Code section 273a(a) was not categ orically a crim e o f c h ild abuse under Matter of Velazquez-Herrera ( Velazquez II ), 24 I

. & N. Dec. 503 (B .I .A. 2008), the B I A d efinition in effec t a t the time he pleaded g u ilty

. The I mmig r ation J udg e (I J ) disag reed a nd entered a final order of removal.

Martinez then appealed to the B I A. T he B oard concluded that California Penal Code section 2 7 3a(a) was a categ orical match for the “crime o f child ab u s e , c hild neg lect, or child abandonment” under Matter of Soram
, 2 5 I

. & N. Dec. 378 (B .I .A. 2010), the definiti o n the B oard n ewly adopted while

1 T h e f orm h as a rev ised d ate o f “ 1 2

- 0 7 ” o r Decem b er 2 0 0 7
, a p erio d

o f tim e d u rin g w

h ich t h e BIA r e q ui red p h y sical, m en tal, o r em o tio n al h arm to a ch ild f

o r a c o n v i ctio n o f ch ild ab u se, ch ild n eg lect, o r ch ild ab an d o n m en t to q u alif

y as a d ep o rtab le o f

f en s e.

2 Ou r co u rt, sittin g en b an c, h as reco g n ized th at d ru n k driv in g , b y itself
, is n o t a d ep ortab le of

f en se b ecau se it is n o t a crim e in v olv in g m o ral
tu rp itu d e, s ee Ma rmo lejo -Ca m p o s v. Ho l

d er , 5 5 8 F.3 d 9 0 3
, 9 1 3 (9 t

h Cir. 2 0 0 9 ) (en b an c), s o th e ag en cy co u ld n o t h av e ch arg ed Martin ez o n th at b asis.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 35

Martinez ’s petition awaited appeal. The B oard affirmed the I J ’s removal o rder a

n d
, a fter a partial remand to the I J
, concluded that Martinez was inelig ible for voluntary departure.

Martinez now petitions for relief from the r emoval order. He a rg ues that he is not removable because the definition o f “crime of child abuse, child neg lect, and child abandonment” in Soram is overbroad and an unreasonable interpretation of
cong ressional in t e nt, a

nd because a conviction under California Penal Code secti on 273a(a) is not c ateg orically a crime of child abuse under Velazquez II

. Martinez arg ues, in the alternative, that, e v e n if Soram is a reasona b le interpretati on o f cong r essional intent, the B oard should not have applied Soram retroactively to his 2008 conviction.

I I

. “Vag ue laws invite arbitrary power,” Sessions v. Dimaya
, 138 S. Ct. 1204, 1 223 (2018) (Gorsuch, J
., concurring ), a s the Bo ard’s ever-chang ing definition of the “crime of ch i l d abuse, child neg lect, or c h ild a b a n d onment” illustrates. I n 1998, the B I A defined a crime of child a buse as “any form o f cruelty to a child’s phy sical, moral, or mental well-being .” I n

r e R o driguez-Rodriguez
, 22 I

. & N. D ec. 991, 996 (B .I .A. 1999). That d efinition required intentional infliction of injury

on the child. See id. (citing to B lack’s L aw Dictionary (8 t h ed. 2014), w hich defined “cruelty ” as an intentional a

nd malicious act). I n 2006, w e concluded that the R o d r i g uez definition was dicta, n ot pr e c e dential and not entitled to deference because it was announced in an appeal ab out the separate c rime of child sex u al abuse. See Velazquez-Herrera

v. Gonzales ( Velazquez I ), 466 F .3d 781, 782–83 (9th C i r. 2006). B u t, in the y ears between Rodriguez and Velazquez I
,M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 36

and even after, seve r a l circuit courts of appeal accepted Rodriguez a s a r e a s o n a

b le interpretation of § 1227(a)(2)(E)(i), Ochieng v. Mukas ey , 520 F .3d 1 110, 1114–15 ( 10th Cir. 2008); Nguyen v

. Chertoff
, 501 F .3d 107, 114 n.9 (2d Cir. 200 7 ) ; Loeza-Dominguez v. Gonzales
, 428 F .3d 1 156 (8th Cir. 2005), and many lawful p ermanent residents relied on the definition to make d e cisions about how to plead in criminal proceeding s, see INS v. St. Cyr
, 533 U.S. 289, 322 (2001) (“There can be little doubt that, as a ge n e r a l matter, alien defendants c onsidering whether to enter into a plea ag reement

are acutely aware of the immig r ation consequenc e s of their convictions.”). After Velazquez I , we remanded the petition
to the B I A with an invitation to issue a precedential decision. 466 F .3d at 782–83.

I n response, the B oard held that the g eneric d efinition o f crime of child abuse includes crimes committed with a mens

rea o f criminal neg lig ence so long as the convictions involve “the infliction on a child of phy sical harm, even if slig ht” o r “mental or emotional harm, including acts injurious to morals

. . . .” Velazquez II

, 24 I

. & N. De c. a t 5 12. The B oard

re c o gn iz ed that its g eneric definition had to reflect a “flex ible, uniform standard,” applicable n ationwide
, a nd could not make referen c e to “ leg al 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 c oncurring B oa rd member, Rog er Pauley
, wrote separately to point out that the B oard’s definition was incomplete and confusing

. I t w a s “unclear,” Pauley wrote, whether the B oard’s new definition ex tended to “cr i m e s in which a c hild is merel y p l aced or allowed to remain in a da n ge r ous situation, w ithout any element in the statute requiring ensuing harm,” and Pauley included the ex a mple o fM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 37

“failing to secur e a child with a seatbelt.” Id. at 518 n.2 (Pauley
, concurring ). Pauley also noted that the B oard’s definition ig nored the statutory tex t, defining only the “ crime of child abuse” without a c k nowledg ing that the phrase enacted by Cong r ess included the “crime of child abuse, child
neg lect, a nd child a bandonment.” Id. at 518. Never t h e l e s s , the B oard issued its definition w ithout adjusting or clarify ing the meaning of the phrase.

