Zarate-Alvarez v. Garland

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court VICTOR ZARATE-ALVAREZ,

Petitioner,

v. No. 19-9570 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER _________________________________

Before HARTZ, SEYMOUR, and MURPHY, Circuit Judges. _________________________________

This matter is before the court on Respondent’s Motion for Publication of the

Court’s March 23, 2021 Opinion. Upon consideration, the motion is granted. The

published opinion, filed nunc pro tunc to the original filing date, is attached to this order.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

 Pursuant to Fed. R. App. P. 43(c)(2) Merrick B. Garland is substituted for William P. Barr, former Attorney General, as respondent in this matter. FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 23, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

VICTOR ZARATE-ALVAREZ,

v. No. 19-9570

MERRICK B. GARLAND, United States Attorney General,

Petition for Review of an Order from the Board of Immigration Appeals _________________________________

Submitted on the briefs:**

Shawn D. Meade, Esq., Denver, Colorado, on the brief for Petitioner.

Joseph H. Hunt, Assistant Attorney General, Civil Division; Jennifer J. Keeney, Assistant Director; Erica B. Miles, Senior Litigation Counsel, Criminal Immigration Team, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., on the brief for Respondent. _________________________________

Before HARTZ, SEYMOUR, and MURPHY, Circuit Judges.

 Pursuant to Fed. R. App. P. 43(c)(2) Merrick B. Garland is substituted for William P. Barr, former Attorney General, as respondent in this matter. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Accordingly, this court entered an order on March 11, 2021, submitting the case without oral argument. _________________________________

PER CURIAM. _________________________________

Victor Zarate-Alvarez, a native and citizen of Mexico, seeks review of a Board

of Immigration Appeals (BIA) decision denying his application for cancellation of

removal. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition.

Background

Zarate pleaded guilty to knowing or reckless child abuse in violation of Colo.

Rev. Stat. § 18-6-401(1)(a), (7)(b)(I). Several years later, the Department of

Homeland Security initiated removal proceedings, charging him with removability

under 8 U.S.C. § 1182(a)(6)(A)(i) of the Immigration and Nationality Act (INA)

because he was present without having been admitted or paroled. Zarate conceded

removability and filed an application for cancellation of removal under 8 U.S.C.

§ 1229b(b).

After a hearing, an Immigration Judge (IJ) denied the application, concluding

that Zarate is ineligible for cancellation under § 1229b(b)(l)(C) because his state

child abuse conviction constitutes “a crime of child abuse, child neglect, or child

abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i). The BIA agreed

with the IJ’s determination and dismissed Zarate’s appeal.

Discussion

Zarate challenges the Board’s decision on two grounds. First, he argues that

the BIA’s most recent interpretations of § 1227(a)(2)(E)(i) are not entitled to

2 deference. Second, he argues that his state conviction is not a categorical match to a

“crime of child abuse” as defined by the Board. We reject both arguments.

1. Jurisdiction and Standard of Review

We do not have jurisdiction to review the BIA’s discretionary determinations

under § 1229b regarding applications for cancellation of removal, § 1252(a)(2)(B)(i),

but we do have jurisdiction to review questions of law arising in removal

proceedings, § 1252(a)(2)(D); see also Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,

1067 (2020) (interpreting § 1252(a)(2)(D) to allow review of “application of a legal

standard to undisputed or established facts”); Shepherd v. Holder, 678 F.3d 1171,

1179 (10th Cir. 2012) (holding that § 1252(a)(2)(D) allows review of issues of

statutory construction).

We review de novo the BIA’s conclusions on questions of law, including

whether a particular state conviction results in ineligibility for discretionary relief.

Ibarra v. Holder, 736 F.3d 903, 910 (10th Cir. 2013). Where, as here, the INA refers

to generic crimes, we apply the categorical approach to determine whether a state

conviction falls within the generic federal definition. Id. at 907. Under the

categorical 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.1 Moncrieffe v. Holder,

1 Zarate refers to the “modified categorical approach” in his appellate brief. See Aplt. Br. at 14-15. We would employ the modified categorical approach if Zarate had been convicted under a “divisible” state statute. Descamps v. United States, 570 U.S. 254, 257 (2013). But neither Zarate nor the Attorney General 3 569 U.S. 184, 190 (2013). In making that comparison, we ignore the petitioner’s

actual conduct and examine “only the minimum conduct needed for a conviction

under the relevant state law.” Ibarra, 736 F.3d at 907. We follow the decisions of

the state’s highest court in identifying the minimum conduct proscribed by the

relevant criminal statute. De Leon v. Lynch, 808 F.3d 1224, 1230 (10th Cir. 2015).

