PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 17-1825

______________

ZHI FEI LIAO,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

______________

On Petition for Review of an Order of the 

United States Department of Justice 

Board of Immigration Appeals

Agency No. A074-862-076

Immigration Judge: Honorable Kuyomars Q. Golparvar

______________

Argued October 3, 2018

______________

Before: SHWARTZ, ROTH, and FISHER, Circuit Judges.

(Filed: December 10, 2018)
2

_____________

OPINION

______________

Joshua S. Bolian [ARGUED]

Robbins Russell Englert Orseck Untereiner & Sauber

2000 K Street, N.W. 

4

th Floor 

Washington, DC 20006

Counsel for Petitioner**

Chad A. Readler, Acting Assistant Attorney General

Shelley R. Goad, Assistant Director

Jonathan A. Robbins [ARGUED]

Office of Immigration Litigation

United States Department of Justice

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

SHWARTZ, Circuit Judge.

Zhi Fei Liao petitions for review of a decision of the 

Board of Immigration Appeals (“BIA”) dismissing his appeal 

 

** Attorney for Petitioner appeared pro bono, and his 

service is in the highest tradition of our profession. We thank

him for his representation in this case. 
3

of an Immigration Judge’s (“IJ”) order removing him from the 

United States based upon his alleged commission of a “crime 

of child abuse, child neglect, or child abandonment” under the 

Immigration and Nationality Act (“INA”), 8 U.S.C. 

§ 1227(a)(2)(E)(i). Because the elements of his crime of 

conviction, endangering the welfare of a child under 18 Pa. 

Cons. Stat. § 4304(a)(1), do not match the elements of the 

crime of “child abuse” under the INA, the order of removal was 

improperly entered. Therefore, we will grant the petition for 

review and remand to the BIA for further proceedings. 

I

Liao, a native and citizen of China, became a lawful 

permanent resident of the United States in 2005. On April 18, 

2015, Liao had a physical altercation with his girlfriend, Yin 

Yu. A neighbor called the police, and Yu told the responding 

police officers that she was holding her infant son, J.Y., while 

Liao struck her, but that J.Y. was not “hit or hurt” during this 

encounter. She said, however, that at some point during the 

fight, J.Y. was placed on the bed and fell from the bed to the 

floor. Officers arrested Liao, charging him with three offenses, 

including endangering the welfare of a child in violation of 18 

Pa. Cons. Stat. § 4304(a)(1). Liao was convicted and served 

106 days of his 90-330 day prison sentence. 

Following Liao’s release from state custody, the 

Department of Homeland Security served Liao with a notice 

that he was subject to removal for, among other things,

committing “a crime of domestic violence, a crime of stalking, 

or a crime of child abuse, child neglect, or child abandonment,”

which rendered him removable under 8 U.S.C. 
4

§ 1227(a)(2)(E)(i).1 The IJ ordered Liao’s removal, holding 

that endangering the welfare of children in violation of 

Pennsylvania law constituted a “crime of child abuse, child 

neglect, or child abandonment,” within the meaning of the 

INA.

2

 Liao appealed, and the BIA held, in a single member, 

non-precedential decision, that Liao was subject to removal 

based on his child endangerment conviction. Reasoning that 

the definition of “child abuse” under § 1227(a)(2)(E)(i) “is not 

limited to offenses that require proof of harm or injury,” the 

BIA held that Pennsylvania’s child endangerment crime fell 

within § 1227(a)(2)(E)(i)’s “broad definition” of child abuse. 

Liao petitions for review.

 

1

Initially, Liao received a notice to appear for removal 

proceedings that cited his simple assault conviction as the basis 

for his removal under 8 U.S.C. § 1227(a)(2)(E)(i). However, 

following the IJ’s determination that it would be “difficult to 

show” removability based on a violation of Pennsylvania’s 

simple assault statute, J.A. 524, the Government served an 

amended notice that instead claimed Liao’s child 

endangerment and terroristic threat convictions rendered him 

removable under § 1227(a)(2)(E)(i).

2 The IJ also held, in the alternative, that Liao’s 

conviction for making terroristic threats in violation of 18 Pa. 