After V elazquez II

, we g ranted a petition for review in Fregozo v. Holder
, 576 F

. 3d 10 3 0 (9th Cir. 2009), holding th a t t h e Velazquez II definition requires injury to the child. I d. a t 1036. There, F reg oz o, a permanent resident, pleaded
g uilty to child endang er m e n t under California Penal Code

s e ction 273a, subsection (b), after h e drove drunk wit h h i s wife a nd two children in t h e ca r

. Id. at 1033–34. W e concluded that a conviction under s ec t i on 273a(b) is not categ orically a crime of child abuse u nder Velazquez II because the B oard’s then-interpretation r equired “ some form of injury on a child” while section 273 a ( b ) r equired only a potential harm to the c hild f or a co n viction, rendering the
state statute broader than the g e n e ri c f ederal crime. Id. at 1037.

I n lig ht of our decision in Fregozo
, the B I A ag ain revisited its definiti o n of the crime of child abuse in December 2010. Soram
, 25 I

. & N. Dec. at 380. Chang ing

course from its prior p osition t hat a crime of child abuse requires “infliction o n a child of phy sical harm, even if slig ht,” or “mental or emotional harm,” Velazquez II
, 24 I

. & N. at 512, the B I A fo und “no convincing r eason” to limit deportable offenses under § 1 227(a)(2)(E)(i) to “those requiring proof of actual h arm or injury to the child,” Soram
, 25 I

. & N. Dec. at 378. The B oard inex plicably looked to theM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 38

c ivil child abuse statutes in force in thirty -eig ht states a s o f 2009, not the criminal laws in effect in 1996 when Cong ress enacted I I RI RA. Id. at 382 (citing a 2009 Depa r t m ent o f Health and Human Services c ompendium of the civil laws o f thirty -eig ht states). A concurring board member, L auri Filppu, remarked o n the problem, and stated, “I find i t m o s t relevant to look to the criminal statutes of the various States in 1 996, rather than the civil statutes.” Id. at 386–87 (F ilppu, concurring ).

The B oard chang ed its position between Velazquez II a nd Soram in two other res p e cts as w ell. F irst, where the B oard had rejected a state-by -state a naly sis in Vel a z q uez II

, it approved a state-by -state analy sis in S oram , instructing I J s to look to state statutes “to determine whether the risk of harm required by the endang e rment-t y p e lang uag e” in the state statute is “sufficient to bring an o ffense within the definition of ‘child a b u s e.’” Id. at 383 (“W e find that a State-by

- State analy sis is appropriate to determine w hether the risk of harm required

. . . is suff

icient.”). After survey

ing state laws, the B oard confirmed tha t s t ates use different terms, like

“ r e a l i stic,” “serious,” “reasonably foreseeable, ” “ s u b s t a n t i a l
, ” and “g enuine” to describe the level of ris k r e q uired, a nd “approx imately half o f the States that include endang ermentty pe offense s in their definitions of ‘child a buse’ or ‘ child

a b u s e o r c hild neg lect’ [ did] not specify the deg ree of threat required.” See id. at 382– 8 3 ( c o llecting terms). B ut, eschewing its prior command to c r eate a u niform
, n a tional definition, the B oard left it to co u r t s to decide “whether the risk o f harm r equired by the endang e r ment-ty pe lang uag e in
any g iven State statute is sufficient to bring an o ffense within the definition of ‘child abuse’ under the Act.” Id. at 383.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 39

Second, the B oard chang ed its position on whether t h e phrase “ crime of child abuse, child neg lect, or child abandonment” described a unitary concept. W here the B oard in Velazquez II decided to define o nly the “crime o f c h i ld abuse,” the B oard now confi rm e d that its new definition covered the e ntire scope of the deportable offense “a crime o f child abuse, child neg lect, or child abandonment.” I d.

I I I

.

W e r e v i ew the B o ard’s g eneric d efinition of a “crime o f child abuse, child neg lect, or child abandonment” announced i n Soram under Chevron USA, Inc. v. Natural R esources D e f e nse Council, Inc.
, 467 U.S. 837, 8 42–43 ( 1984). F irs t , we a sk “whether Cong r ess has directly spoken to the precise question at issue,”—that is, whether the statute is ambig uous. Id. “I f the intent of Cong r ess is clear, that is the e nd of the matter.” Id. B ut “if t h e statute is silent or ambig uous,” the second question we must c onsider is “w h e t h er the ag e ncy ’s

answer is based on a permissible construction of the statute.” Id. at 8 43; see a lso INS v. Aguirre-Aguirre
, 526 U.S. 415, 424 (1999) (“I t is clear that p rincip l e s o f Chevron deference a re applicable to [ the I

NA’s] statutory

scheme.”).

A.

The maj ority correctly notes that a ll of the circuits to

ex a mine the issue ag r ee that the phrase “crime of child abuse, child n eg lect, or child abandonment” in § 1227(a)(2)(E)(i) is ambig uous. See Florez v. Holder
, 779 F .3d 207, 211 (2d Cir. 2015); Ibarra v. Holder
, 736 F .3d 903, 9 10 (10th Cir. 2 013); Hackshaw v. Att’y Gen. of U.S.
, 458 F

. App’x 137, 1 3 9 (3d Cir. 2012); M

artinez v. U

. S

. Att’y Gen.
, 413 F

. App’x 163, 1 6 6 (11th Cir. 2011). Section 1227(a)(2)(E)(i) defines t h eM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 40

term “crime of domestic v iolence,” but it does not define the phrase “ crime of child abuse, child neg lect, or child abandonment.” 8 U.S.C. § 1 227(a)(2)(E)(i). B ecause Cong r ess did not speak to the question a nd each state defines the crimes of child abuse, child neg lect, and c h i ld abandonment differently , the phrase is ambiguous.

