FOR THE NINTH CIRCUIT

RAFAEL DIAZ-RODRIGUEZ, No. 13-73719

Petitioner, Agency No. A093-193-920

v. OPINION MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted En Banc June 22, 2022 Pasadena, California Before: Mary H. Murguia, Chief Judge, and M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Consuelo M. Callahan, Milan D. Smith, Jr., Sandra S. Ikuta, Daniel P. Collins, Patrick J. Bumatay, Lucy H. Koh and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Ikuta; Concurrence by Judge Collins; Dissent by Judge Wardlaw SUMMARY *

Immigration

Denying Rafael Diaz-Rodriguez’s petition for review of a Board of Immigration Appeals’ decision in which the BIA concluded that he was removable under 8 U.S.C. § 1227(a)(2)(E)(i) for having committed a “crime of child abuse, child neglect, or child abandonment,” the en banc court concluded that the BIA did not err in concluding that a conviction under California Penal Code section 273a(a) qualifies as an offense under § 1227(a)(2)(E)(i).

Diaz-Rodriguez was convicted under section 273a(a) of the California Penal Code for willfully permitting a child under his care or custody to be “placed in a situation where his or her person or health is endangered” “under circumstances or conditions likely to produce great bodily harm or death.” The IJ and BIA concluded that this conviction rendered Diaz-Rodriguez was removable under 8 U.S.C. § 1227(a)(2)(E)(i).

Applying the categorical approach to determine whether section 273a(a) is a match to § 1227(a)(2)(E)(i), the en banc court first looked to California courts’ construction of section 273a(a) and concluded that the least of the acts criminalized by that section requires proof that a defendant [1] had care or custody of a child, whether or not a parent or legal guardian; and [2] with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; [3] purposely put the child into an abusive situation in which the probability of serious injury was great.

Turning to the federal generic crimes encompassed by the phrase “child abuse, child neglect, or child abandonment,” a plurality of the en banc court concluded that the normal tools of statutory construction do not lead to an unambiguous interpretation. Because § 1227(a)(2)(E)(i) does not provide a definition, or cross- reference a criminal statute, the plurality of the en banc court reviewed dictionary definitions contemporaneous with the provision’s enactment, explaining that some definitions of “child abuse” included offenses that do not cause injury and are

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. committed with negligence, while others contemplated intentional conduct and injury. The dictionaries also did not limit the definition of “child neglect” to conduct committed by a parent or legal guardian. The plurality further explained that the surrounding provisions of the Immigration and Nationality Act (INA), and definitions in other federal statutes, are likewise inconclusive. Moreover, the plurality concluded that a survey of relevant state statutes did not reveal a uniform approach. Thus, the plurality concluded that the phrase is ambiguous, agreeing with this court’s sister circuits that have considered the issue.

Next, the plurality deferred to the BIA’s interpretation of the phrase. Under the BIA’s interpretation, as set