Appellate Case: 23-9552 Document: 010111058585 Date Filed: 05/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court RAUL ALEJANDRO MARISCAL- ORTIZ,
Petitioner, No. 23-9552 v. (Petition for Review)
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, Chief Judge, MATHESON, and EID, Circuit Judges. _________________________________
Raul Alejandro Mariscal Ortiz petitions for review of the Board of Immigration
Appeals’s (“BIA”) decision affirming an immigration judge’s (“IJ”) rulings (1) denying a
continuance to brief why his removal should be cancelled and (2) denying cancellation of
removal based on his Utah conviction for child abuse. Exercising jurisdiction under
8 U.S.C. § 1252, we deny the petition.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-9552 Document: 010111058585 Date Filed: 05/31/2024 Page: 2
I. BACKGROUND
A. Factual History
Mr. Mariscal, a native and citizen of Mexico, unlawfully entered the United States,
where he has been convicted of several crimes. Two are relevant here. In 2007, he pled
guilty to simple assault under Utah Code Ann. § 76-5-102 in a “case involv[ing] domestic
violence.” AR, Vol. 2 at 629; see id. at 629-31. In 2016, he pled no contest to class B
misdemeanor child abuse in violation of Utah Code Ann. § 76-5-109(3)(b).1
In 2018, the Department of Homeland Security charged Mr. Mariscal as
inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i).
B. Procedural History
IJ Proceedings
In February 2019, Mr. Mariscal appeared before an IJ and, through counsel,
conceded inadmissibility and applied for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1). The Government raised that Mr. Mariscal had “some convictions that
might possibly” affect his cancellation application, including “contempt of Court,
Obstruction of Justice, and Child Abuse.” AR, Vol. 1 at 82. The IJ informed
Mr. Mariscal that “[i]f [he] ha[d] some issues in his . . . criminal history,” it was his
“burden to show the Court that they [we]re not crimes involving moral turpitude or
otherwise disqualifying [him].” Id. Mr. Mariscal confirmed that he understood.
1 We refer throughout to the 2016 Utah Code, which applied to Mr. Mariscal’s child abuse conviction. The statute has not meaningfully changed.
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In September 2019, Mr. Mariscal appeared, through counsel, for a merits hearing
on his application. The Government argued Mr. Mariscal’s 2007 simple assault
conviction made him ineligible for cancellation and moved to deny his application
without a full merits hearing. The court commented that the 2016 child abuse conviction
was also disqualifying, and the Government agreed.
Mr. Mariscal then moved for a continuance to brief the prior-conviction issues.
The IJ denied Mr. Mariscal’s request for a continuance for lack of good cause, held he
was ineligible for cancellation of removal because of the simple assault and child abuse
convictions, and ordered him to be removed to Mexico.
BIA Proceedings
Mr. Mariscal appealed to the BIA, which issued a single-member decision
affirming the IJ. It dismissed Mr. Mariscal’s appeal, finalizing the IJ’s removal order.
See 8 C.F.R. § 1241.1(a). Mr. Mariscal timely petitioned for review, raising whether the
BIA erred by affirming the IJ’s denial of a continuance and whether his child abuse
conviction disqualified him for cancellation of removal.2
II. DISCUSSION
We address the issues in the order the IJ decided them.
2 The BIA did not address whether Mr. Mariscal’s simple assault conviction was disqualifying, and he does not raise the issue to this court.
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A. Continuance
The BIA did not abuse its discretion when it upheld the IJ’s denial of
Mr. Mariscal’s motion for a continuance.
Standard of Review and Legal Background
“We review the decision to deny a motion for continuance for abuse of
discretion.” Zamudio Arrayga v. Garland, No. 22-9549, 2023 WL 3410539, at *2
(10th Cir. May 12, 2023) (unpublished) (citing Jimenez-Guzman v. Holder, 642 F.3d
1294, 1297 (10th Cir. 2011)).3 “Only if the decision was made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis, will we grant the petition for review.” Jimenez-Guzman, 642 F.3d
at 1297 (alterations and quotations omitted). Because the BIA issued its own reasoning,
we do not review the IJ’s decision. See Miguel-Pena v. Garland, 94 F.4th 1145, 1153
(10th Cir. 2024); Zamudio Arrayga, 2023 WL 3410539, at *2.