B

.

The majority and I part w ay s a t Chevro n ’ s s econd step. The B oard unreasonably c h ang ed the definition of the phrase “crime of child abuse, child neg lect, and c hild a bandonment,” departing from standard r ules of statutory co n struction to include “crimes” resulting in no i n j u r y to a child and b y requiring a state-by -state risk analy sis. Moreover, the B oard unreasonably disreg arded the Supreme Court ’ s clear instruc t i ons as to h ow to determine the g eneric definition o f a crime.

1.

As a matter of statutory interpretation, we must review the statute’s lang uag e, purpose, history
, and the ag ency ’ s past decisions and controlling la w t o determine whether the B oard’s definition is reasonable. See Taylor v. United States
, 495 U.S. 575, 581 (1990). To de t e r m i n e Cong ress’s intent,

we beg in w ith the lang uag e of the statute—something neither the majority nor the B oard did h e r e

. See Mendez-Garcia v

. Lynch , 840 F .3d 655, 663 (9th Cir. 2016).

Section 1227(a) is structured around a l i s t of seven “classes of deportable aliens,” each “clas s” setting forth a distinct basis for remova l of a n “alien” from the United States. 8 U.S.C. § 1227(a). Section 1227(a)(2), the second o fM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 41

the seven classes, lists “ criminal offenses” for which an alien
may be removed from t h e c o untry

. Id. § 1227(a)(2). This criminal offense class in turn lists five subsets of d eportable crimes. Id. Section 1 227(a)(2)(E)(i), the subsec t ion

a p plicable to Martinez
, is within the categ ory of “crimes o f domestic violence, stalking
, or violation of a protection order, [ and] crimes ag ainst child r e n .” Id. Martinez was deemed removable f

or having b een “convicted” of a “crime o f child abuse, child neg lect, or child abandonment,” on e o f the
g eneric crimes under this subsection. Id. § 1227(a)(2)(E)(i).

As its focus on “criminal offenses,” convict i o n s , a nd crimes indicates, the statute r equires the B oard to def i ne the

e l e ments of a crime. See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.
, 5 30 U.S. 1
, 6 (2000) ( “Cong ress ‘s a y s i n a statute what it means and means in a statute what it say s there.’” (quoting Connecticut Nat’l Bank v. Germain
, 503 U.S. 249, 254 (1992)); B ailey v. United States
, 516 U.S. 137, 145 (1995) (recogniz ing that pro p e r statutory construction also requires considering a phrase’s “placement and purpose in the statutory scheme”). Yet, t h e Bo a rd’s
g eneric defini t ion of the “crime of child abuse” is so imprecise, it violates “ess ential” tenets o f due process, most specifically “the p rohibitio n of vag ueness in criminal statutes.” Dimaya
, 138 S

. Ct. at 1212. The B oard ex plains that the g eneric d efinition o f the “crime of child abuse, child
neg lect, or child a

b andonment” includes any “intentional, knowing
, reckless, o r criminally neg lig ent” mens rea

. Soram
, 25 I

. & N. D ec. at 380 (citing Velazquez II
, 24 I

. & N. Dec. at 512). The B oard’s a ctus reu s t e s t i s even more vag ue. I t includes conduct that does not r esult in any injury to the child, a nd the B oard d oes not define the level of risk to which the child must have been ex posed. See id. at 381, 382–83. The definition sweeps widely to include “ mental or emotionalM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 42

harm,” “ acts injurious to mor a l s , ” “sex ual abuse,” a nd “sex ually ex plicit conduct,” combining multiple crimes a nd including terms covered elsewhere in the immig ration codes. Id. at 380 (citing Vela z q uez II
, 24 I

. & N. Dec. at 512). B ecause the statutory lan guag e required the B oard to define the elements o f a specific c rime—the “crime of child abuse, child neg lect, or child abandonment”—this definitio n i s an unreasonable interpretation of statutory tex t.

W h ile the B oard was supposed to define a criminal a ct, it instead swept into its defi n i tion statutes that are civil in nature, and in so doing
, unreasonably r ead a t e r m i n t o the
statute that is not t h e r e

— endang erment. As discussed in
g reater detail in Part I I I .B

. 2, the B oard relied on civil child endang erment statutes to c r aft the definition of “crime o f child a buse, child neg lect, or child abandonment,” because it believed that “endang e ring a child can reasonably be viewed

as either abuse or n e g lect” and because some states included endang erment as part of their child abuse a n d child neg lect
statutes. Soram
, 25 I

. & N. Dec. at 38 1

. Bu t t h e r e is a difference between these civil statutes and the crime of child endang erment. W h ile child endang erment statutes share

some elements with child abuse, n eg lect, and abandonment statutes, the crime of c h ild endang e rment, unlike the crime o f child abuse, neg lect, or a b andonm e nt, is chiefly concerned with the level of r isk to the child, and it is, therefore, a different crime altog e ther.

Despite a cknowledg ing that i n cluding endang erment offenses in the g eneric definition of the crime w ould require it to a ssess the level of risk to the child, id. at 382, the B oard f a i l ed to define the precise level of r isk required to re n d e r a state conviction a cr i m e of child abuse, neg lect, a nd

a bandonment, id. This is problematic not only becaus e i tM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 43

further unmoors the B oard’s d efinition from the statutory tex t but also because it leaves the d e f inition judicially unadministrable a n d overly vag ue, a long the lines the Supreme Court recently c ri t iqued in Dimaya
, 138 S. Ct. at 1213–15. The B oard’s d efinition creates uncertainty a b o u t how a court is to estimate the “deg ree of threat” to the child, particularly where the state statute does not specify the “deg ree of threat” required fo r a conviction. Cf. id. at 1213–14. B ecause the reviewing court m u s t use the categ orical a p p r o ach to determine whether the statute o f conviction is overbroad, th e c o u rt will need to identify the level of risk of the “ord inary case” under the state statute o f convi ct i o n and determine whether that level of risk is

s ufficiently hig h to meet the federal g e neric offense. T h e Supreme Court rejected a statute requiring similar a naly sis a s unconstitutionally vag ue in Dimaya
, a n d the B oard’s definition suffers from the same defects. 3

