FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORENZO ALVAREZ-CERRITENO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, United 

States Attorney General,

Respondent.

No. 16-73486

Agency No.

091-009-097

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 14, 2018

San Francisco, California

Filed August 8, 2018

Before: Marsha S. Berzon and Carlos T. Bea, Circuit 

Judges, and Terrence Berg,* District Judge.

Opinion by Judge Bea;

Concurrence by Judge Berzon

 * The Honorable Terrence Berg, District Judge for the Eastern 

District of Michigan, sitting by designation.
2 ALVAREZ-CERRITENO V. SESSIONS

SUMMARY**

Immigration

The panel granted a petition for review of the Board of 

Immigration Appeals’ determination that Lorenzo AlvarezCerriteno was removable, holding that the BIA erred in 

finding that his conviction for “Child Abuse and Neglect” 

under Nevada Revised Statutes § 200.508(2)(b)(1) was 

categorically a “crime of child abuse” under 8 U.S.C. 

§ 1227(a)(2)(E)(i), and remanded.

The panel observed that it was bound by this court’s 

recent opinion in Martinez-Cedillo v. Sessions, No. 14-

71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which 

deferred to the BIA’s interpretation, in Matter of Soram, 25 

I. & N. Dec. 378 (BIA 2010), that the generic crime of child 

abuse includes acts and omissions that create at least a 

“reasonable probability” that a child will be harmed.

The panel further concluded that, to sustain a conviction 

under section 200.508(2), the Supreme Court of Nevada 

would require proof that a defendant negligently exposed a 

child to at least a “reasonably foreseeable” harm, but no 

greater risk need be shown.

Comparing the federal generic crime and Nevada statute 

of conviction, the panel concluded that the Nevada statute is 

broader because it includes conduct that creates a 

“reasonable foreseeability” of harm to a child, while the 

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
ALVAREZ-CERRITENO V. SESSIONS 3

generic crime requires a “reasonable probability” of harm. 

The panel also concluded that there is a “realistic 

probability” that Nevada could prosecute conduct under its 

statute that falls outside the scope of the federal generic 

crime.

Concurring, Judge Berzon wrote that if the panel were 

not bound by Martinez-Cedillo, she would rule in accord 

with Judge Wardlaw’s dissent in that case because Matter of 

Soram is not a reasonable interpretation of the phrase “crime

of child abuse.”

COUNSEL

Don P. Chairez (argued), Law Offices of Don Chairez,

Woodland, California, for Petitioner.

Erica B. Miles (argued) and Anthony W. Norwood, Senior 

Litigation Counsel; Corey L. Ferrell, Attorney; Chad A. 

Readler, Principal Deputy Assistant Attorney General; 

Office of Immigration Litigation, Civil Division, United 

States Department of Justice, Washington, D.C.; for 

Respondent.
4 ALVAREZ-CERRITENO V. SESSIONS

OPINION

BEA, Circuit Judge:

Today we must determine whether Nevada’s child 

neglect statute is broader—that is, makes criminal more 

conduct—than does the federal Immigration and Nationality 

Act’s (“INA”) generic “crime of child abuse.” If so, the 

Board of Immigration Appeals (“BIA”) erred in finding 

Petitioner, a native and citizen of Mexico and a legal 

permanent resident of the United States, removable as 

charged under the INA. Because the Nevada statute outlaws 

conduct that presents a lesser risk of harm to a child 

(“reasonably foreseeable” harm) than does the conduct 

required to violate the INA (at least a “reasonable 

probability” of harm), we conclude that the BIA did so err, 

and grant the petition.

I. BACKGROUND

A. Factual History

Petitioner Lorenzo Alvarez-Cerriteno (“AlvarezCerriteno”) is a native and citizen of Mexico. He entered the 

United States on March 9, 1985, without inspection or 

parole. However, he duly became a lawful permanent 

resident on December 1, 1990.

