FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LORENZO ALVAREZ-CERRITENO, No. 16-73486 Petitioner, Agency No. v. 091-009-097 JEFFERSON B. SESSIONS III, United States Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 14, 2018 San Francisco, California Filed August 8, 2018 Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges, and Terrence Berg, * District Judge. Opinion by Judge Bea; Concurrence by Judge Berzon * The Honorable Terrence Berg, District Judge for the Eastern District of Michigan, sitting by designation. 2 ALVAREZ-CERRITENO V. SESSIONS SUMMARY ** Immigration The panel granted a petition for review of the Board of Immigration Appeals’ determination that Lorenzo Alvarez- Cerriteno was removable, holding that the BIA erred in finding that his conviction for “Child Abuse and Neglect” under Nevada Revised Statutes § 200.508(2)(b)(1) was categorically a “crime of child abuse” under 8 U.S.C. § 1227(a)(2)(E)(i), and remanded. The panel observed that it was bound by this court’s recent opinion in Martinez-Cedillo v. Sessions, No. 14- 71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which deferred to the BIA’s interpretation, in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), that the generic crime of child abuse includes acts and omissions that create at least a “reasonable probability” that a child will be harmed. The panel further concluded that, to sustain a conviction under section 200.508(2), the Supreme Court of Nevada would require proof that a defendant negligently exposed a child to at least a “reasonably foreseeable” harm, but no greater risk need be shown. Comparing the federal generic crime and Nevada statute of conviction, the panel concluded that the Nevada statute is broader because it includes conduct that creates a “reasonable foreseeability” of harm to a child, while the ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALVAREZ-CERRITENO V. SESSIONS 3 generic crime requires a “reasonable probability” of harm. The panel also concluded that there is a “realistic probability” that Nevada could prosecute conduct under its statute that falls outside the scope of the federal generic crime. Concurring, Judge Berzon wrote that if the panel were not bound by Martinez-Cedillo, she would rule in accord with Judge Wardlaw’s dissent in that case because Matter of Soram is not a reasonable interpretation of the phrase “crime of child abuse.” COUNSEL Don P. Chairez (argued), Law Offices of Don Chairez, Woodland, California, for Petitioner. Erica B. Miles (argued) and Anthony W. Norwood, Senior Litigation Counsel; Corey L. Ferrell, Attorney; Chad A. Readler, Principal Deputy Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent. 4 ALVAREZ-CERRITENO V. SESSIONS OPINION BEA, Circuit Judge: Today we must determine whether Nevada’s child neglect statute is broader—that is, makes criminal more conduct—than does the federal Immigration and Nationality Act’s (“INA”) generic “crime of child abuse.” If so, ...
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