An IJ “may grant a motion for continuance for good cause shown.” 8 C.F.R.
§ 1003.29. “[T]he denial of a motion for continuance is within the [IJ’s] discretion . . .
and will not be disturbed without a showing of actual prejudice or harm.” Matter of
Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983). The petitioner must “establish prejudice
from a denial of a continuance” by “‘specifically articulat[ing] the particular facts
involved or evidence [that] he would have presented, and otherwise fully explain how
3 All unpublished cases are cited as persuasive authority consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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denial of his motion fundamentally changed the result reached.’” Zamudio Arrayga,
2023 WL 3410539, at *3 (quoting Matter of Sibrun, 18 I. & N. Dec. at 357); Ramirez-
Canenguez v. Holder, 528 F. App’x 853, 855 (10th Cir. 2013) (unpublished).
Analysis
The BIA affirmed the IJ’s denial of Mr. Mariscal’s motion for a continuance.
It reasoned that Mr. Mariscal “d[id] not contest the fact that he sustained the 2016 [child
abuse] conviction . . . and ha[d] not explained what documents or argument he was
prevented from presenting or how they would have affected the result in this case.”
AR, Vol. 1 at 10.
The BIA did not abuse its discretion because Mr. Mariscal did not “specifically
articulate the particular facts involved or evidence which he would have presented” or
“otherwise fully explain how denial of his motion fundamentally changed the result
reached.” Zamudio Arrayga, 2023 WL 3410539, at *3 (quoting Matter of Sibrun,
18 I. & N. Dec. at 357); Ramirez-Canenguez, 528 F. App’x at 855. Nor has he done so
on appeal. He has thus failed to show the BIA’s decision was irrational, “inexplicably
departed from established policies, or rested on an impermissible basis.” Jimenez-
Guzman, 642 F.3d at 1297 (quotations omitted).
B. Cancellation of Removal
To be eligible for cancellation of removal, the petitioner must establish that he has
not been convicted of criminal offenses under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or
1227(a)(3). 8 U.S.C. § 1229b(b)(1)(C); see Lucio-Rayos v. Sessions, 875 F.3d 573, 501
(10th Cir. 2017). Section 1227(a)(2)(E)(i) lists “a crime of domestic violence, a crime of
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stalking, or a crime of child abuse, child neglect, or child abandonment.” The BIA
correctly denied cancellation of removal because Mr. Mariscal’s Utah child abuse
conviction is categorically a crime of child abuse under 8 U.S.C. § 1227(a)(2).
Standard of Review
“We review the BIA’s legal conclusions de novo” and its “factual findings for
substantial evidence.” Miguel-Pena, 94 F.4th at 1153. Whether a state conviction is
categorically a crime under 8 U.S.C. § 1227(a)(2) is a legal question we review de novo.
See Jimenez v. Sessions, 893 F.3d 704, 709 (10th Cir. 2018).
“When, as here, a single BIA member issues a reasoned decision addressing a
petitioner’s arguments on appeal, we confine our review to the BIA’s decision and will
not address the IJ’s decision except where the BIA has explicitly incorporated his
reasoning.” Miguel-Pena, 94 F.4th at 1153 (alterations and quotations omitted).
Categorical Approach
We use the “categorical approach” to decide whether a state conviction meets the
federal definition of a disqualifying criminal conviction under the Immigration and
Nationality Act (“INA”). Ibarra v. Holder, 736 F.3d 903, 907 (10th Cir. 2013). Under
that approach, “we compare the elements of the statute of conviction with the generic
federal definition of the crime to determine whether conduct that would satisfy the former
would necessarily also satisfy the latter.” Zarate-Alvarez v. Garland, 994 F.3d 1158,
1161 (10th Cir. 2021) (per curiam). In doing so, “we ignore [Mr. Mariscal]’s actual
conduct and examine only the minimum conduct needed for a conviction under the
relevant state law.” Id. (quotations omitted). We require the petitioner to show “a
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realistic probability, not a theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic [federal] definition.” Moncrieffe v. Holder, 569
U.S. 184, 191 (2013).