Alvarez-Cerriteno has incurred several criminal 

convictions since entering the United States, including a 

January 18, 2011, conviction for “Child Abuse and Neglect” 

under Nevada Revised Statutes § 200.508(2)(b)(1).1 In that 

 1 “2. A person who is responsible for the safety or welfare of a child 

. . . and who permits or allows that child . . . to be placed in a situation 

where the child may suffer physical pain or mental suffering as the result 
ALVAREZ-CERRITENO V. SESSIONS 5

case, Alvarez-Cerriteno was charged with “punching” his 

fourteen-year-old son in 2010.2 Alvarez-Cerriteno pleaded 

guilty to violating § 200.508(2)(b)(1) and received a prison 

sentence of nine months. After Alvarez-Cerriteno was 

arrested because of outstanding traffic warrants in 2016, the 

Department of Homeland Security (“DHS”) initiated 

removal proceedings against him based on the 2011 child 

abuse conviction.

B. Procedural History

DHS issued a Notice to Appear (“NTA”) and charged 

that Alvarez-Cerriteno was removable pursuant to Section

237(a)(2)(E)(i) of the INA (codified at 8 U.S.C. 

§ 1227(a)(2)(E)(i)) as an “alien who at any time after entry 

has been convicted of . . . a crime of child abuse, child 

neglect, or child abandonment.” Alvarez-Cerriteno admitted 

the factual allegations in the NTA but denied the charge of 

removability. On May 31, 2016, he submitted an application 

for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

On June 6, 2016, the Immigration Judge (IJ) issued a 

written decision, which (1) found that Alvarez-Cerriteno was 

removable as charged in the NTA and (2) denied AlvarezCerriteno’s application for discretionary cancellation of 

removal. On the first issue, the IJ found that, under the 

 of abuse or neglect: . . . (b) If substantial bodily or mental harm does not 

result to the child: (1) If the person has not previously been convicted of 

a violation of this section or of a violation of the law of any other 

jurisdiction that prohibits the same or similar conduct, is guilty of a gross 

misdemeanor.” Nev. Rev. Stat. § 200.508(2).

2 During his hearing before the immigration judge, Petitioner stated 

that he hit his son in the face during an argument.
6 ALVAREZ-CERRITENO V. SESSIONS

BIA’s decision in Matter of Soram, “the crime of 

unreasonably placing a child in a situation that poses a threat 

of injury to the child’s life or health . . . is categorically a 

crime of child abuse under [the INA], even though no proof 

of actual harm or injury to the child was required” under the 

state statute of conviction. Matter of Soram, 25 I. & N. Dec. 

378 (BIA 2010). Having thus denied Alvarez-Cerriteno’s 

claim based on the “categorical approach,”3 the IJ did not 

apply the “modified categorical approach.” On the second 

issue, the IJ denied discretionary relief based on AlvarezCerriteno’s “pattern of violations of this country’s criminal 

laws.”

On October 25, 2016, the BIA dismissed AlvarezCerriteno’s appeal. The Board affirmed the IJ’s 

determination that Alvarez-Cerriteno was removable based 

on a conviction for a “crime of child abuse, neglect, or child 

abandonment.” 8 U.S.C. § 1227(a)(2)(E)(i). The BIA found 

that the Nevada statute includes reasonableness and 

criminal-negligence standards that would “preclude a 

 3 In Taylor v. United States, the Supreme Court prescribed a 

“categorical approach” for determining whether a given state conviction 

constitutes a conviction of a “generic” type specified in a federal 

sentencing statute. 495 U.S. 575, 602 (1990). In its unmodified form, 

that approach requires courts to determine whether “the basic elements” 

of the state statute of conviction are the same (or narrower) than the 

elements of the federal generic crime, without considering any facts of 

the defendant’s crime beyond “the mere fact of conviction.” Id. at 598–

602. The so-called “modified categorical approach,” however, permits 

courts “to go beyond the mere fact of conviction in a narrow range of 

cases where a jury was actually required to find all the elements of [the 

generic crime].” Id. at 602. That is, “if the indictment or information 

and jury instructions” in the state case “show that . . . the jury necessarily

had to find” the elements of the generic crime, then the state conviction 

constitutes a conviction of the federal generic crime and counts for the 

purpose of the federal statute. Id. at 602 (emphasis added).
ALVAREZ-CERRITENO V. SESSIONS 7

conviction” for conduct which “creates only the bare

potential for nonserious harm to a child.” The BIA 

concluded therefore that there was no “realistic probability” 

the Nevada statute could be used to prosecute conduct 

outside the scope of the generic crime in the INA. The BIA 

also affirmed the IJ’s discretionary denial of cancellation of 

removal on de novo review, and emphasized that AlvarezCerriteno’s “history of domestic violence over a period of 

years, for which he shows little remorse, is a very significant 

negative factor.” Petitioner timely petitioned this court for 

review.

