Opinion
Docket No. 14–874.
2014-12-16
Nilfor Yosel FLOREZ, a/k/a Nilfor Yosel Flores, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
Richard J. Link, Rochester, New York, for Petitioner. Janette L. Allen, Office of Immigration Litigation, Civil Division, United States Department of Justice (for Joyce R. Branda, Acting Assistant Attorney General, Civil Division; and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation), Washington, District of Columbia, for Respondent.
Decided: March 4, 2015.
Petition denied.
Richard J. Link, Rochester, New York, for Petitioner. Janette L. Allen, Office of Immigration Litigation, Civil Division, United States Department of Justice (for Joyce R. Branda, Acting Assistant Attorney General, Civil Division; and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation), Washington, District of Columbia, for Respondent.
Nilfor Yosel Florez, a lawful permanent resident of the United States, petitions for review of a final order of removal. Florez was twice convicted of child endangerment under New York State Penal Law § 260.10(1), most recently for driving under the influence of alcohol while his young children were in the car. Based on those convictions, an Immigration Judge ordered Florez's removal from the United States under 8 U.S.C. § 1227(a)(2)(E)(i), which permits removal of “[a]ny alien who at any time after admission is convicted of ... a crime of child abuse, child neglect, or child abandonment.” The BIA affirmed. Florez filed this timely petition for review, arguing that the BIA's broad interpretation of the statutory phrase “crime of child abuse” is unreasonable. We deny the petition.
“When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we ask “whether Congress has directly spoken to the precise question at issue,” id.—that is, whether the statute is unambiguous. As always, “[i]f the intent of Congress is clear, that is the end of the matter.” Id. But “if the statute is silent or ambiguous,” the second question for the court is limited to “whether the agency's answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.
The BIA's precedential opinions interpreting the INA are entitled to Chevron deference. Mei Juan Zheng v. Holder, 672 F.3d 178, 183–84 (2d Cir.2012). And the phrase “crime of child abuse” is “entirely a creature of the INA,” so “we therefore give the BIA's interpretation of ‘crime of child abuse’ Chevron deference.” Guzman v. Holder, 340 Fed.Appx. 679, 681 (2d Cir.2009) (summary order).
On the first Chevron question, we have little trouble concluding that the statutory provision is ambiguous. “Unlike the term ‘crime of domestic violence’ in § 1227(a)(2)(E)(i), the statute does not define the term ‘crime of child abuse.’ ” Hackshaw v. Att'y Gen. of U.S., 458 Fed.Appx. 137, 139 (3d Cir.2012) (non-precedential opinion). And state and federal statutes, both civil and criminal, offer varied definitions of child abuse, and the related concepts of child neglect, abandonment, endangerment, and so on. See Soram, 25 I. & N. Dec. at 382. So it is difficult to know precisely which sorts of convictions Congress had in mind when it used the phrase “a crime of child abuse” in 8 U.S.C. § 1227(a)(2)(E)(i). Ambiguity has been observed by all three Courts of Appeals to have considered the question. See Ibarra v. Holder, 736 F.3d 903, 910 (10th Cir.2013) (rejecting the BIA's interpretation, but after acknowledging that “the statutory text ... does contain some ambiguity”); Hackshaw, 458 Fed.Appx. at 139 (“[W]e conclude that the statutory term ‘crime of child abuse’ in § 1227(a)(2)(E)(i) does not have a plain and unambiguous meaning.”); Martinez v. U.S. Att'y Gen., 413 Fed.Appx. 163, 166 (11th Cir.2011) (unpublished) (“The INA is ambiguous because it provides no definition of the term ‘crime of child abuse.’ ”).
Because the statutory language is ambiguous, we turn to the second step in the Chevron inquiry: whether the BIA's interpretation “is based on a permissible construction of the statute.” 467 U.S. at 843, 104 S.Ct. 2778. We hold that it is.
In Velazquez–Herrera, the BIA 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.” 24 I. & N. Dec. at 512. Despite this expansive definition in Velazquez–Herrera, it remained “unclear” whether the BIA's definition included child endangerment statutes—like New York Penal Law § 260.10(1)—which criminalized conduct that “did not actually harm a child.” Guzman, 340 Fed.Appx. at 682. But in Soram, the BIA confirmed that Velazquez–Herrera's “definition of a crime of child abuse is sufficiently broad to encompass endangerment-type crimes,” stating that it “is not limited to offenses requiring proof of injury to the child.” Soram, 25 I. & N. Dec. at 381, 383.
The BIA's definition of “a crime of child abuse” is broad—intentionally so. See Velazquez–Herrera, 24 I. & N. Dec. at 509 (“In view of the fact that section 237(a)(2)(E)(i) of the Act is the product of a significant expansion of the grounds of deportability and was aimed at facilitating the removal of child abusers in particular, it is our view that the term ‘crime of child abuse’ should be interpreted broadly.”). Florez asks us to reject the BIA's sweeping interpretation as inconsistent with the statute. But “the question before us is not whether it 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, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). And not all aggressive interpretations of a statute are unreasonable.
We conclude that the BIA's definition—broad as it is—is at least grounded in reason. When Congress amended the INA in 1996 to make child abuse a removable offense, at least nine states had crimes called “child abuse” (or something similar) for which injury was not a required element. See, e.g., New Mexico Stat. § 30–6–1 (1996) (“Abuse of a child consists of ... permitting a child to be ... placed in a situation that may endanger the child's life or health.”). Black's Law Dictionary also offers a generic definition of “child abuse” that does not require injury: “[a]n act or failure to act that presents an imminent risk of serious harm to a child.” Black's Law Dictionary 11 (9th ed.2009) (second definition).