Cons. Stat. § 2706(a)(1) was sufficient to remove him under 

§ 1227(a)(2)(E)(i). The BIA declined to reach the IJ’s alternate 

ground, upholding the removal order solely based on Liao’s 

violation of Pennsylvania’s child endangerment statute. 
5

II3

A

When the BIA issues its own opinion on the merits, we 

review the BIA’s decision, not that of the IJ. Mahn v. Att’y 

Gen., 767 F.3d 170, 173 (3d Cir. 2014) (citations omitted). 

However, where, as here, the BIA expressly adopts portions of 

the IJ’s opinion, we review both the IJ and BIA decisions. 

Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). 

Typically, “[w]e review the BIA’s legal determinations de 

novo . . . subject to the principles of deference set forth in 

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

Inc., 467 U.S. 837, 843-45 (1984).” Sesay v. Att’y Gen., 787 

F.3d 215, 220 (3d Cir. 2015) (citation omitted). When “we are 

asked to review an unpublished, non-precedential decision 

issued by a single BIA member,” however, we defer to the 

BIA’s legal determinations only insofar as they have the power 

to persuade. Mahn, 767 F.3d at 173. 

B

Before reaching the merits of Liao’s claim, we must 

determine whether he exhausted his administrative remedies as 

required by 8 U.S.C. § 1252(d)(2). To obtain judicial review, 

“an alien is required to raise and exhaust his or her remedies as 

to each claim or ground for relief.” Abdulrahman v. Ashcroft, 

 

3 The IJ had jurisdiction over Liao’s immigration 

proceedings under 8 C.F.R. § 1208.2, and the BIA had 

jurisdiction over the appeal pursuant to 8 C.F.R. §§ 1003.1(b) 

and 1240.15. We have jurisdiction over final orders of the BIA 

under 8 U.S.C. § 1252.
6

330 F.3d 587, 594-95 (3d Cir. 2003) (internal citations 

omitted). We do not apply this principle “in a draconian 

fashion,” however. Lin v. Att’y Gen., 543 F.3d 114, 121 (3d 

Cir. 2008). Under our “liberal exhaustion policy . . . , an alien 

need not do much to alert the Board that he is raising an issue.” 

Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006). “[S]o 

long as an immigration petitioner makes some effort, however 

insufficient, to place the Board on notice of a straightforward 

issue being raised on appeal, a petitioner is deemed to have 

exhausted [his] administrative remedies.” Lin, 543 F.3d at 121

(citations omitted).

The purpose of administrative exhaustion “is to ensure 

that the agency is given an opportunity to resolve issues raised 

before it prior to any judicial intervention.” Hoxha v. Holder, 

559 F.3d 157, 163 (3d Cir. 2009) (citation omitted). Thus, the 

question is not whether the petitioner used magic words from 

a particular legal standard or even cited to the relevant case law 

regarding an issue, but rather whether there is “sufficient 

information available to the Board . . . to put it on notice of the 

issue being raised.” 4 Yan Lan Wu v. Ashcroft, 393 F.3d 418, 

422 n.4 (3d Cir. 2005). Therefore, while a petitioner who 

completely omits an issue fails to meet the exhaustion 

requirement with respect to that issue, see Abdulrahman, 330 

 

4 The Government is mistaken as to how our liberal 

exhaustion policy works. It does not require liberally 

construing a party’s pleadings as we must for pro se litigants. 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Rather, it 

requires examining the pleadings expansively to determine 

whether they alert the BIA to an issue that a party wants to be 

reviewed. Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 n.4 (3d 

Cir. 2005); Abdulrahman, 330 F.3d at 595.
7

F.3d at 595, a petitioner who gives enough information to put 

the BIA on notice that he is raising an issue has exhausted the 

issue, and we have jurisdiction to review it. 

Here, though Liao did not squarely present in his notice 

of appeal his claim that the Pennsylvania statute does not 

require sufficient risk to a child’s welfare to be considered a 

crime of child abuse under § 1227(a)(2)(E)(i), he argued,

through counsel, that violation of the “duty of care, protection 

or support” described under Pennsylvania’s child 

endangerment statute did not require the type of conduct 

necessary to constitute a “crime of child abuse” under the INA. 

