FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERNESTO PACHECO FREGOZO, 

Petitioner, No. 05-71268

v. Agency No.  A079-587-885 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 12, 2009—San Francisco, California

Filed August 12, 2009

Before: David R. Thompson, Marsha S. Berzon and

N. Randy Smith, Circuit Judges.

Opinion by Judge Berzon

10889
COUNSEL

Samuel Uchenna Ogbu (argued), Dozie Ike Ezeife (on briefs),

Emeziem & Ogbu, APC, Emeryville, California, for the petitioner.

Jem C. Sponzo (argued), Peter D. Keisler, Michelle G.

Latour, Keith I. Bernstein (on briefs), U.S. Department of Justice, Washington, D.C., for the respondent.

PACHECO FREGOZO v. HOLDER 10891
OPINION

BERZON, Circuit Judge:

We consider whether a California conviction for misdemeanor child endangerment is a “crime of child abuse” for

purposes of the federal Immigration and Nationality Act

(“INA”).

I.

In October 2000, petitioner Ernesto Pacheco Fregozo

(“Pacheco”) pleaded nolo contendere to one count of driving

under the influence of alcohol or drugs and one count of child

endangerment, both misdemeanors. According to the police

reports,1 officers observed Pacheco’s car exit from a freeway

at a high speed, and saw his wife, seated in the passenger seat,

attempting to get the officers’ attention. After a short pursuit,

the vehicle pulled into a high school parking lot and stopped.

There, the officers observed his frightened wife and saw his

two children screaming and crying in the backseat. The officers ordered Pacheco from the car. After smelling alcohol on

his breath and observing his demeanor, the officers suspected

that Pacheco was intoxicated. The children indicated that they

were afraid that Pacheco’s erratic driving would lead to a car

crash. After Pacheco refused field sobriety tests, he was

arrested and booked on the charges of driving under the influence and child endangerment. Pacheco was advised of the

potential immigration consequences of a nolo plea, entered

the plea as to both charges, and was sentenced to fifteen days

in county jail and three years’ probation.

1Because the police reports were not incorporated by reference into

Pacheco’s nolo plea or the record of conviction, neither we nor the Board

of Immigration Appeals (“BIA”) may rely on them in determining whether

he was convicted of a “crime of child abuse” within the meaning of the

INA. See Shepard v. United States, 544 U.S. 13, 16 (2005); United States

v. Almazan-Becerra, 537 F.3d 1094, 1097—98 (9th Cir. 2008). We

recount the information here for purposes of background only. 

10892 PACHECO FREGOZO v. HOLDER
In November 2001, the then-INS initiated removal proceedings, issuing a Notice to Appear that charged Pacheco as

removable as an alien present in the United States without

having been admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). He appeared before an immigration judge

and, through counsel, admitted the factual allegations contained in the Notice to Appear and conceded his removability

as charged.2 Pacheco then applied for cancellation of removal

pursuant to section 240A of the INA, 8 U.S.C. § 1229b. The

government moved to pretermit the application on the ground

that his misdemeanor child endangerment conviction under

California Penal Code section 273a(b) was a conviction of a

“crime of child abuse,” rendering Pacheco statutorily ineligible for cancellation of removal pursuant to section

240A(b)(1)(c) of the INA. See also 8 U.S.C. § 1227(a)(2)(E)(i).3

The immigration judge agreed with the government and

denied Pacheco’s application for cancellation of removal,

holding that he was convicted of an offense “involving child

endangerment or child abuse or child neglect.” Pacheco thereupon appealed to the BIA, which affirmed. The BIA concluded that conviction under California Penal Code section

273a(b), a conviction it described as “willful harm or injury

to a child,” “satisfies the meaning of child abuse as contemplated under section 237(a)(2)(E)(i) of the Act.”

Pacheco timely appeals. We hold that a conviction under

California Penal Code section 273a(b) is not categorically a

“crime of child abuse” within the meaning of the INA and so

grant the petition for review and remand for further proceedings.

2Pacheco also withdrew his previously filed applications for asylum and

withholding of removal. 

3The government does not assert that his drunk driving conviction

affects Pacheco’s application for cancellation of removal. 

PACHECO FREGOZO v. HOLDER 10893
II.

A.

We review 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. See MoralesGarcia v. Holder, 567 F.3d 1058, 1061 (9th Cir. 2009). 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. See Marmolejo-Campos v.

Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en banc). The first

inquiry requires the BIA to construe a state criminal statute.

