Ariel Marcelo Bastias v. U.S. Attorney General

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11416
____________________
ARIEL MARCELO BASTIAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A074-344-653
____________________
ON REMAND FROM THE SUPREME COURT OF THE
UNITED STATES
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2 Opinion of the Court 21-11416
Before NEWSOM , MARCUS, Circuit Judges, and MIDDLEBROOKS,*
DISTRICT J UDGE .
PER CURIAM:
This case is back before us for a second time, this go-round
on remand from the Supreme Court.
In 2019, Ariel Bastias, a native and citizen of Chile and a
lawful permanent resident of the United States, pleaded guilty to
violating a Florida law that, in pertinent part, makes it a crime to
“willfully or by culpable negligence neglect[] a child without
causing great bodily harm, permanent disability, or permanent
disfigurement to the child.” Fla. Stat. § 827.03(2)(d). As a result of
Bastias’s plea, the government sought to remove him from the
country pursuant to a provision of the Immigration and
Nationality Act that, as relevant here, states that “[a]ny alien who
at any time after admission is convicted of . . . a crime of child
abuse, child neglect, or child abandonment is deportable.” 8 U.S.C.
§ 1227(a)(2)(E)(i).
At Bastias’s removal proceeding, the Immigration Judge
held that his Florida conviction rendered him deportable because
it qualifies as “a crime of child abuse, child neglect, or child
abandonment” within the meaning of § 1227(a)(2)(E)(i) as
interpreted by the Board of Immigration Appeals. The IJ separately
denied Bastias’s application for cancellation of removal.
* Honorable Donald M. Middlebrooks, United States District Judge for the
Southern District of Florida, sitting by designation.
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3 Opinion of the Court 21-11416
Bastias appealed to the Board of Immigration Appeals,
which affirmed the IJ’s decision. In likewise concluding that
Bastias’s child-neglect conviction constitutes “a crime of child
abuse, child neglect, or child abandonment” for § 1227(a)(2)(E)(i)
purposes, the Board explained that it had previously interpreted the
statutory phrase “‘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.” Admin. R. at
4 (emphasis added) (quoting Matter of Velazquez-Herrera, 24 I. & N.
Dec. 503, 512 (BIA 2008)). Its interpretation, the Board said, doesn’t
require “actual harm or injury to a child” if the defendant’s mental
state was “greater than common law negligence” and there is
“proof of a likelihood or reasonable probability that a child will be
harmed.” Id. (quotation marks omitted) (citing Matter of Soram, 25
I. & N. Dec. 378, 381 (BIA 2010), and Matter of Rivera-Mendoza, 28
I. & N. Dec. 184, 187–89 (BIA 2020)). The Board went on to hold
that child neglect under Fla. Stat. § 827.03(2)(d) categorically falls
within its interpretation of the INA because child neglect requires
a mental state of “culpable negligence”—more than ordinary
negligence—and encompasses conduct that “could reasonably be
expected to result in” serious injury or death. Id. at 4–5 (citing, inter
alia, Jones v. State, 292 So. 3d 519, 522 (Fla. Dist. Ct. App. 2020), and
quoting Fla. Stat. § 827.03(1)(e) (defining “neglect of a child”)).
Bastias filed a petition for review of the Board’s decision in
this Court, which we denied. See Bastias v. U.S. Att’y Gen., 42 F.4th
1266, 1276 (11th Cir. 2022), vacated and remanded, 144. S. Ct. 2704
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4 Opinion of the Court 21-11416
(2024) (mem.). Applying the deference principles enunciated in
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 603
U.S. 369 (2024), we concluded that the Board had reasonably
interpreted § 1227(a)(2)(E)(i)’s phrase “crime of child abuse, child
neglect, or child abandonment” to cover Bastias’s child-neglect
conviction under Fla. Stat. § 827.03(2)(d). See Bastias, 42 F.4th at
1272–76. In particular, we held that we were bound by our earlier
decision in Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th Cir.
2018), to conclude (1) that § 1227(a)(2)(E)(i) is ambiguous, see
Bastias, 42 F.4th at 1272, and (2) that the Board had adopted a
reasonable interpretation of the statute, id. at 1274–75.
Bastias then filed a petition for a writ of certiorari in the
Supreme Court, which the Court held pending its decision in Loper
Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Loper Bright,
the Court overruled Chevron, holding that deference to an agency’s
interpretation of a statute contravenes the Administrative
Procedure Act’s directive that courts independently decide
statutory and legal questions. See id. at 396–413. Following its
decision, the Supreme Court granted Bastias’s petition, vacated this
Court’s decision, and remanded “for further consideration in light
of Loper Bright.” Bastias v. Garland, 144 S. Ct. 2704, 2705 (2024)
(mem.).
For the reasons explained in the opinions to follow, we
DENY Bastias’s petition for review.
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21-11416 N EWSOM , J., Concurring 1
N EWSOM , Circuit Judge, concurring in the judgment:
I concur in the Court’s judgment denying Ariel Bastias’s
petition for review. There’s no easy way to put this, but in capsule
form, here’s why: In Pierre v. U.S. Attorney General, 879 F.3d 1241
(11th Cir. 2018), applying the principles enunciated in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984), overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369
(2024), we accepted the Board of Immigration Appeals’
interpretation of the phrase “crime of child abuse,” as used in 8
U.S.C. § 1227(a)(2)(E)(i), to include a state-law offense involving
criminally negligent conduct that constitutes maltreatment but
doesn’t cause physical injury. Under the Board’s broad reading, the
state-law offense to which Bastias pleaded guilty—engaging in an
act of culpably negligent child neglect that doesn’t result in serious
injury, see Fla. Stat. § 827.03(2)(d)—constitutes a deportable “crime
of child abuse.” The only truly difficult question, in my mind—and
I do find it difficult—is whether Pierre remains good law, despite
the facts (1) that it specifically grounded its interpretive analysis in
Chevron and (2) that the Supreme Court expressly overruled
Chevron in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
Counterintuitive though the conclusion may be, I believe that we
remain bound by Pierre.
Let me explain.
I
All here agree that in order to determine whether Bastias’s
state-law child-neglect conviction constitutes a “crime of child
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21-11416 N EWSOM , J., Concurring 2
abuse” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i)—and thus
renders him deportable—we must apply the so-called “categorical
approach.” See Esquivel-Quintana v. Sessions, 581 U.S. 385, 389
(2017). The categorical approach requires, in essence, a side-by-
side comparison of the applicable state and federal statutes: In
particular, a reviewing court must assess the “relevant [state]
statute of conviction, as construed by the state courts, and ask
whether it ‘categorically fits’ within the generic definition of the
federal offense.” Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 892 (11th
Cir. 2023) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). A
state conviction is a categorical match “only if the statute’s
elements are the same as, or narrower than, those of the generic
offense.” Id. (citation and quotation marks omitted). “Under the
categorical approach, we consider only the fact of conviction and
the statutory definition of the [state] offense, rather than the
specific facts underlying the defendant’s case.” Gelin v. U.S. Att’y
Gen., 837 F.3d 1236, 1241 (11th Cir. 2016).
So, at the risk of grossly oversimplifying matters, a
categorical-approach analysis entails two basic inputs: (1) the
meaning of the governing federal statute, and (2) the meaning of
the applicable state statute. I’ll unpack each in turn. Fair warning:
It’s the former—discerning the meaning of § 1227(a)(2)(E)(i)—that,
to my mind, presents the thorniest issue in this case.
A
In pertinent part, the INA provides that “[a]ny alien who at
any time after admission is convicted of . . . a crime of child abuse,
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child neglect, or child abandonment is deportable.” 8 U.S.C.
§ 1227(a)(2)(E)(i). As today’s per curiam opinion recounts, the
Board of Immigration Appeals has interpreted § 1227(a)(2)(E)(i)
broadly. See Maj. Op. at 3. In particular, and as relevant here, the
Board has held that the statutory term “crime of child abuse”
(1) encompasses “any offense involving a[] . . . criminally negligent
act or omission that constitutes maltreatment of a child or that
impairs a child’s physical or mental well-being,” Matter of Velazquez-
Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008), and (2) is not limited
to state-law crimes “requiring proof of actual harm or injury to the
child,” Matter of Soram, 25 I. & N. Dec. 378, 381 (BIA 2010). Both
in our initial opinion in this case and in the decision on which we
principally relied, Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th
Cir. 2018), we held that § 1227(a)(2)(E)(i) was ambiguous and
therefore deferred to the Board’s interpretation under the
principles set forth in Chevron. See Bastias v. U.S. Att’y Gen., 42 F.4th
1266, 1274–75 (11th Cir. 2022), vacated and remanded, 144 S. Ct. 2704
(2024) (mem.).
But then came Loper Bright Enterprises v. Raimondo, 603 U.S.
369 (2024), in which the Supreme Court expressly overruled
Chevron. Unsurprisingly, given Loper Bright’s directive that courts
must “exercise their independent judgment” in construing the
statutes before them and, further, that they “may not defer to an
agency interpretation of the law simply because a statute is
ambiguous,” id. at 412–13, the parties here vigorously debate
§ 1227(a)(2)(E)(i)’s proper interpretation as a matter of first
principles, without regard to the Board’s preexisting interpretation.
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21-11416 N EWSOM , J., Concurring 4
So, for instance, Bastias contends that § 1227(a)(2)(E)(i) is best read
not to include most negligent, non-injurious conduct. See Br. of
Appellant at 30. The government, by contrast, insists that the
federal generic definition is properly understood to cover state-law
crimes that involve negligent conduct that risks harm to a child.
See Br. of Appellee at 25. Judges Marcus and Middlebrooks have
likewise weighed in with their own (slightly different) readings. See
Marcus Concurring Op. at 26–33; Middlebrooks Concurring Op. at
4–13. All make good points and raise interesting arguments.
Before considering the various competing readings of
§ 1227(a)(2)(E)(i), however, there’s an antecedent question that we
have to address: While it’s no doubt true under Loper Bright that
we “need not”—and indeed “may not”—defer to the Board’s
interpretation as such, 603 U.S. at 413, might we nonetheless be
bound, despite Loper Bright, by our earlier decision in Pierre, which
adopted the Board’s interpretation? It’s complicated, but I’ve
concluded—more than a little reluctantly—that we are.
I’ll first detail what Pierre said, and then explain why I think
we’re bound by it.
1
In Pierre, we addressed a situation very much like the one in
this case. There, as here, the government sought to remove a
lawful permanent resident on the ground that he had committed
“a crime of child abuse” within the meaning of § 1227(a)(2)(E)(i).
The alien in Pierre had pleaded guilty to battery of a child, in
violation of a different state statute—namely, Fla. Stat.
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21-11416 N EWSOM , J., Concurring 5
§ 784.085(1), which, in pertinent part, makes it a crime to
“knowingly cause or attempt to cause a child to come into contact
with” any of several bodily fluids. See Pierre, 879 F.3d at 1245–46.
In performing the required categorical-approach analysis—
which, as already explained, requires a comparison of the
applicable federal and state statutes—the Pierre court first turned its
attention to the meaning of the term “crime of child abuse” as used
in § 1227(a)(2)(E)(i). Employing the then-extant Chevron
framework, the panel noted that “[t]he INA does not define ‘child
abuse’” and therefore treated the statute as “silent on the issue.”
Id. at 1249. Accordingly, the panel continued, “we may defer to the
BIA’s interpretation of the INA, so long as that interpretation is
reasonable and consistent with the statute.” Id. (citing Chevron, 467
U.S. at 843).
The Pierre court then proceeded to unpack the Board’s
interpretation of § 1227(a)(2)(E)(i). In so doing, the panel pointed
to the same two decisions that principally underlay the Board’s
decision in this case: Velazquez-Herrera, 24 I. & N. Dec. 503, and
Soram, 25 I. & N. Dec. 378. In particular, the Pierre panel observed
that under Velazquez-Herrera, the term “crime of child abuse”
encompasses “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.” Pierre, 879 F.3d at 1249 (quoting Velazquez-Herrera, 24
I. & N. Dec. at 517). And per Soram, the panel continued, “child
abuse crimes under the INA are not limited to those offenses
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21-11416 N EWSOM , J., Concurring 6
‘requiring proof of actual harm or injury to the child’” but, rather,
also include “endangerment-type crimes” as well as any “act or
omission that constitutes maltreatment of a child.” Id. at 1250
(quoting Soram, 25 I. & N. Dec. at 381, 383).
Having settled on the prevailing interpretation of
§ 1227(a)(2)(E)(i), the Pierre panel shifted its focus to state law and,
in particular, to the question whether the child-battery statute
under which the alien there had been convicted was a categorical
match: “With this background in mind, we now examine whether
the Florida statute fits within the [Board’s] generic and broad
definition of ‘child abuse.’” Id. The panel held that it did: The
state statute, the panel observed, “requires an overt act” for
conviction of either a completed battery or an attempt, and “[a]t a
minimum, th[e] repugnant type of battery or attempted battery”
entailed in knowingly directing bodily fluids at a child “constitutes
maltreatment of a child.” Id. (citing Soram, 25 I. & N. Dec. at 382–
83).
Putting the pieces together, the Pierre panel announced its
judgment (as relevant here) as follows: “[A]pplying Chevron
deference to the definitions of ‘child abuse’ found in Velazquez-
Herrera and Soram, we (1) uphold them as reasonable
interpretations of the INA, to the extent they apply to Pierre’s case,
and (2) conclude that the [Board] did not err in concluding that
Pierre’s conviction for battery on a child constituted a crime of
child abuse.” Id. at 1251. Importantly—because it gives rise to an
argument for cabining Pierre’s reach that I’ll explore shortly—the
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panel appended a footnote to its decision: “Because Pierre’s
conviction necessarily involved a knowing and overt act, Pierre’s
case does not require us to determine whether purely negligent
acts with no injury to the child proscribed by a state statute
constitute generic crimes of child abuse.” Id. at 1251 n.3.
So, it’s pretty (although not perfectly) clear what we said in
Pierre about the scope and meaning of the phrase “crime of child
abuse” as used in § 1227(a)(2)(E)(i): Deferring under Chevron, we
accepted the Board’s interpretation—namely, that it includes a
state-law offense that involves a criminally negligent conduct that
constitutes maltreatment but that doesn’t cause any actual injury.
The much thornier question—to which I’ll turn next—is whether,
despite Loper Bright’s overruling of Chevron, we remain bound by
that aspect of Pierre. I believe we are.
2
I begin with our “prior panel precedent” rule. In this Circuit,
“a prior panel’s holding is binding on all subsequent panels unless
and until it is overruled or undermined to the point of abrogation
by the Supreme Court or by this court sitting en banc.” In re
Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (citation omitted). We
haven’t overruled or abrogated Pierre en banc. (Yet—more on that
in a bit.) The more pertinent question is whether the Supreme
Court’s decision in Loper Bright did so. It’s a close call, but I don’t
think it did.
The bar for concluding that the Supreme Court has
abrogated one of our decisions is high: “[T]he later Supreme Court
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21-11416 N EWSOM , J., Concurring 8
decision must ‘demolish[]’ and ‘eviscerate[]’ each of its
‘fundamental props.’” Del Castillo v. Sec’y, Fla. Dep’t of Health, 26
F.4th 1214, 1223 (11th Cir. 2022) (second and third alterations in
original). Loper Bright doesn’t clear that hurdle. To be sure, Pierre’s
interpretation of § 1227(a)(2)(E)(i) was grounded in Chevron. See
Pierre, 879 F.3d at 1251 (applying “Chevron deference to the
definitions of ‘child abuse’ found in Velazquez-Herrera and Soram”).
