Alvarez-Cerriteno v. Sessions

• Decision Date: 08 August 2018
• Docket Number: No. 16-73486,16-73486
• Parties: Lorenzo ALVAREZ-CERRITENO, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

899 F.3d 774

Lorenzo ALVAREZ-CERRITENO, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

No. 16-73486

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 2018 San Francisco, California

Filed August 8, 2018

Don P. Chairez (argued), Law Offices of Don Chairez, Woodland, California, for Petitioner.

Erica B. Miles (argued) and Anthony W. Norwood, Senior Litigation Counsel; Corey L. Ferrell, Attorney; Chad A. Readler, Principal Deputy Assistant Attorney General; 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. 091-009-097

Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges, and Terrence Berg,^* District Judge.

Concurrence by Judge Berzon

OPINION

BEA, Circuit Judge:

Today we must determine whether Nevada's child neglect statute is broader—that is, makes criminal more conduct—than does the federal Immigration and Nationality Act's ("INA") generic "crime of child abuse." If so, the Board of Immigration Appeals ("BIA") erred in finding Petitioner, a native and citizen of Mexico and a legal permanent resident of the United States, removable as charged under the INA. Because the Nevada statute outlaws conduct that presents a lesser risk of harm to a child ("reasonably foreseeable" harm) than does the conduct required to violate the INA (at least a "reasonable probability" of harm), we conclude that the BIA did so err, and grant the petition.

I. BACKGROUND

A. Factual History

Petitioner Lorenzo Alvarez-Cerriteno ("Alvarez-Cerriteno") is a native and citizen of Mexico. He entered the United States on March 9, 1985, without inspection or parole. However, he duly became a lawful permanent resident on December 1, 1990.

Alvarez-Cerriteno has incurred several criminal convictions since entering the United States, including a January 18, 2011, conviction for "Child Abuse and Neglect" under Nevada Revised Statutes § 200.508(2)(b)(1).¹ In that case, Alvarez-Cerriteno was charged with "punching" his fourteen-year-old son in 2010.² Alvarez-Cerriteno pleaded guilty to violating § 200.508(2)(b)(1) and received a prison sentence of nine months. After Alvarez-Cerriteno was arrested because of outstanding traffic warrants in 2016, the Department of Homeland Security ("DHS") initiated removal proceedings against him based on the 2011 child abuse conviction.

B. Procedural History

DHS issued a Notice to Appear ("NTA") and charged that Alvarez-Cerriteno was removable pursuant to Section 237(a)(2)(E)(i) of the INA (codified at 8 U.S.C. § 1227(a)(2)(E)(i) ) as an "alien who at any time after entry has been convicted of ... a crime of child abuse, child neglect, or child abandonment." Alvarez-Cerriteno admitted the factual allegations in the NTA but denied the charge of removability. On May 31, 2016, he submitted an application for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

On June 6, 2016, the Immigration Judge (IJ) issued a written decision, which (1) found that Alvarez-Cerriteno was removable as charged in the NTA and (2) denied Alvarez-Cerriteno's application for discretionary cancellation of removal. On the first issue, the IJ found that, under the BIA's decision in Matter of Soram , "the crime of unreasonably placing a child in a situation that poses a threat of injury to the child's life or health ... is categorically a crime of child abuse under [the INA], even though no proof of actual harm or injury to the child was required" under the state statute of conviction. Matter of Soram , 25 I. & N. Dec. 378 (BIA 2010). Having thus denied Alvarez-Cerriteno's claim based on the "categorical approach,"³ the IJ did not apply the "modified categorical approach." On the second issue, the IJ denied discretionary relief based on Alvarez-Cerriteno's "pattern of violations of this country's criminal laws."

On October 25, 2016, the BIA dismissed Alvarez-Cerriteno's appeal. The Board affirmed the IJ's determination that Alvarez-Cerriteno was removable based on a conviction for a "crime of child abuse, neglect, or child abandonment." 8 U.S.C. § 1227(a)(2)(E)(i). The BIA found that the Nevada statute includes reasonableness and criminal-negligence standards that would "preclude a conviction" for conduct which "creates only the bare potential for nonserious harm to a child." The BIA concluded therefore that there was no "realistic probability" the Nevada statute could be used to prosecute conduct outside the scope of the generic crime in the INA. The BIA also affirmed the IJ's discretionary denial of cancellation of removal on de novo review, and emphasized that Alvarez-Cerriteno's "history of domestic violence over a period of years, for which he shows little remorse, is a very significant negative factor." Petitioner timely petitioned this court for review.

II. STANDARD OF REVIEW

"Where, as here, the BIA adopts the IJ's decision and adds some of its own analysis, the panel reviews both decisions." Ling Huang v. Holder , 744 F.3d 1149, 1152 (9th Cir. 2014). This court reviews 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," including the INA. Fregozo v. Holder , 576 F.3d 1030, 1034 (9th Cir. 2009). "The BIA's ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Ling Huang , 744 F.3d at 1152 (quoting 8 U.S.C. § 1252(b)(4)(B) ).

III. DISCUSSION

A. Legal Framework

The INA, as codified and amended, provides that "[a]ny alien who at any time after admission is convicted of ... 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 a generic crime ("a crime of child abuse"), the BIA must apply the categorical and modified categorical approaches set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether the state conviction was for conduct that falls within the scope of the generic crime. See Fregozo , 576 F.3d at 1035. Under the categorical approach, the BIA " ‘compare[s] 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.’ " Id. " ‘If 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.’ " Id. (citations omitted).

Thus, the BIA must construe both the state and federal statutes. Id. at 1034–35 ("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."). "As the BIA has no statutory expertise in ... state law matters," this court "reviews de novo its determination of the elements of the offense for which the petitioner was convicted." Id. at 1034. However, "[i]f, in resolving the [federal law] issue, the BIA has interpreted an ambiguous INA statutory term"—here, "a crime of child abuse, child neglect, or child abandonment"—"and rendered its interpretation in a precedential decision intended to carry the force of law," this court defers to the BIA's interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 1034–35.

We proceed in three steps. First, we determine the elements of the federal generic crime. See Section III.B, infra . Second, we analyze Nevada Revised Statute § 200.508 to determine the elements of the Nevada statute of conviction. See Section III.C, infra . Finally, we compare the federal generic crime and the Nevada statute of conviction and conclude that (1) the Nevada statute's elements encompass more conduct than do the federal generic crime's elements and (2) there is a "realistic probability" that Nevada could prosecute conduct under its statute that falls outside the scope of the federal generic crime, as required by Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). See Section III.D, infra . Therefore, the BIA erred in finding that Petitioner's conviction was categorically a crime of child abuse under the INA.

B. Scope of the Federal Generic Crime

1. The BIA's Construction

In Fregozo v. Holder , this court considered whether a petitioner's conviction under a California child abuse statute, which made criminal "willfully caus[ing] or permit[ting] ... [a] child to be placed in a situation where his or her person or health may be endangered," was categorically a "crime of child abuse" under the INA. Cal. Penal Code § 273a(b) (emphasis added); Fregozo, 576 F.3d at 1037. The panel noted that "[t]he term ‘crime of child abuse’ is not defined in the INA," and that this court "ha[d] not defined the term as it is used in that statute." Fregozo , 576 F.3d at 1035. The panel did not construe the generic crime, but rather deferred to the BIA's construction in Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008). There, the BIA had construed the federal generic "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. Using that definition, Fregozo found that the generic "crime of child abuse" did not include conduct that "creates only potential harm...