As the BIA has no statutory expertise in such state law matters, we review de novo its determination of the elements of

the offense for which the petitioner was convicted. See id. The

second inquiry requires the BIA to construe the INA by defining a particular removable offense and applying that definition to a petitioner’s state conviction. If, in resolving the

second issue, the BIA has interpreted an ambiguous INA statutory term, and rendered its interpretation in a precedential

decision intended to carry the force of law, we defer under

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

Inc., 467 U.S. 837, 842-43 (1984), to the BIA’s definition so

long as it is reasonable. See Marmolejo-Campos, 558 F.3d at

908-09 (citing United States v. Mead Corp., 533 U.S. 218

(2001)).

B.

1.

[1] Under Section 240A(b) of the INA, a nonpermanent

resident is eligible for cancellation of removal if, among other

10894 PACHECO FREGOZO v. HOLDER
matters, he “has not been convicted of an offense under section . . . [237(a)(2)]” of the Act. 8 U.S.C. § 1229b(b)(1)(C).

Among the offenses listed in section 237(a)(2) are “[c]rimes

of domestic violence, stalking, or violation of protection

order, [and] crimes against children.” 8 U.S.C.

§ 1227(a)(2)(E). Specifically, the statute provides that “[a]ny

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

of domestic violence, a crime of stalking, or a crime of child

abuse, child neglect, or child abandonment is deportable.” 8

U.S.C. § 1227(a)(2)(E)(i).

Where, as here, the immigration statute refers to generic

crimes, we apply the categorical and modified categorical

approaches set forth in Taylor v. United States, 495 U.S. 575

(1990), to determine whether a particular state conviction falls

within the generic federal definition. See Nijhawan v. Holder,

129 S. Ct. 2294, 2298-99 (2009); Quintero-Salazar v. Keisler,

506 F.3d 688, 692 (9th Cir. 2007). Under the categorical

approach, we “compare 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,” looking only at the fact

of conviction and the statutory definition. Id. Looking beyond

the title of the statute to the offense’s elements, FernandezRuiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir. 2006) (en

banc), “[i]f 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.” Quintero-Salazar, 506 F.3d

at 692 (citing United States v. Corona-Sanchez, 291 F.3d

1201, 1203 (9th Cir. 2002) (en banc)).

[2] Unlike the term “crime of domestic violence,” the term

“crime of child abuse” is not defined in the INA, and our case

law has not defined the term as it is used in that statute.4See

4The BIA held Pacheco ineligible for cancellation of removal under

only the “child abuse” language of section 237(a)(2)(E)(i) of the INA. We

therefore do not reach the question of whether California Penal Code section 273a(b) is categorically a crime of “child neglect.” 

PACHECO FREGOZO v. HOLDER 10895
Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006)

(per curiam). The BIA has, however, recently supplied a definition of “crime of child abuse” as set forth in section

237(a)(2)(E)(i) of the INA. See Matter of Velazquez-Herrera,

24 I. & N. Dec. 503 (BIA 2008). Because Matter of

Velazquez-Herrera is a precedential opinion of the BIA

intended to carry the force of law, under Chevron, we defer

to the BIA’s interpretation of “crime of child abuse,” if it is

reasonable. See Marmolejo-Campos, 558 F.3d at 908-09.

2.

Before examining Matter of Velazquez-Herrera further and

applying it to the facts of this case, we pause to consider a

procedural point—whether we should remand to the BIA to

apply its Matter of Velazquez-Herrera decision rather than

doing so ourselves.

The BIA had not yet decided Matter of Velazquez-Herrera

when it issued its decision in Pacheco’s appeal. In Pacheco’s

appeal, the BIA relied instead on its decision in Matter of

Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999),

which adopted Black’s Law Dictionary’s then-current definition of “child abuse” as “[a]ny form of cruelty to a child’s

physical, moral, or mental well-being.” We subsequently held

that the definition of “crime of child abuse” supplied in Matter of Rodriguez-Rodriguez was dictum and was not adopted

in a manner that constitutes a “statutory interpretation that

carries the ‘force of law,’ ” and so did not deserve Chevron

deference. See Velazquez-Herrera, 466 F.3d at 783. We

remanded to the BIA to issue a precedential decision that

would authoritatively define “crime of child abuse.” See id.

The Board’s decision in Matter of Velazquez-Herrera is the

product of that remand.

The government’s position is that the Matter of VelazquezHerrera definition is not only “consistent” with Matter of

Rodriguez-Rodriguez, but is an “expansion” of the Matter of

10896 PACHECO FREGOZO v. HOLDER
Rodriguez-Rodriguez definition—in other words, Matter of

Velazquez-Herrera potentially reaches broader conduct than

did Matter of Rodriguez-Rodriguez. The government maintains that if we disagree, a remand to the BIA would be appropriate.