And to be sure, the Supreme Court in Loper Bright overruled
Chevron and instituted a new interpretive framework, requiring
courts to “exercise their independent judgment in deciding
whether an agency has acted within its statutory authority.” 603
U.S. at 412.
Conspicuously, though, the Court didn’t stop there. It went
on to cabin the scope of its ruling in a passage that, given its
importance here, bears quoting in full:
[W]e do not call into question prior cases that relied
on the Chevron framework. The holdings of those
cases that specific agency actions are lawful—
including the Clean Air Act holding of Chevron itself—
are still subject to statutory stare decisis despite our
change in interpretive methodology. See CBOCS West,
Inc. v. Humphries, 553 U.S. 442, 457 (2008). Mere
reliance on Chevron cannot constitute a “‘special
justification’” for overruling such a holding, because
to say a precedent relied on Chevron is, at best, “just
an argument that the precedent was wrongly
decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573
U.S. 258, 266 (2014) (quoting Dickerson v. United States,
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530 U.S. 428, 443 (2000)). That is not enough to justify
overruling a statutory precedent.
Id.
Here’s what I take to be clear: The Supreme Court
overruled Chevron, but it did so only on a prospective basis; the
Court expressly “d[id] not call into question prior cases that relied
on the Chevron framework.” Id. The “holdings” of those cases—
more, shortly, on exactly what those may be—remain good law
and are entitled to stare decisis effect. Id. While the Court held
open the possibility that some “special justification” might warrant
departing from a Chevron-era case’s holding, “[m]ere reliance on
Chevron” doesn’t constitute such a justification. Id. Beyond that,
so much uncertainty.
Unsurprisingly, Loper Bright has vexed the lower courts. Our
sister circuits have expressed divergent views about what sorts of
“holdings” the Supreme Court meant to preserve—and in
particular, whether stare decisis treatment extends to a court’s
Chevron-era adoption of an agency’s statutory interpretation or,
instead only, and more narrowly, to the court’s case-specific
application of that interpretation to the facts before it. Compare,
e.g., Tennessee v. Becerra, 131 F.4th 350, 366 (6th Cir. 2025)
(observing, relatively broadly, that “a ‘specific agency action’
attaches to an agency’s particular construction of a statute”), with,
e.g., In re MCP No. 185, 124 F.4th 993, 1002 (6th Cir. 2025)
(observing, relatively narrowly, that “[t]he ‘specific agency action’
that the [Supreme] Court approved in [National Cable &
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Telecommunications Association v. Brand X Internet Services, 545 U.S.
967 (2005)] was the FCC’s 2002 [] Ruling” whereas “[t]he specific
action before us here is the FCC’s 2024 Safeguarding
Order . . . [which] means we are not bound by Brand X’s holding
as a matter of statutory stare decisis”); see also Lopez v. Garland, 116
F.4th 1032, 1045 (9th Cir. 2024) (finding itself bound by a Chevron-
era panel’s acceptance of the BIA’s “reasonable interpretation” of
the Immigration and Nationality Act).
A similar question confronts us here. What is the
“holding[]” of Pierre? Bastias contends—and my colleague Judge
Marcus agrees—that Pierre’s holding is narrowly limited to the
circumstances of that case—in particular, to the court’s
determination there that a different Florida criminal statute, Fla.
Stat. § 784.085, was a categorical match for the INA’s “crime of
child abuse” provision. See Br. of Appellant at 22–23; Marcus
Concurring Op. at 13–15. It’s not a trivial argument. As already
noted, having settled on a (Chevron-based) reading of
§ 1227(a)(2)(E)(i), and then compared that interpretation to the
state law at issue, the Pierre court summed up its conclusion—as
relevant here—in these terms: “[A]pplying Chevron deference to
the definitions of ‘child abuse’ found in Velazquez–Herrera and
Soram, we . . . uphold them as reasonable interpretations of the
INA, to the extent they apply to Pierre’s case.” Pierre, 879 F.3d at 1251
(emphasis added). And as already noted, to that statement the
panel appended the following footnote: “Because Pierre’s
conviction necessarily involved a knowing and overt act, Pierre’s
case does not require us to determine whether purely negligent
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acts with no injury to the child proscribed by a state statute
constitute generic crimes of child abuse.” Id. at 1251 n.3. Thus,
Bastias contends, Pierre blessed the Board’s broad reading of the
phrase “crime of child abuse” only “to the extent [it] appl[ied]” to
the case before it—which is to say, only vis-à-vis a state-court
conviction that involved a “knowing and overt act,” and not one,
as in this case, that involved only “purely negligent acts with no
injury to the child.” Id.; see Br. of Appellant at 21–23.
As I said, Bastias’s position isn’t trivial—but I think it’s
misguided for three (related) reasons. I’ll address them in turn.
a
As an initial matter, I think Bastias’s position misunderstands
Loper Bright. To repeat, the Supreme Court said there that despite
its repudiation of the Chevron framework, “[t]he holdings of
[Chevron-era] cases that specific agency actions are lawful—
including the Clean Air Act holding of Chevron itself—are still
subject to statutory stare decisis.” Loper Bright, 603 U.S. at 412.
Hardly perfectly pellucid, but in that passage I find two clues
that when the Supreme Court said it meant to preserve the
“holdings” of Chevron-era cases, it was referring not, as Bastias
seems to suggest, only to a court’s case-specific application of a
judicially approved agency interpretation to a particular set of facts,
but rather, and more broadly, to that court’s antecedent
determination that the agency’s reading of the governing statute
was “lawful.”
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The first clue is the Court’s invocation of “statutory stare
decisis.” That, it seems to me, is a pretty strong signal that we
should be focused on the legal rule that a Chevron-era precedent
establishes rather than just its fact- and party-bound result. To be
sure, there are doctrines like res judicata that train narrowly on
particular litigants, claims, and judgments. See, e.g., Bryan A.
Garner et al., The Law of Judicial Precedent 374 (2016). But stare
decisis is different—bigger, in a sense. Whereas res judicata
“involves a judgment that results from a particular application of a
legal principle to particular facts,” stare decisis “dictates”—more
broadly—“which legal principle should apply.” Id.; see also Payne v.
Tennessee, 501 U.S. 808, 827 (1991) (“Stare decisis . . . promotes the
evenhanded, predictable, and consistent development of legal
principles . . . .”) (citing Vasquez v. Hillery, 474 U.S. 254, 265–66
(1986)) (emphasis added). And indeed, with respect to statutory
stare decisis—of the sort specifically addressed by Loper Bright—the
focus on the court’s interpretation is even clearer, because “[t]he
traditional Anglo-American view is that an authoritative
interpretation of the written law (legislation) acquires the power of
law and becomes part of the statute itself.” Id. at 333. All of which
is to say that I take the Supreme Court’s reference to “statutory
stare decisis” to indicate an intent to preserve Chevron-era courts’
interpretations, not just their results.
The second clue: The Loper Bright Court provided an
example of the sort of holding it meant to accord stare decisis
effect—namely, “the Clean Air Act holding of Chevron itself.” And
what was that holding? Per the Chevron Court’s own words, it at
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the very least included the approval of the EPA’s interpretation of
the Act, as well as its ensuing application of that reading to the
particular facts of the case: “We hold that the EPA’s definition of
the term ‘source’ is a permissible construction of the statute.”
Chevron, 467 U.S. at 866 (emphasis added). By parity of reasoning,
the “holding” of Pierre, in Loper Bright terms, at the very least
included the panel’s approval of the Board’s broad reading of
§ 1227(a)(2)(E)(i), as well as its ensuing categorical-approach
application of that interpretation to the particular Florida child-
battery statute there at issue.1
b
Second, and more generally, Bastias’s position
misunderstands the nature of the Chevron determination. Under
the Chevron framework, which applied at the time Pierre was
decided, the reasonableness of an administrative agency’s
interpretation of a statute is an all-or-nothing thing: The agency’s
interpretation is either reasonable or it isn’t. In construing a
statutory phrase—here, “crime of child abuse” in
§ 1227(a)(2)(E)(i)—the agency in effect says, “Here’s what that
phrase means.” The reviewing court can then either bless or reject
the agency’s reading—thumbs up or thumbs down. But it makes
1 On balance, this reading of Loper Bright is reinforced by the Court’s citation,
see 603 U.S. at 412, of CBOCS West, Inc. v. Humphries, which had emphasized
that “considerations of stare decisis . . . impose a considerable burden upon
those who would seek a different interpretation that would necessarily unsettle
many Court precedents.” 553 U.S. at 451–52 (emphasis added).
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no sense to say that an agency’s interpretation of a statute is
reasonable with respect to some concrete applications—say, the
one at issue in Pierre—but potentially unreasonable with respect to
others—say, the one at issue in this case. If an agency’s
interpretation entails potentially odd results—here, for example,
that it might reach purely negligent conduct that doesn’t actually
injure a child—that might provide the court a basis to reject it as
unreasonable. But I don’t think it’s coherent for a court applying
Chevron to say that the agency’s interpretation of a statutory term
is reasonable . . . sometimes. Cf. Barnhart v. Thomas, 540 U.S. 20, 29
(2003) (“The proper Chevron inquiry is not whether the agency
construction can give rise to undesirable results in some
instances . . . , but rather whether, in light of the alternatives, the
agency construction is reasonable.”). Accordingly, it seems to me,
the only logical and coherent way to understand our (admittedly
confusing) Pierre opinion is that the panel there (1) accepted as
reasonable the Board’s broad interpretation of the phrase “crime of
child abuse” in § 1227(a)(2)(E)(i) and then (2) applied that
interpretation to the state child-battery statute before it, leaving
open for a future case (like this one) the question how—and this is
the key point—that same interpretation would apply to a different
state statute that criminalized purely negligent misconduct.
c
Finally, and more generally still, Bastias’s argument
misunderstands the nature of holdings. Whatever else it said and
did, Loper Bright expressly preserved Chevron-era “holdings.” 603
U.S. at 412. And what, under our precedent about precedent, is a
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holding? It’s not, as Bastias suggests, just the bottom-line result.
While it’s true that we’ve said that “the holding[] of a prior decision
can reach only as far as the facts and circumstances presented to
the Court in the case which produced that decision,” United States
v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (quoting United
States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J.,
concurring)), we’ve also emphasized—ad nauseam—that “[t]he
holding of a case comprises both the result of the case and those
portions of the opinion necessary to that result.” United States v.
Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (emphases added)
(quoting United States v. Caraballo-Martinez, 866 F.3d 1233, 1244
(11th Cir. 2017)); accord United States v. Kaley, 579 F.3d 1246, 1253
n.10 (11th Cir. 2009). It is sufficient to “holding” status, therefore,
that a statement in a court’s opinion was “necessary to th[e]
result.”2
So what about Pierre, what was its “holding[]”—and, in
particular, was its adoption of the Board’s interpretation of
§ 1227(a)(2)(E)(i) a holding? I think it pretty clearly was. As already
explained, see supra at 4–7, the Pierre panel laid out the logic of its
decision in three steps. First, deferring under Chevron, it accepted
2 To be clear, “strict necessary-ness is not essential to a statement’s
holdingness.” United States v. Files, 63 F.4th 920, 930 (11th Cir. 2023) (emphasis
added). To the contrary, we have treated some statements that aren’t strictly
necessary to a decision’s outcome—alternative holdings, non-supportive
holdings, etc.—as nonetheless entitled to holding status. See id. at 927–30. But
by all accounts, necessary-ness is a sufficient basis for treating a court’s
statement as part of its holding.
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as reasonable—and thus as binding—the Board’s broad reading of
the phrase “crime of child abuse” as encompassing a state-law
offense that involves criminally negligent conduct that constitutes
maltreatment but that doesn’t cause any actual injury. See Pierre,
879 F.3d at 1249–50 (citing Velazquez-Herrera, 24 I. & N. Dec. at 517;
and Soram, 25 I. & N. Dec. at 378, 381, 383). Second, having
established that federal-law baseline, the panel delineated the state-
law elements of the Florida child-battery statute at issue. See id. at
1250. And finally, having discerned the requirements of both
federal and state law, the panel proceeded to conduct a categorical-
approach analysis and concluded that the state law was a match
for—and therefore that it qualified as—a “crime of child abuse” for
removal purposes. See id. at 1251. In the terminology that we have
consistently used to characterize a statement in an opinion as part
of a decision’s holding, the Pierre panel’s adoption of the Board’s
reading of § 1227(a)(2)(E)(i) was “necessary to th[e] result” it
reached. Gillis, 938 F.3d at 1198. In particular, it supplied the major
premise of the panel’s logic; without a federal baseline against
which to measure the Florida battery statute at issue there, the
panel couldn’t have conducted the comparison that underlay its
categorical-approach analysis.3
3 Separately—and perhaps more broadly—we have suggested a court’s
“statement[] of a legal rule” constitutes a holding, even if “technically
unnecessary to a case’s resolution.” Files, 63 F.4th at 928. So even if the Pierre
panel’s adoption of the BIA’s interpretation wasn’t strictly, logically necessary
to its decision—in the deductive sense that I’ve outlined above the line—it
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* * *
To sum up: Loper Bright didn’t “overrule[]” or “abrogat[e]”
Pierre in any way that would justify us walking away from it. See
Lambrix, 776 F.3d at 794. To the contrary, the Supreme Court there
expressly preserved the “holdings” of Chevron-era decisions like
Pierre. Loper Bright, 603 U.S. at 412. And for the reasons I’ve tried
to explain, the Pierre panel’s adoption of the Board’s broad reading
of § 1227(a)(2)(E)(i) was indeed part of its “holding[].” Accordingly,
under our prior-panel-precedent rule, we are bound by Pierre’s
interpretation of the phrase “crime of child abuse” to include
offenses that involve criminally negligent conduct that constitutes
maltreatment but does not cause physical injury.
B
The lone remaining question—which, happily, is much
simpler—is whether the state-law offense to which Bastias pleaded
guilty is a categorical match for, and thus qualifies as, a “crime of
child abuse” under the binding, Pierre-approved interpretation of
that phrase as used in § 1227(a)(2)(E)(i). It is, and it does.
To repeat, the pertinent Florida statute extends to any
“person who willfully or by culpable negligence neglects a child
without causing great bodily harm, permanent disability, or
permanent disfigurement to the child.” Fla. Stat. § 827.03(2)(d).
seems to me that it would qualify for holding status as the “statement[] of a
legal rule.”
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Here, there is a categorical match, both with respect to the mens
rea and with respect to the actus reus.
As for the mental state, Fla. Stat. § 827.03(2)(d) requires
“culpable negligence,” which Bastias concedes is at the very least
“akin to criminal negligence.” Br. of Appellant at 51. It thus
follows that the mens rea prescribed by the applicable Florida
statute is encompassed within § 1227(a)(2)(E)(i)’s requirement of
an “intentional, knowing, reckless, or criminally negligent” mental
state. Pierre, 879 F.3d at 1249 (quoting Velazquez-Herrera, 24 I&N
Dec. at 517) (emphasis added).
