Diaz-Rodriguez v. Garland

• Decision Date: 08 December 2022
• Docket Number: 13-73719
• Citation: 55 F.4th 697
• Parties: Rafael DIAZ-RODRIGUEZ, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

55 F.4th 697

Rafael DIAZ-RODRIGUEZ, Petitioner,

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

No. 13-73719

United States Court of Appeals, Ninth Circuit.

FILED DECEMBER 8, 2022

Argued and Submitted En Banc June 22, 2022 Pasadena, California

David J. Zimmer (argued), Edwina B. Clarke, and Jenna Welsh, Goodwin Procter LLP, Boston, Massachusetts; Jerry Shapiro, Law Offices of Jerry Shapiro, Encino, California; for Petitioner.

Erica B. Miles (argued), Senior Litigation Counsel; Ilissa M. Gould and Sara J. Bayram, Trial Attorneys; M. Jocelyn Lopez Wright, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Brian M. Boynton, Principal Deputy Assistant Attorney General; Joyce R. Branda, Acting Assistant Attorney General; United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington D.C.; for Respondent.

Oliver Dunford, Pacific Legal Foundation, Palm Beach Gardens, Florida; Caleb Kruckenberg, Pacific Legal Foundation, Arlington, Virginia; for Amicus Curiae Pacific Legal Foundation.

Andrew Wachtenheim, Immigrant Defense Project, New York, New York; Sabrina Damast, American Immigration Lawyers Association, Washington, D.C.; Daniel Woofter, Goldstein & Russel P.C.; Bethesda, Maryland; for Amici Curiae Immigrant Defense Project and American Immigration Lawyers Association.

David J. Sutton, Public Defender; Rachael E. Keast, Deputy Public Defender; Marin County Office of the Public Defender; San Rafael, California; for Amici Curiae California Public Defenders Association, Marin County Office of the Public Defender, Santa Clara County Office of the Public Defender, Alameda County Office of the Public Defender, Sacramento County Office of the Public Defender, Imperial County Office of the Public Defender, Biggan Christensen and Minsloff, and The Public Defenders of Santa Cruz County.

Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Daniel P. Collins, Patrick J. Bumatay, Lucy H. Koh and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Ikuta ;

Concurrence by Judge Collins ;

Dissent by Judge Wardlaw

IKUTA, Circuit Judge, with whom GOULD, CALLAHAN, and M. SMITH, Circuit Judges, join:

This case raises the question whether an alien who has been convicted under section 273a(a) of the California Penal Code (criminalizing offenses against children) is removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having committed a "crime of child abuse, child neglect, or child abandonment." After using the ordinary tools of statutory construction to define these terms in the federal statute, dictionary definitions, the structure of the Immigration and Nationality Act (INA), contemporaneous federal statutes, and evidence from state criminal codes, we conclude that the terms "child abuse" and "child neglect" are ambiguous. We therefore defer to the reasonable interpretation of the Board of Immigration Appeals (BIA) that the phrase "crime of child abuse, child neglect, or child abandonment" can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child's health or welfare, rather than causing an actual injury to the child. We also defer to the BIA's treatment of this phrase as a unitary category of crimes against children. Applying the BIA's interpretation and the categorical approach outlined in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we determine that the BIA did not err in concluding that a conviction under section 273a(a) qualifies as a removable offense under § 1227(a)(2)(E)(i).

I

Rafael Diaz-Rodriguez, a native and citizen of Mexico, entered the United States in 1990 as a legal permanent resident.

Since his admission to the country, Diaz-Rodriguez has been convicted multiple times for driving while intoxicated, including at least two convictions for driving while intoxicated with a minor child in the vehicle. In November 2003, Diaz-Rodriguez was pulled over by a police officer as he was driving his five-year-old son home. Diaz-Rodriguez's blood alcohol level was .20, over twice the legal limit. He was subsequently convicted under section 23152(b) of the California Vehicle Code for driving while intoxicated and under section 273a(a) of the California Penal Code for willfully permitting a child under his care or custody to be "placed in a situation where his or her person or health is endangered" "under circumstances or conditions likely to produce great bodily harm or death."

In 2009, Diaz-Rodriguez was again pulled over by a police officer, this time while driving intoxicated with his six-year-old daughter. He was convicted for driving while intoxicated, Cal. Veh. Code § 23152(b), driving without a license (revoked for the prior drunk driving violations), Cal. Veh. Code § 14601.2(a), and also convicted under section 273a(a) of the Penal Code. He was sentenced to imprisonment and other penalties, including a 52-week child abuse program.

