Martinez-Cedillo v. Sessions, No. 14-71742

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBYBEE, Circuit Judge
Citation896 F.3d 979
Parties Marcelo MARTINEZ-CEDILLO, aka Marcelo Martinez, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
Docket NumberNo. 14-71742
Decision Date23 July 2018

896 F.3d 979

Marcelo MARTINEZ-CEDILLO, aka Marcelo Martinez, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-71742

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 28, 2017, Pasadena, California
Filed July 23, 2018


896 F.3d 981

David Belaire Landry (argued), San Diego, California, for Petitioner.

Brianne Whelan Cohen (argued), Senior Litigation Counsel; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A074-112-169

Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges, and Susan Illston,* District Judge.

Dissent by Judge Wardlaw

BYBEE, Circuit Judge:

Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code § 273a(a) and ordered removed on the grounds that his conviction qualified as "a crime of child abuse, child neglect, or child abandonment" under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). His petition for review requires us to decide whether to defer to the Board of Immigration Appeals’ ("BIA’s") interpretation of a crime of child abuse, neglect, or abandonment under Chevron, U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Our sister circuits have split on this precise issue. See Florez v. Holder , 779 F.3d 207 (2d Cir. 2015) (deferring to the BIA); Ibarra v. Holder , 736 F.3d 903 (10th Cir. 2013)

896 F.3d 982

(not deferring); see also Mondragon-Gonzalez v. Att’y Gen. of the United States , 884 F.3d 155 (3d Cir. 2018) (deferring); Martinez v. U.S. Att’y Gen. , 413 F. App'x 163 (11th Cir. 2011) (deferring).

We join the Second Circuit in deferring to the BIA’s reasonable interpretation. We further hold that California Penal Code § 273a(a) is categorically a crime of child abuse, neglect, or abandonment, as interpreted by the BIA. Finally, we hold that the BIA’s interpretation applies retroactively to Martinez-Cedillo’s conviction. Accordingly, we deny the petition for review.

I. FACTUAL BACKGROUND

Marcelo Martinez-Cedillo is a citizen of Mexico and, since 2005, has been a lawful permanent resident of the United States. In August 2008, he was convicted of driving under the influence of alcohol ("DUI") with two prior DUI convictions. At the time of his final DUI, he had a child in his car who was not wearing a seatbelt. For this reason, he was also convicted of felony child endangerment under California Penal Code § 273a(a).

The Department of Homeland Security initiated removal proceedings on the grounds that Martinez-Cedillo’s conviction under California Penal Code § 273a(a) was a crime of child abuse, neglect, or abandonment under § 1227(a)(2)(E)(i). An Immigration Judge ("IJ") entered a final order of removal, which Martinez-Cedillo appealed to the BIA, arguing that (1) California Penal Code § 273a(a) is not a crime of child abuse, neglect, or abandonment, and (2) he should be allowed to apply for cancellation of removal under 8 U.S.C. § 1229b.

The BIA affirmed in part and remanded in part. The BIA held that California Penal Code § 273a(a) was categorically a crime of child abuse, neglect, or abandonment under its prior 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). Nevertheless, the BIA remanded for the IJ to consider Martinez-Cedillo’s eligibility for cancellation of removal.

On remand, Martinez-Cedillo initially requested cancellation of removal but later conceded that recent authority defeated his request. He then, for the first time, moved for a continuance of removal proceedings based on a pending visa petition his father had submitted on his behalf. The IJ denied his motion for a continuance and again entered a final order of removal. Martinez-Cedillo appealed to the BIA a second time, and this time, the BIA affirmed in full.

Martinez-Cedillo now petitions our court for review, arguing that (1) the BIA’s interpretation of a crime of child abuse, neglect, or abandonment to encompass criminally negligent acts that do not result in actual injury to a child is unreasonable; (2) California Penal Code § 273a(a) is not categorically a crime of child abuse, neglect, or abandonment even under the BIA’s interpretation; (3) the BIA’s interpretation should not apply retroactively to his 2008 conviction; and (4) denial of his motion for a continuance was an abuse of discretion.

We first review the history of the BIA’s interpretation of § 1227(a)(2)(E)(i), and then address each of Martinez-Cedillo’s arguments in turn.

II. THE BIA’S INTERPRETATION

A. Rodriguez-Rodriguez

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which added § 1227(a)(2)(E)(i) to the INA and made "a crime of child abuse, child neglect, or child abandonment" a deportable offense. Two years later, the BIA made a passing reference

896 F.3d 983

to § 1227(a)(2)(E)(i) in Rodriguez-Rodriguez , 22 I. & N. Dec. 991 (BIA 1999). At issue in that case was 8 U.S.C. § 1101(a)(43)(a), which makes "sexual abuse of a minor" an "aggravated felony" for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). The BIA held that Texas’s offense of indecency with a child was "sexual abuse of a minor" and thus an aggravated felony under § 1227(a)(2)(A)(iii), even though the Texas statute did not require physical contact with a child. The BIA reasoned that the term "sexual abuse of a minor," like the term "child abuse" in § 1227(a)(2)(E)(i), could refer to conduct that did not involve physical contact:

We note that in including child abuse as a ground of removal in section 237(a)(2)(E)(i) of the Act, Congress likewise did not refer to a particular statutory definition, although in the same section it did designate a statutory definition for the term "crime of domestic violence." By its common usage, "child abuse" encompasses actions or inactions that also do not require physical contact. See [Child Abuse , BLACK’S LAW DICTIONARY (6th ed. 1990) ] (defining child abuse as "(a)ny form of cruelty to a child’s physical, moral or mental well-being").