As for the actus reus, the Florida statute criminalizes
“neglect[],” which it defines as a caregiver’s failure to provide “care,
supervision, and services necessary to maintain the child’s physical
and mental health,” or the “failure to make a reasonable effort to
protect a child from abuse, neglect, or exploitation by another
person.” Fla. Stat. § 827.03(1)(e). The state law further clarifies that
“neglect of a child may be based on repeated conduct or on a single
incident or omission that results in, or could reasonably be
expected to result in, serious physical or mental injury, or a
substantial risk of death, to a child.” Id. That explanation of
“neglect[]” fits comfortably within the scope of § 1227(a)(2)(E)(i),
which, as interpreted in Pierre, “is sufficiently broad to encompass
endangerment-type crimes.” Pierre, 879 F.3d at 1250 (quoting
Soram, 25 I. & N. Dec. at 379, 383). And to be clear, it’s no answer
to say, as Bastias does, that the Florida statute isn’t a categorical
match because it doesn’t require harm. Pierre squarely forecloses
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that argument, as it explained that “child abuse crimes under the
INA are not limited to those offenses ‘requiring proof of actual
harm or injury to the child.’” Id. (quoting Soram, 25 I. & N. Dec.
at 381).
C
Before I close, let me say a few words in response to Judge
Marcus’s characteristically thoughtful separate opinion, which
concludes (1) that we are not bound by Pierre but (2) that Bastias’s
petition is nonetheless due to be denied on a de novo reading of
§ 1227(a)(2)(E)(i).
First, with respect to Pierre, Judge Marcus contends that the
panel’s “adoption of the BIA’s definition of the [phrase] ‘crime of
child abuse’ was not complete or all-encompassing.” Marcus
Concurring Op. at 16. Rather, he says, the panel accepted only the
“part[]” of the BIA’s interpretation that covers knowing violations
and actual injuries and rejected the “part[]” that went further. Id.
at 16–17. And as I’ve acknowledged, Judge Marcus’s reading of
Pierre isn’t without some foundation. After all, the panel there (1)
purported to “uphold” the BIA’s interpretations of
§ 1227(a)(2)(E)(i) in Velazquez-Herrera and Soram “to the extent they
appl[ied] to Pierre’s case” and (2) said that “[b]ecause Pierre’s
conviction necessarily involved a knowing and overt act, [his] case
d[id] not require [the panel] to determine whether purely negligent
acts with no injury to the child proscribed by a state statute
constitute generic crimes of child abuse.” 879 F.3d at 1251 & n.3.
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In the usual case, a court may well be entitled to trim its sails
in that manner—i.e., to cabin the scope of its holding simply by
speaking a limitation into existence.4 For reasons I’ve tried to
explain, though, the particular determinations that Chevron
required courts to make take us out of usual-case territory. For
good or ill, the Chevron framework presented a reviewing court
with a pair of yes-no questions. Is the statute ambiguous, and if so,
is the agency’s interpretation reasonable? The answer to that all-
important second question was, as I’ve described it, an “all-or-
nothing thing: The agency’s interpretation is either reasonable or
it isn’t.” Supra at 13. Chevron simply didn’t leave courts a
“concurring in part” option. So despite the Pierre panel’s seeming
(?) desire to narrow its adoption of the BIA’s reading of
§ 1227(a)(2)(E)(i) to the particular set of facts before it, I don’t think
it was capable of doing so.
Second, Judge Marcus concludes—Pierre aside, and
considering the issue de novo—that Bastias’s petition should be
denied on the ground that his state crime is a categorical match for
the generic federal offense specified in 8 U.S.C. § 1227(a)(2)(E)(i).
See Marcus Concurring Op. at 19 et seq. As a reminder, that
provision, in relevant part, renders deportable any alien who is
convicted of “a crime of child abuse, child neglect, or child
4 Even in the usual case, a court’s authority simply to decree the breadth of its
holding isn’t entirely free from doubt. See, e.g., Garner et al., supra, at 59
(observing that “while the court’s statement of the holding is important, it
doesn’t necessarily decide the matter,” including when it gives “too narrow a
statement of the issue and answer”).
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abandonment.” In his categorical-approach analysis, Judge Marcus
focuses on what he calls “the federal ‘crime of . . . child neglect’
standing alone, rather than making the comparison to the
enumerated bundle of crimes against children found in the INA
(‘child abuse, child neglect, or child abandonment’).” Id. at 26.
Narrowing the focus to “child neglect,” he maintains, is “easier and
more direct” and “avoids the unnecessary task of divining the
meaning of the broader generic ‘crime of child abuse.’” Id. at 26–
27.
I’m not so sure. As an initial matter, it’s not obvious to me
that § 1227(a)(2)(E)(i) can be carved up the way that Judge Marcus
asserts—that is, among what he takes to be the three separate
offenses of “child abuse,” “child neglect,” and “child
abandonment.” The parties here, at least, seem to disagree with
Judge Marcus’s discrete-offenses interpretation; they read
§ 1227(a)(2)(E)(i) to criminalize a “single category” of crimes that
“encompasses the entire phrase.” Supp. Br. of Appellee 8; accord
Supp. Br. of Appellant 6 n.3. Judge Middlebrooks likewise reads
the phrase “a crime of child abuse, child neglect, or child
abandonment” to “represent[] a single category of crimes,” not to
comprise three distinct offenses. Middlebrooks Concurring Op. at
4–5 (quoting Cruz v. Garland, 101 F.4th 361, 365 (4th Cir. 2024)).
Perhaps Judge Marcus will ultimately be proven correct, but his
interpretation—which takes several pages to unpack and, as he
acknowledges, has to overcome § 1227(a)(2)(E)’s title as well as
existing sister-circuit precedent—doesn’t strike me as a particularly
“eas[y].” Marcus Concurring Op. at 26–30 & n.2.
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Moreover, and in any event, even if Judge Marcus is right
that “child neglect” can be broken out as a standalone federal
comparator, it’s not clear to me that the comparison nets the result
that Judge Marcus thinks it does. On the state side of the equation,
Judge Marcus concludes—after an exhaustive survey of legislative
history and Florida caselaw—that the term “culpable negligence,”
as used in Fla. Stat. § 827.03(2)(d), requires a showing of something
like “recklessness.” See Marcus Concurring Op. at 26. (After a
similarly exhaustive analysis, Judge Middlebrooks seems to land in
a similar, although not quite identical, place. See Middlebrooks
Concurring Op. at 8–13.) The problem, as I see it, is on the federal
side. Not all that long ago, in an effort to determine the mens rea
required in § 1227(a)(2)(E)(i) cases in which no actual injury occurs,
a Tenth Circuit panel conducted an exhaustive 50-state survey of
contemporaneous state criminal laws. Its most significant finding
was that “twenty-seven states”—an absolute majority—“required
a mens rea of knowing or intentional.” Ibarra v. Holder, 736 F.3d 903,
915 (10th Cir. 2013). The unmistakable upshot of that analysis, it
seems to me—at least on a de novo review of the sort that Judge
Marcus thinks is required—is that federal law likely requires proof
of a mental state higher than recklessness. Accordingly, the
comparison on which Judge Marcus insists yields a result—namely,
that there is no categorical match and that Bastias’s petition should
thus be granted—with which Judge Marcus disagrees.5
5 Judge Marcus doesn’t mention the results of the Ibarra panel’s survey, and he
disclaims any need to “dive too deeply into” the mens rea issue because, he
says, Bastias “acknowledges that a mens rea of recklessness is sufficient to
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II
Here, then, is my conclusion: Taking the Board’s Pierre-
approved interpretation of § 1227(a)(2)(E)(i) as the federal
baseline—as I think we must, under both Loper Bright and our own
prior-panel-precedent rule—the crime to which Bastias pleaded
guilty under Fla. Stat. § 827.03(2)(d) is a categorial match for the
INA’s generic federal “crime of child abuse.” Accordingly, Bastias’s
state-law conviction is a valid ground for his removal, and his
petition for review should be denied.
But.
I favor rehearing this case en banc, for two reasons. First,
the Board’s definition of “crime of child abuse,” which we
approved in Pierre, is exceedingly broad—it arguably sweeps in all
manner of conduct that might not square with the ordinary
sustain a conviction on the federal side of the equation.” Marcus Concurring
Op. at 36 (citing Reply Br. of Appellant at 9). With respect, I think Judge
Marcus may be overreading what he calls Bastias’s “acknowledge[ment].”
.Bastias simply contends that “negligent, non-injurious conduct falls within
neither” the term “child abuse” nor the term “child neglect.” Reply Br. of
Appellant at 9. Bastias isn’t so much conceding recklessness as much as he’s
ruling out negligence. Moreover, and in any event, we have long held that
“[a] court is not bound by the parties’ stipulations of law, particularly when
those stipulations are erroneous.” United States v. Lightsey, 120 F.4th 851, 859
(11th Cir. 2024) (quoting King v. United States, 641 F.2d 253, 258 (5th Cir. 1981)).
So no matter how aggressively one reads Bastias’s reply brief, the legal fact
remains: Section 1227(a)(2)(E)(i) crimes that don’t result in an injury may well
require a mens rea north of recklessness—which, on a de novo categorical-
approach comparison, would flip this case’s outcome.
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understanding of that phrase. At the very least, I think that Bastias
has presented substantial arguments that the Board’s reading of
§ 1227(a)(2)(E)(i) isn’t the best one. Which leads me to the second,
and more fundamental, reason that I favor en banc rehearing: It
would permit the full Court to carefully consider and decide (1)
how Loper Bright’s recognition of “statutory stare decisis” principles
interacts—if at all—with our own prior-panel-precedent rule, (2)
how we ought to deal with Chevron-era precedents on a going-
forward basis, and (3) whether (depending on the answers to those
questions) we should continue to consider ourselves bound by
Pierre.
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21-11416 MARCUS, J., Concurring 1
MARCUS, Circuit Judge, concurring in the judgment:
Today we hold that Bastias’s Petition for Review should be
denied, although we reach this conclusion for different reasons. As
I see it, the essential questions in this case are: (1) whether this
Court’s decision in Pierre v. U.S. Attorney General, 879 F.3d 1241
(11th Cir. 2018), which found a categorical match between the
Florida state crime of battery of a child involving bodily fluids and
the generic “crime of child abuse” found in the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1227, provides the rule of
decision in this case; and (2) whether there is a “match” under the
categorical approach between Bastias’s state crime of conviction
for child neglect in violation of the Florida penal code and the
federal “crime of . . . child neglect” found in the INA. My colleague
Judge Newsom concludes that Bastias is removable because we are
bound by our decision in Pierre. I write separately to explain why I
think we are not bound by Pierre, which decided a different
question and made a different match between a different state
crime and the crimes enumerated in the INA, and to offer a
different basis for why I’ve concluded that the state crime of child
neglect “matches” with the federal “crime of . . . child neglect”
found in the INA. Id.
I.
Ariel Marcelo Bastias is a native and citizen of Chile. On
February 6, 1997, Bastias adjusted status to that of a Lawful
Permanent Resident. On October 4, 2019, Bastias pleaded guilty to
an offense under Florida Statute § 827.03(2), which reads this way:
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827.03 Abuse, aggravated abuse, and neglect of a
child; penalties.--
. . .
(2) OFFENSES.--
(a) A person who commits aggravated child abuse
commits a felony of the first degree . . . .
(b) A person who willfully or by culpable negligence
neglects a child and in so doing causes great bodily
harm, permanent disability, or permanent
disfigurement to the child commits a felony of the
second degree . . . .
(c) A person who knowingly or willfully abuses a child
without causing great bodily harm, permanent
disability, or permanent disfigurement to the child
commits a felony of the third degree . . . .
(d) A person who willfully or by culpable negligence
neglects a child without causing great bodily harm,
permanent disability, or permanent disfigurement to
the child commits a felony of the third degree . . . .
Fla. Stat. § 827.03(2).
As we explained in our first panel opinion, it is unclear which
of these enumerated crimes Bastias pleaded guilty to. See Bastias v.
U.S. Att’y Gen. (“Bastias I”), 42 F.4th 1266, 1269 (11th Cir. 2022),
vacated sub nom., Bastias v. Garland, 144 S. Ct. 2704 (2024). The state
judgment of conviction lists “AGGRAVATED CHILD ABUSE”
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under “827.03(2),” but it lists the “Level/Degree” as
“Felony/SECOND DEGREE.” Meanwhile, the state court
sentencing scoresheet describes Bastias’s offense as “Child Neglect”
and lists the “FELONY DEGREE” as 3. Further adding to the
confusion is Bastias’s plea colloquy. The state court judge said to
Bastias: “I will adjudicate you guilty of [the] charge of aggravated
child -- nope, of child neglect -- child abuse, child neglect, a felony
of the third degree so it’s a lesser included offense of what you were
originally charged with.” And later, when the clerk asked for the
statute number under which Bastias was convicted, the judge said,
“Oh, I don’t know” and then replied, “Whatever” after one of the
attorneys suggested “827” for the statute number.
On August 4, 2020, Bastias was served with a Notice to
Appear before an immigration judge, which charged that he was
subject to removal from the United States pursuant to Section
237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), because he
was “an alien who at any time after entry has been convicted of a
crime of domestic violence, a crime of stalking, or a crime of child
abuse, child neglect, or child abandonment.”
After losing his petition before the immigration judge,
Bastias appealed to the Board of Immigration Appeals (“BIA”),
arguing that child neglect under Section 827.03(2)(d) contains
elements falling outside of the generic definition of child abuse,
thus barring a match between the least culpable conduct necessary
to sustain the state conviction and the “crime of child abuse, child
neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i).
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On April 2, 2021, the BIA dismissed Bastias’s appeal, having
determined that the conduct needed to sustain a conviction under
Section 827.03(2)(d) qualifies as a “crime of child abuse” as the BIA
had previously interpreted the phrase.
Bastias appealed the BIA’s ruling to our Court. After oral
argument, we denied Bastias’s petition for review. Bastias I, 42 F.4th
at 1268. We approached the BIA’s determination deferentially,
invoking the rules enunciated by the Supreme Court in Chevron
U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984),
and we concluded that the BIA had reasonably interpreted the
“crime of child abuse, child neglect, or child abandonment,” 8
U.S.C. § 1227(a)(2)(E)(i), to include Bastias’s child neglect
conviction under Florida Statute § 827.03. We said we were bound
by this Court’s earlier decision in Pierre, where a panel of this Court
determined, among other things, that the meaning of “crime of
child abuse” is ambiguous under “step one” of Chevron. Bastias I,
42 F.4th at 1272; Pierre, 879 F.3d at 1249. Because the term is
undefined and ambiguous, we proceeded to “step two” of Chevron
and determined that the agency’s definition was “based on a
permissible construction of the statute.” Chevron, 467 U.S. at 843;
Bastias I, 42 F.4th at 1274. Accordingly, we affirmed the BIA’s
dismissal of Bastias’s appeal. Bastias I, 42 F.4th at 1276.
On June 28, 2024, the Supreme Court overruled Chevron in
Loper Bright Enterprises v. Raimondo, 142 S. Ct. 2244 (2024). Loper
Bright rejected the Chevron framework and the requirement that
courts defer to agency interpretations. The Court observed that
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the Administrative Procedure Act (“APA”) “incorporates the
traditional understanding of the judicial function, under which
courts must exercise independent judgment in determining the
meaning of statutory provisions,” id. at 2262, and “in deciding
whether an agency has acted within its statutory authority, as the
APA requires,” id. at 2273. Although “[c]areful attention to the
judgment of the Executive Branch may help inform that inquiry,”
“courts need not and under the APA may not defer to an agency
interpretation of the law simply because a statute is ambiguous.”
