Background
Martin Leon-Briviesca, a Mexican national present in the United States since 1979, was convicted in 2010 of “cruelty to a child” under California Penal Code § 273a(a) — arising from an assault on a 17-year-old who had sought his counsel as her minister — and charged as removable under 8 U.S.C. § 1227(a)(2)(E)(i), which renders deportable any alien convicted of “a crime of child abuse, child neglect, or child abandonment.” Sotero Rivera-Mendoza, also a Mexican national, pleaded guilty in 2010 to two counts of child neglect under Oregon Revised Statute § 163.545 after leaving his two- and three-year-old children unattended at home for roughly 40 minutes; DHS used those convictions to bar him from cancellation of removal. Both petitioners challenged their respective Board of Immigration Appeals rulings before the Ninth Circuit.
The cases arrived against a complicated doctrinal backdrop. The Ninth Circuit’s earlier en banc decision in Diaz-Rodriguez v. Garland, 55 F.4th 697 (9th Cir. 2022), had upheld — under Chevron deference — the BIA’s interpretation that § 1227 reaches criminally negligent child endangerment. The Supreme Court vacated that decision and remanded for reconsideration in light of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which overruled Chevron and directed courts to exercise independent judgment in construing statutes rather than deferring to agency interpretations. The Ninth Circuit then terminated the Diaz-Rodriguez en banc proceedings and assigned the question to this three-judge panel.
The petitioners pressed three arguments: that § 1227 does not reach child endangerment (placing a child in danger without actual harm); that their state statutes of conviction demanded a lower mens rea or a different actus reus than the federal standard requires; and that the federal statute does not apply to defendants who are neither parents nor legal guardians of the child victim.
The Court’s Holding
Writing for the panel, Judge Callahan denied both petitions for review. Applying the traditional tools of statutory construction under Loper Bright — and according the BIA’s longstanding interpretation only Skidmore persuasive weight rather than Chevron deference — the court held that the “best reading” of § 1227(a)(2)(E)(i) is that it encompasses child endangerment. The panel drew on the statute’s structure (noting that child abandonment does not require physical injury, nor do stalking and protection-order violations listed in the same provision), on contemporaneous federal statutes using similar language (including the National Child Protection Act of 1993), and on agreement from the Fourth, Fifth, and Eleventh Circuits, all of which had concluded post-Loper Bright that § 1227 covers situations where no actual harm results.
The court further defined the generic federal offense: it requires (1) a mens rea of at least criminal negligence — drawn from the ordinary meaning of “neglect” as a crime and confirmed by sister-circuit authority — and (2) an actus reus of placing a child in a situation where the child’s person or health is endangered under circumstances or conditions likely to produce bodily or mental harm. The court also held that the statute is not limited to parents or legal guardians, rejecting the argument that care-giving status is an element of the federal generic offense.
Applying the categorical approach to each petitioner, the panel concluded that California Penal Code § 273a(a) and Oregon Revised Statute § 163.545 both categorically fit within § 1227. The court rejected Leon-Briviesca’s argument that § 273a(a) can be violated with a mens rea below criminal negligence and his void-for-vagueness challenge to the federal statute, and rejected Rivera-Mendoza’s argument that ORS § 163.545 does not require criminal negligence.
Key Takeaways
- After Loper Bright, courts must independently determine the best reading of § 1227(a)(2)(E)(i) rather than deferring to the BIA; the BIA’s interpretation retains persuasive, Skidmore-level weight, particularly where it has been consistent over time.
- Section 1227(a)(2)(E)(i) covers child endangerment — a conviction triggers deportability even if the child suffered no actual physical harm, provided the offense required at least criminal negligence and conduct placing a child in a situation likely to cause bodily or mental harm.
- The federal statute applies regardless of whether the defendant was the child’s parent, guardian, or any other caretaker.
- California Penal Code § 273a(a) and Oregon Revised Statute § 163.545 are categorically crimes of child abuse/neglect under § 1227, foreclosing removal relief for aliens convicted under those statutes.
- Judge Bumatay concurred in the judgment but rejected the majority’s “unitary concept” framework, arguing courts should treat each listed category (abuse, neglect, abandonment) as discrete but broadly defined.
Why It Matters
This decision resolves a question that divided the Ninth Circuit for years and that the Supreme Court effectively reopened by vacating Diaz-Rodriguez. By holding — now without reliance on Chevron — that child endangerment falls within § 1227(a)(2)(E)(i), the panel aligns the Ninth Circuit with the Fourth, Fifth, and Eleventh Circuits and forecloses a circuit split on the most consequential interpretive question: whether actual injury to the child is required. Non-citizens in the Ninth Circuit convicted of state child endangerment, neglect, or cruelty offenses will face the same removability exposure and bar to cancellation of removal as those convicted of more injurious child-abuse crimes.
The decision is also a significant post-Loper Bright data point for immigration practitioners. The court’s methodology — according Skidmore weight to a longstanding, consistent BIA interpretation while independently confirming it through text, structure, and contemporaneous federal statutes — illustrates how courts are rebuilding immigration-law doctrine without the Chevron scaffolding. Attorneys representing non-citizens with state child-welfare convictions should reassess exposure to § 1227 removal in light of this ruling’s categorical-approach analysis.