Bastias v. U.S. Attorney Gen.

• Decision Date: 02 August 2022
• Docket Number: 21-11416
• Citation: 42 F.4th 1266
• Parties: Ariel Marcelo BASTIAS, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

42 F.4th 1266

Ariel Marcelo BASTIAS, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 21-11416

United States Court of Appeals, Eleventh Circuit.

Filed: August 2, 2022

Mark Andrew Prada, Joseph Robert Lackey, Prada Urizar Dominguez, PLLC, Miami, FL, for Petitioner.

Gregory A. Pennington, Jr., U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, OIL, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, Michelle M. Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent.

Before Newsom and Marcus, Circuit Judges, and Middlebrooks, District Judge.^*

Newsom, Circuit Judge:

Ariel Bastias petitions for review of the Board of Immigration Appeals's judgment that he is removable on the ground that he was convicted of a "crime of child abuse, child neglect, or child abandonment" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). The parties agree that the least culpable conduct criminalized by the Florida statute under which Bastias was convicted—culpably negligent child neglect—fits within the BIA's expansive interpretation of § 1227(a)(2)(E)(i). The question, then, is whether the BIA's reading of that provision is permissible inasmuch as it covers Bastias's offense. Because this Court has already decided that § 1227(a)(2)(E)(i) is ambiguous at Chevron step one, because we are bound by that decision, and because the BIA's definition is a reasonable interpretation of the statute, we deny the petition.

I

In October 2019, Ariel Bastias, a lawful permanent resident of the United States, pleaded guilty to and was convicted of an offense under Fla. Stat. § 827.03(2), which is titled "Abuse, aggravated abuse, and neglect of a child." That statute delineates four distinct offenses, listed under subsections (2)(a) through (2)(d). Those offenses range in seriousness from the first-degree felony of "aggravated child abuse," Fla. Stat. § 827.03(2)(a), to the third-degree felony of "willfully or by culpable negligence neglect[ing] a child without causing great bodily harm, permanent disability, or permanent disfigurement," id. § 827.03(2)(d).

It's unclear from the record to which of § 827.03(2) ’s several offenses Bastias pleaded guilty: The information charged him with first-degree felony aggravated child abuse. The judgment lists "aggravated child abuse," but it describes that crime as a second-degree felony and cites only § "827.03(2)" generally. The sentencing score sheet describes Bastias's offense as "child neglect," a third-degree felony, and cites—even more unhelpfully—just § "827.03." And the transcript of Bastias's plea colloquy is hopelessly opaque: The judge stated that he "w[ould] adjudicate [Bastias] guilty of [the] charge of aggravated child—nope, of child neglect—child abuse, child neglect, a felony of the third degree so it's a lesser included offense of what [he] was originally charged with." When the clerk asked for the statute number, the judge said, "Oh, I don't know," one of the lawyers suggested "827," and the judge responded, "Whatever."

After Bastias's conviction—for "[w]hatever"—the Department of Homeland Security served him with a notice to appear before an Immigration Judge on the ground that his conviction rendered him removable under 8 U.S.C. § 1227(a)(2)(E)(i). That provision makes deportable any alien who "is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment ." 8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added).

Before the IJ, Bastias argued that his 2019 conviction was only for the offense of child neglect , see Fla. Stat. § 827.03(2)(d) —which, he insisted, is not a deportable offense under the INA. But the IJ found that the Florida judgment and record of conviction demonstrated that Bastias was convicted of aggravated child abuse , see Fla. Stat. § 827.03(2)(a). The IJ concluded that Florida aggravated child abuse categorically falls within the BIA's "broad definition of child abuse" and proceeded to deny Bastias's application for a discretionary cancellation of removal.

Bastias appealed to the Board of Immigration Appeals, renewing his contention that he was convicted only of child neglect. The BIA held that even if Bastias was convicted of child neglect under § 827.03(2)(d), that offense is categorically a "crime of child abuse" for INA purposes.¹ The Board explained that it "has 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.’ " Admin. R. at 4 (quoting In re Velazquez-Herrera , 24 I. & N. Dec. 503, 512 (BIA 2008) ) (emphasis added). Such a crime, the Board said, doesn't require "actual harm or injury to a child" if the defendant's mental state was "greater than common law negligence" and there is "proof of a likelihood or reasonable probability that a child will be harmed." Id. (citing In re Soram , 25 I. & N. Dec. 378, 381 (BIA 2010), and In re Rivera-Mendoza , 28 I. & N. Dec. 184, 187–89 (BIA 2020) (quotation marks omitted)). Child neglect under Fla. Stat. § 827.03(2)(d), the BIA concluded, categorically falls within its interpretation because it requires a mental state of "culpable negligence"—a greater mental state than ordinary negligence—and conduct that "could reasonably be expected to result in" serious injury or death. Id. at 4–5 (citing, inter alia, Jones v. State , 292 So. 3d 519, 522 (Fla. Dist. Ct. App. 2020), and Fla. Stat. § 827.03(1)(e) (defining "neglect of a child")). So, the Board held that DHS established Bastias's removability by clear and convincing evidence, and it affirmed the IJ's discretionary denial of cancellation of removal.