Id. Rather, “[t]he weight of [an agency’s interpretation] in a
particular case . . . depend[s] upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.” Id. at 2259
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). We are
obliged to fulfill our obligation under Article III of the Constitution
“to adjudicate ‘Cases’ and ‘Controversies.’” Id. at 2257. Thus,
although a court may be persuaded by an agency’s interpretation,
it is not bound by that interpretation; it must conduct the analysis
de novo.
However, the Supreme Court also made a second point in
Loper Bright: that its holding did not “call into question prior cases
that relied on the Chevron framework. The holdings of those cases
that specific agency actions are lawful -- including the Clean Air Act
holding of Chevron itself -- are still subject to statutory stare decisis
despite our change in interpretive methodology.” Id. at 2273. In
support of its determination that statutory stare decisis applied, the
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Supreme Court cited to a prior case, CBOCS West, Inc. v. Humphries,
553 U.S. 442 (2008), where it affirmed on the basis of stare decisis a
previous interpretive holding even though the prior case relied on
a now-disfavored approach to statutory interpretation. Id. at 451,
457.
The Court explained that “[m]ere reliance on Chevron
cannot constitute a ‘special justification’ for overruling [holdings
relying on the Chevron framework], because to say a precedent
relied on Chevron is, at best, ‘just an argument that the precedent
was wrongly decided.’” Loper Bright, 144 S. Ct. at 2273 (quoting
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).
“That is not enough to justify overruling a statutory precedent.”
Id.
Bastias then petitioned the Supreme Court for a writ of
certiorari, since Bastias I had been based in large measure on
Chevron. The Supreme Court granted the writ, vacated our
opinion, and remanded the case back to us. Bastias, 144 S. Ct. at
2705.
II.
I begin with an explanation of the categorical approach, and
detail why, as I see it, we are not bound by our decision in Pierre,
but rather we are required to analyze de novo the basic substantive
question at issue -- whether Bastias’s state crime conviction for
child neglect qualifies as a crime under Section 237(a)(2)(E)(i) of the
INA, 8 U.S.C. § 1227(a)(2)(E)(i). Finally, I conclude that there is a
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categorical match between the state crime for which Bastias stands
convicted and the federal “crime of . . . child neglect.”
We all agree that determining whether a state conviction
qualifies as a “crime of child abuse, child neglect, or child
abandonment” under the INA requires us to apply the “categorical
approach.” This method calls upon us to “ask[] whether the ‘least
culpable conduct necessary to sustain a conviction under the [state]
statute’” matches the generic federal offense. Pierre, 879 F.3d at
1250 (quoting Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1241 (11th Cir.
2016)); see also Taylor v. United States, 495 U.S. 575, 599 (1990)
(discussing application of categorical approach to burglary
statutes). The categorical approach “focuses not on the criminal
conduct a defendant commits, but rather what facts are necessarily
established by a conviction for the state offense.” Moncrieffe v.
Holder, 569 U.S. 184, 205 n.11 (2013) (citation modified). In this
way, the categorical approach “ensures that all defendants whose
convictions establish the same facts will be treated consistently,
and thus predictably, under federal law.” Id.
“Under the categorical approach, we consider only the fact
of conviction and the statutory definition of the offense, rather than
the specific facts underlying the defendant’s case.” Gelin, 837 F.3d
at 1241. “In other words, we presume that the state conviction
‘rested upon . . . the least of th[e] acts’ criminalized by the statute,
and then we determine whether that conduct would fall within the
federal definition of the crime.” Esquivel-Quintana v. Sessions, 581
U.S. 385, 389 (2017) (alterations in original) (quoting Johnson v.
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United States, 559 U.S. 133, 137 (2010)). Bastias’s state conviction
therefore would match the generic federal “crime of . . . child
neglect” found in the INA “only if the least of the acts criminalized
by the state statute falls within the generic federal definition of” the
crime. Id. at 390.
Moreover, we all agree about the meaning of a holding in a
case. “As we’ve said many times, ‘[t]he holding of a case comprises
both the result of the case and those portions of the opinion
necessary to that result.’” Finn v. Cobb Cnty. Bd. of Elections &
Registration, 111 F.4th 1312, 1317 (11th Cir. 2024) (alteration in
original) (quoting United States v. Gillis, 938 F.3d 1181, 1198 (11th
Cir. 2019) (per curiam)). Thus, the holding also consists of the
rationale or reasoning necessary to reach the result of a case. See
Dana’s R.R. Supply v. Att’y Gen., 807 F.3d 1235, 1240 n.3 (11th Cir.
2015) (noting that a statement is dicta only if it “could have been
deleted without seriously impairing the analytical foundations of
the holding” (quoting Denno v. Sch. Bd., 218 F.3d 1267, 1283 (11th
Cir. 2000) (Forrester, J., concurring in part and dissenting in part))).
“Any other statements that are not necessary to the result are dicta
and do not bind us.” Finn, 111 F.4th at 1317. Moreover, “[t]he
holdings of a prior decision can reach only as far as the facts and
circumstances presented to the Court in the case which produced
that decision.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th
Cir. 2000) (per curiam) (quoting United States v. Hunter, 172 F.3d
1307, 1310 (11th Cir. 1999) (Carnes, J., concurring)).
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It is in the application of these basic principles to Pierre that I
disagree with my colleague and conclude that we are not bound by
this Court’s holding in Pierre. Pierre was tasked with matching the
federal crime of child abuse in the INA with a different state crime
-- battery of a child involving bodily fluids. As I see it, nothing in
its holding, nothing in its reasoning, and nothing necessary to
reaching its holding answers the basic question we face today.
In Pierre, the BIA reviewed an immigration judge’s order
applying the categorical approach in making a comparison
between battery of a child involving bodily fluids under Fla. Stat. §
784.085 and the INA’s definition of the federal “crime of child
abuse.” The BIA conducted its analysis de novo and concluded that
Pierre was removable and ineligible for cancellation of removal
based on his felony conviction for battery of a child involving
bodily fluids. Pierre, 879 F.3d at 1245. The federal crime of child
abuse and the state crime of battery of a child involving bodily
fluids required the same mens rea -- knowledge -- and there was also
a match between the actus reus required for both crimes. As for the
federal crime, the BIA reasoned, a child abuse conviction “‘at a
minimum’ . . . is one ‘involving the infliction on a child of physical
harm, even if slight’ or ‘mental or emotional harm.’” The state law
battery statute, in turn, requires the act of “[t]hrowing, tossing,
projecting, or expelling personal bodily fluids or feces onto a child,”
which among other things “carries a significant risk that the child
will be exposed to fluid-borne or fecal pathogens.” Since there was
in essence a match between the mens rea required by both the state
and federal crimes, and a match between the actus reus required by
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the state and federal crimes, there was a categorical match between
the two statutes, and, therefore, the BIA determined that Pierre
was removable.
When Pierre petitioned for review in this Court, we
addressed the same question. We defined the categorical
approach, observing that it requires matching the “least culpable
conduct necessary to sustain a conviction under the [state] statute”
against the federal crime listed in the INA. Id. at 1250 (quoting
Gelin, 837 F.3d at 1241). Turning first to the definition of the “crime
of child abuse” found in the INA, we said that “[i]f an INA term or
provision is undefined or ambiguous, and the BIA has interpreted
that term or provision in a published, precedential decision, we
defer to the BIA’s interpretation under Chevron, as long as it reflects
a permissible construction of the INA statute.” Id. at 1249. We
then observed that since the INA does not define “child abuse,” and
the term is ambiguous, we may defer to the BIA’s interpretation so
long as its interpretation was reasonable and consistent with the
statute. Id. We quoted the BIA’s broad definition of a “crime of
child abuse” as “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.” Id. (quoting In re Velazquez-Herrera, 24 I. & N. Dec.
503, 517 (B.I.A. 2008)). Next, we explained the rationale the BIA
used in its definition and accepted it as a reasonable one. Id. at
1249–51.
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Finally, we compared the elements of the federal “crime of
child abuse” to the elements of the state crime of battery of a child
involving bodily fluids. We found that the least culpable conduct
criminalized under the state statute required an actus reus of an
overt act and a mens rea of knowledge, and therefore it matched the
elements of the BIA’s definition of a crime of child abuse found in
the INA. See id. at 1250. The Court summarized its holding in
Pierre this way: “[A]pplying Chevron deference to the definitions of
‘child abuse’ found in Velazquez-Herrera and [In re Soram, 25 I. & N.
Dec. 378 (B.I.A. 2010)], we (1) uphold them as reasonable
interpretations of the INA, to the extent they apply to Pierre’s case,
and (2) conclude that the BIA did not err in concluding that Pierre’s
conviction for battery on a child constituted a crime of child
abuse.” Id. at 1251.
We expressly limited the scope of our holding in Pierre at
least two times. First, we observed that “[b]ecause Pierre’s
conviction necessarily involved a knowing and overt act, Pierre’s
case does not require us to determine whether purely negligent
acts with no injury to the child proscribed by a state statute
constitute generic crimes of child abuse.” Id. at 1251 n.3. We
recognized that our sister circuits were divided over whether the
BIA’s broad definition of “crime of child abuse” was overly
inclusive, but we had no occasion to dive into that debate because
we had no need to address or adopt that broad definition. See id.
(comparing the Tenth Circuit’s opinion in Ibarra v. Holder, 736 F.3d
903 (10th Cir. 2013), which “criticiz[ed] the BIA’s definitions of
‘child abuse’ as overly inclusive” and held that a conviction under
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a Colorado state statute “for criminally negligent conduct with no
injury did not fit the generic federal definition of child abuse,” with
the Second Circuit’s opinion in Florez v. Holder, 779 F.3d 207 (2d
Cir. 2015), which “criticiz[ed] Ibarra” and affirmed the BIA’s ruling
that a conviction under a New York state statute for “‘knowingly
act[ing] in a manner likely to be injurious to the physical, mental
or moral welfare of a child’ qualified as a generic crime of child
abuse” (second alteration in original) (quoting N.Y. Penal Law §
260.10(1) (McKinney 2010))). Second, we upheld the BIA’s broad
definition of the crime of child abuse only insofar as it applied to
the circumstances surrounding Pierre’s case.
Thus, the holding of Pierre is that, using Chevron deference
because there is no definition of the term “crime of child abuse” in
the INA, the crime of battery of a child involving bodily fluids
under Florida law is a categorical “match” with the federal “crime
of child abuse” found in the INA. We compared the state crime for
which Pierre was convicted to the removable crime listed in the
federal statute -- child abuse. Comparing the state battery crime to
the federal crime of child abuse made the most sense, since the state
battery crime is more than just a crime of child neglect and different
from a crime of child abandonment. Again, we cabined our
holding to the particular circumstances found in Pierre’s case, and
we declined to answer whether purely negligent conduct resulting
in no injury to a child would constitute a federal crime of child
abuse. Stripping away Chevron deference, which Loper Bright
requires us to do, I agree with my colleague that we are required
to read the holding of Pierre as being a de novo determination.
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However, I depart from my colleague’s reading of Pierre in a
few ways. Under Judge Newsom’s theory, the holding of Pierre is
composed of two pieces: that the Court (1) accepted, in its entirety,
the BIA’s broad interpretation of the phrase “crime of child abuse”
under Chevron deference, and (2) applied this accepted definition to
find a match to the underlying state offense under the categorical
approach. He suggests that by cabining its holding, Pierre did no
more than “leav[e] open for a future case . . . the question how . . .
that same interpretation would apply to a different state statute that
criminalized purely negligent misconduct.” In other words, Pierre
hedged only as to the second element of its holding: the application
of the definition to the underlying offense. By accepting the BIA’s
definition in the first instance, Judge Newsom says, Pierre endorsed
even those parts of the BIA’s interpretation that were not relevant
in the underlying dispute, and we are therefore bound by the BIA’s
definition of “crime of child abuse.” A central assumption of this
reading of Pierre is that “the reasonableness of an administrative
agency’s interpretation of a statute is an all-or-nothing thing.”
According to my colleague, if a court found a definition reasonable
under Chevron in one circumstance, it necessarily endorsed the
definition in all circumstances, since “it makes no sense to say that
an agency’s interpretation of a statute is reasonable with respect to
some concrete applications” but not others.
I necessarily read the holding of Pierre more narrowly than
my colleague does. I do not agree that under Chevron, the panel in
Pierre was required to accept the entirety of the BIA’s definition to
reach its ultimate conclusion. Agency interpretations of statutory
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language are often multifaceted, and not all aspects of a proffered
definition are implicated in every dispute. Just as a holding includes
those portions of the opinion that are necessary to reach the result,
Gillis, 938 F.3d at 1198, it has remained a cardinal principle of
judicial restraint that where “it is not necessary to decide more, it
is necessary not to decide more.” Dean v. Warren, 12 F.4th 1248,
1263 (11th Cir. 2021) (quoting PDK Lab’ys, Inc. v. U.S. Drug Enf’t
Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in the judgment)). In an ordinary case of
statutory interpretation, a reviewing court should address only the
portions of the statute that are relevant to the underlying dispute.
Nothing in Chevron changed this obligation. Chevron did no more
than grant courts a new tool of deference to review the lawfulness
of an agency’s action. See Loper Bright, 144 S. Ct. at 2264 (explaining
that Chevron “articulated and employed a now familiar two-step
approach broadly applicable to review of agency action”). As I see
it, that tool did not change the obligation of a reviewing court to
explicate a holding tailored to the underlying dispute, despite its
use of binary “yes-no questions” at each stage of analysis.
Otherwise, a court applying Chevron would have been required to
issue advisory opinions on the reasonableness of agency statutory
interpretations that were never at issue.
As exemplified by the holding of Pierre, it was perfectly
appropriate for a reviewing court applying Chevron to determine
that, on the facts before it, the contested portion of the agency’s
definition was reasonable, and to defer to its interpretation.
Consider what the panel in Pierre did and did not say in its analysis
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under the categorial approach. On the state crime side of the
matching equation, Pierre did not construe the Florida statute at
issue today. Pierre had no occasion to tell us what the crime of
“child neglect” under Florida Statute § 827.03 means. Pierre did not
look at the state crime of child neglect, since the petitioner had
been convicted of the crime of battery of a child involving bodily
fluids. Indeed, if Pierre had explicated the meaning of “child
neglect,” that commentary would have been dicta wholly
unnecessary to its holding.
In fact, the elements of the two state criminal statutes are
completely different: the Florida battery statute requires that a
person “knowingly cause or attempt to cause a child to come into
contact with blood, seminal fluid, or urine or feces by throwing,
tossing, projecting, or expelling such fluid or material.” Fla. Stat.
§ 784.085(1). Thus, to sustain a conviction for battery, this
requires: (1) a mens rea of knowledge; (2) causing or attempting to
cause a child to come into contact with blood, seminal fluid, urine,
or feces; and (3) throwing, tossing, projecting, or expelling blood,
seminal fluid, urine, or feces. See id.; accord Fla. Standard Crim. Jury
Instructions § 8.33.
In contrast, Florida’s criminal child neglect statute, for
which Bastias stands convicted, requires proving that a person
“willfully or by culpable negligence neglects a child without
causing great bodily harm, permanent disability, or permanent
disfigurement to the child.” Fla. Stat. § 827.03(2)(d). The elements
of the crime of child neglect are: (1) a mens rea of willfulness or
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culpable negligence; (2) a failure to provide a child with the care,
supervision, and services necessary to maintain his physical or
mental health; and (3) the absence of great bodily harm, permanent
disability, or permanent disfigurement. See id.; accord Fla. Standard
Crim. Jury Instructions § 16.6.
