[00:00:00] Speaker 04:
Everything okay here.

[00:00:01] Speaker 04:
Can you see Judge Rakoff okay?

[00:00:04] Speaker 02:
Little in the peripheral over there.

[00:00:07] Speaker 04:
You can't tell how handsome he truly is, right?

[00:00:10] Speaker 04:
I can tell.

[00:00:11] Speaker 02:
Oh, okay.

[00:00:15] Speaker 02:
Good morning, Your Honor.

[00:00:16] Speaker 01:
Good morning.

[00:00:17] Speaker 01:
My wife wants rebuttal time on that, but... Thank you, Your Honor.

[00:00:24] Speaker 02:
And may it please the Court.

[00:00:25] Speaker 02:
My name is Robert Burke, B-E-R-K-E.

[00:00:27] Speaker 02:
I represent the petitioner, Martín León Breviesca.

[00:00:31] Speaker 02:
I would respectfully like to reserve two minutes for rebuttal.

[00:00:37] Speaker 02:
Aspirationally, I'd like to reserve two minutes.

[00:00:40] Speaker 02:
All right.

[00:00:41] Speaker 02:
Thank you.

[00:00:41] Speaker 04:
If we take all our time, usually I give people a little extra if we take up all your time, so...

[00:00:45] Speaker 02:
I appreciate that, Your Honor.

[00:00:47] Speaker 02:
Thank you.

[00:00:48] Speaker 02:
So I went through some machinations in my head as to where to start the argument today.

[00:00:56] Speaker 02:
And the one thing that kept coming back into my mind, and therefore the place I've chosen to start, is this case initiated with an NTA in 2010.

[00:01:06] Speaker 02:
Now, what's happened between 2010 and the 15 years until 2026?

[00:01:15] Speaker 02:
16 years already.

[00:01:17] Speaker 02:
And that is that between this court and other courts and the Board of Immigration Appeals,

[00:01:26] Speaker 02:
There has been something of a debate going on about what is the definition of a crime of child abuse.

[00:01:34] Speaker 02:
It's gone back and forth.

[00:01:35] Speaker 02:
Now, a lot of that debate has centered on the issue of whether actual harm is necessary in order to sustain a charge under 237A2E.

[00:01:51] Speaker 02:
But the bottom line is, is that when this court defers to the board, it says actual harm is necessary.

[00:02:00] Speaker 02:
When this court doesn't defer to the board, it reaches the conclusion that it doesn't.

[00:02:05] Speaker 02:
The last time that this court looked at it in sort of a, in its own light, in its own way, which I would say is for Gozo,

[00:02:18] Speaker 04:
Which I guess is giving the best reading of the statute is what we have to do, right?

[00:02:23] Speaker 02:
Yes, but you can't.

[00:02:25] Speaker 02:
That's kind of where I'm going with this.

[00:02:27] Speaker 02:
We have a statute that if we assume that Congress knows what it's doing, right,

[00:02:36] Speaker 02:
then Congress has the obligation to write a law that people understand.

[00:02:45] Speaker 02:
The whole point of the void for vagueness doctrine, the whole reason that's tied up in due process issues, the whole reason is so that a petitioner or a respondent in removal proceedings, like my client, can say, oh, if I take this plea, I'm subject to removability, or if I take that plea, I'm not subject to removability.

[00:03:04] Speaker 04:
This plea has that consequence this plea doesn't have that consequence Okay, but the California statute appears to require showing of circumstances or conditions likely to produce great bodily harm or death Why isn't that sufficiently objective to defeat a claim of void for vagueness?

[00:03:23] Speaker 02:
Because we're talking about a removal statute right we're talking about a removal statute

[00:03:29] Speaker 02:
And so actually I see a nuance to your question that my answer is not going to address.

[00:03:37] Speaker 02:
So why doesn't that remove the issue of void for vagueness?

[00:03:40] Speaker 02:
It doesn't remove the issue of void for vagueness because we can look right back at the Maya and we can say we have to look at

[00:03:51] Speaker 02:
What an average case, what an ordinary case in this circumstance.

[00:03:56] Speaker 02:
So what does it mean?

[00:03:57] Speaker 02:
We can start there.

[00:03:58] Speaker 02:
What's an ordinary case of under circumstances likely to cause great bodily injury?

[00:04:03] Speaker 02:
Is that, to use an example from the Valdez case, is that putting a baby on a bed that's a high bed without rails?

[00:04:13] Speaker 04:
Is this negligent parenting?

[00:04:20] Speaker 04:
I'm listening.

[00:04:32] Speaker 04:
have held that 1227 encompasses child endangerment even when the child is not hurt.

[00:04:38] Speaker 04:
So why is that not the best reading of the statute?

[00:04:41] Speaker 04:
Because what you're asking us to do is going to then create a split in the circuit, right?

[00:04:47] Speaker 02:
Well, this is why every argument I make is going to come back to, we have a bad statute.

[00:04:55] Speaker 02:
Because in my case, I'm not really arguing that.

[00:04:59] Speaker 02:
My case is there's no intent, there's no level of intent.

[00:05:03] Speaker 02:
When I misunderstood the court's question, when I had to go back and change the answer I was going to give, it's because my issue has to do with any level of willfulness, right?

[00:05:15] Speaker 04:
It doesn't have to do with whether there's harm.

[00:05:17] Speaker 04:
Well, okay, so does the level of mens rea require for a conviction under the California statute

[00:05:21] Speaker 04:
differ from the level required by 1227A2EI.

[00:05:27] Speaker 04:
So how does it differ?

