896 F.3d 979 (9th Cir. 2018), 14-71742, Martinez-Cedillo v. Sessions

Docket Nº:14-71742
Citation:896 F.3d 979
Opinion Judge:BYBEE, Circuit Judge:
Party Name:Marcelo MARTINEZ-CEDILLO, aka Marcelo Martinez, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
Attorney: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.
Judge Panel:Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges, and Susan Illston, District Judge. Dissent by Judge Wardlaw WARDLAW, Circuit Judge, dissenting:
Case Date:July 23, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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896 F.3d 979 (9th Cir. 2018)

Marcelo MARTINEZ-CEDILLO, aka Marcelo Martinez, Petitioner,

v.

Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-71742

United States Court of Appeals, Ninth Circuit

July 23, 2018

Argued and Submitted August 28, 2017, Pasadena, California

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[Copyrighted Material Omitted]

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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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX2-169

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

Dissent by Judge Wardlaw

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, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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)

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(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

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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...

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