On the federal side of the equation, Pierre expressly chose
not to adopt the broad definition of “crime of child abuse” used by
the BIA in Velazquez-Herrera and Soram because there was no need
to. Again, remember the breadth of the BIA’s definition of the
“crime of child abuse”: it includes any offense involving
intentional, knowing, reckless, or criminally negligent acts or
omissions that constitute the maltreatment of a child, or impair a
child’s physical or mental well-being, including sexual abuse or
exploitation, and its definition of the crime of child abuse did not
require actual harm or injury. But because Pierre’s state conviction
necessarily involved both a knowing and an overt act, Pierre had no
need to determine whether a state crime involving only criminal
negligence that resulted in no injury to a child constituted the
federal crime of child abuse.
On Pierre’s own terms, its adoption of the BIA’s definition of
the “crime of child abuse” was not complete or all-encompassing:
it declined to endorse those parts of the BIA’s interpretation that
went beyond a mens rea of knowledge and an actus reus of an overt
act yielding an actual harm to the child. Pierre adopted only those
parts of the BIA’s broad definition “to the extent they apply to
Pierre’s case.” Pierre, 879 F.3d at 1251. Any other parts of the BIA’s
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definition, such as the inclusion of noninjurious, purely negligent
acts, were “not necessary to the result . . . and do not bind us.” Finn,
111 F.4th at 1317. The view that accepting the BIA’s definition
“supplied the major premise” of the Pierre panel’s logic, then, is
only half right. Pierre accepted only part of the BIA’s definition,
which formed the premise needed to match the definition to the
underlying Florida child battery crime. Thus, the most that can be
said of the holding in Pierre is that there is a match under the
categorical approach between the state crime of battery of a child
involving bodily fluids and the federal crime of child abuse. That
is the principle holding we are obliged to follow in the wake of
Loper Bright. See Loper Bright, 144 S. Ct. at 2273.
My colleague suggests that the Chevron-era “holdings”
preserved by the Court in Loper Bright must always include the past
court’s “antecedent determination that the agency’s reading of the
governing statute was ‘lawful,’” not just the “case-specific
application of a judicially approved agency interpretation to a
particular set of facts.” Once more, this strikes me as only half
right. The theory risks saying too much and taking Loper Bright too
far, enabling Chevron, which is now a dead letter, to continue to cast
a long shadow over our understanding of prior decisions. In
conjunction with my colleague’s all-or-nothing interpretation of
Chevron, this reading would transform dicta on agency definitions
into binding precedent through the vehicle of statutory stare decisis.
To my thinking, the better reading is that a holding under Loper
Bright is precisely what we have always read it to mean: “the result
of the case and those portions of the opinion necessary to that
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result.” Finn, 111 F.4th at 1317 (quoting Gillis, 938 F.3d at 1198). To
the extent, then, that a Chevron-era decision found an agency’s
definition to be reasonable, and to the extent that finding was
necessary to resolve the case, that finding is part of the holding and
remains good law. And where, as in the Clean Air Act example my
colleague cites, an agency’s full definition is accepted to reach the
result, the holding preserved by Loper Bright sweeps more broadly.
The critical question is whether the Chevron-era court adopted an
agency’s proffered reading in full.
Pierre did not do so. It plainly did not consider itself to be
applying the all-or-nothing reading of Chevron deference that my
colleague advances. Instead, it accepted the BIA’s definition only
“to the extent [it] appl[ies] to Pierre’s case,” a finding preserved by
Loper Bright. Pierre, 879 F.3d at 1251. As explained, the panel was
correct to limit its review based on the facts before it. But even if
Pierre misapplied Chevron or otherwise erred in cabining its holding,
we would still be obliged under the prior panel precedent rule to
adhere to Pierre’s holding until the panel’s decision is abrogated en
banc or by the Supreme Court. See United States v. Fritts, 841 F.3d
937, 942 (11th Cir. 2016) (“Under this Court’s prior panel precedent
rule, there is never an exception carved out for overlooked or
misinterpreted Supreme Court precedent.”). Accordingly, I do not
believe Pierre provides the rule of decision here, or even helps us
compare the state crime Bastias was convicted of -- the crime of
child neglect -- to the crimes embodied in the INA.
III.
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Since neither Pierre nor Chevron binds us in any way, we are
required to apply the categorical approach de novo. Moreover,
Bastias I is not binding on us either, because it was vacated by the
Supreme Court and remanded to us. See United States v. Sigma Int’l,
Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc) (per curiam)
(stating that vacated opinions “are officially gone. They have no
legal effect whatever. They are void. None of the statements made
in . . . them has any remaining force and cannot be considered to
express the view of this Court.”); Iranian Students Ass’n v. Edwards,
604 F.2d 352, 354 n.4 (5th Cir. 1979)1 (“[V]acating . . . [a] decision
deprives it of precedential value.”); O’Connor v. Donaldson, 422 U.S.
563, 577 n.12 (1975) (“Of necessity our decision vacating the
judgment of the Court of Appeals deprives that court’s opinion of
precedential effect, leaving this Court’s opinion and judgment as
the sole law of the case.”).
The question before us, then, is whether there is a match
between the state crime of child neglect and the federal crimes
against children found in the INA. In this case, I think the better
and more refined comparison is made between the state crime of
child neglect under Fla. Stat. § 827.03(2)(d) and the federal crime in
the INA using the exact same language -- the “crime of . . . child
neglect” under 8 U.S.C. § 1227(a)(2)(E)(i). Today, we need go no
further than making the comparison between the state crime of
1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October
1, 1981. Id. at 1209.
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child neglect and the federal crime of child neglect. We have no
need to explore the difficult interpretive questions surrounding the
scope and meaning of the generic “crime of child abuse.” After all,
the categorical approach asks whether the state crime matches the
“generic federal definition of a corresponding [crime].” Esquivel-
Quintana, 581 U.S. at 389 (emphasis added) (citation modified).
Merriam-Webster Dictionary defines “corresponding,” among
other things, as “related, accompanying.” Corresponding, Merriam-
Webster Dictionary, https://www.merriam-
webster.com/dictionary/corresponding (last visited Oct. 28, 2025).
Since Bastias’s state conviction was for the crime of child neglect,
the logical, corresponding, or related generic federal crime is the
“crime of . . . child neglect” found in the INA. Although a
definition of a “crime of child abuse” might encompass the crime
of child neglect and more, we have no occasion to make that
comparison because in this case, we find the same words
enumerating the same crime -- the crime of child neglect -- on both
sides of the ledger.
Turning, then, to the match, I conclude that the state crime
for which Bastias was convicted corresponds to the federal generic
crime found in the INA, because both statutes require a mens rea of
recklessness or higher and an actus reus of creating at least a risk of
real harm to a child. Again, “[u]nder the categorical approach, we
consider only the fact of conviction and the statutory definition of
the offense, rather than the specific facts underlying the defendant’s
case.” Gelin, 837 F.3d at 1241. This process, in turn, requires
determining what type of harm and mens rea are necessary to
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sustain a conviction for each offense. I agree with much of my
colleague Judge Middlebrooks’s analysis in conducting the match,
but I would explain the match in slightly different terms.
A.
I address first what conduct (actus reus) and what mens rea are
required to sustain a conviction for child neglect under the Florida
penal code. Based on my reading of the text and Florida’s case law,
the state crime of child neglect requires at a minimum conduct
creating a risk of serious harm or death to a child, rather than
conduct inflicting actual harm, along with at least a mens rea of
recklessness.
It is undisputed that the “least culpable conduct” under Fla.
Stat. § 827.03(2) is found in subsection (d), which states, “A person
who . . . by culpable negligence neglects a child without causing
great bodily harm, permanent disability, or permanent
disfigurement to the child commits a felony of the third degree . . .
.” Fla. Stat. § 827.03(2)(d).
Turning first to the harm required to sustain a conviction
under this section of the statute, the “least culpable conduct”
criminalized does not require inflicting any actual harm to the
child. Subsection (d) speaks of neglecting a child and not causing
great bodily harm, permanent disability, or permanent
disfigurement to the child. Id. This must mean that the statute
envisions the criminalization of conduct that may cause only
minor harm to the child or no harm at all. And if there be any
doubt about this, the statute defines “[n]eglect of a child” to include
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“a single incident or omission that results in, or could reasonably
be expected to result in, serious physical or mental injury, or a
substantial risk of death, to a child.” Id. § 827.03(1)(e). Because the
statute covers conduct that “could reasonably be expected to result
in . . . injury,” id. (emphasis added), it necessarily encompasses
culpable conduct that may not result in actual injury. Thus, to be
convicted of child neglect under Fla. Stat. § 827.03(2)(d), a
defendant need not have caused actual harm to the child; but he
must have done something or failed to do something that could
reasonably be expected to result in serious injury or a substantial
risk of death to the child. The Florida case law is consistent with
this interpretation. See, e.g., Arnold v. State, 755 So. 2d 796, 797 (Fla.
2d DCA 2000) (“[T]he legislature has required that the defendant’s
acts or omissions create a ‘reasonably expected’ potential for the
child to suffer, at a minimum, serious injury.”); see also State v.
Sammons, 889 So. 2d 857, 860 (Fla. 4th DCA 2004).
Turning next to the mens rea required to sustain a conviction
for child neglect, the least culpable conduct found in the statute
requires a mens rea of “culpable negligence.” The Supreme Court
of Florida has, for many years now, defined culpable negligence for
the crime of manslaughter as “consciously doing an act or
following a course of conduct that the defendant must have known
or reasonably should have known was likely to cause death or great
bodily injury.” McCloud v. State, 209 So. 3d 534, 541 (Fla. 2017).
Indeed, the Supreme Court of Florida has repeatedly and
consistently defined culpable negligence over the years in terms
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that resemble recklessness. As long ago as 1939, Florida’s high
court explained that culpable negligence for manslaughter requires
proving “a gross and flagrant character, evincing reckless disregard
of human life or of the safety of persons exposed to its dangerous
effects; or that entire want of care which would raise the
presumption of indifference to consequences; or such wantonness
or recklessness or grossly careless disregard of the safety and
welfare of the public, or that reckless indifference to the rights of
others, which is equivalent to an intentional violation of them.”
Russ v. State, 191 So. 296, 298 (Fla. 1939). And in Preston v. State, 56
So. 2d 543 (Fla. 1952), the Supreme Court of Florida again wrote
that culpable negligence “must be of ‘a gross and flagrant
character, evincing reckless disregard of human life or of the safety
of persons exposed to its dangerous effects; or that entire want of
care which would raise the presumption of indifference to
consequences; or such wantonness or recklessness or grossly
careless disregard of the safety and welfare of the public, or that
reckless indifference to the rights of others, which is equivalent to
an intentional violation of them.” Id. at 544 (quoting Savage v. State,
11 So. 2d 778, 779 (Fla. 1943)). More recently, in State v. Greene, 348
So. 2d 3 (Fla. 1977), the Supreme Court of Florida repeated that
“reckless indifference or grossly careless disregard of the safety of
others is necessary to prove ‘culpable negligence.’” Id. at 4. It
elaborated: “Whether members of the public would describe
reckless acts which create a great risk of danger to others as
culpable negligence or not, they know that such acts are criminally
outlawed.” Id.
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Notably, the Supreme Court of Florida has applied the same
definition for culpable negligence -- the requirement that the
conduct be reckless, consciously creating a great risk of danger to
others -- to cases involving crimes against children. See, e.g., State v.
Joyce, 361 So. 2d 406, 407 (Fla. 1978) (citing to Greene, a
manslaughter case, when discussing the culpable negligence
requirement for the state crime of child abuse). “Where the
highest court -- in this case, the Florida Supreme Court -- has
spoken on the topic, we follow its rule.” Molinos Valle Del Cibao, C.
por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011).
The Florida District Courts of Appeal have also applied this
definition of culpable negligence in criminal child neglect cases,
either using language that resembles recklessness or invoking
recklessness outright. See, e.g., Taylor v. State, 363 So. 3d 126, 130
(Fla. 1st DCA 2023) (“For negligence to be called culpable
negligence, it must be gross and flagrant. The negligence must be
committed with an utter disregard for the safety of others.
Culpable negligence is consciously doing an act or following a
course of conduct that the defendant must have known, or
reasonably should have known, was likely to cause death or great
bodily harm.” (quoting Kish v. State, 145 So. 3d 225, 227–28 (Fla. 1st
DCA 2014))); Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA
2016) (“This court has defined culpable negligence as ‘consciously
doing an act which a reasonable person would know is likely to result
in death or great bodily harm to another person, even though done
without any intent to injure anyone but with utter disregard for the
safety of another.’” (quoting Arnold, 755 So. 2d at 798)); Hill v. State,
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846 So. 2d 1208, 1214 (Fla. 5th DCA 2003) (“Proof of [the crime of
child neglect] requires the state to establish a high degree of
culpability on the part of the defendant, equivalent to the kind of
wanton and reckless behavior necessary to prove manslaughter or
punitive damages.”).
What’s more, we know that culpable negligence requires
more than simple negligence from an examination of the
legislative and judicial history surrounding Florida’s criminal child
neglect statute. In State v. Winters, 346 So. 2d 991 (Fla. 1977), the
Supreme Court of Florida ruled that the 1975 predecessor of
Florida’s criminal child neglect statute, which required only a mens
rea of simple negligence, was unconstitutional. Id. at 994. The
court explained that unlike requiring that a defendant’s action “be
willful []or culpably negligent,” the lesser requirement of simple
negligence meant that “[c]riminal penalties may be inflicted on
anyone who, by an act of commission or omission involving only
simple negligence, fails to meet the nebulous test of what is
necessary,” rendering the statute unconstitutional for vagueness.
Id. at 993–94. In its amendment to the Florida criminal child
neglect statute in 1991, the Florida legislature added additional
requirements to the statute but did not change the simple
negligence mens rea requirement, leading Florida’s appellate courts,
once again, to find the statute unconstitutional. See State v. Mincey,
658 So. 2d 597, 598 (Fla. 4th DCA 1995); State v. Ayers, 665 So. 2d
296, 297 (Fla. 2d DCA 1995); Arnold, 755 So. 2d at 797. In response
to these judicial rulings, the Florida legislature finally amended the
statute in 1996 to require a mens rea of willfulness or culpable
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negligence, which has remained a requirement to this day. See
Arnold, 755 So. 2d at 797–98; Fla. Stat. § 827.03.
In light of the legislative history surrounding Florida’s
criminal child neglect statute, and Florida’s case precedent defining
culpable negligence as requiring recklessness or some comparable
version of the conscious disregard of the substantial risk of injury
or death, I conclude that the lowest mens rea for culpable negligence
found in Fla. Stat. § 827.03(2)(d) is recklessness. See Model Penal
Code § 2.02(2)(c) (“A person acts recklessly with respect to a
material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or
will result from his conduct.”); 1 Wharton’s Criminal Law § 5:6
(16th ed. 2025) (“The reckless actor is aware of the risk and
consciously disregards it.”).
B.
The next step in the matching process requires us to
determine what federal crime enumerated in the INA we should
compare to Bastias’s state conviction for child neglect. As I’ve said,
I would focus on the federal “crime of . . . child neglect” standing
alone, rather than making the comparison to the enumerated
bundle of crimes against children found in the INA (“child abuse,
child neglect, or child abandonment”). Making the match this way
is easier and more direct; it compares crimes on both sides of the
equation that use precisely the same words; and it avoids the
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unnecessary task of divining the meaning of the broader generic
“crime of child abuse.”2
I begin with the text. See Ross v. Blake, 578 U.S. 632, 638
(2016) (“Statutory interpretation, as we always say, begins with the
text . . . .”). The text of the statute reads this way: “Any alien who
at any time after admission is convicted of a crime of domestic
violence, a crime of stalking, or a crime of child abuse, child
neglect, or child abandonment is deportable.” 8 U.S.C. §
1227(a)(2)(E)(i). Our focus, of course, is on the enumerated bundle
of crimes against the child -- a “crime of child abuse, child neglect,
or child abandonment.”