Bastias petitioned this Court for review. Before us, he argues that we should follow the Tenth Circuit's decision in Ibarra v. Holder , 736 F.3d 903, 906 (10th Cir. 2013), and hold that the BIA's interpretation of 8 U.S.C. § 1227(a)(2)(E)(i) is impermissibly overbroad to the extent that it includes non-injurious criminally negligent conduct. Citing Ibarra , Bastias notes that in 1996, when § 1227(a)(2)(E)(i) was enacted, most states required a "knowing or intentional" mens rea to convict someone of non-injurious child neglect or endangerment; "[o]nly eleven states clearly criminalized non-injurious child endangerment where the culpable mental state was only criminal negligence." Br. of Pet'r at 25–26 (quoting Ibarra , 736 F.3d at 915 ). Therefore, Bastias says, the BIA's reading "falls so far outside the interpretive ‘gap’ left by Congress" that we shouldn't defer to it. Id. at 29 (quoting Ibarra , 736 F.3d at 918 ).

The government responds that the BIA's definition is a reasonable interpretation of an ambiguous statute. It contends that this Court has already determined that § 1227(a)(2)(E)(i) is ambiguous at Chevron step one and that we must therefore defer to the Board's interpretation at step two so long as it's reasonable and consistent with the statute. See Br. of Resp. at 15 (citing Pierre v. U.S. Att'y Gen. , 879 F.3d 1241, 1249 (11th Cir. 2018) ); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The government would have us follow the approach taken by the Second, Third, and Fifth Circuits and conclude (1) that under Chevron ’s step two, the Board's reading of § 1227(a)(2)(E)(i) needn't be the best interpretation of the statute or reflect the approach of most states and (2) that the Board's expansive interpretation is permissible because it's reasonable. Br. of Resp.. at 17–19 (citing Florez v. Holder , 779 F.3d 207, 211–12 (2d Cir. 2015), Mondragon-Gonzalez v. U.S. Att'y Gen. , 884 F.3d 155, 159–60 (3d Cir. 2018), and Garcia v. Barr , 969 F.3d 129, 134 (5th Cir. 2020) ).

II

"Whether a conviction qualifies as a ‘crime of child abuse’ ... under the INA is a question of law for the Court. We review de novo such questions of law, subject to the principles of deference articulated in Chevron ." Pierre , 879 F.3d at 1248–49 (citation omitted). Under Chevron , "if [a] statute is silent or ambiguous with respect to the specific issue" at hand, we defer to an administrative agency's interpretation if it "is based on a permissible construction of the statute." 467 U.S. at 843, 104 S.Ct. 2778. An agency's interpretation is "permissible" under Chevron "so long as [it] is reasonable and consistent with the statute." Pierre , 879 F.3d at 1249 (citing Chevron , 467 U.S. at 843, 104 S.Ct. 2778 ). Published, precedential BIA decisions, if reasonable, are entitled to Chevron deference. See id.

A

We begin with what's undisputed: First, all agree that we should apply the "categorical approach" to determine whether Bastias was convicted of a "crime of child abuse, child neglect, or child abandonment" within the meaning of the INA. Under that approach, "we consider only the fact of conviction and the statutory definition of the offense, rather than the specific facts underlying the defendant's case," and we focus on "the least culpable conduct necessary to sustain a conviction under the statute" under which Bastias was convicted. Pierre , 879 F.3d at 1250 (quotation marks omitted).

Second, all seem to agree that the "least culpable conduct" covered by Bastias's statute of conviction is culpably negligent child neglect that doesn't cause significant injury, as criminalized in Fla. Stat. § 827.03(2)(d). While it once contended that Bastias was actually convicted of aggravated child abuse under Fla. Stat. § 827.03(2)(a), the government now seems to assume, for purposes of our review, that Bastias was convicted under subsection (d) and argues that a conviction under that subsection qualifies as a "crime of child abuse, child neglect, or child abandonment." See Br. of Resp. at 22.²

Finally, all agree that Fla. Stat. § 827.03(2)(d)...