We are convinced that a remand is not necessary in this

case. Aside from according Chevron deference to the Board’s

interpretation of a “crime of child abuse” in the INA, which

we do, we review de novo whether the California conviction

is a removable offense. This inquiry involves parsing the elements of a state criminal statute to determine whether it criminalizes conduct that falls outside of the generic federal

offense, a task for which, as we have noted, the BIA lacks any

particular statutory expertise that would be brought to bear on

remand. See Fernandez-Ruiz v. Gonzales, 466 F.3d at 1133

(9th Cir. 2006) (distinguishing INS v. Ventura, 537 U.S. 12

(2001) (per curiam)). Morever, accepting as true the government’s contention that Matter of Velazquez-Herrera is consistent with and broader than Matter of Rodriguez-Rodriguez, it

follows necessarily that if, as we determine, there is no categorical match under Matter of Velazquez-Herrera, there is no

categorical match under the narrower definition supplied in

Matter of Rodriguez-Rodriguez.

3.

We therefore proceed to consider the impact of the BIA’s

Matter of Velazquez-Herrera opinion on this case. Matter of

Velazquez-Herrera emphasizes that “child abuse” is a “wellrecognized legal concept, distinct from the independent terms

‘child’ and ‘abuse,’ ” and presumed “that Congress intended

it to be construed as such.” 24 I. & N. Dec. at 508. Observing

that one reason Congress expanded the criminal grounds for

removability was to create “a comprehensive statutory

scheme to cover crimes against children,” the BIA concluded

that “Congress clearly intended to single out those who have

PACHECO FREGOZO v. HOLDER 10897
been convicted of maltreating or preying upon children.” Id.

at 509.

[3] The BIA therefore interpreted “crime of child abuse” to

mean “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes

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

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

at 512. “At a minimum,” the BIA indicated, “this definition

encompasses convictions for offenses involving the infliction

on a child of physical harm, even if slight [and] mental or

emotional harm, including acts injurious to morals . . . .” Id.

The BIA thus held that, although “child abuse” is not limited

to the infliction of physical harm, the perpetrator’s actions,

either intentional or criminally negligent, must actually inflict

some form of injury on a child.

The government contends that Pacheco’s California misdemeanor child endangerment conviction is categorically a

“crime of child abuse” within the meaning of the INA. California Penal Code section 273a(b) provides:

Any person who, under circumstances or conditions

other than those likely to produce great bodily harm

or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or

mental suffering, or having the care or custody of

any child, willfully causes or permits the person or

health of that child to be injured, or willfully causes

or permits that child to be placed in a situation where

his or her person or health may be endangered, is

guilty of a misdemeanor.

Any conviction under this statute, the government maintains,

renders Pacheco statutorily ineligible for cancellation of

removal.

[4] We disagree. The full range of conduct criminalized by

California Penal Code section 273a(b) is broader than the

10898 PACHECO FREGOZO v. HOLDER
“crime[s] of child abuse” covered by section 237(a)(2)(E)(i)

as construed by the BIA in Velazquez-Herrera. The relevant

portion of the California statute criminalizes “willfully caus-

[ing] or permit[ting] . . . [a] child to be placed in a situation

where his or her person or health may be endangered.” Cal.

Penal Code § 273a(b) (emphasis added). This statutory language clearly reaches conduct that creates only potential harm

to a child; no actual injury to a child is required for conviction.

The BIA’s decision here, which characterized the offense

as “willful harm or injury to a child,” evidently did not appreciate the broad scope of the “endanger[ment]” prong of California Penal Code section 273a(b). For example, a parent has

been held criminally liable under the statute for placing an

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

even though the child was never injured. See People v. Little,

9 Cal. Rptr. 3d 446, 449-50 (Cal. Ct. App. 2004) (holding that

such a situation, in addition to evidence of unsanitary household conditions, supported a conviction under section

273a(b)). The statute could also reach a neighbor’s failure to

fence in a swimming pool where children are present or a parent’s lack of attention as a child wanders near a street or intersection.

[5] Moreover, the statute does not require that the circumstances create any particular likelihood of harm to a child. See

Little, 9 Cal. Rptr. 3d at 449 (“[The child’s] unsecured location on a bed without restraints or railings, and the height of

the bed reasonably support a finding that the child was left in

a situation where she may have been injured by falling off the

bed.” (emphasis added)). In other words, unlike the analogous

felony provision, California Penal Code section 273a(a),5 the

5California Penal Code section 273a(a) provides, with emphasis added:

Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any

PACHECO FREGOZO v. HOLDER 10899
misdemeanor provision does not require that the perpetrator

actually endanger the health or safety of the child at all—the

misdemeanor provision applies where the child’s health or

safety “may be endangered” by the circumstances. The BIA’s

definition of “child abuse,” requiring some actual injury to a

child, does not reach conduct that merely could place a child’s

health and safety at risk.