II. STANDARD OF REVIEW

“Where, as here, the BIA adopts the IJ’s decision and 

adds some of its own analysis, the panel reviews both 

decisions.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th 

Cir. 2014). This court reviews de novo “the BIA’s 

conclusions on questions of law—including whether a 

particular state conviction is a removable offense under the 

INA—except to the extent that deference is owed to the 

BIA’s interpretation of the statutes and regulations it is 

charged with administering,” including the INA. Fregozo v. 

Holder, 576 F.3d 1030, 1034 (9th Cir. 2009). “The BIA’s 

‘findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the 

contrary.’” Ling Huang, 744 F.3d at 1152 (quoting 8 U.S.C. 

§ 1252(b)(4)(B)).

III. DISCUSSION

A. Legal Framework

The INA, as codified and amended, provides that “[a]ny 

alien who at any time after admission is convicted of . . . a 

crime of child abuse, child neglect, or child abandonment is 
8 ALVAREZ-CERRITENO V. SESSIONS

deportable.” 8 U.S.C. § 1227(a)(2)(E)(i). Where, as here, 

the immigration statute refers to a generic crime (“a crime of 

child abuse”), the BIA must apply the categorical and 

modified categorical approaches set forth in Taylor v. United 

States, 495 U.S. 575 (1990), to determine whether the state 

conviction was for conduct that falls within the scope of the 

generic crime. See Fregozo, 576 F.3d at 1035. Under the 

categorical approach, the BIA “‘compare[s] the elements of 

the statute of conviction with a federal definition of the crime 

to determine whether conduct proscribed by the state statute 

is broader than the generic federal definition.’” Id. “‘If the 

statute of conviction criminalizes conduct that would not 

satisfy the federal definition of the crime at issue, then the 

conviction does not qualify as a predicate offense under the 

categorical approach.” Id. (citations omitted).

Thus, the BIA must construe both the state and federal 

statutes. Id. at 1034–35 (“To determine whether a state 

conviction constitutes a removable offense, the BIA must 

determine first the elements of the offense the petitioner has 

been convicted of committing, and second whether the 

conviction falls within the definition of a removable offense 

under the INA.”). “As the BIA has no statutory expertise in 

. . . state law matters,” this court “reviews de novo its 

determination of the elements of the offense for which the 

petitioner was convicted.” Id. at 1034. However, “[i]f, in 

resolving the [federal law] issue, the BIA has interpreted an 

ambiguous INA statutory term”—here, “a crime of child 

abuse, child neglect, or child abandonment”—“and rendered 

its interpretation in a precedential decision intended to carry 

the force of law,” this court defers to the BIA’s interpretation 

under Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). Id. at 1034–35.
ALVAREZ-CERRITENO V. SESSIONS 9

We proceed in three steps. First, we determine the 

elements of the federal generic crime. See Section III.B, 

infra. Second, we analyze Nevada Revised Statute 

§ 200.508 to determine the elements of the Nevada statute of 

conviction. See Section III.C, infra. Finally, we compare 

the federal generic crime and the Nevada statute of 

conviction and conclude that (1) the Nevada statute’s 

elements encompass more conduct than do the federal 

generic crime’s elements and (2) there is a “realistic 

probability” that Nevada could prosecute conduct under its 

statute that falls outside the scope of the federal generic 

crime, as required by Gonzales v. Duenas-Alvarez, 549 U.S. 

183, 193 (2007). See Section III.D, infra. Therefore, the 

BIA erred in finding that Petitioner’s conviction was 

categorically a crime of child abuse under the INA.

B. Scope of the Federal Generic Crime

1. The BIA’s Construction

In Fregozo v. Holder, this court considered whether a 

petitioner’s conviction under a California child abuse statute, 

which made criminal “willfully caus[ing] or permit[ting] . . .