J.A. 59-61. Liao’s argument on this issue was sufficient to 

notify the BIA not only that he was contesting whether the 

conviction for child endangerment rendered him removable 

(the degree of notification required by Yan Lan Wu, 393 F.3d 

at 422, for exhaustion) but, in addition, that the ground for his 

position was the contention that the level of risk that must be 

shown to violate Pennsylvania’s child endangerment statute 

did not correspond with the level of risk needed to commit the 

crime of child abuse as provided for in the INA. 

The BIA’s ruling also reflects that it was aware Liao 

disputed that his conviction rendered him removable and that 

he challenged whether his crime of conviction constituted the 

crime of “child abuse” under the INA. The BIA held that it 

was, which required it to determine whether the Pennsylvania 

crime met the INA’s risk requirement. Thus, the BIA decided 

the issue we are asked to consider. The BIA’s actions further 

support our conclusion that Liao exhausted his argument, and 

we have jurisdiction to analyze his assertion that his child 

endangerment conviction is not categorically a “crime of child 
8

abuse” under the INA. 8 U.S.C. §§ 1227(a)(2)(E)(i), 

1252(d)(1); Hoxha, 559 F.3d at 163.

III

A

Our analysis of Liao’s claim requires us to determine 

the meaning of the phrase “crime of child abuse” under the 

INA. The INA does not provide a definition but the BIA has 

interpreted this phrase.

The BIA first defined the phrase “crime of child abuse”

in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 512 

(B.I.A. 2008), interpreting it broadly to encompass:

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. At a 

minimum, this definition encompasses 

convictions for offenses involving the infliction 

on a child of physical harm, even if slight; mental 

or emotional harm, including acts injurious to 

morals; sexual abuse, including direct acts of 

sexual contact, but also including acts that 

induce (or omissions that permit) a child to 

engage in . . . sexually explicit conduct . . . .

Building on this definition, in Matter of Soram, 25 I. & N. Dec. 

at 381-83 (B.I.A. 2010), the BIA interpreted the phrase “crime 

of child abuse” to also capture some “child endangerment”
9

statutes, which criminalize not just harm to children, but acts 

that present different levels of risk of harm to children. 

Specifically, the BIA observed:

[s]tates use various terms to describe the level of 

threat required [for violation of their child 

endangerment statutes], including “realistic,” 

“serious,” “reasonably foreseeable,” 

“substantial,” or “genuine.” Since the meaning 

of a term such as “substantial” could be subject 

to different interpretations by courts in each 

State, we will not attempt to analyze whether the 

myriad State formulations of endangerment-type 

child abuse offenses come within the ambit of 

“child abuse” under [8 U.S.C. 

§ 1227(a)(2)(E)(i)]. Rather, we find that a Stateby-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. Mindful of these differences, the BIA in Soram

analyzed the child endangerment subsection of Colorado’s 

child abuse statute, which makes it illegal to “permit[] a child 

to be unreasonably placed in a situation that poses a threat of 

injury to the child’s life or health.” Id. at 379-80 (citing Colo. 

Rev. Stat. § 18-6-401(1)(a)). Examining the statute’s

legislative history and case law interpretations, the BIA 

concluded that the Colorado child endangerment offense was 

categorically a “crime of child abuse” under the INA, pointing 

out that it required “a knowing or reckless act” that creates “at 
10

least a reasonable probability that the child’s life or health will 

be endangered.” Id. at 385-86 (emphases omitted). 

In Matter of Mendoza Osorio, 26 I. & N. Dec. 703

(B.I.A. 2016), the BIA examined the New York child 

endangerment statute5to determine whether its “formulation[]

of endangerment-type child abuse offenses come[s] within the 

ambit of ‘child abuse,’” Soram, 25 I. & N. Dec. at 383, under 

the INA. The BIA held that the New York statute’s 

“elements—a knowing mental state coupled with an act or acts 

creating a likelihood of harm to a child—fit within our 

definition of a ‘crime of child abuse, child neglect, or child 

abandonment’ in section [1227(a)(2)(E)(i)].” Mendoza 

Osorio, 26 I. & N. Dec. at 706. In reaching this holding, the 

BIA recognized that: 

there are child endangerment statues that do not 

require a sufficiently high risk of harm to a child 

to meet the definition of child abuse, neglect, or 

abandonment under the Act. For example, the 

child endangerment statute at section 273a(b) of 

the California Penal Code criminalizes conduct 

that places a child “in a situation where his or her 

person or health may be endangered.” (Emphasis 

added.) In Fregozo v. Holder, 576 F.3d 1030 

(9th Cir. 2009), the Ninth Circuit held that this 

 