Where a statute is silent or ambiguous on the relevant question, we apply

Chevron deference to the Board’s interpretation of the statute it is charged with

administering. Ibarra, 736 F.3d at 910; see Chevron, U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 843-45 (1984). Under Chevron, we defer to the

Board’s precedential decisions if its “interpretation is not arbitrary, capricious, or

manifestly contrary to the statute.” Efagene v. Holder, 642 F.3d 918, 920 (10th Cir.

2011). The question for the court “is not whether [the agency’s interpretation]

represents the best interpretation of the statute, but whether it represents a reasonable

one.” Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 744-45 (1996); see also

Chevron, 467 U.S. at 866 (“When a challenge to an agency construction of a

statutory provision, fairly conceptualized, really centers on the wisdom of the

agency’s policy, rather than whether it is a reasonable choice within a gap left open

by Congress, the challenge must fail.”).

contends that the Colorado statute under which he was convicted is divisible, so we do not consider whether we should apply the modified categorical approach. 4 2. The Board’s Interpretation of § 1227(a)(2)(E)(i)

Under § 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if he

has been convicted of one of the crimes listed in § 1227(a)(2), including “a crime of

child abuse, child neglect, or child abandonment,” 8 U.S.C. § 1227(a)(2)(E)(i). The

INA does not define “a crime of child abuse, child neglect, or child abandonment,”

and the BIA’s interpretation of that term has evolved over the years since

§ 1229b(b)(1)(C) was adopted. See Ibarra, 736 F.3d at 908-10.

As an initial matter, we reject Zarate’s contention that our analysis should be

guided by the BIA’s decision in In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991

(BIA 1999). Before the BIA decided Matter of Velazquez-Herrera, 24 I. & N. Dec.

503 (BIA 2008)—its first precedential decision interpreting § 1227(a)(2)(E)(i)—it

referred to § 1227(a)(2)(E)(i) in Rodriguez-Rodriguez in the context of interpreting

8 U.S.C. § 1101(a)(43)(a), which makes “sexual abuse of a minor” a removable

“aggravated felony” for purposes of § 1227(a)(2)(A)(iii). Rodriguez-Rodriguez,

22 I. & N. Dec. at 996. The BIA held that a state offense of indecency with a child

was “sexual abuse of a minor” and thus an aggravated felony, even though the state

statute did not require physical contact with a child. Id. at 995-96. It 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. 22 I. & N. Dec. at 996.

But the BIA’s reference to child abuse in its definition of “sexual abuse of a minor”

did not purport to offer a precedential interpretation of what constitutes “a crime of

child abuse, child neglect, or child abandonment” under § 1227(a)(2)(E)(i).

5 We recognize that we relied on Rodriguez-Rodriguez in deciding whether a

state conviction was a deportable child abuse offense in Ochieng v. Mukasey,

520 F.3d 1110, 1114-15 (10th Cir. 2008). Contrary to Zarate’s contention, however,

our reliance on Rodriguez-Rodriguez before the Board issued precedential decisions

directly interpreting § 1227(a)(2)(E)(i) does not preclude our reliance now on the

BIA’s more recent decisions. Thus, we are not, as Zarate urges, bound by a

definition of “child abuse” rooted in cruelty, see Rodriguez-Rodriguez, 22 I. & N.

Dec. at 996 (referring to the then-Black’s Law Dictionary definition of “child abuse”

as including “any form of cruelty to a child’s physical, moral or mental well-being”

(brackets and internal quotation marks omitted)). See Chevron, 467 U.S. at 863-64

(explaining that “[a]n initial agency interpretation is not instantly carved in stone”

and that “to engage in informed rulemaking, [the agency] must consider varying

interpretations and the wisdom of its policy on a continuing basis”).

The precedential BIA decisions interpreting § 1227(a)(2)(E)(i) are Matter of

Velazquez-Herrera, Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), and Matter of

Mendoza Osorio, 26 I. & N. Dec. 703 (BIA 2016). Those decisions explore the

boundaries of “a crime of child abuse” both in terms of the mens rea requirement and

the actus reus requirement, which in this context means the extent to which the

petitioner’s conduct must cause injury to or present a risk of harm to the child.

In Velazquez-Herrera, the BIA interpreted the term “crime of child abuse” to

mean “any offense involving an intentional, knowing, reckless, or criminally

6 negligent act or omission that constitutes maltreatment of a child or that impairs a

child’s physical or mental well-being.” 24 I. & N. Dec. at 512.

Then, in Soram, the BIA determined that Velazquez-Herrera’s definition is

broad enough to include the same Colorado child-endangerment statute at issue here,

even though it criminalizes conduct that does not result in actual injury to a child.