[a] child to be placed in a situation where his or her person 

or health may be endangered,” was categorically a “crime of 

child abuse” under the INA. Cal. Penal Code § 273a(b) 

(emphasis added)); Fregozo, 576 F.3d at 1037. The panel

noted that “[t]he term ‘crime of child abuse’ is not defined 

in the INA,” and that this court “ha[d] not defined the term 

as it is used in that statute.” Fregozo, 576 F.3d at 1035. The 

panel did not construe the generic crime, but rather deferred 

to the BIA’s construction in Matter of Velazquez-Herrera,

24 I. & N. Dec. 503 (BIA 2008). There, the BIA had

construed the federal generic “crime of child abuse” to mean 

“any offense involving an intentional, knowing, reckless, or 

criminally negligent act or omission that constitutes 
10 ALVAREZ-CERRITENO V. SESSIONS

maltreatment of a child or that impairs a child’s physical or 

mental well-being, including sexual abuse or exploitation.” 

Id. at 512. Using that definition, Fregozo found that the 

generic “crime of child abuse” did not include conduct that 

“creates only potential harm to a child.” 576 F.3d at 1037–

38 (emphasis added). The panel therefore held that the 

California statute was broader than the federal generic crime. 

Id. The court granted the petition and remanded to the BIA. 

Id. at 1040.

Alvarez-Cerriteno argues that Fregozo requires the same 

result here: Because the Nevada statute of conviction 

criminalizes acts which place a child in a situation where he 

“may suffer physical pain or mental suffering,” it too 

criminalizes more conduct than does the federal generic 

crime. Thus, a conviction under the Nevada statute is not 

categorically a “crime of child abuse” under the INA. 

However, after this court decided Fregozo, the BIA clarified 

that its definition of the federal generic “crime of child 

abuse,” as set forth in Velazquez-Herrera, was “not limited 

to offenses requiring proof of injury to the child.” Matter of 

Soram, 25 I. & N. Dec. 378, 381 (BIA 2010). In Matter of 

Soram, the BIA clarified that the federal generic “crime of 

child abuse” is broad enough to include criminally negligent 

acts and omissions that create at least a “reasonable 

probability” of harm to a child. Id. at 385–86. The BIA 

based this conclusion on a survey of child abuse, “neglect,” 

“abandonment,” and “endangerment” laws in American 

state and territorial jurisdictions. Id. at 382–83. The BIA 

found that “[a]s recently as July 2009, some 38 States, . . .

included in their civil definition of ‘child abuse,’ or ‘child 

abuse or neglect,’ acts or circumstances that threaten a child 

with harm or create a substantial risk of harm to a child’s 
ALVAREZ-CERRITENO V. SESSIONS 11

health or welfare.”4 Id. at 382. Therefore, it concluded, a 

majority of jurisdictions agreed that a “crime of child abuse” 

could include acts which did not result in actual harm. Id.

The BIA did not purport to decide definitively what 

“degree of threat” of harm to the child the generic crime 

required, but instead left that question for later cases:

[A]pproximately half of the States that 

include endangerment-type offenses in their 

definitions of “child abuse” . . . do not 

specify the degree of threat required. . . .

[W]e will not attempt to analyze whether the 

myriad State formulations of endangermenttype child abuse offenses come within the 

ambit of “child abuse” under [the INA]. 

Rather, we find that a State-by-State analysis 

is appropriate to determine whether the risk 

of harm required by the endangerment-type 

language in any given State statute is 

sufficient to bring an offense within the 

definition of “child abuse” under the Act.

Id. at 382–83. However, turning to its “State-by-State 

analysis,” the BIA determined in Soram that the Colorado 

 4 In Soram, the majority BIA opinion argued that it properly 

considered state civil codes in defining the generic “crime of child 

abuse,” despite the fact that civil codes do not define crimes at all. 25 I. 