5 Section 260.10(1) of the New York Penal Law 

provides, in pertinent part, that “[a] person is guilty of 

endangering the welfare of a child when . . . [h]e or she 

knowingly acts in a manner likely to be injurious to the 

physical, mental or moral welfare of a child less than seventeen 

years old . . . .”
11

statute did not categorically define a “crime of 

child abuse” within the meaning of the Act. The 

court observed that the statute does not “require 

that the circumstances create any particular 

likelihood of harm to a child” and punishes 

“conduct that creates only the bare potential for 

nonserious harm to a child.” Id. at 1037-38. In 

this regard, the court cited as an example of facts 

that did not meet our definition of child abuse the 

case of a parent “placing an unattended infant in 

the middle of a tall bed without a railing, even 

though the child was never injured.” Id. Based 

on the facts as construed by the court, we would 

agree that they do not, alone, define a crime of 

child abuse or neglect.

Id. at 711. Thus, to qualify as a crime of child abuse under the 

INA, a state child endangerment offense must require that the 

actor’s conduct “create [a] particular likelihood of harm to the 

child” that rises above “conduct that creates only the bare 

potential for nonserious harm. . . .” Id. (internal citation and 

quotation marks omitted). As a result, where a state child 

endangerment statute fails to require “any particular likelihood 

of harm to a child,” id. (quoting Fregozo, 576 F.3d at 1037), it 

falls outside the ambit of the INA’s “child abuse” offense.

Recognizing that the phrase “child abuse” has different 

meanings in different states, and that child abuse in this context 

is meant to address conduct that is criminal, it is appropriate to 

define the phrase “child abuse” under the INA to capture 

conduct that poses a particular likelihood of harm to the child. 

Using this definition, we next examine whether the 

Pennsylvania child endangerment statute constitutes a “crime 
12

of child abuse” under § 1227(a)(2)(E)(i). If so, then a 

conviction under the Pennsylvania statute provides a basis for 

removal.

B

To decide whether a state conviction qualifies as a basis 

for removal under the INA, we “employ a ‘categorical 

approach’ to determine whether the state offense is comparable 

to [the] offense listed in the INA.” Moncrieffe v. Holder, 569 

U.S. 184, 190 (2013); see also Descamps v. United States, 570 

U.S. 254, 257 (2013) (describing categorical approach 

generally). Because we focus on the elements of the offense 

of conviction, a petitioner’s specific conduct that led to the 

conviction is “irrelevant.” Moncrieffe, 569 U.S. at 190

(citation omitted). 

Under Pennsylvania law, “[a] parent, guardian or other 

person supervising the welfare of a child under 18 years of age, 

or a person that employs or supervises such a person, commits 

an offense if he knowingly endangers the welfare of the child 

by violating a duty of care, protection or support.” 18 Pa. Cons. 

Stat. § 4304(a)(1). In construing this provision, the 

Pennsylvania Supreme Court has stated that, notwithstanding 

the rule of lenity typically applied to penal statutes, the child 

endangerment provision “must be construed to effectuate its 

broad purpose of sheltering children from harm. Specifically, 

the purpose of such juvenile statutes is defensive; they are 

written expansively by the legislature to cover a broad range of 

conduct in order to safeguard the welfare and security of our 

children.” Commonwealth v. Lynn, 114 A.3d 796, 818 (Pa. 

2015) (internal citations and quotation marks omitted).
13

Pennsylvania’s child endangerment statute has thus been 

construed to “impose[] a duty on parents and other caretakers 

to not risk any kind of harm, not just bodily injury, to a minor 

child in his or her care.” Commonwealth v. Coppedge, 984 

A.2d 562, 563 (Pa. Super. Ct. 2009) (examining the elements 

of Pennsylvania’s child endangerment offense to determine if 

it merged with simple assault). Thus, “a conviction for 

endangering the welfare of children only requires proof of 

circumstances that could threaten the child’s physical or 

psychological welfare.” Commonwealth v. Martir, 712 A.2d 

327, 330 (Pa. Super. Ct. 1998)6; see also Commonwealth v. 