“[T]o determine the minimum conduct proscribed by the relevant [state] criminal
statute,” “we follow the decisions of the state’s highest court,” and “where that court has
not interpreted the provision . . . , we must predict how it would rule on the issue.”
De Leon v. Lynch, 808 F.3d 1224, 1230-31 (10th Cir. 2015).
Federal Generic Definition of Child Abuse and the Utah Crime of Class B Misdemeanor Child Abuse
a. Federal definition
Section 1227(a)(2)(E)(i) does not define “a crime of child abuse,” but the BIA and
this court have interpreted the phrase.
i. BIA
The BIA interprets “child abuse” in § 1227(a)(2)(E)(i) to include “any offense
involving [(1)] an intentional, knowing, reckless, or criminally negligent act or omission
that [(2)] [(a)] constitutes maltreatment of a child or . . . [(b)] impairs a child’s physical or
mental well-being.” Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, 517 (BIA 2008).
“[M]altreatment of a child” includes child endangerment offenses that do not
“requir[e] proof of actual harm or injury.” Matter of Soram, 25 I. & N. Dec. 378, 380-81
(BIA 2010) (quotations omitted). We have interpreted Matter of Soram to say that when
injury is not required, the statute must have “as an element of the crime, a sufficiently
high risk of harm to a child” to meet the federal definition. Zarate-Alvarez, 994 F.3d
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at 1163 (citing Matter of Soram, 25 I. & N. Dec. at 385); see also Matter of Mendoza
Osorio, 26 I. & N. Dec. 703, 710-11 (BIA 2016). To have a sufficiently high risk of
harm, “the statute must require proof of a ‘likelihood’ or ‘reasonable probability’ that a
child will be harmed, not a mere possibility or potential for harm.” Matter of Rivera-
Mendoza, 28 I. & N. Dec. 184, 187 (BIA 2020).
Matter of Soram held that a Colorado statute that prohibits “permitting [a] child to
be unreasonably placed in a situation that poses a threat of injury to the child’s life or
health” required a sufficiently high risk of harm. 25 I. & N. Dec. at 384-85 (quotations
omitted).
Matter of Mendoza Osorio held that a statute criminalizing “conduct likely to be
injurious to a child” also fell within the federal definition. 26 I. & N. Dec. at 711-12
(quotations omitted).
ii. Tenth Circuit
In Ibarra, we held that the BIA’s definition of a “crime of child abuse” was
“overinclusive” to the extent it covered “non-injurious criminally negligent conduct.”
736 F.3d at 907, 918. But we still accept the BIA’s conclusion in Matter of Soram that
§ 1227(a)(2)(E)(i) includes “state child-endangerment convictions for knowing or
reckless conduct that does not result in injury to the child, provided the state statute
requires, as an element of the crime, a sufficiently high risk of harm to a child.” Zarate-
Alvarez, 994 F.3d at 1164.
* * * *
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In summary, the case law is clear that, as relevant here, the federal definition of
child abuse includes recklessness mens rea coupled with (1) injurious conduct or (2) non-
injurious conduct, provided the state statute requires, as an element of the crime, a
sufficiently high risk of harm to a child.
b. Utah crime of misdemeanor child abuse
i. Mens rea
Under Utah Code Ann. § 76-5-109(3)(b), reckless child abuse is a class B
misdemeanor. A person acts “[r]ecklessly” “when he is aware of but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the result
will occur.” Utah Code Ann. § 76-2-103(3).
ii. Actus reus
The Utah statute criminalizes “inflict[ing] upon a child physical injury or . . .
caus[ing] or permit[ting] another to inflict physical injury upon a child.” Id. § 76-5-
109(3)(b). It defines “[p]hysical injury” as:
[A]n injury to or condition of a child which impairs the physical condition of the child, including: (i) a bruise or other contusion of the skin; (ii) a minor laceration or abrasion; (iii) failure to thrive or malnutrition; or (iv) any other condition which imperils the child’s health or welfare and which is not a serious physical injury as defined in Subsection (1)(f).