& N. Dec. at 382 n.3 (noting that, in Fregozo, this court deferred to the 

BIA’s interpretation in Velazquez-Herrera, which likewise considered 

civil definitions). The concurring opinion in Soram instead focused on 

state criminal statutes, but reached the same conclusion as the majority 

because “as of September 1996, a majority of States—28—had criminal 

provisions punishing child endangerment offenses as part of their 

criminal child abuse statutes.” Id. at 386–88.
12 ALVAREZ-CERRITENO V. SESSIONS

statute at issue there (as interpreted by the courts of 

Colorado) required at least a “reasonable probability” of 

harm to the child, and that the generic crime did not require 

more. Id. at 384–86. Thus a violation of the Colorado statute 

constituted commission of the generic crime of child abuse 

under the INA. Id. The BIA has since stated that a 

“likelihood” of harm to the child is also sufficient to bring 

an act or omission within the scope of the generic crime. 

Matter of Mendoza Osorio, 26 I. & N. Dec. 703, 706 (BIA 

2016) (“[A]cts creating a likelihood of harm to a child . . . fit 

within our definition of a ‘crime of child abuse, child 

neglect, or child abandonment.’”).

2. Chevron deference

Ordinarily, this court must apply the Chevron two-step 

analysis to determine whether to defer to the BIA’s 

construction of the generic term “crime of child abuse” in 

8 U.S.C. § 1227(a)(2)(E)(i). That two-step inquiry asks if 

(1) the INA is ambiguous with regard to what constitutes a 

“crime of child abuse” and (2) the BIA’s construction in 

Soram reasonably resolves the ambiguity. However, this 

court recently held that the BIA’s interpretation of the 

generic crime in Soram is entitled to Chevron deference. 

Martinez-Cedillo v. Sessions, No. 14-71742, 2018 WL 

3520402, at *11 (9th Cir. July 23, 2018) (holding that “the 

BIA’s interpretation of a crime of child abuse, neglect, or 

abandonment in Velazquez and Soram is a reasonable 

construction of ambiguous statutory language”). We are 

bound by this precedent. Miller v. Gammie, 335 F.3d 889, 

899 (9th Cir. 2003) (en banc). Therefore, we defer to the 

BIA’s definition of “crime of child abuse” in Soram. 

Accordingly, the generic “crime of child abuse,” as used in 

the INA, includes acts and omissions that (1) are criminally 

negligent and (2) create at least a “reasonable probability” 
ALVAREZ-CERRITENO V. SESSIONS 13

that a child will be harmed. Soram, 25 I. & N. Dec. at 385–

86.

C. Scope of the Nevada “Statute of Conviction”

We next consider the elements of the Nevada Revised 

Statute § 200.508(2), the “statute of conviction.” “As the 

BIA has no statutory expertise in . . . state law matters,” this 

court “reviews de novo its determination of the elements of 

the offense for which the petitioner was convicted.” 

Fregozo, 576 F.3d at 1034. Although densely worded, 

section 200.508 defines as a misdemeanor (1) an act or 

omission (2) by a person “responsible for the safety or 

welfare of a child” (3) who has no prior child abuse 

convictions, (4) which act or omission “permits or allows” 

(5) the child “to be placed in a situation where the child may 

suffer physical pain or mental suffering” (6) as a result of the 

responsible person’s “abuse or neglect,” (7) even if 

“substantial bodily or mental harm does not result to the 

child.” Nev. Rev. Stat. § 200.508(2).5

Like the generic crime, section 200.508(2) requires a 

mens rea of at least negligence. The Nevada statute defines 

“allows” as “to do nothing to prevent or stop the abuse or 

neglect of a child in circumstances where the person knows 

or has reason to know that the child is abused or neglected.” 

 5 The statutory text reads, in pertinent part: “2. A person who is 

responsible for the safety or welfare of a child . . . and who permits or 

allows that child . . . to be placed in a situation where the child may suffer 

physical pain or mental suffering as the result of abuse or neglect: . . .

(b) If substantial bodily or mental harm does not result to the child: (1)

If the person has not previously been convicted of a violation of this 

section or of a violation of the law of any other jurisdiction that prohibits 

the same or similar conduct, is guilty of a gross misdemeanor.” Nev. 

Rev. Stat. § 200.508(2).
14 ALVAREZ-CERRITENO V. SESSIONS

Id. § 200.508(4)(b) (emphasis added). “‘Permit’ means 

permission that a reasonable person would not grant and 

which amounts to a neglect of responsibility attending the 

care, custody and control of a minor child.” Id. at 

§ 200.508(4)(c) (emphases added). Thus, the statute 

requires a mens rea of either knowledge or negligence. 