 

6

In Martir, the Pennsylvania Superior Court examined 

the question of whether a conviction for child endangerment 

merges for sentencing purposes with, as a lesser included 

offense, a conviction for reckless endangerment. 712 A.2d at 

328. The reckless endangerment statute in question provided, 

in full, that “[a] person commits a misdemeanor of the second 

degree if he recklessly engages in conduct which places or may 

place another person in danger of death or serious bodily 

injury.” 18 Pa. Cons. Stat. § 2705. The court held that the 

convictions did not merge, reasoning, as relevant for our 

purposes, that: 

[a] conviction for reckless endangerment 

requires proof of conduct that places or may 

place another person in danger of death or 

serious bodily injury, while a conviction for 

endangering the welfare of children only 

requires proof of circumstances that could 

threaten the child’s physical or psychological 

welfare. Thus, reckless endangerment requires 
14

Young, No. 2556 EDA 2015, 2017 WL 238469, at *4 (Pa. 

Super Ct. 2017) (not precedential) (observing that the child 

endangerment offense requires only “proof of circumstances

that could threaten the child” (quoting Martir, 712 A.2d at 

330)).7

 

proof of a fact that endangering the welfare of 

children does not. In other words, the element of 

conduct which places or may place a person in 

danger of death or serious bodily injury is not 

subsumed within proof that a child is placed in 

circumstance[s] that could threaten the child. 

Martir, 712 A.2d at 329-30. 

7 Citing to Commonwealth v. Wallace, 817 A.2d 485, 

490 (Pa. Super. Ct. 2002), the Government contends that 

Pennsylvania “caselaw has in fact narrowed the [child 

endangerment] statute to proscribe practical certainty that 

conduct threatens a child’s physical or psychological welfare.” 

Aug. 15 DOJ Letter at 2. The Government is mistaken. The 

passage the Government refers to was discussing the mental 

state required for conviction under the statute, stating that “it is 

the awareness by the accused that his violation of his duty of 

care, protection and support is ‘practically certain’ to result in 

the endangerment to his children’s welfare, which is proscribed 

by the statute.” Wallace, 817 A.2d at 492 (citing 18 Pa. Cons. 

Stat. § 302(b)(2) (describing “general requirements of 

culpability” under Pennsylvania criminal law)). The present 

dispute does not concern the mental state required to commit 

the offense; rather, what is at issue here is the meaning of 

“endangerment,” which Wallace defines as putting “at risk of 

danger,” specifying that neither “actual infliction” nor 
15

Comparing the Pennsylvania child endangerment 

statute to the offense of “child abuse” under the INA reveals a 

difference between each statute’s risk requirements. Whereas 

the Pennsylvania statute merely requires conduct that “could 

threaten” a child’s “welfare,” Martir, 712 A.2d at 330, “child 

abuse” under the INA requires “a likelihood of harm to [the]

child.” Mendoza Osorio, 26 I. & N. Dec. at 706. The BIA has 

not identified a specific risk level, but it does embrace the view 

that a statute that does not “‘require . . . any particular 

likelihood of harm to a child’” would not include “a 

sufficiently high risk of harm to a child” to qualify as INA child 

abuse. Id. at 711 (quoting Fregozo, 576 F.3d at 1037-38). This 

required risk level places a reasonable limitation on the 

offenses that constitute “child abuse” under the INA. Florez v. 

Holder, 779 F.3d 207, 212 (2d Cir. 2015).

Like the California statute our sister circuit examined in

Fregozo, the Pennsylvania statute lacks an element requiring 

proof of a “sufficiently high risk of harm.” Mendoza Osorio, 

26 I. & N. Dec. at 711 (emphasis omitted). The Pennsylvania 

statute makes it illegal to place the child in “circumstances that 

could threaten [his or her] welfare.” Martir, 712 A.2d at 330. 