The B oard’s vag ue definition makes it unreasonably difficult f o r a lawful permanent resident to predict whether he will be subject to immig ration c onseq uences as a result of a state court conviction, particula r ly for a child endang erment conviction where the state statute a l l o w s for a conviction without any r e sulting injury to the c h ild. I s it e noug h that the
statute c rim i n aliz es conduct that is “likely to produce g reat bodily harm or death[ ? ] ” Cf. Cal. Penal Code § 273a(a). Or,
must the statute specify that the p etitioner placed the child in

3 C o n trary to th e m aj o rity ’ s s u g g estio n , Dima ya is n o t d istin g u ish ab le

m erely b ecau se t h e a m

big u ity th ere ap p eared in a statu te w h ile th e

am b i g u ity h ere ap p ears in th e B o ard ’s d ef in itio n

. W h ere th e am

big u ity
ap p ears m ak es n o p ractical d if f eren ce f o r t h e IJ s req u ired to ap p ly th e ru le

o r th e im m ig ran ts w

h o m u st rely o n i t—th e d ef

in itio n is co n f

u s in g all th e

sam e.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 44

conditi o n s w h e re the c hild is at a “substantial risk o f imminent death or phy sical injury [ ? ] ” Cf. Ariz

. Rev. Stat. § 13-1201. W hat about just a “substantial r i s k of injury [? ] ” Cf. Alaska Stat. § 11. 5 1

. 1 0 0

. The B oard’s unreasonable failure to specify the level of risk re q uired, coupled with its impermissible ex pansion into civil law, creates a qu a gm ire that will confound our court f or y ears to c ome. There truly is no consistency in our current approach. To date, our closest precedents involve two other f a t h e r s w ho drove drunk with their children in the c ar; 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 B oard when it plucks the term “child neg lect” o u t of the statute a nd
sug g ests that this term, alone, is broad enoug h to support the B oard’s definition. T h e majority co n c e des that the B oard definition in S

oram “would perhaps be tr o u b ling if the B I A were only interpreting the term ‘child abuse,’” but it assures itself that, by including the term “child neg le c t , ” the definition “surely admits of such conduct.” This contention is distinctly at odds with the B oard ’s conclusion that the phrase “crime of child abuse, child n e glect, or child abandonment” h a s one meaning that pertains, in the same way , to all removal proceeding s with nationa l uniformity

. 25 I

. & N. D ec. at 381. Cong ress could have crafted separate removable offenses for the “crime of child abuse,” “crime o f child neg lect,” and “the crime of child abandon m e n t” that
very well mig ht have been a categ orical match fo r s ec t ion 273a(a). B ut Cong ress, and the B oard following i t s l e ad, chose t o view the phrase as a “unitary c oncept,” and so the B oard definition should have reflected each term in the phrase tog e ther, rather than sing ling out the broadest amongM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 45

them, as the majority sug g ests was appropriate. Soram
, 25 I

. & N. Dec. at 381.

The B oard’s unex plained chang e to its definition of what
amounts to a crime of child a b use, neg lect, or abando nment also underscores the irrationality of its current position. See Encino Motorcars, LLC v. Navarro
, 136 S

. Ct. 2117, 2125 (2016); see also Perez-G u z m a n v. Lynch
, 835 F .3d 1066, 1078 (9th Cir. 2 016) (apply ing C h e v ron and Encino Motorcars to int er

pret an I N A provision). The B oard chang ed its g eneric definition of the crime of child abuse three times in the last two decades, each t i m e d i srupting the

ex p ectations of the lawful permanent residents who rely on the B oard’s definitions. I n 2008, at the time it promulg ated its fir st p recedential definition in Velazquez II
, the B oard knew that its d efinition w as incomplete an d c o n fusing
, see 24 I . & N. Dec. at 518 & n.2, b ut refused to adjust or clarify it. After our decision in Fregozo
, where we co n fi r m ed that the B oard’s definition did n ot require actual injury
, 576 F .3d
at 1037, the B o ard revisited its prior definition and, knowing what it had known all along
, adopted the c o n c urring B oard member’s sug g e s t i ons. The B oard also reversed its o wn long -standing p recedent instru c t i n g that the g eneric definition of a federal crime should reflect a uniform, national standard,

see Velazquez II

, 2 4 I

. & N. Dec. at 508 (quoting Kahn
, 36 F .3d at 1414–15), e lecting instead to inst r u c t I J s a nd reviewing courts to look to different state statutes to de t e r mine whether the level of risk is “ sufficient,” without defining what specific level of risk satisfies the g eneric definition of the f

ederal crime, Soram
, 25 I

. & N. Dec. at 383.

This case illustrates h ow the B oard’s e v e r

- chang ing definitions h arm lawful permanent r esidents, who rely on the B oard’s definitions. W e k n o w that Martinez pleaded g uiltyM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 46

to a violation of section 273a(a) at th e t i m e that the B oard’s definition of “crime of child abus e ” required an injury for
purposes of deportation, and we know that Marti n e z ’s son

was not injured. B ecau s e M artinez had been h e re lawfully for more than fifteen y ears 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 g uilty he had reason to believe that h is conviction would no t render him removable—reason supported b y the B oard’s thencurrent definition of the crime. B ecause this reliance interest is substant i al in Martinez ’s c ase and in other cases like his, the B oard should n ot be allowed to arbitrarily chang e its definition without ex plaining the need for a chang e. See Encino Motorcars
, 136 S. C t. at 2 126 (“In ex plaining its chang ed position, an ag ency must also be c og niz ant that lo n g s t anding practices may have ‘eng endered serious reliance interests that must be taken into account.” (quo t i n g F CC v

. Fox Television Stations, Inc. , 556 U.S. 502, 515 (2009))).

