Divided CA9, En Banc: Diaz-Rodriguez v. Garland (Child Abuse, Chevron)

Diaz-Rodriguez v. Garland

(Reversing the published 2021 panel decision.)

Plurality: "This case raises the question whether an alien who has been convicted under section 273a(a) of the California Penal Code (criminalizing offenses against children) is removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having committed a “crime of child abuse, child neglect, or child abandonment.” After using the ordinary tools of statutory construction to define these terms in the federal statute, dictionary definitions, the structure of the Immigration and Nationality Act (INA), contemporaneous federal statutes, and evidence from state criminal codes, we conclude that the terms “child abuse” and “child neglect” are ambiguous. We therefore defer to the reasonable interpretation of the Board of Immigration Appeals (BIA) that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. We also defer to the BIA’s treatment of this phrase as a unitary category of crimes against children. Applying the BIA’s interpretation and the categorical approach outlined in Taylor v. United States, 495 U.S. 575 (1990), we determine that the BIA did not err in concluding that a conviction under section 273a(a) qualifies as a removable offense under § 1227(a)(2)(E)(i). ... We thus agree with the BIA’s reasoning and conclusion that all violations of section 273a(a) are encompassed by the BIA’s definition of a crime of “child abuse, child neglect, or child abandonment” in § 1227(a)(2)(E)(i). Therefore, the BIA did not err in concluding that Diaz-Rodriguez was removable under § 1227(a)(2)(E)(i). PETITION DENIED."

Dissent: "WARDLAW, Circuit Judge, with whom MURGUIA, Chief Circuit Judge, McKEOWN, KOH, and SANCHEZ Circuit Judges, join, dissenting: I respectfully dissent. Congress “supplied a clear and unambiguous answer” to the question before us. Pereira v. Sessions, 138 S. Ct. 2105, 2113 (2018). Section 1227(a)(2)(E)(i) renders noncitizens removable if they are convicted of one of three discrete criminal offenses: child abuse, child neglect, or child abandonment. Congress did not inadvertently omit the independent offense of child endangerment for which Diaz-Rodriguez was convicted under section 273a(a) of the California Penal Code. Because the statute unambiguously excludes child endangerment, we do not defer to the BIA’s contrary construction under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, the petition should be granted. ... Our responsibility as a reviewing court is to ensure that regulated parties— here, noncitizen families—know what conduct will trigger the “civil death penalty” of removal. Martinez-Cedillo, 896 F.3d at 989. The BIA’s vague, sweeping interpretation of 8 U.S.C. § 1227(a)(2)(E)(i), countenanced by the plurality, provides no guide. We should grant Diaz-Rodriguez’s petition and hold that Congress unambiguously foreclosed the BIA’s incorrect interpretation of the crimes of child abuse, child neglect, and child abandonment."

[NOTE: This petition for review was first filed in 2013!]