The California statute makes it illegal to place a child “in a 

situation where his or her person or health may be 

endangered.” Fregozo, 576 F.3d at 1037 (quoting Cal. Penal 

Code § 273a(b)). Like the California statute, the Pennsylvania 

 

“imminent threat of physical injury” to the child is required for 

conviction under 18 Pa. Cons. Stat. § 4304(a)(1), id. at 491-

92, and which other Pennsylvania courts have defined as 

conduct that “could threaten” a child’s welfare. Martir, 712 

A.2d at 330. 
16

statute does not specify “any particular likelihood of harm to a 

child” required for violation. Mendoza Osorio, 26 I. & N. Dec. 

at 711 (internal citation omitted). Because “child abuse” under 

the INA requires a specified risk of harm that rises above 

conduct that creates only the bare potential for non-serious 

harm, id., and the Pennsylvania child endangerment statute in 

effect at the time of Liao’s conviction did not,8the elements of 

the two statutes do not match. As a result, under the categorical 

approach, Pennsylvania’s child endangerment statute under 

which Liao was convicted does not fit within the definition of 

“child abuse” under § 1227(a)(2)(E)(i), and the BIA erred in 

concluding otherwise. 

C

The Government claims that we must also engage in a 

“realistic probability” inquiry, examining convictions under 

the state statute to assess “whether the statute is actually 

applied to conduct that falls outside of the federal definition,”

Resp’t’s Br. at 31-32, before concluding the statute does not 

 

8

In 2017, the grading portion of the Pennsylvania child 

endangerment statute was amended to state that any violation 

that posed “a substantial risk of death or serious bodily injury” 

would make the offense a felony. See Pa. Act of June 29, 2017, 

P.L. 246, No. 12 (H.B. 217) (noting previous statutory 

language). Thus, a conviction under the felony provision of

the endangerment statute would qualify as a crime of child 

abuse under the INA because it requires proof of a substantial 

risk of death or serious bodily injury. 
17

qualify as INA child abuse.9 The Government argues that we 

are bound to undertake this analysis because Gonzalez v. 

Duenas-Alvarez, 549 U.S. 183, 193 (2007), dictates that there

should be “a realistic probability, not a theoretical possibility”

that the state statute would be applied to such conduct. 

Resp’t’s Br. at 31.

Contrary to the Government’s assertion, it is 

unnecessary to conduct a realistic probability inquiry in every 

case. In Singh v. Attorney General, 839 F.3d 273, 285-86 (3d 

Cir. 2016), we held that the BIA erred in conducting a “realistic 

probability” inquiry where the elements of petitioner’s 

controlled substance conviction under Pennsylvania state law 

 

9

In its August 15, 2018 Rule 28(j) letter, the 

Government admitted that the “realistic probability” test is not 

necessary where the text of the statutory provision plainly 

covers a broader swath of conduct than the generic federal 

offense, but argued that the test is required in all other 

instances, seemingly regardless of how courts articulate the 

statute’s elements. When pressed on this position at oral 

argument, the Government admitted that one could look to the 

elements courts apply in comparing the elements of a state 

offense with the generic federal offense, but nevertheless 

maintained that a realistic probability test was necessary here. 

Oral Argument at 18:40, Liao v. Att’y Gen., No. 17-1825, 

http://www2.ca3.uscourts.gov/oralargument/audio/17-

1825Liaov.AttyGenUSA.mp3. For the reasons discussed in 

the text, we conclude that it is unnecessary to apply the realistic 

probability test where the elements of the offense, whether as 

set forth in a statute or case law, do not match the generic 

federal crime.
18

did not match the elements of the generic federal offense of 

illicit trafficking in a controlled substance because it was only 

appropriate to apply such an analysis where the elements of the 

compared offenses matched. Moreover, we observed that 

“[t]he Supreme Court has never conducted a ‘realistic 

probability’ inquiry” where the elements of the crime of 

conviction are not the same as the elements of the generic 

federal offense.10 Id. at 286 n.10; see also Salmoran v. Att’y 

Gen., No. 17-2683, 2018 WL 6166242, at *7 (3d Cir. Nov. 26, 

2018) (holding that no realistic probability analysis is 

necessary where the state statute “plainly encompasses more 

conduct than its federal counterpart”).

In this case, we are not confronted with a situation in 

which there is no guidance as to how the statute applies. As 

explained above, Pennsylvania does not require any particular 

level of risk to violate its child endangerment statute, and thus,

there is a difference between the risk element under the 

Pennsylvania child endangerment statute and the INA child 

abuse statute, making further inquiry into the law’s application

unnecessary. Put simply, the elements leave nothing to the 

“legal imagination,” Duenas-Alvarez, 549 U.S. at 193, because 

they show that one statute captures conduct outside of the 

other. Therefore, we need not carry out a “realistic probability” 

inquiry to conclude that a conviction for a violation of 

 

10 Only where the state statute offers insufficient 

guidance as to its application is further analysis needed to 

address whether the state applied its statute in a way that 

captured conduct outside of the federal statute’s scope. 