The majority insists that B oard has n o t chang ed its definit i o n from Rodriguez to Soram
, but the majority ’s position is a s b affling as it is wrong

. Un d e r Rodriguez 4 a nd Velazquez II

, Martinez was not removable for having been convicted of a crime o f c h ild a b use, neg lect, or abandonment, but under S

oram , h e is removable for the sam e c r i m e

. The B oard’s 1998 definitio n in R o driguez required a minimum

mens rea of “intentional and malicious” infliction of p ain on the child, 22 I

. & N. D ec. a t 996, and that ge n eric definition of the federal cr i me was not a categ orical match for California Penal Code section 273a(a), whi c h r equires a minimum mens rea of criminal neg lig ence, see P eople v

.

4 A lth o u g h

th e d ef in itio n in Ro d

rig u ez w as d icta, it w as accep ted b y th e Seco n d, Eig h th
, an d T en th Circu its as t h e op erativ e ag en cy d ef

i n itio n

.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 47

Valdez
, 2 7 Cal. 4th 7 78, 783–84 (2002). Similarly
, the B oard’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 1 0 37, a n d that definition too

was not a categ orical match for California Penal Code section 273a(a), which does not require injury to the child, see People

v. Toney
, 76 Cal. A p p

. 4th 618, 622 (1999). B u t, under the B oard’s 2010 definition in Soram
, California Penal Code

s e c t ion 273a(a), for the first time, is a categ o rical matc h f o r the federal g eneric definition. H aving dispensed with its prior requirement that the child suffer an injury
, the B oard, in this case, concluded that the elements of Martinez ’s state statute

o f conviction fell within the overbroad federal definition. The majority ’s willfully blind characteriz ation of the B oard’s dithering definitions of this depo r table offense does not match reality

.

Nor does section 1227(a)(2)(E)(i)’s l imited leg islative history a nd purpose support the g overnment’s position that a crime of child abuse, child neg lect, or child abandonment should include convictions that d o n ot result i n injury to the child. S ee Taylor
, 495 U.S. at 5 8 1 ( f inding it “ helpful” to review leg islative hi story when determining whether an ag ency construction is reas o n able); see Ibarra
, 736 F .3d at 912 n.12. As orig inally enacted in 1952, th e I N A d i d not treat child a

buse as an independent g round for deportability

. 5 This g round did not appear until 1996 w hen Cong ress enacted I I RI RA, to, among other thing s, provid e immig r ation
consequences for “child abuse” and “child sex ual abuse.”

5 Rath er, su ch an o f

f en s e m ay h av e b ee n p resu m ed a g ro u n d f or d ep o rtatio n u n d er th e ex i stin g categ o ry o f crim es i n v o lv i n g m o ral
tu rp itu d e. See 1 4 2 Co n g

. R ec. 8 7 0 6 (A p r. 2 4
, 1 9 9 6 ) (statem en t of S en

. Co v erd ell).M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 48

142 Cong

. Rec. 10,067 (May 2, 1 9 9 6 ) (statement of Sen. Dole). Speaking in favor of the Dole-Coverdell Amendment, which added the sectio n at issue to the I NA, Senator Dole remarked that “[ i] t is long p ast time to stop the vicious a cts o f stalking
, child abuse, a n d s e x ual abuse.” 142 Cong

. Rec. S4613 (daily ed. May 2, 1996) (statement of Sen. Dole). The B oard subsequently interpreted the statutory g oal of the DoleCoverdel l Amendment as “sing l[ ing ] out those who have been convicted of maltreating or prey ing upon children” a

nd “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
neg lect, and c hild abandonment” i n Soram does not f urther the statutory p urpose s o f § 1227(a)(2)(E)(i), evinced by this le gi s lative history a

nd the statutory g oals announced in the b i l l. Convictions for criminally neg lig ent a cts that do n o t result in any injury t o a child cannot categ orically be said to “prey [ ] upon” or “maltreat[ ] ” children

. I d

. I ndeed, the

ex p ansive definition that the B oard adopted in S oram encompasses conduct that is neither v i c i o us n or predatory
, including conduct driven by poverty , such as leaving a child
at home alone while a p arent leaves for a brief errand o r unintentionally failing to secure a baby sitter for a child while the parent is at work. See Ibarra
, 736 F .3d a t 9 0 5

. The B oard’s unreasonable sweep turns away from one of the fundamental tenets of our immig ration law—“keeping families of United States citi z ens and immig rants united.” Fiallo v. Bell
, 430 U.S. 787, 795 n.6 (1977). I t should not be lost on us that, while we f ault Martinez for endang e r i n g his
son, we simultaneously cond o n e the separation of a family
, ex iling a father of two children who has resided in the United States lawfully for more than twenty

- f ive y ears. ThatM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 49

Cong r ess did n ot i n t e nd such a result is apparent from these facts.

2.

The B oard’s f

ailure to follow leg al precedent to derive the
g eneric definition of a “ crime of child a b u se, child neg lect, o r child abandonment” resulted in a deeply flawed and arbitrary rule. T he B oard inex plicably and unreasonably looked to the civil child abuse statutes in thirty -eig ht states in force a s o f 2009, not the criminal laws in effect in 1996 when Cong ress enacted the statute. Soram
, 2 5 I

. & N. D e c

. a t 3 8 2 (citing a 2 0 0 9 D epartment of H ealth and Human Services compendium of the c ivil laws of t h i r t y

- e ig ht states). I n Velazquez II

, the B oard made the s a me mistake, rely ing on federal civil statutes that w ere desig ned to protect c hild abuse victims and to encourag e reporting of child abuse, and a 2004 edition of B lack’s L aw Dictionary
, which defined c hild abuse

as the “[ i] ntentional or neg lectful phy sical or emotional harm inflicted on a child, including sex ual m o l e s t ation.” See Velazquez I

I
, 24 I

. & N. Dec. at 509–11 (reviewing contemporaneous federal civil statutes and the dictionary ).

