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Martinez-Cedillo v. Sessions

United States Court of Appeals, Ninth Circuit

July 23, 2018

Marcelo Martinez-Cedillo, AKA Marcelo Martinez, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted August 28, 2017 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A074-112-169

          David Belaire Landry (argued), San Diego, California, for Petitioner.

          Brianne Whelan Cohen (argued), Senior Litigation Counsel; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges, and Susan Illston, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel denied a petition for review of the Board of Immigration Appeals' determination that Marcelo Martinez-Cedillo's conviction for child endangerment, in violation of California Penal Code § 273a(a), constitutes a crime of child abuse that renders him removable under 8 U.S.C. § 1227(a)(2)(E)(i).

         In 2008, Martinez-Cedillo was convicted of felony child endangerment under California Penal Code § 273a(a) for driving under the influence with a child in his car who was not wearing a seatbelt.

         In Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), the Board interpreted the term 'crime of child abuse' broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental well-being, including sexual abuse or exploitation. In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the Board held that this definition is not limited to offenses requiring proof of injury to the child and requires a case-by-case analysis to determine whether the risk of harm is sufficient to bring an offense within the definition of 'child abuse.'

         The panel held that the Board's interpretation in Velazquez-Herrera and Soram is entitled to Chevron deference. Applying that definition, the panel held that California Penal Code § 273a(a) is a categorical match to the crime of child abuse, neglect, or abandonment. The panel also held that the Board's interpretation applies retroactively to Martinez-Cedillo's 2008 conviction, which occurred before the Board's decisions in Velazquez-Herrera and Soram.

         Dissenting, Judge Wardlaw would hold that the Board's interpretation is not entitled to Chevron deference, and that even if it were, the new definition should not apply retroactively to Martinez-Cedillo's conviction.

          OPINION

          BYBEE, CIRCUIT JUDGE.

         Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code § 273a(a) and ordered removed on the grounds that his conviction qualified as "a crime of child abuse, child neglect, or child abandonment" under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). His petition for review requires us to decide whether to defer to the Board of Immigration Appeals' ("BIA's") interpretation of a crime of child abuse, neglect, or abandonment under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Our sister circuits have split on this precise issue. See Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) (deferring to the BIA); Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013) (not deferring); see also Mondragon-Gonzalez v. Att'y Gen. of the United States, 884 F.3d 155 (3d Cir. 2018) (deferring); Martinez v. U.S. Att'y Gen., 413 Fed.Appx. 163 (11th Cir. 2011) (deferring).

         We join the Second Circuit in deferring to the BIA's reasonable interpretation. We further hold that California Penal Code § 273a(a) is categorically a crime of child abuse, neglect, or abandonment, as interpreted by the BIA. Finally, we hold that the BIA's interpretation applies retroactively to Martinez-Cedillo's conviction. Accordingly, we deny the petition for review.

         I. FACTUAL BACKGROUND

         Marcelo Martinez-Cedillo is a citizen of Mexico and, since 2005, has been a lawful permanent resident of the United States. In August 2008, he was convicted of driving under the influence of alcohol ("DUI") with two prior DUI convictions. At the time of his final DUI, he had a child in his car who was not wearing a seatbelt. For this reason, he was also convicted of felony child endangerment under California Penal Code § 273a(a).

         The Department of Homeland Security initiated removal proceedings on the grounds that Martinez-Cedillo's conviction under California Penal Code § 273a(a) was a crime of child abuse, neglect, or abandonment under § 1227(a)(2)(E)(i). An Immigration Judge ("IJ") entered a final order of removal, which Martinez-Cedillo appealed to the BIA, arguing that (1) California Penal Code § 273a(a) is not a crime of child abuse, neglect, or abandonment, and (2) he should be allowed to apply for cancellation of removal under 8 U.S.C. § 1229b.

         The BIA affirmed in part and remanded in part. The BIA held that California Penal Code § 273a(a) was categorically a crime of child abuse, neglect, or abandonment under its prior interpretation of that phrase in two precedential opinions: Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), and Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). Nevertheless, the BIA remanded for the IJ to consider Martinez-Cedillo's eligibility for cancellation of removal.

         On remand, Martinez-Cedillo initially requested cancellation of removal but later conceded that recent authority defeated his request. He then, for the first time, moved for a continuance of removal proceedings based on a pending visa petition his father had submitted on his behalf. The IJ denied his motion for a continuance and again entered a final order of removal. Martinez-Cedillo appealed to the BIA a second time, and this time, the BIA affirmed in full.

         Martinez-Cedillo now petitions our court for review, arguing that (1) the BIA's interpretation of a crime of child abuse, neglect, or abandonment to encompass criminally negligent acts that do not result in actual injury to a child is unreasonable; (2) California Penal Code § 273a(a) is not categorically a crime of child abuse, neglect, or abandonment even under the BIA's interpretation; (3) the BIA's interpretation should not apply retroactively to his 2008 conviction; and (4) denial of his motion for a continuance was an abuse of discretion.