The government also relies on the principal definition of

“child abuse” provided by Black’s Law Dictionary, “[t]he

intentional or neglectful physical or emotional harm inflicted

on a child, including sexual molestation,” which the BIA cited

with approval in Matter of Velazquez-Herrera. See 24 I. & N.

Dec. at 511; BLACK’S LAW DICTIONARY 10 (8th ed. 2004). This

definition is not met either, and for the same reason: The California misdemeanor child endangerment offense does not

require infliction of harm, but only some risk of harm. 

There is an alternative definition of “child abuse” in

Black’s—“[a]n act or failure to act that presents an imminent

risk of serious harm to a child.” Id. The government does not

here rely on this alternative definition, with good reason. Negligent or intentional conduct that places a child in situations

in which serious harm is imminently likely could fairly constitute “impairment” of a child’s well-being. The misdemeanor California statute under which Pacheco was convicted,

however, does not conform to the alternative definition, as it

applies “under circumstances or conditions other than those

likely to produce great bodily harm or death.” Cal. Penal

Code § 273a(b) (emphasis added). Cf. United States v.

child to suffer, or inflicts thereon unjustifiable physical pain or

mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be

injured, or willfully causes or permits that child to be placed in

a situation where his or her person or health is endangered, shall

be punished by imprisonment in a county jail not exceeding one

year, or in the state prison for two, four, or six years. 

10900 PACHECO FREGOZO v. HOLDER
Pallares-Galan, 359 F.3d 1088, 1100, 1102 (9th Cir. 2004)

(holding that a misdemeanor crime of annoying or molesting

a child was not categorically a crime of “sexual abuse of a

minor,” even though a felony version of the statute was categorically such a crime, observing that “[t]he misdemeanor

statute at issue here applies to less serious conduct”).

In short, California Penal Code section 273a(b) makes

criminal conduct that creates only the bare potential for nonserious harm to a child, and so lies outside the reach of the

“crime of child abuse” category in the INA. Because it

includes such conduct, the statute goes beyond “singl[ing] out

those who have been convicted of maltreating or preying

upon children,” and lies outside the statutory goal of “facilitating the removal of child abusers in particular.” Matter of

Velazquez-Herrera, 24 I. & N. Dec. at 509.

[6] We therefore conclude that a conviction under California Penal Code section 273a(b) is not categorically a “crime

of child abuse” within the meaning of section 237(a)(2)(E)(i)

of the INA.

C.

Holding that the state statute of conviction is broader than

the generic federal offense does not end our analysis. Where,

as here, there is no categorical match, we may in some circumstances apply the modified categorical approach, looking

to the record of conviction to determine whether the conduct

of which Pacheco was convicted necessarily would fall under

the definition of a “crime of child abuse” within the meaning

of the INA. See Mandujano-Real v. Mukasey, 526 F.3d 585,

589 (9th Cir. 2008). 

In conducting a modified categorical analysis, the inquiry

is limited to “the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defenPACHECO FREGOZO v. HOLDER 10901
dant assented.” Shepard v. United States, 544 U.S. 13, 16

(2005). We may also consider “comparable” judicial documents of sufficient reliability. See United States v. Snellenberger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en banc) (holding

that “minute orders” are judicial documents of “equal reliability” as those listed in Shepard and so may be consulted in

applying the modified categorical analysis). It is the government’s burden “to establish clearly and unequivocally [that]

the conviction was based on all of the elements of a qualifying predicate offense,” through such documents and other “judicially noticeable facts.” Quintero-Salazar, 506 F.3d at 694

(internal quotation omitted).

[7] Because the BIA concluded that Pacheco’s state conviction was categorically a conviction of a “crime of child

abuse,” it did not conduct the modified categorical analysis.

At oral argument, the government contended that if we conclude that there is no categorical match, we should remand the

petition to the BIA to apply the modified categorical analysis

in the first instance.6 We agree.

We have in the past declined to remand to the BIA where

only legal questions remain and these questions do not invoke

the Board’s expertise; all relevant evidence regarding the conviction had been presented to the BIA in earlier proceedings;

and the BIA had already once determined that the offense fell

within the generic definition of the crime, even if only at the

categorical stage. See Latu, 547 F.3d at 1076; Ruiz-Vidal v.