After this 2009 conviction, the government started removal proceedings, alleging that Diaz-Rodriguez had been convicted of the offense of child abuse in violation of section 273a(a) and was therefore removable as an alien convicted of a "crime of child abuse, child neglect, or child abandonment." 8 U.S.C. § 1227(a)(2)(E)(i). In December 2012, Diaz-Rodriguez appeared before an immigration judge (IJ) with counsel and denied the charge of removability. He also filed an application for cancellation of removal.

The IJ determined that Diaz-Rodriguez was removable as charged. In considering whether Diaz-Rodriguez's conviction under section 273a(a) constituted the removable offense of "child abuse, child neglect, or child abandonment" in § 1227(a)(2)(E)(i), the IJ relied on the BIA's 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). The IJ concluded that a section 273a(a) offense "falls squarely within the definition of ‘crime of child abuse’ set forth by the [BIA]." The IJ therefore denied Diaz-Rodriguez's application for cancellation of removal and ordered him removed to Mexico.

Diaz-Rodriguez filed an administrative appeal to the BIA, which agreed with the IJ that a violation of section 273a(a) qualifies as a crime of child abuse under § 1227(a)(2)(E)(i). The BIA also affirmed the IJ's decision to deny Diaz-Rodriguez's application for cancellation of removal, and dismissed the appeal.

Diaz-Rodriguez timely petitioned for review, challenging only the BIA's determination that he was removable under § 1227(a)(2)(E)(i). A three-judge panel granted the petition for review. Diaz-Rodriguez v. Garland , 12 F.4th 1126 (9th Cir. 2021), reh'g en banc granted , 29 F.4th 1018 (9th Cir. 2022) (Mem.). We took the case en banc to consider whether section 273a(a) qualifies as "a crime of child abuse, child neglect, or child abandonment" under § 1227(a)(2)(E)(i).

We have jurisdiction under 8 U.S.C. § 1252(a). We review de novo questions of law, including whether a state conviction qualifies as a federal generic crime under the INA. See Arellano Hernandez v. Lynch , 831 F.3d 1127, 1130 (9th Cir. 2016).

II

The question before us is whether Diaz-Rodriguez's conviction under section 273a(a) makes him removable under 8 U.S.C. § 1227(a)(2)(E)(i).¹

Section 1227(a)(2)(E)(i) lists generic federal offenses (child abuse, child neglect, and child abandonment), and does not provide the elements of those offenses or cross-reference specific state or federal criminal statutes. When a federal statute refers to a generic federal offense, we generally apply the categorical approach set forth in Taylor , 495 U.S. at 588–89, 110 S.Ct. 2143, to determine whether the state offense matches the federal generic offense, see Mellouli v. Lynch , 575 U.S. 798, 804–05, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015). Under this approach, we must identify the elements of both the state offense and the federal generic offense, because the consequences imposed by the federal statute are "triggered by crimes having certain specified elements, not by crimes that happen to be labeled [with the same terms as] the laws of the State of conviction." Taylor , 495 U.S. at 588–89, 110 S.Ct. 2143. In defining the elements of the state offense of conviction, we consider only "the least of the acts criminalized" by the state offense, Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (cleaned up), to ensure that "anyone convicted under [the state] law is necessarily guilty of all the generic crime's elements," Descamps v. United States , 570 U.S. 254, 261, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (cleaned up). We then compare the elements of the state statute of conviction with the elements of the federal generic offense, as we have defined them. Id. ; see also United States v. Gonzalez–Monterroso , 745 F.3d 1237, 1240 (9th Cir. 2014). If the least state offense has the same elements as the generic federal crime, then the state statute of conviction is a categorical match to the federal generic offense. See Descamps , 570 U.S. at 261, 133 S.Ct. 2276 ; see also Mathis v. United States , 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). But if the state statute of conviction "sweeps more broadly than the generic [federal] crime, a conviction under that law cannot count as" the generic federal offense "even if the defendant actually committed the offense in its generic form." Descamps , 570 U.S. at 261, 133 S.Ct. 2276. An alien's actual conduct is not relevant to this inquiry. See Moncrieffe , 569 U.S. at 190, 133 S.Ct. 1678.

A

We begin by determining the least of the acts criminalized by section 273a(a) of the California Penal Code. See id. at 191, 133 S.Ct. 1678. The California Supreme Court has referred to this statute as an "omnibus statute that...