By the same token (as Florez points out) even more states used a definition that did require injury. But we are not looking for the best interpretation, or the majority interpretation—only a reasonable one. The BIA was not unreasonable in adopting a definition of child abuse that is consistent with the definitions used by the legislatures of Colorado, Kentucky, Nebraska, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, and Virginia.
Although the BIA's definition of “a crime of child abuse” is expansive, it is not unlimited. Soram confirms that a state child-endangerment statute qualifies as a “crime of child abuse” under the INA only if it requires, as an element of the crime, a sufficiently high risk of harm to a child. See 25 I. & N. Dec. at 385 (holding that Colorado's child-endangerment statute is categorically a “crime of child abuse” under the INA, 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” in Colorado) (emphasis added). Florez has not disputed that the conduct criminalized by New York Penal Law § 260.10(1) rises to the level of risk contemplated in Soram, and the Immigration Judge did not explicitly conduct this inquiry. Nevertheless, as a general proposition, this limitation ensures that the BIA's treatment of state child-endangerment statutes remains within the realm of reason.
Our opinion in this case is in direct conflict with the Tenth Circuit's recent decision in Ibarra v. Holder, on which Florez heavily depends. Respectfully, we think Ibarra does not adhere to the principle that it is up to the BIA, in the first instance—not the federal courts—to fill interpretive gaps left by Congress in the INA. See Chevron, 467 U.S. at 843–44, 104 S.Ct. 2778.
Ibarra reasoned that “[a]t the time Congress amended the INA to include crimes of child abuse, child neglect, and child abandonment as a basis for deportation, a clear majority of states did not criminalize such conduct when it was committed with only criminal negligence and resulted in no injury.” 736 F.3d at 918. But the conclusion drawn by Ibarra and Florez—that the BIA's interpretation is unreasonable—does not follow from that premise.
True, the Supreme Court has interpreted similar congressional statutes with generic federal “crimes” by reference to how the relevant term is “used in the criminal codes of most states.” Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (interpreting the word “burglary” in the Armed Career Criminal Act by surveying the 50 states and selecting the majority rule). But the Supreme Court has never suggested that an administrative agency must employ that method to construe an ambiguous federal term that references state crimes. The agency is required to adopt a reasonable interpretation—not to proceed by any particular interpretative method.
Agency deference is why, for example, the “longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,” INS v. Cardoza–Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), is set aside if the BIA has reasonably interpreted the INA in favor of removal. See, e.g., Ruiz–Almanzar v. Ridge, 485 F.3d 193, 198 (2d Cir.2007) (“It cannot be the case ... that the doctrine of lenity must be applied whenever there is an ambiguity in an immigration statute because, if that were true, it would supplant the application of Chevron in the immigration context.”).
Ibarra also violates the rule that deference is owed to reasonable agency interpretations even if a court has previously construed that very statutory provision differently. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982–83, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). To illustrate: even if the U.S. Supreme Court had previously interpreted this very statutory provision to apply only to child abuse statutes for which harm was an element, that (hypothetical) precedent would not have foreclosed the BIA's interpretation here (unless, of course, the Court read the statute to be unambiguous). See id.
Finally, Ibarra erroneously relied on the BIA's inconsistency. See 736 F.3d at 918 n. 19 (“The case for [Chevron] deference to the Velazquez/Soram definition of ‘crime of child abuse, child neglect, and child abandonment’ is made even weaker by the [BIA]'s inconsistency in defining this crime.”). Although that approach might find support in older cases, more recent Supreme Court teachings have been clear: “[a]gency inconsistency is not a basis for declining to analyze the agency's interpretation under the Chevron framework.” Brand X, 545 U.S. at 981, 125 S.Ct. 2688; see also Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55, 131 S.Ct. 704, 178 L.Ed.2d 588 (2011). In fact, “in Chevron itself, [the Supreme Court] deferred to an agency interpretation that was a recent reversal of agency policy.” Brand X, 545 U.S. at 982, 125 S.Ct. 2688. Prior agency interpretations are “not instantly carved in stone”; the agency is free to “consider varying interpretations and the wisdom of its policy on a continuing basis.” Chevron, 467 U.S. at 863–64, 104 S.Ct. 2778.
* * *
For all these reasons, we join the Third Circuit in holding “that the BIA's broad interpretation, which is consistent with the legislative purpose behind this new ground of deportability, is a reasonable construction of the term ‘crime of child abuse’ in the INA and is entitled to Chevron deference.” Hackshaw, 458 Fed.Appx. at 140. Whether we would have read the statutory wording the same way in the absence of an authoritative interpretation by the BIA is unlikely but irrelevant.
For the foregoing reasons, we the petition for review.
Duenas–Alvarez is not to the contrary. In that case, the Supreme Court applied Taylor to decide whether the generic term “theft offense” in the INA includes aiding and abetting theft, eventually settling on the rule used by “most States” (actually, in that case, all states). Duenas–Alvarez, 549 U.S. at 190, 127 S.Ct. 815. But the BIA had not issued a precedential opinion on the question, so in Duenas–Alvarez, there was no question of agency deference. That case says nothing about the interpretive flexibility available to the BIA in interpreting the INA.