Diaz-Rodriguez v. Garland, 13-73719

• Decision Date: 10 September 2021
• Docket Number: 13-73719
• Parties: Rafael Diaz-Rodriguez, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Rafael Diaz-Rodriguez, Petitioner,
v.
Merrick B. Garland, Attorney General, Respondent.

No. 13-73719

United States Court of Appeals, Ninth Circuit

September 10, 2021

Argued and Submitted January 13, 2021 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A093-193-920

Jerry Shapiro (argued), Law Offices of Jerry Shapiro, Encino, California, for Petitioner.

Erica B. Miles (argued) and M. Jocelyn Lopez Wright, Senior Litigation Counsel; Sara J. Bayram, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Consuelo M. Callahan and Paul J. Watford, Circuit Judges, and Jed S. Rakoff, ^[*] District Judge.

SUMMARY^[**]

Immigration

Granting Rafael Diaz-Rodriguez's petition for review of a decision of the Board of Immigration Appeals, the panel held that child endangerment, in violation of California Penal Code § 273a(a), does not constitute "a crime of child abuse, child neglect, or child abandonment" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).

In Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018), a divided panel held to the contrary, and a majority of the non-recused active judges voted to rehear the case en banc. However, after the petitioner passed away, the en banc court dismissed the appeal as moot and vacated the panel decision. The panel here observed that Martinez-Cedillo is no longer binding precedent, but explained that between its issuance and the decision to rehear the case en banc, two published opinions relied on it: Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), and Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018).

The panel concluded that the unusual circumstance here led it to conclude that this case falls outside the scope of the general rule that three-judge panels are bound to follow published decisions of prior panels. The panel explained that both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding precedent without engaging in independent analysis of the deference issue, and both decisions were effectively insulated from en banc review on that issue. The panel explained that both decisions are irreconcilable with a subsequent decision of the court sitting en banc because their reliance on Martinez-Cedillo is in conflict with the en banc court's decision to designate that decision as non-precedential.

Applying the categorical approach, the panel identified the elements of California Penal Code § 273a(a): causing or permitting a child "to be placed in a situation where his or her person or health is endangered," committed with a mens rea of criminal negligence. As to the federal offense, the panel explained that Congress enacted the ground of removability at 8 U.S.C. § 1227(a)(2)(E)(i) as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and did not define the phrase "a crime of child abuse, child neglect, or child abandonment." In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), however, the BIA held that the phrase encompassed child endangerment offenses committed with a mens rea of at least criminal negligence. In considering whether Soram was entitled to deference, the panel was guided by the Supreme Court's decision in Esquivel-Quintana v. Sessions, 137 S.Ct. 1562 (2017), where the Court observed that the term "sexual abuse of a minor" was undefined and then looked to normal tools of statutory interpretation in concluding that the statute unambiguously forecloses the BIA's interpretation of it.

Applying this approach, the panel concluded that deference was precluded at Chevron step one because the text of § 1227(a)(2)(E)(i) unambiguously forecloses the BIA's interpretation as encompassing negligent child endangerment offenses. First, the panel explained that contemporary legal dictionaries from the time of IIRIRA's enactment indicate that child abuse, child neglect, and child abandonment were well-understood concepts with distinct meanings that do not encompass one-time negligent child endangerment offenses. Second, the panel explained that the statutory structure suggested that Congress deliberately omitted child endangerment from the list of offenses specified in § 1227(a)(2)(E)(i). Third, the panel explained that the general consensus drawn from state criminal codes confirms that the phrase does not encompass negligent child endangerment offenses. The panel noted that the fourth source consulted in Esquivel-Quintana, related federal criminal statutes, did not aid its analysis.

Because a violation of California Penal Code § 273a(a) can be committed with a mens rea of criminal negligence, the panel concluded that it is not a categorical match for "a crime of child abuse, child neglect, or child abandonment." Accordingly, the panel concluded that Diaz-Rodriguez's conviction under that statute did not render him removable under § 1227(a)(2)(E)(i).