Id. at 996. Rodriguez ’s passing reference to child abuse was dictum and did not purport to offer a precedential interpretation of what constitutes a crime of child abuse, neglect, or abandonment under § 1227(a)(2)(E)(i).

For several years following Rodriguez , the BIA never interpreted the phrase "a crime of child abuse, child neglect, or child abandonment" in a precedential opinion, and its unpublished decisions on the subject were equivocal. Some unpublished decisions during this period stated that "child abuse" means "the physical or mental injury, sexual abuse or exploitation, or negligent treatment of a child." In re Palfi , 2004 WL 1167145 (BIA 2004) ; In re Baez-Cazarez , 2004 WL 2952229 (BIA 2004). Other unpublished decisions hewed to the Black’s Law Dictionary definition of "child abuse" as "any form of cruelty to a child’s physical, moral or mental well-being." In re Pacheco Fregozo , 2005 WL 698590 (BIA 2005) ; In re Maltez-Salazar , 2005 WL 952489 (BIA 2005) ; In re Manzano-Hernandez , 2005 WL 698392 (BIA 2005). In short, the BIA’s interpretation of a crime of child abuse, neglect, or abandonment was unclear at this time.

B. Velazquez-Herrera

In 2006, we considered the BIA’s holding that a conviction for assaulting a child under Washington’s fourth-degree assault statute was a crime of child abuse. Velazquez-Herrera v. Gonzales , 466 F.3d 781 (9th Cir. 2006). We recognized that the BIA had previously used at least two definitions of "child abuse," which were "not entirely consistent" with each other. Id. at 783. We held that the "cruelty" definition cited in Rodriguez ’s dictum was not "a statutory interpretation that carries the ‘force of law’ " and accordingly remanded "to allow the BIA in the first instance to settle upon a definition of child abuse in a precedential opinion." Id. at 782–83.1

The BIA followed our instructions and, in May 2008, issued its first precedential

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interpretation of what constitutes a crime of child abuse. Velazquez , 24 I. & N. Dec. 503. The BIA reasoned that, although § 1227(a)(2)(E)(i) defined "a crime of domestic violence," "other operative terms, including ‘crime of child abuse,’ were left undefined, triggering the negative inference that Congress deliberately left them open to interpretation." Id. at 508. The BIA further observed that, "[i]n view of the fact that [ § 1227(a)(2)(E)(i) ] is the product of a significant expansion of the grounds of deportability and was aimed at facilitating the removal of child abusers in particular," Congress intended a crime of child abuse to be interpreted "broadly in this context." Id. at 509.

The BIA considered various federal statutes defining "child abuse" and related concepts as of the date Congress enacted IIRIRA and found that "the...

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11 practice notes
  • Matthews v. Barr, Docket No. 16-3145
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 18, 2019
    ...its limits remain unclear. Guzman v. Holder , 340 F. App'x 679 (2d Cir. 2009) (summary order); see also Martinez-Cedillo v. Sessions , 896 F.3d 979, 999 (9th Cir. 2018) (Wardlaw, J. , dissenting) (outlining history of BIA’s changing position and opining that Board’s failure "to define the p......
  • Szonyi v. Barr, No. 15-73514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 13, 2019
    ...factor favors non-retroactive application because deportation is unquestionably a substantial burden." Martinez-Cedillo v. Sessions , 896 F.3d 979, 994 (2018). The government argues Szonyi would be removable even under the Ninth Circuit’s single-scheme jurisprudence. But there is "a clear d......
  • United States v. Flores, No. 16-50096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 28, 2018
    ...of most States." Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; cf. Martinez-Cedillo v. Sessions , 896 F.3d 979, 1005–06 (9th Cir. 2018) (Wardlaw, J., dissenting). Furthermore, the BIA's decision is stable and specific. Cf. Valenzuela Gallardo v. Lynch......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...Judge Callahan WATFORD, Circuit Judge:12 F.4th 1128 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 ne......
  • Request a trial to view additional results
11 cases
  • Matthews v. Barr, Docket No. 16-3145
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 18, 2019
    ...its limits remain unclear. Guzman v. Holder , 340 F. App'x 679 (2d Cir. 2009) (summary order); see also Martinez-Cedillo v. Sessions , 896 F.3d 979, 999 (9th Cir. 2018) (Wardlaw, J. , dissenting) (outlining history of BIA’s changing position and opining that Board’s failure "to define the p......
  • Szonyi v. Barr, No. 15-73514
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 13, 2019
    ...factor favors non-retroactive application because deportation is unquestionably a substantial burden." Martinez-Cedillo v. Sessions , 896 F.3d 979, 994 (2018). The government argues Szonyi would be removable even under the Ninth Circuit’s single-scheme jurisprudence. But there is "a clear d......
  • United States v. Flores, No. 16-50096
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 28, 2018
    ...of most States." Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; cf. Martinez-Cedillo v. Sessions , 896 F.3d 979, 1005–06 (9th Cir. 2018) (Wardlaw, J., dissenting). Furthermore, the BIA's decision is stable and specific. Cf. Valenzuela Gallardo v. Lynch......
  • Diaz-Rodriguez v. Garland, 13-73719
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 10, 2021
    ...Judge Callahan WATFORD, Circuit Judge:12 F.4th 1128 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 ne......
  • Request a trial to view additional results

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