Because negligence is the lower of the two standards, it is 

the relevant mens rea element for purposes of the categorical 

approach.

However, section 200.508(2) does not specify what 

probability of harm to the child the “situation” in which the 

child is placed must carry; it merely refers to situations 

“where the child may suffer physical pain or mental 

suffering” as a result of “abuse or neglect.” Nev. Rev. Stat. 

§ 200.508(2) (emphasis added). Nevada courts have not 

decided what “may” means precisely in this provision, but 

other state courts have interpreted similarly worded 

provisions to carry either a “reasonable foreseeability” 

standard, see, e.g., People v. Hansen, 68 Cal. Rptr. 2d 897, 

900 (Ct. App. 1997) (holding that California Penal Code 

§ 273a6 “condemned . . . permitting [a child] to be placed[] 

in a situation in which serious physical danger or health 

hazard to the child is reasonably foreseeable”), or a 

“reasonable probability” standard, People v. Hoehl, 568 P.2d 

484, 486 (Colo. 1977) (“We construe the word ‘may’ . . . to 

mean that there is a reasonable probability that the child’s 

 6 The California statute provides, “Any person who . . . willfully . . .

permits [a] child to be placed in a situation where his or her person or 

health may be endangered, is guilty of a misdemeanor.” Cal. Penal Code 

§ 273a(b) (emphasis added).
ALVAREZ-CERRITENO V. SESSIONS 15

life or health will be endangered from the situation in which 

the child is placed.”).7

We think the Supreme Court of Nevada would likely 

adopt California’s “reasonable foreseeability” standard. 

First, “may” denotes mere possibility; it does not require any 

particular threshold of likelihood or probability. See, e.g.,

May, Black’s Law Dictionary (10th ed. 2014) (“To be a 

possibility . . . .”).

Second, the reasonableness and negligence standards set 

forth in the definition of “permit” suggest a “reasonable 

foreseeability” standard. Smith v. State, 927 P.2d 14, 18 

(Nev. 1996), abrogated on other grounds by City of Las 

Vegas v. Eighth Judicial Dist. Court ex rel. County of Clark, 

59 P.3d 477 (Nev. 2002) (holding that the definition of 

“permit” in § 200.508(4)(c) “indicates that a violator must 

act in a way that ‘a reasonable person’ would not.”).8 The 

use of a “reasonable person” standard suggests a commonlaw-negligence standard of culpable causation, which 

requires only reasonable foreseeability. See Butler ex rel. 

 7 The Supreme Court of Colorado did not make clear what it meant, 

exactly, by “reasonable probability.” It stated only that it is something 

less than “imminent danger.” 568 P.2d at 560.

8 In Smith v. State, the Supreme Court of Nevada rejected the 

defendant’s argument that the phrase “placed in a situation where the 

child may suffer” was impermissibly vague. Smith, 927 P.2d at 18. The 

defendant had allowed her son to be severely physically abused by her 

boyfriend. Id. at 15. The state proved that the defendant saw bruises on 

her son’s body, was told of the beatings by her boyfriend, and several 

times refused to take her son to the hospital.” Id. at 19. The court held 

that the statute was not void for vagueness as applied to the defendant 

because she was on notice that she “act[ed] unreasonably,” for purposes 

of the statute, in permitting or allowing her son to be subjected to her 

boyfriend’s abuse. Id. at 18.
16 ALVAREZ-CERRITENO V. SESSIONS

Biller v. Bayer, 168 P.3d 1055, 1065 (Nev. 2007) (listing 

proof of “harm to the plaintiff that was reasonably 

foreseeable” among necessary elements of a negligence 

claim under Nevada law); see also Early v. N.L.V. Casino 

Corp., 678 P.2d 683, 684 (Nev. 1984) (“[T]he proprietor’s 

duty to protect an invited guest from injury caused by a third 

person is circumscribed by the reasonable foreseeability of 

[1] the third person’s actions and [2] the injuries resulting 

from the condition or circumstances which facilitated the 

harm.” (emphasis added)).