2 The case law drawn from our sister circuits does not help us decide what the
proper federal crime of comparison ought to be in this case. Before the
Supreme Court decided Loper Bright, uniformly, the cases applying the
categorical approach to assess whether an immigrant was deportable under 8
U.S.C. § 1227(a)(2)(E)(i) compared a variety of state crimes involving a child
with a unitary concept bundling together these federal crimes against a child.
This is unsurprising since the federal courts were still required to defer to the
BIA’s broad definition of a “crime of child abuse” if they found ambiguity in
the statute. See, e.g., Florez v. Holder, 779 F.3d 207, 211–12 (2d Cir. 2015);
Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158–59 (3d Cir. 2018); Garcia v.
Barr, 969 F.3d 129, 133–34 (5th Cir. 2020). More recently, the Fourth and Fifth
Circuits have applied the categorical approach to match up certain state crimes
against children to the crime of child abuse found in the INA, but the relevant
state crimes in each of those cases -- sexual abuse of a minor and online
solicitation of a minor -- plainly were crimes of child abuse, not crimes of child
neglect or child abandonment. See Cruz v. Garland, 101 F.4th 361, 363 (4th Cir.
2024); Sandoval Argueta v. Bondi, 137 F.4th 265, 268 (5th Cir. 2025).
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I start by giving the words in the statute their ordinary
meaning. See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474, 1481–82
(2021) (“[U]ntil and unless someone points to evidence suggesting
otherwise, . . . courts . . . are entitled to assume statutory terms
bear their ordinary meaning.”); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 69 (2012) (“Words are
to be understood in their ordinary, everyday meanings . . . .”). The
parties observe that, based on the introductory phrase “a crime of ”
in the INA, the BIA has understood the phrase “a crime of child
abuse, child neglect, or child abandonment” to be a unitary
concept, which sweeps in all three categories of offenses into one
amorphous bundle. See In re Soram, 25 I. & N. Dec. at 380–81; Cruz,
101 F.4th at 363. In my view, the better reading is that the ordinary
meanings conveyed by these terms are distinct, even if they overlap
in some ways.
In essence, child neglect suggests the failure to fulfill a duty
imposed by law that creates a risk of harm to a child, see Merriam
Webster’s Dictionary of Law 324 (1996) (“a disregard of duty
resulting from carelessness, indifference, or willfulness; esp: a
failure to provide a child under one’s care with proper food,
clothing, shelter, supervision, medical care, or emotional
stability.”). Child abuse suggests a broader nature of offending
conduct including a variety of sins against a child, see Child Abuse,
Black’s Law Dictionary (6th ed. 1990) (“Any form of cruelty to a
child’s physical, moral or mental well-being.”); while child
abandonment, in turn, suggests a different kind of crime, that is,
one leaving a child without an intent to return, see Abandonment,
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Black’s Law Dictionary (6th ed. 1990) (“Desertion or willful
forsaking.”).
What’s more, we have been taught repeatedly that under the
surplusage canon, “[i]f possible, every word and every provision is
to be given effect . . . . None should be ignored. None should
needlessly be given an interpretation that causes it to duplicate
another provision or to have no consequence.” Scalia & Garner,
Reading Law, at 174. “The canon against surplusage is strongest
when an interpretation would render superfluous another part of
the same statutory scheme.” City of Chicago v. Fulton, 141 S. Ct. 585,
591 (2021) (quoting Yates v. United States, 574 U.S. 528, 543 (2015)
(plurality opinion)). Congress chose to enumerate three separate
crimes against children -- abuse, neglect, and abandonment.
Although they may overlap in some ways, I do not think we should
read this bundle of child crimes as being singular. “[W]e must
presume that Congress said what it meant and meant what it said.”
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).
I think it is easier, at least for our purposes, and wiser to compare
the state crime of child neglect to one of the enumerated federal
crimes set out by Congress as a separate and distinct crime.
I also note that Congress chose to list these federal crimes in
the disjunctive. Again, the statute references “a crime of child
abuse, child neglect, or child abandonment.” 8 U.S.C.
§ 1227(a)(2)(E)(i) (emphasis added). And “[a]s ‘a general rule, the
use of a disjunctive in a statute indicates alternatives and requires
that those alternatives be treated separately.’” Brown v. Budget Rent-
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A-Car Sys., Inc., 119 F.3d 922, 924 (11th Cir. 1997) (per curiam)
(quoting Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876, 878 (5th
Cir. 1973)). Congress used the disjunctive “or” when it listed three
crimes against children, so it seems to me to be perfectly reasonable
for matching purposes to read each of these crimes as distinct, each
rendering an alien deportable. And although the heading in 8
U.S.C. § 1227(a)(2)(E)(i) says, “Domestic violence, stalking, and
child abuse,” and it does not list child neglect or child
abandonment, that does not affect my interpretive conclusion
because “[w]here [the] statutory text and title are inconsistent, we
go with the text.” Kanapuram v. Dir., USCIS, 131 F.4th 1302, 1308
(11th Cir. 2025); see also Brotherhood of R.R. Trainmen v. Balt. & Ohio
R.R. Co., 331 U.S. 519, 528–29 (1947) (“[T]he title of a statute and
the heading of a section cannot limit the plain meaning of the
text.”). Congress, after all, could have limited the words it used in
the text of the statute to just the “crime of child abuse,” but it chose
to separately enumerate the crimes of “child neglect” and “child
abandonment” as well.
In any event, even assuming arguendo that the phrase “a
crime of child abuse, child neglect, or child abandonment” refers
to an all-encompassing unitary concept under the broad offense of
“child abuse,” it would still be correct to focus on the crime of
“child neglect,” because the unitary concept of abuse sweeps in all
of the crimes included in the INA. Put differently, as my colleague
Judge Middlebrooks observes, even if “[the] broad definition of
child abuse describes the entire phrase,” In re Soram, 25 I. & N. Dec.
at 381, the bundle of offenses contained within a “crime of child
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abuse” would necessarily include child neglect, just as it would also
include child abandonment. Thus, regardless of whether the
“crime of child abuse, child neglect, or child abandonment” found
in the INA is read as a unitary concept or as a list of three individual
crimes, the appropriate question is whether the Florida child
neglect statute fits the meaning of “child neglect” under the INA.
In either case, the same phrase -- “child neglect” -- is central to both
the state and federal offense.
Having concluded that the correct match here is between
the Florida crime of conviction and the INA-enumerated “crime of
. . . child neglect,” our task is to divine the meaning of this generic
federal crime.
Turning first to the actus reus required by the generic “crime
of . . . child neglect” found in the INA, again, I begin with the
ordinary meaning of the term at the time this provision was added
to the INA. See Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)
(stating that “the law’s ordinary meaning at the time of enactment
usually governs”); Scalia & Garner, Reading Law, at 69 (“Words are
to be understood in their ordinary, everyday meanings . . . .”); id. at
78 (“Words must be given the meaning they had when the text was
adopted.”). The plain meaning of the term “neglect” encompasses
conduct that creates a risk of harm as well as conduct that actually
inflicts harm. Contemporaneous dictionaries defined “neglect” in
various ways:
• “the act or condition of disregarding”;
“[n]eglect indicates, as a purely objective fact,
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that a person has not performed a duty.” Bryan
A. Garner, A Dictionary of Modern Legal Usage
585 (2d ed. 1995) (emphasis omitted);
• “a disregard of duty resulting from
carelessness, indifference, or willfulness; esp: a
failure to provide a child under one’s care with
proper food, clothing, shelter, supervision,
medical care, or emotional stability.”
Merriam-Webster’s Dictionary of Law 324
(1996);
• “failure to do or perform some work, act, or
duty, required by one’s status or by law.”
Ballentine’s Law Dictionary (1994);
• “to omit, fail, or forbear to do a thing that can
be done, or that is required to be done, but it
may also import an absence of care or
attention in the doing or omission of a given
act. And it may mean a designed refusal,
indifference, or unwillingness to perform one’s
duty.” Black’s Law Dictionary (6th ed. 1990).
As these definitions explain, the kind of harm required by
the “crime of . . . child neglect,” is conduct that creates a risk of
harm, as well as conduct that inflicts actual harm. The definitions
also explain that child neglect involves the failure to do something
for a child that is required by law. The definition in Merriam-
Webster’s Dictionary lists specific things that someone has failed to
provide to a child that do not directly result in harm -- such as
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proper supervision -- thereby contemplating a risk of harm because
of a person’s failure to perform his duty.
Other dictionary definitions also contemplate that child
neglect encompasses conduct that creates a risk of harm. Thus, for
example, the definition found in Black’s Law Dictionary includes
“an absence of care or attention,” which would create a risk of
harm even without causing actual harm to a child. Likewise, the
definition in Ballentine’s Law Dictionary ties the failure to act as
required to “one’s status,” which in the context of child neglect and
someone with a duty to a child, could be interpreted as creating at
least a risk of harm to the child; after all, a person who has a legal
duty to a child generally creates, at the very least, a risk of harm to
the child if he fails to fulfill that duty.
Bastias argues, however, citing the rule of ejusdem generis,
that based on the severity of the other crimes with which it is listed
and with which it should be read together -- specifically, domestic
violence and stalking -- the “crime of . . . child neglect” should
include only conduct that actually harms a child and not conduct
that only creates a risk of harm, since that conduct is insufficiently
severe to be considered alongside the other crimes.
The argument is unconvincing because “a crime of child
abuse,” “a crime of . . . child neglect,” or “a crime of . . . child
abandonment” could be as severe as “a crime of stalking” even in
the absence of actual harm, depending on the degree of risk
created and the severity of the potential harm. Even accepting as
true that actual injury may be related to how severe neglectful
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conduct is, neglectful conduct may nonetheless be very severe even
in the absence of actual injury. Thus, for example, an adult could
place a child in a dangerous situation that has a high risk of serious
injury or death but where, due to sheer luck, no actual injury
occurs, like where a driver of a car leaves a six-month-old child in
the back seat of the car when the temperature exceeds 85 degrees
and goes into the store to shop for some time. In that scenario, the
adult would have been “severely” neglectful -- even if no injury
actually occurs -- in light of the very substantial risk of causing
serious bodily injury or death. Whether or not a child suffers an
actual injury is a different inquiry from how severe child neglect
may be: that is, the risk of injury could be very high and injury
could be avoided due only to sheer luck, yet the “crime of . . . child
neglect” would still be a very severe one. Put differently, it may be
true that the “crime of child abuse, child neglect, or child
abandonment” criminalizes only severe conduct, but such severe
conduct may include conduct that creates a serious and substantial
risk of bodily harm or death to a child as well as conduct resulting
in actual harm.
I am also unpersuaded by Bastias’s other argument -- that the
generic federal crime of child neglect requires the defendant to be
the child’s parent or guardian. In fact, the dictionary definitions of
“neglect” do not require a parental or parent-like duty at all. Thus,
for example, the definition Merriam-Webster’s Dictionary of Law
defines neglect as a failure to provide a child “under one’s care”
with his physical or emotional needs and does not limit the
definition to parents or guardians caring for a child. Similarly, the
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definition in Ballentine’s Law Dictionary refers to a failure to do
something that is required by “one’s status or by law,” again
including in its ambit not just parents or those like parents. These
definitions of child neglect include within their scope all people
who have a duty to take care of children, not just parents or
guardians.
Turning, then, to the next issue, the mens rea actually
required by the generic federal crime of child neglect is recklessness
or higher. Beginning with the plain meaning of “neglect” or “child
neglect,” the contemporaneous dictionary definitions do not help
us discern what specific mens rea is required for a generic crime of
child neglect. Thus, as we’ve seen, the entry for “neglect” in
Black’s Law Dictionary includes “willful neglect” as a related entry,
clearly envisioning that the mens rea for neglect could be willful.
Neglect, Black’s Law Dictionary (6th ed. 1990). On the other hand,
Garner’s Dictionary of Modern Legal Usage says that neglect “does
not necessarily involve negligence. For example, ‘neglect of a child’
may be either negligent or willful.” Garner, A Dictionary of Modern
Legal Usage, at 585. Because the dictionary definitions of “neglect”
and “child neglect” reference various levels of mens rea, it is unclear
at least based on a dictionary definition what specific level of mens
rea is encompassed by “a crime of . . . child neglect.” 8 U.S.C.
§ 1227(a)(2)(E)(i). For similar reasons, our recognition in Bastias I
that “neglect” and “negligence” derive from the same Latin root,
neglegere, does not help us determine what level of mens rea is
required to sustain a conviction for the crime of child neglect in the
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INA, inasmuch as neglect can encompass different levels of mens
rea. See Bastias I, 42 F.4th at 1275.
We need not dive too deeply into this issue, however,
because Bastias acknowledges that a mens rea of recklessness is
sufficient to sustain a conviction on the federal side of the equation.
The Petitioner argues that the generic federal crime of child neglect
“require[s] at least recklessness,” and he never makes the argument
that the crime requires a higher mens rea such as intent or
knowledge. Accordingly, recklessness found in Florida’s criminal
child neglect statute is sufficient to match the mens rea of
recklessness required by the generic federal crime of child neglect.
In a footnote, my colleague Judge Newsom questions
whether this conclusion “overread[s]” Bastias’s brief, surmising
that Bastias may have intended to do no more than “rul[e] out
negligence” rather than “conced[e] recklessness.” In my view, this
hinges on a strained reading of the brief’s plain language. The brief
reads this way: “That reasoning ignores Mr. Bastias’s argument
that ‘child abuse’ does require harm and ‘child neglect’ does require
at least recklessness and a parent-like duty—so negligent, non-
injurious conduct falls within neither term.” By summarizing his
position as one where “child neglect” “require[s] at least
recklessness,” Bastias recognizes recklessness to be the irreducible
minimum of the generic offense’s mens rea. This is the grammatical
and logical conclusion borne out by various dictionary definitions
of the term “at least.” See, e.g., Least, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/at%20least (last
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visited Oct. 28, 2025) (defining “at least” as “at the minimum”);
Least, Oxford English Dictionary,
https://www.oed.com/dictionary/least_adj?tab=meaning_and_
use#1223232300 (last visited Oct. 28, 2025) (defining “at least” as
“indicating that the amount is the smallest admissible or is
otherwise a minimum”). This definition applies with equal force
regardless of whether the referent is numerical or conceptual. In
either case, “at least” is the lowest permissible amount—anything
more is allowed, anything less is not. What’s more, in numerous
contexts the phrase “at least” indicates the irreducible minimum.
Thus, for example, Article I of the Constitution states that “each
State shall have at Least one Representative,” meaning one or
more representatives. U.S. Const. art I, § 2, cl. 3. Likewise, the
Twentieth Amendment states that “[t]he Congress shall assemble
at least once every year,” meaning that it may assemble once per
year, or it may assemble more than once per year. Id. amend. XX,
§ 2; see also Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999)
(“Use of the phrase ‘at least one’ means that there could be only
one or more than one.” (citation omitted)). This reading is again
bolstered by the position Bastias has taken throughout these
proceedings. He has never suggested or even remotely hinted that
the crime of child neglect requires a mens rea of knowledge or
intent. Recklessness is quite enough.