         We first review the history of the BIA's interpretation of § 1227(a)(2)(E)(i), and then address each of Martinez-Cedillo's arguments in turn.

         II. THE BIA'S INTERPRETATION

         A. Rodriguez-Rodriguez

         In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which added § 1227(a)(2)(E)(i) to the INA and made "a crime of child abuse, child neglect, or child abandonment" a deportable offense. Two years later, the BIA made a passing reference to § 1227(a)(2)(E)(i) in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). At issue in that case was 8 U.S.C. § 1101(a)(43)(a), which makes "sexual abuse of a minor" an "aggravated felony" for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA held that Texas's offense of indecency with a child was "sexual abuse of a minor" and thus an aggravated felony under § 1227(a)(2)(A)(iii), even though the Texas statute did not require physical contact with a child. The BIA reasoned that the term "sexual abuse of a minor," like the term "child abuse" in § 1227(a)(2)(E)(i), could refer to conduct that did not involve physical contact:

We note that in including child abuse as a ground of removal in section 237(a)(2)(E)(i) of the Act, Congress likewise did not refer to a particular statutory definition, although in the same section it did designate a statutory definition for the term "crime of domestic violence." By its common usage, "child abuse" encompasses actions or inactions that also do not require physical contact. See [Child Abuse, Black's Law Dictionary (6th ed. 1990)] (defining child abuse as "(a)ny form of cruelty to a child's physical, moral or mental well-being").

Id. at 996. Rodriguez's passing reference to child abuse was dictum and did not purport to offer a precedential interpretation of what constitutes a crime of child abuse, neglect, or abandonment under § 1227(a)(2)(E)(i).

         For several years following Rodriguez, the BIA never interpreted the phrase "a crime of child abuse, child neglect, or child abandonment" in a precedential opinion, and its unpublished decisions on the subject were equivocal. Some unpublished decisions during this period stated that "child abuse" means "the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child." In re Palfi, 2004 WL 1167145 (BIA 2004); In re Baez-Cazarez, 2004 WL 2952229 (BIA 2004). Other unpublished decisions hewed to the Black's Law Dictionary definition of "child abuse" as "any form of cruelty to a child's physical, moral or mental well-being." In re Pacheco Fregozo, 2005 WL 698590 (BIA 2005); In re Maltez-Salazar, 2005 WL 952489 (BIA 2005); In re Manzano-Hernandez, 2005 WL 698392 (BIA 2005). In short, the BIA's interpretation of a crime of child abuse, neglect, or abandonment was unclear at this time.

         B. Velazquez-Herrera

         In 2006, we considered the BIA's holding that a conviction for assaulting a child under Washington's fourth-degree assault statute was a crime of child abuse. Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir. 2006). We recognized that the BIA had previously used at least two definitions of "child abuse," which were "not entirely consistent" with each other. Id. at 783. We held that the "cruelty" definition cited in Rodriguez's dictum was not "a statutory interpretation that carries the 'force of law'" and accordingly remanded "to allow the BIA in the first instance to settle upon a definition of child abuse in a precedential opinion." Id. at 782-83.[1]

         The BIA followed our instructions and, in May 2008, issued its first precedential interpretation of what constitutes a crime of child abuse. Velazquez, 24 I. & N. Dec. 503. The BIA reasoned that, although § 1227(a)(2)(E)(i) defined "a crime of domestic violence," "other operative terms, including 'crime of child abuse,' were left undefined, triggering the negative inference that Congress deliberately left them open to interpretation." Id. at 508. The BIA further observed that, "[i]n view of the fact that [§ 1227(a)(2)(E)(i)] is the product of a significant expansion of the grounds of deportability and was aimed at facilitating the removal of child abusers in particular," Congress intended a crime of child abuse to be interpreted "broadly in this context." Id. at 509.

         The BIA considered various federal statutes defining "child abuse" and related concepts as of the date Congress enacted IIRIRA and found that "the weight of Federal authority . . . reflected an understanding that 'child abuse' encompassed the physical and mental injury, sexual abuse or exploitation, maltreatment, and negligent or neglectful treatment of a child." Id. at 511. The BIA also considered state criminal and civil statutes, concluding that "there was a growing acceptance by 1996 that the concept of 'child abuse' included not just intentional infliction of physical injury, but also acts of sexual abuse or exploitation, criminally negligent acts, or acts causing mental or emotional harm." Id. Finally, the BIA noted that the most recent edition of Black's Law Dictionary-as opposed to the prior edition cited in Rodriguez-defined "child abuse" as "[i]ntentional or neglectful physical or emotional harm inflicted on a child, including sexual molestation." Id. (quoting Abuse, Black's Law Dictionary (8th ed. 2004)).[2]

         Based on these considerations, the BIA "interpret[ed] the term 'crime of child abuse' broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child's physical or mental well-being, including sexual abuse or exploitation." Id. at 512. The BIA went on to note that:

At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct; as well as any act that involves the use or exploitation of a child as an object of sexual gratification or as a tool in the commission of serious crimes, such as drug trafficking.