The majority fails to acknowledg e the unorthodox y o f the B oard’s reliance on c ivil law, y et cannot cite a sing le case appr o v i n g of the use of civil law to provide the g eneric definition of a cr i m e

. W hile it may be true that “a phrase such as ‘child neg lect’ surely c a n s e rve both civil a nd criminal purposes,” it is a n on-sequitur to conclude that “[ i] t is not un r e a s o n able for the B I A to use civil definitions to inform its understanding of which convictions are crimes o f child abuse, neg lect, or abandonment.”M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 50

The majority a sserts that civil child abuse laws are not meaning fully disting uishable from criminal c hild abuse laws, reasoning that, because state courts in Missouri, Nevada, Tex as, and Tennessee have sug g ested that the termination o f parental rig hts is the equivalent of th e “civil death penalty
, ” the B oard’s use of civi l l a w i n this contex t is “particularly apt.” B ut we have long re c og niz e d the difference b etween civil child custody proceeding s a nd c r iminal prose c u t ions. 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 n ot parallel the duties and inte r e s t s at stake in a civil child custody

proceeding

. ”). And rig htly so, g iven that the process of civil adj udication is forward looking a nd focused on the protection of the child, with the ultimate g oal of f amily reunification, w h e r eas the criminal codes a re backward looking and driven by pu rposes of punishment, retribution, and deterrence. See Iba r r a , 7 36 F .3d at 911 (“The p urpose of civil d efinitions is to determine when social services may intervene. The purpose of criminal definitions is to determine when an abuser is criminally culpable.”).

I t was u nreasonable for the B oard to craft what amounts to a c ivil d efinition f

or a crime. L ooking to civil code sections to define the “crime of child abuse, child neg lect, o r chil d abandonment” unreasonably widens the net of people subject to r emoval proceeding s. The civil codes encompass

a broader a

rray of conduct than their parallel criminal codes, which g enerally require a hig her standard of c ulpability or a hig her risk to the child. See id. a t 9 11 n.9. I n California, for

ex a mple, an “endang e r ed child” for purp oses o f child dependency proceeding s includes a child who h as “suffered”

or is at “ substantial risk” of suffering “serious phy sical harm

or illness

. . . a s a result of the f ailure or inability of his or herM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 51

parent or g uardian to adequately supervise or protect the child

. . . .” C a l

. W e l f. & I nst. Code § 300. I n c ontrast, to incur criminal liability
, the California penal codes r equire t he parent o r g uardian to have a mens rea of criminal neg lig ence. See Valdez
, 27 Cal. 4th at 783–84 ( ex plaining that “willfully ” in California Penal Code 273a means criminal neg lig ence).

The majority

ex cuses the B o a

r d’s foray into civil law b y concluding that the crimes of child abuse, neg l e c t , a nd

a b a ndonment are “not common law crimes” but “twentie t h

century crimes,” not d efined in the Model Penal Code, where
states have “ developed different and varied terms” to d escribe

c r i m i n a l conduct. B ut, that still does not ex plain why the B oard looked to civil law to define criminal c o n d u c t

. The majority laments that there is a “lack of a common source” for the criminal terms for child abuse, child neg lect, and child abandonment, but the majority unreasonably ig nores federal and state criminal laws, which could have served as just such

a source. Had the B oard e x amined the s t a te criminal child abuse statutes, it would h a v e found that the majority of states require a m ens rea g r eater than criminal neg l i gence or a g reater risk of injury to the ch i l d before criminaliz ing the conduct. S

ee Ibarra
, 736 F .3d at 9 10–11, 9 1 6 ( c o llecting
state c riminal statutes and concluding that, in 1996, thirty

three states r e quired a minimum mens rea of r ecklessness, knowledg e, or intent for crimes n ot involving a r esulting injury to the c hild, while eig ht states required a me n s rea o f criminal neg ligence for crimes n ot resulting in injury
, two states requi r e d a m ens rea o f tort neg lig ence for n o-injury conduct, a n d one state imposed strict liability ). Even the Second Circuit, which the majority joins, recogn i z ed a s much, as it identified only nine states th a t d efine criminal child abuse as broadly a s the B oard. S ee Florez
, 779 F .3d at 212.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 52

The majority criticiz es the Tenth Circuit fo r p erforming

a multi-jurisdictional analy si s i n the first instance, but the

m a j o rity d isreg ards that this is the very same methodol o g y th a t the Supreme Court used just last y ear to define “sex ual abuse of a minor,” a phra s e that appears in an adjacent I N A code section. See Esquivel-Quintana v. Sessions , 137 S. Ct. 1562, 1571–72 (2017). While the Supreme Court acknowledg ed that “this sort of multi-jurisdictional analy sis” is “not required,” it found it “useful insofar as it help[ ed] shed lig ht o n the ‘common understanding and meaning ’ of the federal provision being interpreted.” Id. at 157 1 n.3. L ike the Ibarra court, the Supreme Court pr e p ared its o wn Appendix of state l a w s , id. a t 1573, a nd found it p ersuasive that, in 1996, when Cong r ess added the term “sex ual abuse o f

a minor” to the I

NA, a “ sig nificant majority of jurisdictions” had set the ag e of consent at s i x t e e n for statutory rape offenses. Id. at 1571. I ndeed, f a r from being an o utlier, the

use of f ifty -state survey s of c o n temporaneous state c r i m inal laws, a s in E

squivel-Quintana a

nd Ibarra
, is a methodo l o g i c al hallmark of the categ orical approach, reg ularly e mploy ed to derive the g eneric definition o f a feder al crime. See, e.g. , United S tates v. Garcia-Jiminez
, 807 F .3d 1079, 1084 (9th Cir