Judge Newsom also suggests that we need not adopt
Bastias’s concession -- even if the concession is clear -- where the
concession may be erroneous. As the Second Circuit has observed,
“[w]hen a party makes a concession on appeal as to an issue of law
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or fact,” a court “typically accept[s] or assume[s] the accuracy of
the concession without question. This practice permits the parties
to frame the litigation . . . . [and grants] flexibility in [the court’s]
decision-making process.” D.S. ex rel. M.S. v. Trumbull Bd. of Educ.,
975 F.3d 152, 162 (2d Cir. 2020). We have explained, however, that
“there is a difference between concessions about the law and those
about how the law applies and the result it produces given the facts
of a specific case.” Nesbitt v. Candler County, 945 F.3d 1355, 1357–58
(11th Cir. 2020). Where the concession involves a question of law,
such as the interpretation of a statute, we need not take it wholly
at face value. See Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d
537, 547 n.6 (11th Cir. 2019) (“[T]he Government cannot concede
away the proper interpretation of a statute . . . .”).
Nevertheless, a party’s concession on a point of law may
supply grounds to affirm what is otherwise a sound conclusion. See
Roberts v. Galen of Va., Inc., 525 U.S. 249, 253 (1999) (per curiam)
(“Although the concession of a point on appeal by respondent is by
no means dispositive of a legal issue, we take it as further indication
of the correctness of our decision today . . . .”). And as my
colleague Judge Middlebrooks observes, nothing in the text of the
INA demands a mens rea higher than recklessness. See Diaz-
Rodriguez v. Garland, 55 F.4th 697, 741 (9th Cir. 2022) (Collins, J.,
concurring in part and concurring in the judgment) (reviewing the
INA de novo and concluding “there is a compelling textual reason
not to construe ‘crime . . . of child neglect’ as requiring either
knowledge or intent. The operative term, after all, is ‘neglect,’ and
the relevant offense is the ‘crime of . . . child neglect.’ ‘Nothing’ in
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that language ‘indicates that [it] applies exclusively to knowing or
intentional’ acts or omissions.” (second alteration in original)
(quoting Voisine v. United States, 579 U.S. 686, 692 (2016)). Bastias’s
concession is a wise one, then, since it tracks the best reading of the
statute. It is therefore perfectly fair to hold Bastias to his
unambiguous concession.
In short, the generic federal crime of child neglect requires a
mens rea of recklessness and conduct creating a risk of harm to a
child, which matches the mens rea and conduct needed for the “least
culpable conduct” criminalized under Bastias’s Florida statute of
conviction. Thus, as I see it, there is a categorical match between
the Florida state crime and the federal crime found in the INA, and
therefore I agree with my colleagues that Bastias’s Petition for
Review must be denied.
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MIDDLEBROOKS, District Judge, concurring in the judgment:
In 1996, Congress amended the Immigration and
Nationality Act (the “INA”) to impose severe immigration
consequences on noncitizens convicted of specific child-related
offenses. Namely, the INA renders removable all persons convicted
of a “crime of child abuse, child neglect, or child abandonment.” 8
U.S.C. § 1227(a)(2)(E)(i). Congress did not supply a statutory
definition for this provision, requiring courts and the Board of
Immigration Appeals (the “Board”) to fill in the gaps. The Board’s
definition of a “crime of child abuse” has shifted several times since
the 1996 amendments were implemented, but under its most
recent iteration, the Board’s proffered reading covers “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.” Matter of Soram, 25
I. & N. Dec. 378, 380 (BIA 2010) (quoting Matter of Velazuez-Herrera,
24 I. & N. Dec. 503, 512 (BIA 2008)).
Previously, in reading the INA we have deferred to the
Board, as was required by the legal regime of Chevron, U.S.A. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See
Bastias v. U.S. Att’y Gen., 42 F.4th 1266 (11th Cir. 2022); Pierre v.
United States Attorney General, 879 F.3d 1241 (11th Cir. 2018). With
the Supreme Court’s decision in Loper Bright Enterprises v.
Raimondo, 603 U.S. 369 (2024), Chevron has been displaced, casting
doubt on previous statutory interpretation decisions resting on
Chevron deference. So too here. I nevertheless defer to my
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colleagues on the question of whether the Eleventh Circuit’s prior
decision in Pierre, effectuated through the doctrine of statutory
stare decisis, dispositively answers the interpretive problems raised
in this matter. I agree that following Loper Bright, the question is far
from settled. I write separately, however, to observe that even if
this case were not governed by Pierre, Mr. Bastias’s deportation
would still be proper on a de novo reading of the INA. That is, the
“best reading” of the statute confirms Mr. Bastias was convicted of
a “crime of child abuse.” Loper Bright, 144 S. Ct. at 2266.
I
To uncover the best reading of the INA, we must look to
Congress’s intent as effectuated by the statutory text. Leocal v.
Ashcroft, 543 U.S. 1, 8 (2004). Here, the disputed phrase, a “crime of
child abuse, child neglect, or child abandonment,” lacks a
congressionally sanctioned definition, and so we must use the
ordinary tools of statutory interpretation to divine its meaning.
Loper Bright, 144 S. Ct. at 2268. This case is abnormal, however, as
8 U.S.C. § 1227(a)(2)(E)(i) does not concern just any ambiguity, but
turns on the critical word “crime,” which both Parties agree
captures a “single category” of offenses that “encompasses the
entire phrase.” Respondent’s Supp. Brief at 8; Petitioner’s Supp.
Brief at 6 n.3. Where Congress fails to define a federal crime, courts
must clarify its contours and supplement the statute’s text using the
so-called “categorical approach.” Taylor v. United States, 495 U.S.
575, 588 (1990).
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Under the categorical approach, a court will ignore the
particulars of the defendant’s conduct, and instead apply a two-step
statutory analysis. First, the court must fashion its own “generic”
definition of the federal crime at issue, which “reflect[s] the ‘cluster
of ideas’ behind the terms Congress actually used.” Ibarra v. Holder,
736 F.3d 903, 914 (10th Cir. 2013) (quoting Morissette v. United
States, 342 U.S. 246, 263 (1952)). The Supreme Court has instructed
that at this stage, a court should uncover the “contemporary
meaning” of the crime using relevant sources, such as legal
dictionaries, other federal statutes, and contemporaneous state
criminal codes. See Taylor, 495 U.S. at 596. Next, the court asks
whether the state statute under which the defendant was convicted
“categorically fits” the generic definition of the federal crime. That
is, the court must determine whether the statute’s “least culpable
conduct necessary to sustain a conviction” would satisfy the
elements of the generic federal offense. Daye v. U.S. Att’y Gen., 38
F.4th 1355, 1361 (11th Cir. 2022) (quoting Zarate v. U.S. Att’y Gen.,
26 F.4th 1196, 1199 (11th Cir. 2022)).
II
Here, the first step of the categorical approach is simplified
by the nature of the Parties’ dispute. The Parties both agree that
under Florida Statute § 827.03(2), the least culpable conduct
necessary to sustain a conviction is governed by section (d). The
provision states that “[a] person who willfully or by culpable
negligence neglects a child without causing great bodily harm,
permanent disability, or permanent disfigurement to the child
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commits a felony of the third degree.”1 Fla. Stat. § 827.03(2)(d).
Petitioner cites three reasons why Florida Statute § 827.03(2)(d)
does not categorically fit the “crime” of child abuse, neglect, or
abandonment Congress meant to render deportable in 1996. First,
Petitioner claims that as Congress intended, a crime of child abuse,
neglect, or abandonment requires some harm or injury to befall the
child, whereas Florida Statute § 827.03(2)(d) requires no such
injury for criminal liability to attach. Second, Petitioner contends
that Florida Statute § 827.03(2)(d) targets criminally negligent
conduct using the phrase “culpable negligence,” whereas Congress
intended for the INA to embrace only crimes committed with a
mens rea of recklessness or greater. Finally, Petitioner insists
Florida Statute § 827.03(2)(d) extends to many potential adult
offenders, whereas a crime of child abuse, neglect, or abandonment
is misconduct by only a parent or guardian. These three
contentions culminate in Petitioner’s ultimate thesis, that
“negligent, non-injurious conduct by someone without a legal duty
akin to a parent or guardian” falls outside the meaning of “child
abuse.” Petitioner’s Brief at 1. Petitioner’s thesis is unpersuasive.
A
To begin, the generic definition of a “crime of child abuse,
neglect, or abandonment” is not cabined to only injurious conduct.
The plain text of 8 U.S.C. § 1227(a)(2)(E)(i) specifies the crime may
be one of child abuse, neglect, or abandonment. “Because ‘a crime
1 Under Florida law, a conviction for a third-degree felony carries a “term of
imprisonment not exceeding 5 years.” Fla. Stat. § 775.082(3)(b)(2)(e).
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of child abuse, child neglect, or child abandonment’ represents a
single category of crimes—crimes of child abuse—the intended
sweep of the term must be broad enough to encompass all three of
the listed offenses: abuse, neglect, and abandonment.” Cruz v.
Garland, 101 F.4th 361, 365 (4th Cir. 2024). While the concept of
“abuse” may readily conjure the image of a harmed child, one can
“neglect” or “abandon” a child without causing tangible injury.
Both are kinds of deprivation, which need not always graduate into
harm. As the Fourth Circuit explained, “it is not necessary for a
child to have been actually harmed. One can engage in
abandonment or neglect by creating a substantial risk of harm to
the child due to lack of supervision or protection. . . . This requisite
risk of harm to a child fully effectuates Congress’s intent to single
out those who have been convicted of maltreating or preying upon
children.” Cruz, 101 F.4th at 365 (quoting Matter of Aguilar-Barajas,
28 I. & N. Dec. 354, 359 (BIA 2021)) (internal quotation marks
omitted).
This intuitive account of a “crime of child abuse” is reflected
in contemporary legal dictionaries. Although some dictionaries in
1996 defined “child abuse” as intentional cruelty to a child, see
Black's Law Dictionary at 239 (6th ed. 1990), others clarified that
“maltreatment of a child, esp. by beating, sexual interference, or
neglect” was sufficient, Oxford English Dictionary at 114 (2d ed.
1989). Moreover, “child neglect” was defined as the “failure on the
part of a parent or parental substitute to supervise a child and
provide requisite care and protection,” Webster’s II New College
Dictionary at 194 (1995), and “child abandonment” was a “failure
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to communicate with or provide financial support for one’s child
over a period of time that shows a purpose to forgo parental duties
and rights,” Merriam-Webster’s Dictionary of Law at 1 (1996). See
also Diaz-Rodriguez v. Garland, 55 F.4th 697, 713–15 (9th Cir. 2022)
(collecting sources). The majority of dictionary sources thereby do
not require conduct to harm a child to be classified as neglect or
abandonment, as the operative phrases employed, such as
“maltreatment” and “failure . . . to supervise,” may be readily
applicable without proof of actual injury.
Finally, the holding of Pierre reinforces the conclusion that
the federal definition of “crime of child abuse” does not require
actual injury or harm. While Petitioner correctly observes that
Pierre did not decide whether a “crime of child abuse” embraces
purely negligent acts, Pierre, 879 F.3d at 1250 n.3, Pierre did
expressly hold that “child abuse crimes under the INA are not
limited to those offenses ‘requiring proof of actual harm or injury
to the child,’” id. at 1250. In so holding, the Court recognized and
adopted the Board’s reading of child abuse as a “well-recognized
legal concept,” which must be broad enough “to encompass
endangerment-type crimes” in order to accomplish “uniform
nationwide application.” Id. at 1249-50. None of these conclusions
are displaced by the fall of Chevron, and they retain their persuasive
power as evidence of the best reading of the statute. Were the INA
constrained to only criminal conduct that resulted in actual injury
to a child, swaths of neglectful, abusive conduct may escape the
ambit of 8 U.S.C. § 1227(a)(2)(E)(i), an impermissible result in light
of Congress’s “aggressive legislative movement to expand the
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criminal grounds of deportability” for crimes against children. Id.
at 1249.
B
Next is perhaps the greatest controversy at issue in this case:
the mens rea required for the generic federal crime of child abuse.
The bare text of 8 U.S.C. § 1227(a)(2)(E)(i) does not itself provide a
mens rea, but appears to refer only to the grounds for criminally
culpable actus reus: abuse, neglect, or abandonment. Where a
statute does not supply a mens rea, the Supreme Court has
occasionally read into the statute a mens rea of knowledge or
intent. Ruan v. United States, 142 S. Ct. 2370, 2377 (2022). As other
courts interpreting 8 U.S.C. § 1227(a)(2)(E)(i) have found, however,
“there is a compelling textual reason not to construe ‘crime . . . of
child neglect’ as requiring either knowledge or intent. The
operative term, after all, is ‘neglect,’ and the relevant offense is the
‘crime of . . . child neglect.’ ‘Nothing’ in that language ‘indicates
that [it] applies exclusively to knowing or intentional’ acts or
omissions.” Diaz-Rodriguez, 55 F.4th at 741 (Collins, J., concurring
in part and concurring in the judgment) (quoting Voisine v. United
States, 579 U.S. 686, 692 (2016). The Parties have instead proffered
alternative readings of 8 U.S.C. § 1227(a)(2)(E)(i), disputing
whether a “crime of child abuse” embraces the lowest culpable
mental state: criminal negligence. Whereas Respondent insists the
generic federal crime of child abuse captures criminally negligent
conduct, Petitioner argues that in 1996 “child neglect required the
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defendant to have a men rea greater than criminal negligence.”
Petitioner’s Brief at 2.
Ultimately however, both Parties misconstrue the critical
inquiry demanded by the categorical approach. The question
before us is not whether, in the abstract, the generic federal crime
of child abuse requires a particular mens rea. Rather, it is whether
there is a categorical fit between the generic federal crime and the
particular provisions of Florida Statute § 827.03(2)—including the
attendant mens rea that accompanies them. Florida Statute §
827.03(2)(d) references two mens rea standards that attach criminal
liability: “willfully” and “culpabl[y] negligen[t].” Fla. Stat. §
827.03(2)(d). Neither Party contests that willful—i.e., intentional or
purposeful—abusive conduct against children is deportable under
8 U.S.C. § 1227(a)(2)(E)(i). We must therefore determine whether
“culpable negligence,” as defined in Florida law, is a culpable
mental state under the generic federal crime of child abuse.
The meaning of “culpable negligence” itself presents a
puzzle of statutory interpretation. The statute does not define
culpable negligence, and both Parties have largely proceeded under
the assumption that culpable negligence is akin to ordinary
criminal negligence. This assumption is not borne out by Florida
law. Ordinarily, a “person acts recklessly, in the most common
formulation, when he ‘consciously disregards a substantial and
unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from
accepted standards.” Borden v. United States, 593 U.S. 420, 427 (2021)
(quoting Model Penal Code § 2.02(2)(c); Voisine, 579 U.S. at 694).
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Conversely, “a person acts negligently if he is not but ‘should be
aware’ of such a ‘substantial and unjustifiable risk,’ again in ‘gross
deviation’ from the norm.” Borden, 593 U.S. at 427 (quoting Model
Penal Code § 2.02(2)(d)). The key distinction, then, is whether a
person’s gross deviation reflects a conscious or reckless disregard
of a substantial and unjustifiable risk, or merely an unreasonable
failure to perceive the risk associated with one’s conduct.
