Diaz-Rodriguez v. Garland

• Decision Date: 10 September 2021
• Docket Number: No. 13-73719,13-73719
• Citation: 12 F.4th 1126
• Parties: Rafael DIAZ-RODRIGUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

12 F.4th 1126

Rafael DIAZ-RODRIGUEZ, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 13-73719

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2021 Pasadena, California

Filed September 10, 2021

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.

Dissent by Judge Callahan

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 , 27 Cal.4th 778, 118 Cal.Rptr.2d 3, 42 P.3d 511, 513–14, 518–19 (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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 mens rea of at least criminal negligence. Id. at 380–81. After deferring to the BIA's definition of the generic federal offense, the panel in Martinez-Cedillo concluded that a conviction under California Penal Code § 273a(a) qualifies categorically as a conviction for "a crime of child abuse, child neglect, or child abandonment." 896 F.3d at 992–94.

We are not bound by Martinez-Cedillo ’s resolution of this issue. The three-judge panel's decision was rendered non-precedential when the full court agreed to rehear the case en banc, 918 F.3d 601 (9th Cir. 2019), and the en banc court later vacated the panel's decision when it dismissed the appeal as moot, 923 F.3d 1162 (9th Cir. 2019). Given these developments, all agree that Martinez-Cedillo itself is no longer binding precedent.

During the interval between the three-judge panel's decision in Martinez-Cedillo and the full court's decision to rehear the case en banc, two other panels issued published opinions that relied on Martinez-Cedillo in holding that the BIA's decision in Soram is entitled to deference under Chevron . See Menendez v. Whitaker , 908 F.3d 467, 474 (9th Cir. 2018) ; Alvarez-Cerriteno v. Sessions , 899 F.3d 774, 781 (9th Cir. 2018). Those decisions have not been vacated. As a three-judge panel, we are ordinarily bound to follow published decisions issued by prior panels. See Miller v. Gammie , 335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). The unusual circumstances presented here, however, lead us to conclude that this case falls outside the scope of the general rule.

Both Alvarez-Cerriteno and Menendez were decided shortly after issuance of the opinion in Martinez-Cedillo , during the period in which en banc review in Martinez-Cedillo was under consideration.² Both decisions simply cited Martinez-Cedillo as having settled that Soram is entitled to deference under Chevron ; neither engaged in any independent analysis of the issue. The panels were not free to engage in any such analysis, for they were bound at the time to follow Martinez-Cedillo . Indeed, one of the panel members in Alvarez-Cerriteno expressly noted that, had she not been bound by Martinez-Cedillo , she would have "rule[d] in accord with Judge Wardlaw's dissent in that case." 899 F.3d at 785 (Berzon, J., concurring).

In both cases, despite following Martinez-Cedillo and deferring to Soram ’s definition of "a crime of child abuse, child neglect, or child abandonment," the panels nonetheless ruled in the petitioners’ favor on the ground that the offenses in question were broader than the generic federal offense, even as defined by the BIA. Menendez , 908 F.3d at 474–75 ; Alvarez-Cerriteno , 899 F.3d at 783–84. Not surprisingly, neither of the petitioners sought en banc review. Nor was there any reason for an off-panel judge to call for rehearing en banc sua sponte so that those cases could be held pending the outcome of en banc proceedings in Martinez-Cedillo . Even if the en banc court had ultimately adopted the position of the dissent in Martinez-Cedillo , doing so would not have affected the outcome in either Alvarez-Cerriteno or Menendez . Moreover, during the window in which a sua sponte en banc call could have been made in those cases, no one could have anticipated that Martinez-Cedillo would eventually be dismissed as moot, thereby precluding the full court from resolving whether the BIA's decision in Soram should receive deference under Chevron .

Given this unique sequence of events, we do not think Alvarez-Cerriteno or Menendez can now be viewed as binding circuit precedent on whether Soram is entitled to Chevron deference, any more than Martinez-Cedillo itself can. Both Alvarez-Cerriteno and Menendez simply followed Martinez-Cedillo as then-binding circuit precedent without engaging in any independent analysis of the deference issue, and both decisions were effectively insulated from en banc review on the legal issue decided in Martinez-Cedillo . As a result, their status as circuit precedent on whether Soram is entitled to deference rises or falls with the status of Martinez-Cedillo . Since the opinion in Martinez-Cedillo was vacated and deemed non-precedential by the en banc court, we must decide anew whether Diaz-Rodriguez's conviction under California Penal Code § 273a(a) renders him removable under 8 U.S.C. § 1227(a)(2)(E)(i).

The dissent takes issue with this treatment of Alvarez-Cerriteno and Menendez , arguing that it runs afoul of this circuit's rule "that a three-judge panel is ‘bound by the prior decision of another three-judge panel,’ " which " ‘gives way when, but only when, the earlier decision is clearly irreconcilable with the holding or reasoning of intervening authority from our court sitting en banc or the Supreme Court.’ " Dissent at 1143 (quoting Aleman Gonzalez v. Barr , 955 F.3d 762, 765 (9th Cir. 2020), cert. granted , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 3711642 (U.S. Aug. 23, 2021) (No. 20-322) ). But the decisions in Alvarez-Cerriteno and Menendez are in fact irreconcilable with a subsequent decision of the court sitting en banc: As already stated, their reliance...