Gonzales, 473 F.3d 1072, 1079-80 (9th Cir. 2007);

6We note that where the government has not argued that the modified

categorical approach applies, our inquiry ends after conducting the categorical analysis, and we need not engage in the modified categorical

inquiry. See Latu v. Mukasey, 547 F.3d 1070, 1076 (9th Cir. 2008);

Mandujano-Real, 526 F.3d at 589. Here, the government did contend, in

its brief and at oral argument, that we must apply the modified categorical

analysis if we conclude, as we do, that there is no categorical match

between the generic federal offense and the statute of conviction.

10902 PACHECO FREGOZO v. HOLDER
Fernandez-Ruiz, 466 F.3d at 1133-35. Not all of these conditions are applicable here.

First, the record as currently constituted contains two possible judicially noticeable documents relevant to the modified

categorical analysis—a misdemeanor criminal complaint and

a minute order7 that records Pacheco’s nolo plea and sentence

—that, when read together, reveal some factual ambiguity

never addressed by the BIA. The criminal complaint, as initially written, charges Pacheco under California Penal Code

section 273a(a), the more serious provision applicable to “circumstances or conditions likely to produce great bodily

harm,” and virtually parrots the statutory language for that

subsection. The complaint was amended, however, to allege

subsection (b) instead, as both handwriting on the complaint

and the minute order reveal: A notation appears at the beginning of the minute order stating that the “People amend

counts 2 & 3 to alledge [sic]: 273(a)(b) pc.”

8

One reasonable reading of the minute order is that the state

amended the charges to substitute the statutory language of

subsection (b) for that of subsection (a), initially alleged. We

note that a no contest plea to charges that merely restate the

language of a statute that is not a categorical match cannot

7We refer to the record document that memorializes Pacheco’s arraignment, plea, and sentence as a “minute order” even though that term does

not appear on the face of the document. The document does appear similar

to the minute order relied on in Snellenberger, as a document “prepared

by a court official at the time the guilty plea is taken (or shortly afterward), and that official is charged by law with recording proceedings

accurately.” 548 F.3d at 702. At oral argument, however, Pacheco contended that no document in the record properly establishes his plea or the

court’s judgment of conviction. For the purposes of our discussion here,

we assume, without deciding, that these two documents are properly

before us. Our discussion does not bind the BIA on remand to accept these

documents. 

8The recorder must have meant 273a(b), the correct statutory designation for the offense. 

PACHECO FREGOZO v. HOLDER 10903
conclusively establish that a defendant admitted to conduct

falling entirely within the generic federal definition of a

crime. See United States v. Vidal, 504 F.3d 1072, 1088 (9th

Cir. 2007) (en banc); United States v. Lopez-Montanez, 421

F.3d 926, 931 (9th Cir. 2005). Another possible reading is that

the state only decided to charge Pacheco under subsection (b),

while continuing to assert the factual allegations in the initial

complaint. The BIA never addressed this critical ambiguity,

but may do so on remand. If it concludes that the factual allegations of the initial complaint remained, it will then have to

decide whether those allegations were admitted to, and also

whether they establish the generic “crime of child abuse.”

Second, the definition of a “crime of child abuse” supplied

in Matter of Velazquez-Herrera was unavailable to the BIA

when it rendered its decision in this case. The BIA therefore

could not have considered Pacheco’s conviction record in

light of the broader definition of “child abuse” in Matter of

Velazquez-Herrera, and so should have the opportunity to do

so on remand.

We note that in conducting the modified categorical analysis on remand, the BIA should observe two points of law that

have been clarified since the Board’s decision in this case and

are particularly relevant to Pacheco’s record of conviction as

currently composed. First, “to identify a conviction as the

generic offense through the modified categorical approach,

when the record of conviction comprises only the indictment

and the judgment, the judgment must contain the critical

phrase ‘as charged in the Information.’ ” Vidal, 504 F.3d at

1087 (internal quotation omitted). The minute order memorializing Pacheco’s plea leaves the box next to “as charged”

unchecked.

Second, a defendant’s nolo contendere plea pursuant to

People v. West, 91 Cal. Rptr. 385 (Cal. 1970), does not establish factual guilt, and therefore, “unless the record of the plea

proceeding reflects that the defendant admitted to facts, a

10904 PACHECO FREGOZO v. HOLDER
West plea, without more, does not establish the factual predicate to support” a determination that the conviction was

generic. Vidal, 504 F.3d at 1089. The minute order indicates

that Pacheco entered a West plea.

III.

[8] With these considerations in mind, we grant the petition

for review, and remand for further proceedings, including the

application of the modified categorical analysis.

Petition GRANTED; REMANDED.

PACHECO FREGOZO v. HOLDER 10905