Moncrieffe, 569 U.S. at 191-95; Duenas-Alvarez, 549 U.S. at 

193.
19

§ 4304(a)(1) does not constitute a removable “crime of child 

abuse, child neglect, or child abandonment” under 

§ 1227(a)(2)(E)(i).

11

 

11 Our sister circuit courts have also held that the

“realistic probability” inquiry is unnecessary where the 

elements of the offenses do not match. See Hylton v. Sessions, 

897 F.3d 57, 64 (2d Cir. 2018) (evaluating whether a state 

conviction for sale of marijuana in the third degree constituted 

an INA aggravated felony, and concluding that “[b]y 

demanding that Hylton produce old state cases to illustrate 

what the statute makes punishable by its text, the 

Government’s argument misses the point of the categorical 

approach and wrenches the Supreme Court’s language in 

Duenas Alvarez from its context” (internal quotation marks 

and citations omitted)); United States v. Titties, 852 F.3d 1257, 

1274-75 (10th Cir. 2017) (determining applicability of Armed 

Career Criminal Act (“ACCA”) sentencing enhancement 

based on prior convictions, and concluding, in spite of 

Government’s contention that a “realistic probability” inquiry 

was necessary, that “[t]his is not a case where we need to 

imagine hypothetical non-violent facts to take a statute outside 

of the ACCA’s ambit. . . . The Government gives no persuasive 

reason why we should ignore [the statute’s] plain language to 

pretend [it] is narrower than it is.”); Swaby v. Yates, 847 F.3d 

62, 66 (1st Cir. 2017) (“[Duenas-Alvarez’s] sensible caution 

against crediting speculative assertions regarding the 

potentially sweeping scope of ambiguous state law crimes has 

no relevance to a case like this [where the state law at issue 

unambiguously covered one drug not on the federal schedules, 

as relevant for removal eligibility under the INA]. The state 

crime at issue clearly does apply more broadly than the 
20

 

federally defined offense.”); United States v. Aparicio-Soria, 

740 F.3d 152, 157-58 (4th Cir. 2014) (en banc) (rejecting 

Government’s argument that a “realistic probability” inquiry is 

necessary because “this case does not require an exercise of 

imagination, merely mundane legal research skills: we have 

precedent from Maryland’s highest court” confirming that the 

state offense of resisting arrest captures conduct outside the 

scope of “crimes of violence” under the United States 

Sentencing Guidelines); Ramos v. Att’y Gen., 709 F.3d 1066, 

1071-72 (11th Cir. 2013) (examining whether a state theft 

conviction qualified as an aggravated felony rendering an alien

removable under the INA and observing that “Duenas-Alvarez

does not require [a realistic probability] showing when the 

statutory language itself, rather than ‘the application of legal 

imagination’ to that language, creates the ‘realistic probability’ 

that a state would apply the statute to conduct beyond the 

generic definition.”); United States v. Grisel, 488 F.3d 844, 

850 (9th Cir. 2007) (en banc) (evaluating whether Oregon 

second-degree burglary conviction fell under the ACCA’s 

“violent felony” mandatory minimum, and noting “[w]here, as 

here, a state statute explicitly defines a crime more broadly 

than the generic definition, no ‘legal imagination’ is required 

to hold that a realistic probability exists that the state will apply 

its statute to conduct that falls outside the generic definition of 

the crime.” (internal citation omitted)). But see United States 

v. Castillo-Rivera, 853 F.3d 218, 222, 239 (5th Cir. 2017) (en 

banc) (applying the “realistic probability” test to hold that a 

Texas conviction for unlawful possession of a firearm 

constituted an aggravated felony for sentencing purposes, even 

though it would, as the dissent explained, “require a defendant 

to disprove the inclusion of a statutory element that the statute 

plainly does not contain”).
21

IV

For the foregoing reasons, we will grant the petition and 

remand for the BIA to consider the alternative ground on which 

the IJ found Liao removable.