Id. § 76-5-109(1)(e).
The Utah Court of Appeals has analyzed the physical injury requirement in Utah
Code Ann. § 76-5-109(3)(b), (1)(e). The court held in Provo City v. Cannon, 994 P.2d
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206 (Utah Ct. App. 1999), that “actual physical impact on the child” is not required under
§ 76-5-109(1)(e)(iv). Id. at 210. It reasoned that the statute’s purpose was broad and that
the term “imperil” could be read to mean “endanger.” Id. at 209-10. It held that
“suspend[ing] an infant by his arms over a third-story balcony railing for several
minutes” “imperil[ed]” the child’s health or welfare. Id. In State v. Piep, 84 P.3d 850
(Utah Ct. App. 2004), the same court held that “a filthy house” “create[d] a condition that
imperil[ed] a child’s health or welfare.” Id. at 853.
In Ibarra, this court “examined the criminal laws of all fifty states and the District
of Columbia in effect in 1996 to determine the majority approach to crimes of child
abuse, abandonment, neglect, and endangerment.” 736 F.3d at 915. We said that Utah
Code Ann. § 76-5-109 “did not appear to criminalize child abuse, endangerment,
abandonment, or neglect . . . unless the child was injured.” Id. at 921 (citing § 76-5-
109(2) (1996), an earlier-dated statute with the same text as the 2016 version); see also
id. at 912 n.11 (explaining that § 76-5-109 “required an injury”).
Additional Procedural History
The BIA held that Mr. Mariscal was ineligible for cancellation of removal because
his child abuse conviction was categorically a crime of child abuse under 8 U.S.C.
§ 1227(a)(2)(E)(i). It reasoned that under the categorical approach, the Utah statute did
not sweep more broadly than the federal crime because it “ha[d] as elements a mens rea
of recklessness and [an actus reus of] physical injury to a child.” AR, Vol. 1 at 9.
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Mr. Mariscal argues Utah misdemeanor child abuse is broader than the federal
generic definition of child abuse, and therefore his conviction does not disqualify him
from cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C). We disagree.
a. Mens rea
Mr. Mariscal’s crime of conviction has a mens rea of recklessness. Utah Code
Ann. § 76-5-109(3)(b). That matches the generic federal definition: “[A] ‘knowingly or
recklessly’ mens rea is consistent with [the BIA’s] definition of a crime of child abuse
. . . .” Matter of Soram, 25 I. & N. Dec. at 383; see Zarate-Alvarez, 994 F.3d at 1164.
Mr. Mariscal’s contrary arguments fail.
First, he contends that we should read Borden v. United States, 141 S. Ct.
1817 (2021)—which held that a crime with a recklessness mens rea cannot qualify as a
“violent felony” under the Armed Career Criminal Act—to exclude crimes with a
recklessness mens rea from § 1227(a)(2)(E)(i). See Pet. Br. at 18-21. He argues that
“violent felony” is similar to “crime of violence,” as defined in 18 U.S.C. § 16(a).
Id. at 19. But Mr. Mariscal does not explain how this argument pertains to “crime of
child abuse” in the INA. Nor could he. The “crime of child abuse” in § 1227(a)(2)(E)(i)
has nothing to do with § 16(a), and Borden is distinguishable because, unlike the Armed
Career Criminal Act, the generic federal definition of child abuse here includes a
recklessness mens rea. Zarate-Alvarez, 994 F.3d at 1164.
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Second, Mr. Mariscal argues Utah’s standard for recklessness falls short of Matter
of Soram’s sufficiently high risk of harm standard. Pet. Reply Br. at 9. But this risk of
harm requirement concerns actus reus, not mens rea.
b. Actus reus
The Utah statute’s actus reus requirement also fits within the federal definition.