Id. (emphasis added). Significantly, however, the BIA did not address whether a crime of child abuse required actual injury to a child. A concurring opinion noted this very fact: "It should be noted that, broad though the definition is, it is unclear whether it extends to crimes in which a child is merely placed or allowed to remain in a dangerous situation, without any element in the statute requiring ensuing harm, e.g., a general child endangerment statute, or selling liquor to an underage minor, or failing to secure a child with a seatbelt." Id. at 518 n.2 (Pauley, concurring).

         C. Pacheco Fregozo

         We had our first opportunity to address Velazquez's definition of a crime of child abuse in Pacheco Fregozo v. Holder, 576 F.3d 1030, 1033 (9th Cir. 2009). Ernesto Pacheco Fregozo had been arrested for driving under the influence of alcohol with two children in his car and convicted of misdemeanor child endangerment under California Penal Code § 273a(b). Id. at 1033-34. The BIA held in an unpublished opinion-issued before it decided Velazquez-that Pacheco Fregozo's conviction was categorically a crime of child abuse under the "cruelty" definition cited in Rodriguez. Id. at 1034.

         In granting Pacheco Fregozo's petition for review, we acknowledged that the BIA had recently interpreted "a crime of child abuse" in Velazquez but held that it was unnecessary to remand for the BIA to apply Velazquez in the first instance. Id. at 1036 ("We are convinced that a remand is not necessary in this case. Aside from according Chevron deference to the Board's interpretation of a 'crime of child abuse' in the INA, which we do, we review de novo whether the California conviction is a removable offense."). We interpreted Velazquez as requiring conduct that "actually inflict[s] some form of injury on a child," without explaining where the BIA's decision imposed such a requirement. Id. at 1037. Based on that questionable reading of Velazquez, we then concluded that California Penal Code § 273a(b) was not a categorical match for § 1227(a)(2)(E)(i) because it reached conduct that "creates only potential harm to a child; no actual injury to a child is required." Id. at 1036-38.

         We also held that § 273a(b) was not a categorical match for a crime of child abuse for an independent reason. Unlike the felony provision in the same statute, § 273a(b) does not require "any particular likelihood of harm to a child":

[U]nlike the analogous felony provision, California Penal Code section 273a(a), the misdemeanor provision [in section 273a(b)] does not require that the perpetrator actually endanger the health or safety of the child at all-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.
. . . . 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).

Id. at 1037-38. This alternative basis for our holding in Pacheco Fregozo appears to have been in tension with the first, as it implied that Velazquez did not require actual injury but only actual endangerment. At the very least, our discussion in this regard suggested that, even though misdemeanor child endangerment under § 273a(b) was not a categorical match for a crime of child abuse as defined in Velazquez, felony child endangerment under § 273a(a) likely was.

         D. Soram

         The following year, the BIA responded to our decision in Pacheco Fregozo. In Matter of Soram, the BIA "respectfully clarif[ied] that the term 'crime of child abuse,' as described in Velazquez-Herrera is not limited to offenses requiring proof of injury to the child":

[T]he United States Court of Appeals for the Ninth Circuit has issued a decision addressing this question. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009). The court interpreted our decision in Matter of Velazquez-Herrera to require that a child must actually be injured for a crime to constitute child abuse. . . . However, as indicated above, we did not directly address this issue in Velazquez-Herrera. We do so now and find no convincing reason to limit offenses under section 237(a)(2)(E) of the Act to those requiring proof of actual harm or injury to the child.

25 I. & N. Dec. 378, 380-81 (BIA 2010). At the same time, the BIA also clarified that "the phrase 'a crime of child abuse, child neglect, or child abandonment' in section 237(a)(2)(E)(i) of the Act denotes a unitary concept and [its] broad definition of child abuse [in Velazquez] describes this entire phrase." Id. at 381.

         The BIA reasoned that "[a]s recently as July 2009, some 38 States [and several territories] . . . included in their civil definition of 'child abuse,' or 'child abuse or neglect,' acts or circumstances that threaten a child with harm or create a substantial risk of harm to a child's health or welfare." Id. at 382. In this respect, the BIA noted that "endangering a child can reasonably be viewed as either abuse or neglect" and that "some States include child endangerment in their definition of 'child abuse,' while a number of others consider it 'child abuse or neglect.'" Id. at 381. A concurring opinion added that: "A review of the criminal child abuse statutes of the various States reveals that as of September 1996, a majority of States-28-had criminal provisions punishing child endangerment offenses as part of their criminal child abuse statutes." Id. at 388 (Filppu, concurring).

         The BIA also acknowledged that, although a crime of child abuse, neglect, or abandonment required only a risk of injury to a child, the risk had to be sufficiently great-thus placing an outer limit on its broad definition. Id. at 382-83. The BIA noted that different state statutes used different terms (e.g., "realistic," "serious," or "substantial") to describe the requisite level of risk, and that even statutes with similar terms were interpreted differently by various state courts. Id. Rather than attempt to analyze "the myriad State formulations of endangerment-type child abuse offenses" all at once, the BIA decided a case-by-case analysis was appropriate "to determine whether the risk of harm by ...


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