Dissenting, Judge Callahan wrote that she was compelled to dissent for two reasons. First, she did not agree that the three-judge panel could disregard Menendez and Alvarez-Cerriteno. Second, Judge Callahan did not agree with the majority's peculiar reading of the phrase as not encompassing a child endangerment offense committed with a mens rea of at least criminal negligence. Judge Callahan wrote that majority's suggestion that § 1227(a)(2)(E)(i) is unambiguous is contrary to precedent and the unanimous opinions of the court's sister circuits. Moreover, she wrote that the majority failed to recognize that the court's task is limited to reviewing the agency's interpretation for "reasonableness." Instead, the majority proffered its own definition based primarily on selected dictionary definitions and its own research.

OPINION

WATFORD, Circuit Judge:

We confront in this appeal the same issue that arose in Martinez-Cedillo v. Sessions, 896 F.3d 979 (9th Cir. 2018). There, a divided three-judge panel held that California Penal Code § 273a(a) constitutes "a crime of child abuse, child neglect, or child abandonment" within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). A majority of the non-recused active judges voted to rehear Martinez-Cedillo en banc, but before the en banc court could issue a decision, the petitioner passed away. The en banc court therefore dismissed the appeal as moot and vacated the three-judge panel decision. Without binding precedent on point, we must revisit whether California Penal Code § 273a(a) qualifies as "a crime of child abuse, child neglect, or child abandonment." We hold that it does not.

I

Rafael Diaz-Rodriguez has been a lawful permanent resident of the United States since 1990. He and his partner have two children together, both of whom are U.S. Citizens. In 2003 and 2009, Diaz-Rodriguez was stopped by the police while driving under the influence of alcohol with one of his children in the car. On both occasions, he was convicted of felony child endangerment in violation of California Penal Code § 273a(a). As relevant here, that statute punishes anyone who, "having the care or custody of any child," and under circumstances likely to produce great bodily harm or death, "willfully causes or permits that child to be placed in a situation where his or her person or health is endangered." Cal. Penal Code § 273a(a).^[1] Although the statute requires the defendant to act "willfully," the California Supreme Court has held that criminal negligence suffices, such that the defendant need not be subjectively aware of the risk of harm involved. People v. Valdez, 42 P.3d 511, 513-14, 518- 19 (Cal. 2002).

In 2012, the Department of Homeland Security initiated removal proceedings against Diaz-Rodriguez based on his 2009 child endangerment conviction. The agency alleged that the conviction rendered Diaz-Rodriguez removable under 8 U.S.C. § 1227(a)(2)(E)(i), a provision of the Immigration and Nationality Act (INA) authorizing the removal of a non-citizen who "at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment." An immigration judge held that a conviction under California Penal Code § 273a(a) qualifies as a conviction for "a crime of child abuse, child neglect, or child abandonment," thus rendering Diaz-Rodriguez removable. The judge also denied Diaz-Rodriguez's application for cancellation of removal under 8 U.S.C. § 1229b(a) as a matter of discretion. The Board of Immigration Appeals (BIA) affirmed the immigration judge's rulings. Diaz-Rodriguez petitions for review of the BIA's decision, challenging only the determination that he is removable based on his conviction under California Penal Code § 273a(a).

II

As noted at the outset, a prior panel of this court confronted the same issue before us. The three-judge panel in Martinez-Cedillo was asked to decide whether California Penal Code § 273a(a) qualifies as "a crime of child abuse, child neglect, or child abandonment" under 8 U.S.C. § 1227(a)(2)(E)(i). 896 F.3d at 982. In determining the elements of the generic federal offense described by the phrase "a crime of child abuse, child neglect, or child abandonment," the panel applied the two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). At step one, the panel held that the phrase is ambiguous as to whether it includes criminal offenses, such as California Penal Code § 273a(a), that punish negligent endangerment of a child. 896 F.3d at 987. At step two, over a dissent by Judge Wardlaw, the panel deferred to the BIA's interpretation of that phrase in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010). In Soram, the BIA held that the phrase "a crime of child abuse, child neglect, or child abandonment" is sufficiently capacious to encompass child endangerment offenses committed with a...