For more than eighty years, Florida courts have read
“culpable negligence” in a manner that does not quite match either
traditional recklessness or classic criminal negligence. “Where the
highest court . . . has spoken on the topic, we follow its rule.”
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th
Cir. 2011). Here, the Florida Supreme Court has explained that the
standard for culpable negligence is “at least as high as that required
for the imposition of punitive damages in a civil action,” requiring
“a gross and flagrant character, evincing reckless disregard for
human life” or an “entire want of care which would raise the
presumption of indifference to consequences.” Russ v. State, 191 So.
296, 298 (Fla. 1939); see also Preston v. State, 56 So. 2d 543, 544 (Fla.
1952) (“The ‘culpable negligence’ required to sustain a
manslaughter charge must be of ‘a gross and flagrant character,
evincing reckless disregard of human life . . . or that entire want of
care which would raise the presumption of indifference to
consequences.’”); State v. Green, 348 So. 2d 3, 4 (Fla. 1977) (“Thus,
reckless indifference or grossly careless disregard of the safety of
others is necessary to prove ‘culpable negligence.’”). The Florida
Supreme Court has also at times defined culpable negligence with
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reference to the standard for recklessness, requiring “reckless
disregard of human life or a conscious indifference to the
consequences.” Behn v. State, 621 So. 2d 534, 537 (Fla. 1993)
(emphasis added).
Across these cases are several consistent requirements,
including that the dereliction of care be so egregious as to be
tantamount to intentional misconduct. At the very least, the
Florida Supreme Court has explained that although the phrase
“negligent” is used, “culpable negligence” is a distinct concept2
comparable to scienter. See State v. Joyce, 361 So. 2d 406, 407 (Fla.
1978). While not binding authority, Florida’s jury instructions
further reflect the divergence between negligence and culpable
negligence, explaining that “culpable negligence is more than a
failure to use ordinary care for others. . . . Culpable negligence is a
course of conduct showing reckless disregard for human life, . . . or
such an entire want of care as to raise a presumption of a conscious
2 In fact, the Florida Supreme Court clarified this distinction in the context of
a constitutional challenge. In State v. Winters, the Florida Supreme Court
declared an older child neglect statute, Florida Statute § 827.04(2),
unconstitutionally vague. 246 So. 2d 991, 994 (Fla. 1977). There, the statute
criminalized “negligent treatment of children,” which was held to be too
indefinite and overbroad. Id. at 993-94. In State v. Joyce, however, the Court
clarified that Florida Statute § 827.03(2) did not suffer from the same
constitutional deficiencies, explaining that whereas the statute in Winters “made
criminal acts of simple negligence conduct which was neither willful nor
culpably negligent,” Florida Statute § 827.03(2) required a higher showing of
“willfulness (scienter) or culpable negligence.” 361 So. 3d at 407. Because
culpable negligence was comparable to scienter, the Court explained, the statute
employing it did not “suffer from the constitutional infirmity of vagueness.” Id.
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indifference to consequences . . . [or] such an indifference to the
rights of others as [to be] equivalent to an intentional violation of
such rights.” Fla. Std. Jury Instr. (Crim) 8.9.
Although the Florida Supreme Court has been relatively
consistent with its interpretation of “culpable negligence,” lower
Florida courts have suffered from greater variance. Whereas some
have more or less adopted the standard used by the Florida
Supreme Court, see, e.g., Ibeagwa v. State, 141 So. 3d 246, 247 (Fla.
Dist. Ct. App. 2014) (defining culpable negligence to include “gross
or flagrant” conduct showing “reckless disregard of human life,” an
“entire want of care as to raise a presumption of a conscious
indifference to consequences,” or such “wantonness or
recklessness” as to equal the intentional violation of the rights of
others), others have woven in standards that resemble criminal
negligence, see, e.g., Kish v. State, 145 So. 3d 225, 227–28 (Fla. Dist.
Ct. App. 2014) (contending culpable negligence involves conduct a
defendant knew or should have known was likely to produce great
harm); Taylor v. State, 363 So. 3d 126, 130 (Fla. Dist. Ct. App. 2023)
(same).
This web of court precedent and jury instructions
notwithstanding, what is clear from a survey of Florida sources of
law is that culpable negligence cannot be neatly categorized as
either recklessness or criminal negligence. While a defendant
evidently need not consciously disregard a risk in order to be
culpably negligent—the traditional hallmark of recklessness—
liable acts qualifying under the standard are so egregious as to be
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considered akin to intentional conduct, well beyond ordinary
criminal negligence. This proximity to intent is further exemplified
by the structure of Florida Statute § 827.03(2)(d), as “culpable
negligence” is placed alongside “willfully,” suggesting some degree
of equivalence between the two. See Ristau v. State, 201 So. 3d 1254,
1257 (Fla. Dist. Ct. App. 2016) (“[Culpable Negligence is reserved
for] only the most egregious conduct, done either willfully or with
criminal culpability.”). Indeed, in assessing where culpable
negligence falls in the hierarchy of criminal mental states, the
Florida Supreme Court and the Eleventh Circuit have both
suggested culpable negligence may even be above recklessness. See
Smith v. U.S. Att’y Gen., 983 F.3d 1206, 1211 (11th Cir. 2020) (“[T]he
mens rea required to sustain a conviction for vehicular homicide—
recklessness—amounts to more than simple negligence, but less
than culpable negligence, which is required to sustain a conviction
for manslaughter.”) (citing McCreary v. State, 371 So. 2d 1024, 2016
(Fla. 1979)).
We need not state definitively whether culpable negligence
should be classified as either recklessness or negligence. Rather, we
must only decide whether culpably negligent conduct, as described
by the Florida courts, satisfies the generic federal definition of child
abuse. I think it apparent that it does. Recall that if nothing else,
culpably negligent conduct is conduct so egregious and grossly
flagrant as to evince a reckless disregard for human life, revealing
such a want of care as to raise a presumption of conscious
indifference to the consequences. Whether this dereliction of care
is predicated on what the defendant should have known or in fact
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did know, it stands to reason that conduct of such a reckless and
egregious nature can readily be classified as “abuse,” “neglect,” or
“abandonment” as Congress understood those terms in 1996.
The case law applying culpable negligence demonstrates as
much. In Taylor v. State, the court held that a mother’s conduct was
culpably negligent when she used methamphetamine while
supervising her three-week-old baby, which ultimately resulted in
the baby’s death. 363 So. 3d at 130. In Ibeagwa v. State, a mother
was also convicted of culpably negligent conduct following the
deaths of her two children, aged six and three, who were left home
alone, unsupervised, for hours before they eventually drowned in
their neighbor’s pool. 141 So. 3d at 247-48. These acts of neglect,
which were egregious enough to be considered culpably negligent,
readily satisfy the contemporary meaning of neglect as captured in
the INA. Once again, dictionaries in circulation when the INA was
amended in 1996 define neglect as “failure on the part of a parent
or parental substitute to supervise a child and provide requisite care
and protection.” Webster's II New College Dictionary at 194
(1995); see also Neglect, Bryan Garner, A Dictionary of Modern
Legal Usage 535 (2d ed. 1995) (defining neglect as “the act or
condition of disregarding”; “Neglect indicates, as a purely objective
fact, that a person has not performed a duty”); Webster’s
Dictionary of Law at 324 (1996) (defining it as “a disregard of duty
resulting from carelessness, indifference, or willfulness; esp: a
failure to provide a child under one’s care with proper food,
clothing, shelter, supervision, medical care, or emotional
stability”).
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Petitioner’s contentions to the contrary are unpersuasive.
Much of Petitioner’s analysis claims that the INA does not embrace
criminally negligent conduct. This is a patently lower bar than
culpable negligence, and therefore is inapplicable to the Florida
statute. Indeed, as revealed by acts which have been held to not be
culpably negligent, there is a sizeable category of conduct which
may be criminally negligent, but which does not rise to the level of
culpable negligence. In Kish v. State, the court found that a mother
was not culpably negligent for leaving her three children
unattended for several hours, during which time the children
developed illnesses that landed them in the emergency room. 145
So. 3d at 226-27. The court explained that despite the children being
sick, merely leaving the children unattended—without more—did
not rise to the level of egregious conduct needed for culpable
negligence to apply. Id. at 229.
Even with more troubling fact patterns, the demands of
culpable negligence are not readily satisfied. In Kelley v. State, the
defendant was charged with neglecting a child through culpable
negligence after he drunkenly walked a four-year-old child under
his care down the middle of a major road. 341 So. 3d at 469-70.
Reversing the conviction, the court concluded that “although
Kelley’s behavior was negligent and irresponsible, it did not
constitute ‘culpable negligence.’” Id. at 469. Moreover, in Jones v.
State, a father was charged with child neglect after he dropped his
six-week-old infant against a bathtub, before waiting eleven hours
to finally seek medical attention after the baby began coughing up
bloody milk. 292 So. 3d 519, 521 (Fla. Dist. Ct. App. 2020). The child
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ultimately suffered permanent injuries and brain damage. Id. The
reviewing court found even this conduct “[did] not rise to the level
of gross of flagrant disregard sufficient to prove [the defendant]
acted ‘willfully or by culpable negligence.’” Id. at 523.
The varying outcomes of culpable negligence cases reveal
that, while perhaps imprecise, the standard of culpable negligence
is a demanding one. Not just any negligence will do—even when
the defendant’s conduct would otherwise constitute a criminal
deviation from the standard of care, or a failure to perceive a risk
they should have known. As such, Petitioner’s analysis, which
addresses criminal negligence, is unhelpful. For instance, Petitioner
expends much ink citing surveys of contemporary state criminal
codes for the assertion that a majority of states did not criminalize
negligent, non-injurious conduct involving children. Petitioner’s
Brief at 35-40; see also Ibarra, 736 F.3d at 915 (“Only eleven states
clearly criminalized non-injurious child endangerment where the
culpable mental state was only criminal negligence.”); Diaz-
Rodriguez v. Garland, 12 F.4th 1126, 1135 (9th Cir. 2021) (“[O]nly 14
States criminalized child endangerment committed with a mens
rea of criminal negligence.”).
The Supreme Court has “made clear that . . . a multi-state
survey ‘is not required by the categorical approach.’” Diaz-
Rodriguez, 55 F.4th at 744 (Collins, J., concurring in part and
concurring in the judgment) (quoting Esquivel-Quintana v. Sessions,
582 U.S. 385, 396 n.3 (2017)). In this case, the surveys Petitioner
cites are also not especially persuasive, as even if they are correct,
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they do not bear on the particular question before us. Surveys of
state law may be a useful tool for discerning the contemporary
meaning of statutorily undefined legal terms. Here, however, the
Florida statute makes use of a term not found elsewhere in state
criminal codes. Culpable negligence is unique to Florida, and so
surveys of other state laws, which assess state laws under the lower
standard of criminal negligence, cannot inform whether culpable
negligence is a categorical fit for child abuse.
Instead, the sources of law that are instructive—Florida law
and contemporary legal dictionaries—reveal that culpably
negligent conduct fits well within the statutory structure of the
INA. Indeed, Petitioner may be correct in arguing that “the child-
abuse provision is paired with two ‘heinous crimes,’ which
suggests that the child abuse provision, too, ‘encompasses only
especially egregious felonies.’” Petitioner’s Supp. Brief at 13
(quoting Esquivel-Quintana, 582 U.S. at 393-94). It would defy
common sense to suggest that actions taken against children,
which reveal an “entire want of care as to raise a presumption of a
conscious indifference to consequences,” are not among those
especially egregious felonies. Russ, 191 So. at 298. Accordingly, no
matter how we might classify “culpable negligence” within the
traditional hierarchy of culpable mental states, we must conclude
that as used in Florida law, culpable negligence captures a category
of conduct that is so egregious as to raise a presumption of
conscious indifference, which rises to a level of seriousness
matching those acts of abuse, neglect, and abandonment Congress
meant to render deportable in 1996.
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C
Finally, Petitioner’s claim that only conduct undertaken by
a parent or parental substitute can be considered abuse, neglect, or
abandonment within the meaning of INA is unavailing. Florida
Statute § 827.03(2)(d), which criminalizes “neglect[ing] a child
without causing great bodily harm,” defines “neglect” to mean “[a]
caregiver’s failure or omission to provide a child with the care,
supervision, and services necessary to maintain the child’s physical
and mental health.” Fla. Stat. § 827.03(1)(e). A “caregiver,”
moreover, is defined as any “adult household member” or “person
responsible for a child’s welfare.” Id. § 827.03(1). Petitioner
contends this statutory scope sweeps too far, Petitioner’s Supp.
Brief at 4-5, 15, asserting that the crime of abuse or neglect
necessarily involves the violation of a particular kind of duty, which
is only incurred by a parent or guardian.
The INA, as amended in 1996, reveals no such requirement.
As contemporary sources demonstrate—and as demanded by
common intuition—one may abuse or neglect a child without
being the child’s parent. It is sufficient, instead, for one to have
assumed a supervisory role, such that the child is within their
care—thereby assuming the duty to care for that child throughout
the duration of their supervision. See Webster's II New College
Dictionary at 194 (1995) (neglect is “failure on the part of a parent
or parental substitute to supervise a child and provide requisite care
and protection” (emphasis added)); Neglect, Ballantine’s Legal
Dictionary and Thesaurus (1995) (“The failure to do or perform
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some work, act, or duty, required by one's status or by law”);
Webster’s Dictionary of Law at 324 (1996) (“[A] disregard of duty
resulting from carelessness, indifference, or willfulness; esp: a
failure to provide a child under one’s care with proper food, clothing,
shelter, supervision, medical care, or emotional stability”
(emphasis added)).
As Petitioner points out, Florida Statute § 827.03(2) has been
applied to non-parental caregivers before, such as babysitters. See
Petitioner’s Supp. Brief at 5 (citing State v. Nowlin, 50 So. 3d 79, 82
(Fla. Dist. Ct. App. 2010)). This does not strike me as inappropriate.
Nothing in the text, history, or purpose of the 1996 amendments
to the INA suggests Congress intended to shield children from only
parental abuse or neglect. Rather, concepts like abuse and neglect
may apply to all kinds of caregivers because they wield supervisory
power over children, whatever form that power may take or
whatever title may accompany it. It is distinct from, say, the crime
of spousal abuse, which refers specifically to a category of abuse
perpetuated by an aggressor in a romantic relationship with the
abused. Here, the only relevant requirement for the crime of child
abuse is the abuse itself, which is matched by the language of
Florida Statute § 827.03(2).
III
Having established that the generic federal offense of child
abuse is not confined to injurious conduct, embraces culpably
negligent acts, and may extend to those who are not parents nor
guardians of the victim, it is a fairly straightforward matter to
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conclude Florida Statute § 827.03(2) is a categorical fit. Under
Florida Statute § 827.03(2), the least culpable conduct criminalizes
“neglect” by a caregiver, taken either willfully or with culpable
negligence—even if said neglect does not result in injury. Given the
text and structure of the INA as amended in1996, and upon review
of relevant contemporary legal sources, there is little doubt that
Congress meant to render deportable acts like those criminalized
by Florida Statute § 827.03(2). I do not think it necessary, from this
conclusion, to decide whether ordinary criminal negligence falls
within the meaning of child abuse, as a criminal negligence statute
is not before us. The statute before us is one of a unique and
heightened character, attaching only to the most egregious,
wantonly reckless conduct that may appear before the state’s
courts. Such a statute thoroughly accords with the text and aims of
the INA, and the best reading of what a “crime of child abuse”
entails.
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