Soram, 25 I. & N. Dec. at 381, 383. Soram’s definition is expansive but not

unlimited: for a conviction under a state child-endangerment statute to qualify as a

“crime of child abuse,” the statute must require, as an element of the crime, a

sufficiently high risk of harm to a child. See id. at 385 (holding that Colorado’s

child-endangerment statute is a “crime of child abuse” in part because “[p]ermitting a

child to be placed in a situation posing a threat involving less than a reasonable

probability of injury” is not “punishable as child abuse” under the Colorado statute

(internal quotation marks omitted)). The BIA has not identified a specific minimum

risk level required for a child-endangerment conviction to qualify as “a crime of child

abuse” under the INA. But in Mendoza Osorio, it embraced the view that a statute

that does not “require . . . any particular likelihood of harm to a child” would not

include “a sufficiently high risk of harm to a child” to qualify as INA child abuse.

26 I. & N. Dec. at 711 (internal quotation marks omitted).

3. The BIA’s Denial of Zarate’s Application for Cancellation of Removal

The decision whether Zarate’s statute of conviction constitutes a deportable

“crime of child abuse” sits at the intersection of the Board’s decisions regarding the

required mens rea and the required level of risk to the child. His statute of

7 conviction prohibits “knowingly or recklessly” “permit[ting] a child to be

unreasonably placed in a situation that poses a threat of injury to the child’s life or

health.” Colo. Rev. Stat. § 18-6-401(1)(a), (7)(b)(1); see also 1985 Colo. Sess. Laws,

ch. 154, at 672-73 (reflecting amendments defining Zarate’s offense).

Relying on Velazquez-Herrera, Soram, and Mendoza Osorio, the BIA

concluded that Zarate’s conviction is “a crime of child abuse” under

§ 1227(a)(2)(E)(i). It noted its prior decisions holding that non-injurious conduct

that poses an unreasonable risk of harm to a child can constitute “a crime of child

abuse” and that in Soram it held that a conviction under the same subsection of the

Colorado statute at issue here “is categorically a crime of child abuse” under

§ 1227(a)(2)(E)(i) because “the knowingly or reckless mens rea is consistent with

[the Board’s] definition of a crime of child abuse.” Admin. R. at 3 (emphasis added,

internal quotation marks omitted). The BIA thus affirmed the IJ’s determination that

Zarate’s state conviction was a removable offense that rendered him ineligible for

cancellation of removal.

4. The Board’s Interpretation of § 1227(a)(2)(E)(i) as Including Child-Endangerment Convictions for Reckless or Knowing Non-Injurious Conduct is Entitled to Chevron Deference

Ibarra was our first opportunity to address the BIA’s definition of a crime of

child abuse. The issue there was whether a Colorado child abuse conviction under

Colo. Rev. Stat. § 18-6-401(7)(b)(II)—a different subsection of the statute at issue

here, which criminalizes negligent conduct and omissions that create a reasonable

probability of harm but result in no injury to the child—was “a crime of child abuse,

8 child neglect, or child abandonment” under § 1227(a)(2)(E)(i). See Ibarra, 736 F.3d

at 908. Based on its decisions in Velazquez-Herrera and Soram, the BIA determined

that it was. See id. at 909. We recognized that the INA does not define “a crime of

child abuse” in § 1227(a)(2)(E)(i) and that because the “statutory text [] contain[s]

some ambiguity,” the BIA’s precedential decisions interpreting it were candidates for

Chevron deference. Ibarra, 736 F.3d at 910 (emphasis omitted). But we declined to

defer to the BIA’s interpretation of § 1227(a)(2)(E)(i) as including “non-injurious

criminally negligent conduct,” noting that it was an interpretation rooted in civil, not

criminal definitions of child abuse, which do not include a mens rea requirement, and

that when Congress enacted § 1227(a)(2)(E)(i), a majority of states “did not

criminalize such conduct.” Ibarra, 736 F.3d at 917-18.

Contrary to Zarate’s contention, Ibarra does not require reversal here simply

because the Board cited Velazquez-Herrera and Soram in support of its denial of his

application.2 In Ibarra, we determined only that the Board’s definition of “a crime of

child abuse, child neglect, or child abandonment” was “overinclusive” because it

covered “non-injurious criminally negligent conduct.” Id. at 918. Our decision not

to defer to the Board’s definition in Ibarra does not preclude us from doing so here

because we are faced with an entirely different question than the one raised in Ibarra.

Specifically, although the state convictions at issue here and in Ibarra were obtained

2 Zarate’s argument opposing deference focuses on Velazquez-Herrera. His brief does not acknowledge Soram, which interpreted his statute of conviction and which the IJ and BIA both relied on in denying his application. Despite Zarate’s failure to address it, we assume he objects to any deference to Soram as well. 9 under statutes that did not require injury to a child, Zarate’s conviction included the

mens rea requirement that was missing in Ibarra and that drove our determination

that the Board’s interpretation of § 1227(a)(2)(E)(i) was unreasonably broad.