. 2015) ( quoting United States v. Garcia-Santana
, 7 7 4 F

. 3 d 528, 534 ( 9th Cir. 2014)); see also Nijhawan v. Holder
, 557 U.S. 29, 47 ( 2009) (“W e ex a mined state statutes

. . . in effect in 1996, when Cong ress [ enacted I I RI RA] .”); Perrin v. United States
, 444 U. S

. 37, 42–45 ( 1979); United States v. E

s p a r za-Herrera
, 557 F .3d 1019, 1025 (9th Cir. 2009) (holding that thirty -three ju r i s d ictions is a sufficient

consensus to establish the f ederal g eneric definition o f a crime); Estrada-Esp i n o za v. Mukasey
, 5 46 F .3d 1147, 1152 (9th Cir. 2008) (en banc) (“I n t h e a bsence of specific
cong ressional g uidance a s to the elements of a crime, courts h a v e b een left to determine the ‘g eneric sense in which t h eM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 53

t e r m i s now used in the criminal c odes of most States.’”)
, overruled o n other grounds as recognized by United States v

. Rivera-Constantino , 798 F .3d 900, 904 (9th Cir. 2015).

3.

This case perfectly illustrates why w e should be skeptical of ceding broad powers of interpretation to ag encies w ith the authority to impose a “civil death p enalty .” “The B I A has no special e x pe r t i s e by virtue of its statutory responsibilities in construing state or federal criminal statutes.” MarmolejoCampos v

. H

o lder
, 5 58 F .3d 903, 907 (9th Cir. 2009) (en banc) (clarify

ing the standard of r eview). W e do not defer to ag encies, includi n g the B oard, when they construe state criminal statutes. See id. ; see also Uppal v. Holder
, 605 F .3d 712, 714 (9th Cir. 2010). A nd, at least two prominent jurists have questioned the “reflex ive defer e n ce” that appellate
courts h a ve g iven to the B oard, see Pereira v. Sessi o n s , No. 17-459, slip op. at 2 (U.S. J u ne 21, 20 1 8) (Kennedy
, J
., concurring ); Gutierrez-Brizuela v. Lynch
, 8 34 F .3d 1142, 1149, 1152, 1156 (10th Cir. 2 016) (Gorsuch, J
., concurring ), particularly in the immig ration contex t, w h ere our modern administrative state enjoy s the power “ to penaliz e persons in
way s that c an destroy t heir livelihoods and intrude on their liberty even when ex erci s i n g o nly purely civil powers,” see Gutierrez-Brizuela
, 834 F .3d at 1156 (Gors u c h
, J
., concurring ). And wh i le we defer to the B oard when it
construes an ambig uous term in the I NA, the act it is charg ed with administering
, Marmolejo-Campos
, 558 F .3d at 910–11,

we must n o t c e a s e to question why that is so and whether it is war r anted, id. at 9 10; see also Pereira
, slip op. at 2–3 (Kennedy
, J
., concurring ) (calling for reconsiderat ion o f Chevron deference in immig ration contex t).M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 54

And the B oard utterly failed to perform a st a t u t o ry interpr e tation analy sis consistent with Supreme Court teaching s. See Pereira
, slip op. a t 9 (majority opinio n). W hen the B oard here said that the “crime o f child a b u s e ” should be interpreted “b r o adly ,” it was not deploy ing any insig hts t h a t it mig ht have obtained from adjudicating immig ration cases. I t was “parroting ” what it h a d f o und in its

own survey of fe d er a l and state civil statutes and a sincerevised B lack’s L aw Dictionary

. See Velazquez II
, 24 I

. & N

. Dec. at 510; cf. Mei v. Ashcroft , 393 F .3d 737, 739 (7th Cir. 2004) ( “Since the B oard h asn’t done any thing to particulariz e the meaning o f ‘cr i me involving moral turpitude,’ g iving Chevron d eference to its determination of tha t meaning has no practical sig nificance.”).

The g oal of establishing a uni fo r m framework for the determi n a t i on of the “crime o f child abuse, child n eg lect, o r child a bandonment” mig h t have been one reason f or deferring
to the B oard, but the ship has sailed on this justification. The circuit split described in the majorit y o p i n ion means that people convicted of identical crimes i n states in the T e nth Circuit will be permitted to remain in the United States, while
t hose in states in the Second a nd N inth Circuits wi l l b e

r e moved. T he majority acknowledg es this result, and y et permits the B oard to proceed without correcting course.

Courts have a role in correcting arbitrary and c a p ricious
ag ency action, particularly where the ag ency has not used its

ex p ertise to d e velop its current approach. The majority follows the “troubling ” path of the six circuit c o u r t s o f appeals that were reversed in Pereira v. Sessions
, in “an abdication of the J u diciary ’s proper role in interpreting federal statutes.” P erei r a , s lip op. at 2 (Kennedy
, J
., c o n c u rring ). An A rticle I I I court may not be equippe d t oM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 55

define, in the first instance, what the “crime of child abuse, child neg lect, and ch ild abandonment” should mean for the fifty states, b ut it is well within our authority to r equire the B oard to do it properly

. He r e, where the B oard stray ed far from cong ressional intent, a dopted a definition that misrelied

on non-contemporaneous civil code sections, failed to f ollow Sup r eme Court authority instructing courts how to define
g eneric criminal offenses, chang ed its pos i t ion without adequate ex planation, and ig nored the contex t, lang uag e , a nd
purpose of the statute, deference is not appropriate. The B I A’s g eneric definition of the crime of child abuse, n eg lect, and a bandonment in Soram is unreasonab l e and an impermissible interpretation of the statute.

I V.

