Reported / Citable
Background
Two immigration cases were consolidated by the Ninth Circuit to address a question left unresolved after the Supreme Court dismantled Chevron deference in 2024: what exactly is a “crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i), the immigration statute that makes certain noncitizens removable based on child-related criminal convictions?
Martin Leon-Briviesca, a Mexican citizen who had lived in the United States since 1979, was convicted in Los Angeles County Superior Court under California Penal Code § 273a(a) for cruelty to a child — arising from an assault on a 17-year-old who had sought his pastoral guidance. Sotero Rivera-Mendoza, also a Mexican citizen, was convicted in Oregon for child neglect after he and his wife left their two- and three-year-old children sleeping alone at home while they went to Walmart. Both were found removable by immigration courts on the ground that their convictions constituted crimes of child abuse under § 1227.
The legal landscape had been unstable. The Ninth Circuit’s prior en banc ruling in Diaz-Rodriguez (2022) had applied Chevron deference to the Board of Immigration Appeals’ broad interpretation of the statute. The Supreme Court vacated that decision after its 2024 Loper Bright ruling overruled Chevron and directed courts to interpret statutes independently. The Ninth Circuit terminated its en banc proceedings in Diaz-Rodriguez and allowed this panel to address the question fresh.
The Court’s Holding
The Ninth Circuit panel, applying traditional statutory interpretation tools without Chevron deference, established a four-part definition of a “crime of child abuse, child neglect, or child abandonment” under § 1227: (1) it covers child endangerment situations where a minor is placed in danger but not actually harmed; (2) it requires a mens rea of at least criminal negligence — intentional, knowing, reckless, or criminally negligent conduct all qualify; (3) it requires 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; and (4) it applies to any person who endangered the child, not just parents or legal guardians.
Applying this standard, the panel concluded that California Penal Code § 273a(a) — which criminalizes willful conduct placing a child in a situation likely to cause great bodily injury or death, as well as criminally negligent endangerment — categorically falls within § 1227. Leon-Briviesca’s conviction therefore rendered him removable. Similarly, Oregon’s child neglect statute met the federal definition, and Rivera-Mendoza’s conviction barred him from cancellation of removal.
Judge Bumatay concurred in the judgment but wrote separately to disagree with the majority’s analytical approach, arguing that the three named categories (child abuse, child neglect, child abandonment) should each be defined broadly and independently rather than combined into a unitary concept.
Key Takeaways
- Post-Loper Bright, courts are no longer bound by BIA interpretations of immigration statutes like § 1227 — they apply independent judgment, which this panel used to largely reaffirm (though without deference) the BIA’s broad reading.
- California Penal Code § 273a(a) — cruelty to a child — is categorically a crime of child abuse for federal immigration removal purposes, even under the least-culpable conduct the statute covers.
- A conviction under § 273a(a) can make a noncitizen removable and ineligible for cancellation of removal — immigration counsel should flag any § 273a conviction at intake as potentially triggering § 1227.
- The statute covers child endangerment (danger without actual harm) and applies whether or not the defendant was the child’s parent or guardian, expanding its reach to caregivers, teachers, religious leaders, and others.
- The Ninth Circuit’s independent statutory analysis aligns with the Fourth, Fifth, and Eleventh Circuits on the key elements — this is now well-settled law across most circuits, reducing the likelihood of further en banc reconsideration in the near term.
Why It Matters
This is a significant immigration decision for California practitioners. California has a large noncitizen population, and § 273a(a) charges arise in a wide range of factual situations — from DUI with a child in the vehicle to inadequate supervision to physical discipline cases. After this ruling, immigration counsel must treat any § 273a(a) conviction as carrying a high likelihood of triggering federal removal proceedings under § 1227. The post-Loper Bright framing is also noteworthy: the panel conducted its own de novo analysis but reached roughly the same result as the BIA, signaling that the transition away from Chevron deference may not dramatically liberalize immigration law even where it was theoretically possible.
Criminal defense attorneys representing noncitizen clients should be aware that § 273a charges carry collateral immigration consequences that may outweigh the criminal penalties. Plea negotiations in child abuse, neglect, or endangerment cases should carefully consider whether alternative charges would avoid the § 1227 removal trigger — and immigration counsel should be involved in that analysis from the start.