As pertinent to the issue before us, the Board’s decisions define “a crime of

child abuse, child neglect, or child abandonment” as including 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. See Mendoza Osorio, 26 I. & N. Dec. at

711. We conclude that this definition is a reasonable construction of

§ 1227(a)(2)(E)(i). It is consistent with Congress’ “inten[t] to make only crimes of

child abuse, child neglect, and child abandonment deportable” offenses, Ibarra,

736 F.3d at 912, and the combination of the required mens rea and required risk level

places a reasonable limitation on the offenses that constitute “child abuse” under the

INA. Accordingly, we defer to this aspect of the Board’s definition, as have our

sister circuits that have considered whether state child-endangerment convictions are

removable offenses under § 1227(a)(2)(E)(i). See, e.g., Zhi Fei Liao v. Att’y Gen.,

910 F.3d 714, 722 (3d Cir. 2018); Florez v. Holder, 779 F.3d 207, 212-14 (2d Cir.

2015).3

3 The Second Circuit recently reaffirmed its deference to the Board’s definition in a child-endangerment case involving knowing conduct and a likelihood of harm but no actual harm to the child. See Matthews v. Barr, 927 F.3d 606, 610, 613-16 (2d Cir. 2019), cert. denied, 141 S. Ct. 158 (2020). 10 5. Zarate’s Child Abuse Conviction is a Categorical Match

As long as all conduct criminalized under § 18-6-401(1)(a), (7)(b)(I), as

interpreted by the Colorado Supreme Court, satisfies the elements of the generic

federal definition, it is categorically a “crime of child abuse, child neglect, or child

abandonment” rendering Zarate statutorily ineligible for cancellation of removal. See

Moncrieffe, 569 U.S. at 190; Ibarra, 736 F.3d at 907.

Relying on the BIA’s decision in Rodriguez-Rodriguez, which we have already

explained does not apply here, Zarate maintains that his conviction is not a

categorical match because it “does not include in the elements any offense which

would be considered cruelty to a child.” Aplt. Br. at 13-14. More specifically, he

maintains his state conviction is not “a crime of child abuse” within the meaning of

§ 1227(a)(2)(E)(i) because the state statute does not require intentional conduct and

actual injury to the child. See id. at 16-17.

In Soram, the BIA compared the elements of the same Colorado statute to its

definition of “a crime of child abuse” and determined that it is a categorical match.

See 25 I. & N. Dec. at 385-86. In doing so, it analyzed Colorado Supreme Court

decisions describing the minimum conduct proscribed by the statute, including the

meaning of “knowingly” and “recklessly,” and the risk level required to find that a

defendant “unreasonably placed [a child] in a situation that poses a threat of injury.”

See id. (holding that Colorado’s child-endangerment statute is categorically a “crime

of child abuse” under the INA, in part because Colorado Supreme Court cases

11 interpret the risk of harm element as requiring at least “a reasonable probability of

injury” (internal quotation marks omitted)).

Although we do not defer to the BIA’s interpretations of the substance of the

state law offense at issue, see Efagene, 642 F.3d at 921, Zarate does not challenge the

BIA’s decision on that basis, so we need not address it at length here. We have,

however, conducted our own review of the applicable state law and we agree with the

Board’s determination that the minimum conduct proscribed by the Colorado statute

as interpreted by the Colorado Supreme Court is a categorical match for the generic

federal definition. Zarate’s conviction does not fall within the “criminally negligent”

aspect of the Board’s definition of a crime of child abuse, which is what we deemed

unreasonable in Ibarra. Instead, by its plain language, the Colorado statute requires

knowing or reckless conduct that presents a real risk of harm to a child’s physical or

mental well-being. See People v. Weinreich, 119 P.3d 1073, 1078 (Colo. 2005)

(recognizing that “a reasonable probability that the child’s life or health will be

endangered” is an element of the offense (internal quotation marks omitted)); see

also id. at 1080 (Coats, J., dissenting) (“the 1985 amendments at issue here expressly

codified the ‘reasonable probability’ [requirement] by predicating criminal liability

on the child being ‘unreasonably’ placed in a situation that poses a threat.”). Zarate’s

conviction thus falls squarely within the portion of the Board’s definition that we

have decided is entitled to Chevron deference. See Mendoza Osorio, 26 I. & N. Dec.

at 706 (elements of state child endangerment statute, which included “a knowing

mental state coupled with an act or acts creating a likelihood of harm to a child[,] fit

12 within [BIA’s] definition of a ‘crime of child abuse, child neglect, or child

abandonment’”); see also Matthews, 927 F.3d at 618-23 (child-endangerment

conviction under state statute prohibiting “knowingly act[ing] in a manner likely to

be injurious to the physical, mental, or moral welfare of a child” was a categorical

match for generic federal definition of child abuse (internal quotation marks

omitted)); Florez, 779 F.3d at 209 (same).

Conclusion

For the foregoing reasons, we deny the petition for review.