Even if Soram w ere d u e the deference the majority concedes, the new definition should not apply retroactively to Martinez
, w ho pleaded g uilty to v iolati n g California Penal Code section 273a(a) in 2008, when Velazquez II was the B oard’s interpretation. Althoug h, i n g eneral, “retroactive application is the presumptive norm,” G arfias-Rodriguez v

. Hol d e r , 702 F .3d 504, 517 ( 9th Cir. 2012) (en banc), retroactivity must b e “balanc[ e d] [ ag ainst] a reg ulated party ’s interest i n being able to rely o n the terms o f a rule as it is written,” Montgomery W ard & Co. v. FTC
, 69 1 F. 2 d 1322, 1333 (9th Cir. 1982).

I n the immig ration contex t, w e have determined that it is “contrary to ‘ familiar considerations of fair notice, reasonable reliance, and settled ex pectations’” to allow a n ewly enacted law to deprive non-citiz e ns who have already pleaded g

uilty
to certain c rimes of the possibilities availab l e t o t h em a t the time of their plea. See St. Cyr
, 533 U.S. at 323–33; see alsoM A R T I N E Z

- C E D I L L O V

. S E S S I O N S 56

Judulang v

. Holder
, 565 U .S. 4 2, 63 n.12 (sug g esting that anti-retroactivity p rinciples could apply eq u a l l y to B I A decisions); Landgra

f
, 511 U.S. at 270 (stating that retroactivity analy sis focuses on “ c onsiderations of fair notice, reasonable reliance, a n d settled ex pectations”). A nd
many states, including California, the State in which Martinez pleaded g uilty
, require that trial judg e s advise defendants that immig ration consequences may result from accepting a plea
ag reement. S

ee, e.g. , Cal. Penal Code § 1016.5. Here, the B oard’s definition is particularly u ndeserving of retroa ctive application, g iven the B oard’s refusal to clarify its definition despite knowing it was c o nfusing at the time it was made, a nd its chang ed p osition since. A nd, because our law requires us to assume that immig rant defendants will be “ a c u t ely a ware of the immig ration consequences of their convictions” when they enter plea ag reements, see S t. Cyr
, 533 U.S. at 322, a

nd because deportation is “‘a particularly severe penalty
, ’ which
may b e of g reater concern to a c onvicted sent e n c e than ‘any potential jail sentence,’” Dimaya
, 138 S

. C t

. at 1 213, the majority of the Montgomery W ard retroactivity f

actors weig h
ag ainst retroactive application in this instance. 6

B e cause the B oard abused its discretion in a pply ing Soram retroactively to M a r t i n e z’ s 2 0 0 8 conviction, Velazquez II should h ave been the b a s i s f or a categ orical a

naly sis to dete r m ine whether Martinez ’s conviction u nder California Penal Code section 2 73a(a) is a c a teg orical match for the
g eneric definition of a c rime of child abuse. California Penal Code section 273a(a) criminaliz es c o n d u c t that does not result in injury to a child. Und e r V el azquez II

, the f ederal g eneric defini t i o n of a “crime of child abuse” c riminaliz es conduct

6 Facto r o n e is n eu t r a l ; f

acto rs tw o , th ree, an d f

o u r f av o r Martin ez;

an d f acto r f iv e f av o rs th e g ov ern m en t.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 57

that results in inju ry to a child. 24 I

. & N. Dec. at 512; see also Fregozo
, 576 F .3d at 1037. 7 B ecause section 273a(a) criminaliz es more conduct than Velazquez II ’ s f ederal g eneric definition o f the crime, the California statute is n o t a categ orical match to the f e d e ral g eneric definition. A nd because we previously concluded that section 273a(a) is not divisible, see R amirez v. Lynch
, 810 F .3d 1127, 1138 (9th Cir. 2016), the analy s i s should have stopped there, see Sandoval

v. Y ates , 847 F .3d 697, 704 (9th Cir. 2 0 1 7 ) (“Only d ivisible statutes are subject to the modified categ orical approach.”).

Under the categ orical approach, California P e n a l Code section 273a(a) i s b r o a der than Velazquez II ’s definition o f “crime of ch ild abuse,” so Martinez ’ s conviction under California Penal Code secti o n 2 73a(a) was not a crime o f child abuse. Martinez is not removable un d e r Velazquez II based on his 2 0 08 conviction, and we should have vacated his removal order.

V.

The majority ig nores c ontrolling precedent to le g itimiz e the B oard’s novel, and i m permissible, a pproach to determining the g eneric definition of crimes listed in the I NA. T h e Bo ard’s reliance o n civil codes and B lack’s L a w Dictionary leads it to an overbroad definition of the crime o f child a buse, neg le c t , a n d abandonment that does n ot reflect

7 T h e m aj o rity relies o n d icta f ro m Freg o zo to su

p p o rt i ts arg u m en t th at sectio n 2 7 3 a(a) is a categ orical m atch f o r th e f ed eral g en eric o f

f en s e

o f a crim e o f ch ild ab u se as d ef in ed in Vela zq uez II. B u

t, as th e m aj o rity

co n ced es, to p erf

ect its arg u m en t, i t m

u st i g n o re th e d icta’ s “ ten sio n ” w i th F r e g o zo ’ s cen tral h old in g , w h ich w as th at th e f

ed eral g en eric d ef

i n i t i o n

o f th e crim e of ch ild ab u s e req u ires actu al in j u ry to th e ch ild

. W e sh ou ld f o llo w Freg o zo ’ s h o ld in g —n ot its d icta.M A R T I N E Z

- C E D I L L O V

. S E S S I O N S 58

state criminal laws a

nd is contrary to what Cong ress meant b y the u s e o f t h e phrase “crimes of.” W e should g rant Martine z ’ s p e tition, and hold that the g eneric definition o f “crime o f child abuse, child neg lect, or child abandonment” in Soram is an unreasonable interpretation of the I NA, or, at the very least, that it s h ould not apply retroactively to Martinez

.