The statute requires at least actual endangerment, and Mr. Mariscal has not shown Utah
would prosecute less severe conduct.4
i. Scope of the Utah statute
In Ibarra, this court said Utah Code Ann. § 76-5-109(3)(b), (1)(e) “d[oes] not
appear to criminalize child . . . endangerment . . . unless the child was injured.” 736 F.3d
at 921 (citing § 76-5-109(2) (1996)); see also id. at 912 n.11 (explaining that § 76-5-109
“required an injury”). The BIA also interpreted the statute that way in its order, see AR,
Vol. 1 at 9,5 and under that reading, the statute is a categorical fit with the federal
definition of child abuse.
4 Mr. Mariscal also argues the Utah statute criminalizes omissions and the federal definition does not. Pet. Br. at 24. But in Matter of Velazquez-Herrera, the BIA interpreted § 1227(a)(2)(E)(i) to include “any offense involving an intentional, knowing, reckless, or criminally negligent act or omission” that harms a child. 24 I. & N. Dec. at 517 (emphasis added); accord Zarate-Alvarez, 994 F.3d at 1163. 5 The Utah Supreme Court has said that the “child abuse statute, Utah Code Ann., § 76-5-109 (Supp. 1994), requires only general physical injury to a child’s body (some forms of the offense do not even require touching, such as subsection 76-5-109(1)(c)(vii), (x) [(1994)], which refers to any conduct resulting in developmental delay, starvation, or failure to thrive).” State v. Lowder, 889 P.2d 412, 414 (Utah 1994).
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But even if § 76-5-109(1)(e)(iv) permits a conviction based on actual
endangerment without injury, see Cannon, 994 P.2d at 210; Piep, 84 P.3d at 853, it falls
within the federal definition because actual endangerment is “a sufficiently high risk of
harm,” Zarate-Alvarez, 994 F.3d at 1163.
The Eighth Circuit and the BIA have found a sufficiently high level of risk under
the categorical approach when a state statute requires a child be actually endangered. For
example, in Al-Masaudi v. Garland, 44 F.4th 1079 (8th Cir. 2022), the court held a
Nebraska statute that criminalized “plac[ing a child] in a situation that endangers his or
her life or physical or mental health” matched § 1227(a)(2)(E)(i) because “[t]he
‘endangers’ element of the [state] offense mean[t] ‘to expose a minor child’s life or
health to danger or the peril of probable harm or loss,’ and cover[ed] conduct which
presents the likelihood of injury to the child.” Id. at 1083 (citation and quotations
omitted). The BIA similarly held that a New York statute criminalizing acting “in a
manner likely to be injurious to the physical, mental or moral welfare of a child” had a
sufficiently high risk of harm to fit the federal definition of child abuse. Matter of
Mendoza Osorio, 26 I. & N. Dec. at 705, 711-12 (citation omitted).
The Utah statute sweeps no broader than the Nebraska or New York statutes.
Cannon held that “imperil” means “endanger.” 994 P.2d at 209 (quotations omitted).
And creating “a condition which imperils the child’s health or welfare,” Utah Code Ann.
§ 76-5-109(1)(e)(iv), necessarily exposes a child to a “reasonable probability” of injury,
Matter of Rivera-Mendoza, 28 I. & N. Dec. at 187, because § 76-5-109(1)(e)(iv) requires
“an injury to” or an “impair[ment] [of] the [child’s] physical condition.”
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Matter of Mendoza Osorio also recognized that only rarely would a state statute
include an insufficient risk of harm and therefore fall outside the federal definition.
See 26 I. & N. Dec. at 711. Its sole example was Cal. Penal Code § 273a(b), which
prohibits “conduct that places a child in a situation where his or her person or health may
be endangered.” Id. (quotations omitted). The BIA agreed with Fregozo v. Holder,
576 F.3d 1030 (9th Cir. 2009), which held that § 273a(b) was broader than the federal
definition because it “d[id] not require . . . any particular likelihood of harm.” Id. at
1037; Matter of Mendoza Osorio, 26 I. & N. Dec. at 711. Fregozo’s conclusion was
based in part on contrasting § 273a(b) with § 273a(a), which prohibits “caus[ing] or
permit[ting] [a] child to be placed in a situation where his or her person or health is
endangered.” Cal. Penal Code § 273a(a) (emphasis added); see Fregozo, 576 F.3d
at 1037-38.
