UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCELO MARTINEZ-CEDILLO, No. 14-71742 AKA Marcelo Martinez, Petitioner, Agency No. A074-112-169 v.

JEFFERSON B. SESSIONS III, Attorney OPINION General, Respondent.

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

Argued and Submitted August 28, 2017 Pasadena, California

Filed July 23, 2018

Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges, and Susan Illston,* District Judge.

Opinion by Judge Bybee; Dissent by Judge Wardlaw

* The Honorable Susan Illston, United States District Judge for the Northern District of California, sitting by designation. 2 MARTINEZ-CEDILLO V. SESSIONS

SUMMARY**

Immigration

The panel denied a petition for review of the Board of Immigration Appeals’ determination that Marcelo Martinez- Cedillo’s conviction for child endangerment, in violation of California Penal Code § 273a(a), constitutes a crime of child abuse that renders him removable under 8 U.S.C. § 1227(a)(2)(E)(i).

In 2008, Martinez-Cedillo was convicted of felony child endangerment under California Penal Code § 273a(a) for driving under the influence with a child in his car who was not wearing a seatbelt.

In Matter of Velazquez-Herrera, 24 I. & N. Dec. 503 (BIA 2008), the Board interpreted the term ‘crime of child abuse’ broadly to mean any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. In Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), the Board held that this definition is not limited to offenses requiring proof of injury to the child and requires a case-by-case analysis to determine whether the risk of harm is sufficient to bring an offense within the definition of ‘child abuse.’

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. MARTINEZ-CEDILLO V. SESSIONS 3

The panel held that the Board’s interpretation in Velazquez-Herrera and Soram is entitled to Chevron deference. Applying that definition, the panel held that California Penal Code § 273a(a) is a categorical match to the crime of child abuse, neglect, or abandonment. The panel also held that the Board’s interpretation applies retroactively to Martinez-Cedillo’s 2008 conviction, which occurred before the Board’s decisions in Velazquez-Herrera and Soram.

Dissenting, Judge Wardlaw would hold that the Board’s interpretation is not entitled to Chevron deference, and that even if it were, the new definition should not apply retroactively to Martinez-Cedillo’s conviction.

COUNSEL David Belaire Landry (argued), San Diego, California, for Petitioner. Brianne Whelan Cohen (argued), Senior Litigation Counsel; John S. Hogan, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 MARTINEZ-CEDILLO V. SESSIONS

OPINION BYBEE, Circuit Judge:

Marcelo Martinez-Cedillo was convicted of felony child endangerment under California Penal Code § 273a(a) and ordered removed on the grounds that his conviction qualified as “a crime of child abuse, child neglect, or child abandonment” under INA § 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i). His petition for review requires us to decide whether to defer to the Board of Immigration Appeals’ (“BIA’s”) int