Third, the Supreme Court of Nevada has noted that 

§ 200.508 is “very similar” to the California child abuse 

statute at issue in Fregozo, Cal. Penal. Code. § 273a. Smith, 

927 P.2d at 19 n.2. This analogy further suggests that the 

Supreme Court of Nevada would interpret section 

200.508(2) to carry the same “reasonable foreseeability” 

standard as the California statute. See, e.g., Hansen, 68 Cal. 

Rptr. 2d at 900; People v. Beaugez, 43 Cal. Rptr. 28, 33–34 

(Ct. App. 1965) (construing Cal. Penal Code § 273a’s “may 

be endangered” language “to condemn the intentional 

placing of a child, or permitting him to be placed, in a 

situation in which serious physical danger or health hazard 

to the child is reasonably foreseeable”).

The government argues that the Nevada statute is 

“meaningfully distinguishable and different from the 

California statute” because it requires proof of an additional 

element of “abuse or neglect.” This element may be proved, 

asserts the government, by showing that “a person 

responsible for the child must have [1] allowed or permitted 

abuse or neglect, and [2] placed that child at risk of even 

more harm amounting to ‘physical pain or mental 

suffering.’” But even if the court reads the statute to require 

proof of actual “abuse or neglect” in all cases, that 
ALVAREZ-CERRITENO V. SESSIONS 17

requirement may be satisfied by proof of “negligent

treatment . . . under circumstances which indicate that the 

child’s health or welfare is harmed or threatened with harm.” 

Nev. Rev. Stat. § 200.508(4)(a) (defining “abuse or 

neglect”) (emphasis added). So , even accepting the 

government’s argument, we are still left to ask what “threat” 

of harm, as “indicate[d]” in the “circumstances,” is required 

for a finding of “abuse or neglect” (and thus guilt). As 

discussed above, determining whether treatment is 

“negligent” involves the application of an objective, 

“reasonable person” standard. Thus, treatment of a child is 

negligent when it places the child in circumstances that 

create a risk of harm which is “reasonably foreseeable.” 

Accordingly, we find that, to sustain a conviction under 

section 200.508(2), the Supreme Court of Nevada would 

require proof that a defendant negligently exposed a child to 

at least a “reasonably foreseeable” harm, but no greater risk 

need be shown.

D. Comparison

As discussed in the preceding sections, the generic crime 

includes conduct that creates at least a “reasonable 

probability” or a likelihood of harm to a child. But the 

Nevada statute is even broader: It includes conduct that 

creates only a “reasonable foreseeability” of harm to a child. 

Compare Probability, Black’s Law Dictionary (10th ed. 

2014) (“1. Something that is likely . . . 2. The degree to 

which something is likely to occur . . . 3. The quality, state, 

or condition of being more likely to happen or to have 

happened than not . . . .”), and Reasonable Medical 

Probability, id. (“In proving the cause of an injury, a 

standard requiring a showing that the injury was more likely 

than not caused by a particular stimulus . . . .” (emphasis 
18 ALVAREZ-CERRITENO V. SESSIONS

added)), with Foreseeability, id. (“The quality of being 

reasonably anticipatable.”).

The BIA seems to agree. In Matter of Mendoza Osorio, 

the BIA specifically cited the California child abuse statute 

as an example of a “child endangerment statute[] that do[es] 

not require a sufficiently high risk of harm to a child to meet 

the definition of child abuse, neglect, or abandonment under 

the [INA].” 26 I. & N. Dec. 703, 711 (BIA 2016). Because 

we find that the Supreme Court of Nevada would interpret 

section 200.508(2) to carry the same “reasonable 

foreseeability” standard as California Penal Code § 273a, the 

Nevada provision likewise “do[es] not require a sufficiently 

high risk of harm to a child to meet the definition of child 

abuse, neglect, or abandonment” adopted in Soram. The 

BIA therefore erred in distinguishing Nevada Revised 

Statute § 200.508(2) from California Penal Code § 273a(b).

Finally, “to find that a state statute creates a crime 

outside the generic definition of a listed crime in a federal 

statute . . . requires a realistic probability, not a theoretical 

possibility, that the State would apply its statute to conduct 

that falls outside the generic definition of a crime.” DuenasAlvarez, 549 U.S. at 193. According to the government, the 

Nevada statute raises no “realistic probability of prosecution 

for acts which encompass the nonserious harm contemplated 

in Fregozo.” However, the Supreme Court of Nevada has 

held that “a rational juror could reasonably infer . . . child 

neglect” sufficient to support a conviction under

§ 200.508(2) from evidence that the child “missed at least 

47 days of school” during one semester. See Gibson v. State, 

No. 57193, 2011 WL 2793542, at *1 (Nev. June 15, 2011). 