The Utah statute does not include “may” or similar low-probability language.6 Its
“imperil” requirement corresponds to Cal. Penal Code § 273a(a)—not § 273a(b).
Cannon explained that “imperil” is the same as the endangerment requirement in People
v. Odom, 226 Cal. App. 3d 1028 (Cal. Ct. App. 1991). Cannon, 994 P.2d at 209 n.7.
Odom referenced Cal. Penal Code § 273a(a) and said the provision was “intended to
6 “May” and similar qualifying words do not necessarily take a statute outside the federal definition. See Matter of Rivera-Mendoza, 28 I. & N. Dec. at 187-88 (holding that a statute criminalizing an action that “may be likely to endanger the health or welfare of [a] child” matched the federal definition because state courts had interpreted the phrase to require “a showing of more than a mere possibility of, or potential for, harm” (quotations omitted)).
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protect children from situations in which the probability of serious injury is great.”
226 Cal. App. 3d at 1033 (quotations omitted).
ii. Mr. Mariscal’s argument
Mr. Mariscal responds only that “welfare” in § 76-5-109(1)(e)(iv) can be read
broadly to include “[f]ailing to provide for a comfortable living” or “placing an
unattended infant in the middle of a tall bed without a railing.” Pet. Br. at 23-26. His
argument fails for two reasons.
First, he must “at least point to his own case or other cases in which the [Utah]
courts in fact did apply the statute” to reach such conduct. Gonzales v. Duenas-Alvarez,
549 U.S. 183, 193 (2007). Even if we overlook his failure to cite any Utah cases, the
cases we have found—Cannon and Piep—do not support his position. In both, the
children were actually endangered and experienced a substantial risk of harm. In
Cannon, the defendant held an infant over a third-story balcony for several minutes.
994 P.2d at 210. And in Piep, the defendant forced children to live in “a filthy house
with a very foul odor, rotten and moldy food in and out of the refrigerator, a green
substance running out of the refrigerator onto the floor, garbage and food on the floor,
clothes everywhere, brown stains on the wall, and what appeared to be human feces.”
84 P.3d at 853. Both cases concerned actual endangerment and neither criminalized
placing a child at risk of a mere possibility of harm.7
7 Cannon noted that its holding aligned with Arizona and California endangerment law. 994 P.2d at 209 n.7 (citing State v. Deskins, 731 P.2d 104, 105-06 (Ariz. Ct. App. 1986); Odom, 226 Cal. App. 3d at 1032-33). The Arizona and California cases it cited also do not show that Utah would prosecute conduct threatening a child with less than
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Second, the word “welfare” is not used in isolation. The statute reads: “‘Physical
injury’ means an injury to or condition of a child which impairs the physical condition of
the child, including: . . . any other condition which imperils the child’s health or welfare
. . . .” Utah Code Ann. § 76-5-109(1)(e)(iv). Conduct that “imperils [a] child’s . . .
welfare” must still constitute “an injury to” or an “impair[ment] [of] the [child’s] physical
condition.” Id.
Because the Utah statute includes a recklessness mens rea and an actus reus
requiring endangerment with a sufficient risk of harm, Mr. Mariscal’s Utah child abuse
conviction is categorically a crime of child abuse under 8 U.S.C. § 1227(a)(2).
III. CONCLUSION
We deny the petition for review.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge
actual endangerment. In Deskins, an Arizona court held that forcing children to “sle[e]p[] outside at night” was not actual endangerment but subjecting the child to extremely “unsanitary conditions” was. 731 P.2d at 105-06. And in Odom, the home was extremely unsanitary and had many “potential perils” for children, including access to loaded weapons and insecure chemicals storage. 226 Cal. App. 3d at 1033.