Fregozo v. Holder

• Decision Date: 12 August 2009
• Docket Number: No. 05-71268.,05-71268.
• Citation: 576 F.3d 1030
• Parties: Ernesto Pacheco FREGOZO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

576 F.3d 1030

Ernesto Pacheco FREGOZO, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-71268.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2009.

Filed August 12, 2009.

Samuel Uchenna Ogbu (argued), Dozie Ike Ezeife (on briefs), Emeziem & Ogbu, APC, Emeryville, CA, for the petitioner.

Jem C. Sponzo (argued), Peter D. Keisler, Michelle G. Latour, Keith I. Bernstein (on briefs), U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-587-885.

Before DAVID R. THOMPSON, MARSHA S. BERZON and N. RANDY SMITH, Circuit Judges.

BERZON, Circuit Judge:

We consider whether a California conviction for misdemeanor child endangerment is a "crime of child abuse" for purposes of the federal Immigration and Nationality Act ("INA").

I.

In October 2000, petitioner Ernesto Pacheco Fregozo ("Pacheco") pleaded nolo contendere to one count of driving under the influence of alcohol or drugs and one count of child endangerment, both misdemeanors. According to the police reports,¹ officers observed Pacheco's car exit from a freeway at a high speed, and saw his wife, seated in the passenger seat, attempting to get the officers' attention. After a short pursuit, the vehicle pulled into a high school parking lot and stopped. There, the officers observed his frightened wife and saw his two children screaming and crying in the backseat. The officers ordered Pacheco from the car. After smelling alcohol on his breath and observing his demeanor, the officers suspected that Pacheco was intoxicated. The children indicated that they were afraid that Pacheco's erratic driving would lead to a car crash. After Pacheco refused field sobriety tests, he was arrested and booked on the charges of driving under the influence and child endangerment. Pacheco was advised of the potential immigration consequences of a nolo plea, entered the plea as to both charges, and was sentenced to fifteen days in county jail and three years' probation.

In November 2001, the then-INS initiated removal proceedings, issuing a Notice to Appear that charged Pacheco as removable as an alien present in the United States without having been admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). He appeared before an immigration judge and, through counsel, admitted the factual allegations contained in the Notice to Appear and conceded his removability as charged.² Pacheco then applied for cancellation of removal pursuant to section 240A of the INA, 8 U.S.C. § 1229b. The government moved to pretermit the application on the ground that his misdemeanor child endangerment conviction under California Penal Code section 273a(b) was a conviction of a "crime of child abuse," rendering Pacheco statutorily ineligible for cancellation of removal pursuant to section 240A(b)(1)(c) of the INA. See also 8 U.S.C. § 1227(a)(2)(E)(i).³

The immigration judge agreed with the government and denied Pacheco's application for cancellation of removal, holding that he was convicted of an offense "involving child endangerment or child abuse or child neglect." Pacheco there-upon appealed to the BIA, which affirmed. The BIA concluded that conviction under California Penal Code section 273a(b), a conviction it described as "willful harm or injury to a child," "satisfies the meaning of child abuse as contemplated under section 237(a)(2)(E)(i) of the Act."

Pacheco timely appeals. We hold that a conviction under California Penal Code section 273a(b) is not categorically a "crime of child abuse" within the meaning of the INA and so grant the petition for review and remand for further proceedings.

II.

A.

We review 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. See Morales-Garcia v. Holder, 567 F.3d 1058, 1061 (9th Cir.2009). 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. See Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). The first inquiry requires the BIA to construe a state criminal statute. As the BIA has no statutory expertise in such state law matters, we review de novo its determination of the elements of the offense for which the petitioner was convicted. See id. The second inquiry requires the BIA to construe the INA by defining a particular removable offense and applying that definition to a petitioner's state conviction. If, in resolving the second issue, the BIA has interpreted an ambiguous INA statutory term, and rendered its interpretation in a precedential decision intended to carry the force of law, we defer under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the BIA's definition so long as it is reasonable. See Marmolejo-Campos, 558 F.3d at 908-09 (citing United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001)).

B.

1.

Under Section 240A(b) of the INA, a nonpermanent resident is eligible for cancellation of removal if, among other matters, he "has not been convicted of an offense under section ... [237(a)(2)]" of the Act. 8 U.S.C. § 1229b(b)(1)(C). Among the offenses listed in section 237(a)(2) are "[c]rimes of domestic violence, stalking, or violation of protection order, [and] crimes against children." 8 U.S.C. § 1227(a)(2)(E). Specifically, the statute provides that "[a]ny alien 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 is deportable." 8 U.S.C. § 1227(a)(2)(E)(i).

Where, as here, the immigration statute refers to generic crimes, we 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 a particular state conviction falls within the generic federal definition. See Nijhawan v. Holder, ___ U.S. ___, 129 S.Ct. 2294, 2298-99, 174 L.Ed.2d 22 (2009); Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.2007). Under the categorical approach, we "compare 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," looking only at the fact of conviction and the statutory definition. Id. Looking beyond the title of the statute to the offense's elements, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir.2006) (en banc), "[i]f 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." Quintero-Salazar, 506 F.3d at 692 (citing United States v. Corona-Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc)).

Unlike the term "crime of domestic violence," the term "crime of child abuse" is not defined in the INA, and our case law has not defined the term as it is used in that statute.⁴ See Velazquez-Herrera v. Gonzales, 466 F.3d 781 (9th Cir.2006) (per curiam). The BIA has, however, recently supplied a definition of "crime of child abuse" as set forth in section 237(a)(2)(E)(i) of the INA. See Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008). Because Matter of Velazquez-Herrera is a precedential opinion of the BIA intended to carry the force of law, under Chevron, we defer to the BIA's interpretation of "crime of child abuse," if it is reasonable. See Marmolejo-Campos, 558 F.3d at 908-09.

2.

Before examining Matter of Velazquez-Herrera further and applying it to the facts of this case, we pause to consider a procedural point — whether we should remand to the BIA to apply its Matter of Velazquez-Herrera decision rather than doing so ourselves.

The BIA had not yet decided Matter of Velazquez-Herrera when it issued its decision in Pacheco's appeal. In Pacheco's appeal, the BIA relied instead on its decision in Matter of Rodriguez-Rodriguez, 22 I. & N. Dec. 991, 996 (BIA 1999), which adopted Black's Law Dictionary's then-current definition of "child abuse" as "[a]ny form of cruelty to a child's physical, moral, or mental well-being." We subsequently held that the definition of "crime of child abuse" supplied in Matter of Rodriguez-Rodriguez was dictum and was not adopted in a manner that constitutes a "statutory interpretation that carries the `force of law,'" and so did not deserve Chevron deference. See Velazquez-Herrera, 466 F.3d at 783. We remanded to the BIA to issue a precedential decision that would authoritatively define "crime of child abuse." See id. The Board's decision in Matter of Velazquez-Herrera is the product of that remand.

The government's position is that the Matter of Velazquez-Herrera definition is not only "consistent" with Matter of Rodriguez-Rodriguez, but is an "expansion" of the Matter of Rodriguez-Rodriguez definition—in other words, Matter of Velazquez-Herrera potentially reaches broader conduct than did Matter of Rodriguez-Rodriguez. The government maintains that if we disagree, a remand to the BIA would be appropriate.

We are convinced that a remand is not necessary in this case. Aside from according Chevron deference to the Board's interpretation of a "crime of child abuse" in the INA, which we do, we review de novo whether the California conviction is a removable offense. This inquiry involves parsing the elements of a state criminal statute to determine whether it criminalizes conduct that falls...