There, the court noted that the defendant, the child’s father, 

was home with the child on those days, and that the child 

“often” stayed home to take care of the defendant or to help 
ALVAREZ-CERRITENO V. SESSIONS 19

around the house. Id. The court affirmed the judgment of 

conviction even though there was a less than reasonable 

probability that a child would suffer “physical pain or mental 

suffering” as a result of staying home with her father. Id. at 

*4. Therefore, there is a “realistic probability” that Nevada’s 

statute could be used to prosecute conduct that poses less 

than a “reasonable probability” of actual harm to a child. See 

Fregozo, 576 F.3d at 1037 (finding a “realistic probability” 

of prosecution for conduct outside the scope of the generic 

crime based on a single case where the California child abuse 

statute was “used to prosecute a parent who placed ‘an 

unattended infant in the middle of a tall bed without a railing, 

even though the child was never injured’”) (citing People v. 

Little, 9 Cal. Rptr. 3d 446, 449–50 (Ct. App. 2004)).

IV. CONCLUSION

“In reviewing the decision of the BIA,” this court 

considers “only the grounds relied upon by that agency.” 

Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004). 

Neither the IJ, nor the BIA, nor the government’s answering 

brief cites any case or BIA decision which interprets the 

federal generic “crime of child abuse” to include conduct 

which creates only a “reasonably foreseeable” risk of harm 

to a child.9 Nor did the BIA purport below to expand upon 

Soram’s construction of the generic crime to include conduct 

that creates only a “reasonably foreseeable” risk of harm to 

a child. Rather, the BIA based its decision on its erroneous 

 9 The BIA has itself suggested that the generic crime is not so 

capacious. See Matter of Mendoza Osorio 26 I. & N. Dec. 703, 711 (BIA 

2016) (noting that California Penal Code § 273a(b) “do[es] not require a 

sufficiently high risk of harm to a child to meet the definition of child 

abuse, neglect, or abandonment under the [INA]”).
20 ALVAREZ-CERRITENO V. SESSIONS

interpretation of the Nevada statute. If “the BIA’s decision 

cannot be sustained upon its reasoning,” then this court 

“must remand to allow the agency to decide any issues 

remaining in the case.” Andia, 359 F.3d at 1184. We 

therefore grant the petition and remand for further 

proceedings.10

Finally, we lack jurisdiction to consider Petitioner’s 

challenge to the denial of discretionary cancellation of 

removal. Petitioner does not argue that the IJ applied the 

wrong law, or that the IJ failed to consider any relevant facts. 

Petitioner argues only that the IJ incorrectly weighed the 

relevant factors in denying cancellation of removal as a 

matter of discretion. But “we lack jurisdiction to review the 

merits of a discretionary decision to deny cancellation of 

removal.” Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 

2012).

PETITION GRANTED and REMANDED.

BERZON, Circuit Judge, concurring:

I concur in the opinion. As the majority notes, we are 

bound by this court’s decision in Martinez-Cedillo v. 

Sessions, No. 14-71742, 2018 WL 3520402 (9th Cir. July 

23, 2018). Were we not so bound, I would rule in accord with 

Judge Wardlaw’s dissent in that case. I agree with Judge 

Wardlaw that Matter of Soram, 25 I. & N. Dec. 378 (B.I.A. 

 10 On remand, the BIA may consider whether to deny relief because 

Petitioner’s conviction falls within the generic “crime of child abuse” 

under the “modified” categorical approach. See Fregozo, 576 F.3d at 

1039 (granting petition and remanding for the BIA to apply the modified 

categorical analysis).
ALVAREZ-CERRITENO V. SESSIONS 21

2010), is not a reasonable interpretation of the phrase “crime 

of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i). See

Martinez-Cedillo, 2018 WL 3520402, at *22 (Wardlaw, J., 

dissenting). Because I am bound by Martinez-Cedillo, 

however, I concur.