[00:05:28] Speaker 02:
Only prong two, because prong two and people leave all this and how convenient I just happen to have it in front of me.

[00:05:37] Speaker 02:
I can read to you.

[00:05:40] Speaker 02:
It says,

[00:05:41] Speaker 02:
Moreover, use of a general intent standard is appropriate when the statute criminalizes commission of a battery or direct infliction.

[00:05:49] Speaker 02:
So Valdez says there is a different mens rea for the second means by which you can violate 273A sub A. No mens rea, just a general intent.

[00:06:08] Speaker 02:
right, to do the act but with no awareness or no relationship to the harm.

[00:06:16] Speaker 04:
So... So just remind me, what was the behavior in your case?

[00:06:25] Speaker 02:
In my case?

[00:06:26] Speaker 02:
Yes, the facts in your case.

[00:06:27] Speaker 02:
It was the inappropriate touching of a 17-year-old girl.

[00:06:31] Speaker 02:
Okay.

[00:06:34] Speaker 02:
With more details, obviously.

[00:06:37] Speaker 02:
That's the problem.

[00:06:42] Speaker 03:
Can I ask you, what is the definition of a crime of child abuse, child neglect, or child abandonment that you want us to adopt?

[00:06:50] Speaker 02:
What do I want you to adopt?

[00:06:52] Speaker 02:
Yes.

[00:06:52] Speaker 02:
So let me start with, I'm not necessarily that unhappy with Velasquez.

[00:06:58] Speaker 02:
I'm sorry to everybody in the audience to say that.

[00:07:01] Speaker 02:
I'm not necessarily unhappy with it because of the framing of my issue, or at least the way I framed my issue, which focuses on the intent element, which I can speak more to in a second.

[00:07:14] Speaker 03:
So you're not advocating for an overarching definition of what that crime is, you just think that it includes a heightened type of mens rea?

[00:07:23] Speaker 02:
Oh no, I'm much more radical than that, Your Honor.

[00:07:26] Speaker 02:
I think that whole statute, I think all of 237A2E,

[00:07:33] Speaker 02:
is legal garbage.

[00:07:37] Speaker 02:
And I apologize for the strong use of the words.

[00:07:40] Speaker 02:
But Congress gave us something that we can't settle, right?

[00:07:47] Speaker 02:
Not only that.

[00:07:48] Speaker 02:
This is too vague.

[00:07:49] Speaker 02:
It's too vague.

[00:07:51] Speaker 02:
For 15 years.

[00:07:53] Speaker 02:
Oh, I'm sorry.

[00:07:54] Speaker 04:
I know.

[00:07:54] Speaker 04:
It's a little bit.

[00:07:55] Speaker 04:
Go ahead, Judge Rakoff.

[00:07:57] Speaker 01:
So I was thinking your most recent comments is not only

[00:08:03] Speaker 01:
addressed to the vagueness issue.

[00:08:05] Speaker 01:
So the federal statute refers to a crime of child abuse, child neglect, or child abandonment.

[00:08:21] Speaker 01:
In crime in the federal sense,

[00:08:27] Speaker 01:
normally requires some form of mens rea.

[00:08:32] Speaker 01:
And indeed, here in the California statute, as interpreted by the California Supreme Court,

[00:08:43] Speaker 01:
we have a situation where not only is no mens rea required, but it could be simple negligence, albeit quote, criminal negligence, but it just negligence involving, in effect, accidental violations.

[00:09:10] Speaker 01:
And the

[00:09:12] Speaker 01:
That's despite the fact, I might add, that the California statute says willfully, repeatedly, but it's been interpreted by the California Supreme Court totally differently from how the Supreme Court of the United States interprets willfully.

[00:09:33] Speaker 01:
So what I thought you were saying, at least in part, when you were talking about intent, is

[00:09:40] Speaker 01:
that a lack of intent is permitted under this particular California statute that is not encompassed in what Congress clearly meant when they refer to a crime of X, Y, and Z.

[00:09:57] Speaker 02:
I agree with Your Honor because Your Honor makes me smarter than I actually am in your summary of my argument.

[00:10:07] Speaker 02:
The one thing, though, is when you said negligence, albeit criminal negligence, the Valdez case actually says otherwise.

[00:10:16] Speaker 02:
It doesn't have to be criminal negligence.

[00:10:19] Speaker 02:
It's just a general intent, the same intent as a battery.

[00:10:24] Speaker 01:
But for what it's worth, but we're now getting into California a little bit.

[00:10:31] Speaker 01:
But I don't really understand, as the California Supreme Court has interpreted, what the difference is between negligence and criminal negligence, because

[00:10:44] Speaker 01:
If it involves a state of mind at all, it becomes recklessness, which is a separate category that is included.

[00:10:53] Speaker 01:
So negligence, criminal or otherwise, must be a lesser, something that's accidental.

[00:11:07] Speaker 02:
with apologies, the way I can kind of dodge that question is to say if all we need is a general intent, then we don't even need to hit negligence, much less criminal negligence, right?

[00:11:20] Speaker 02:
That's true.

[00:11:21] Speaker 02:
So the difference being that with the general intent, there doesn't need to be any mental relationship to an outcome.

[00:11:28] Speaker 02:
It doesn't have to be foreseeable.

[00:11:30] Speaker 02:
It doesn't have to be likely.

[00:11:34] Speaker 02:
You don't have to know that there's this outcome possible, et cetera, et cetera.

[00:11:41] Speaker 02:
So instead of drawing a distinction between negligence and criminal negligence,

[00:11:46] Speaker 02:
which I'm not prepared to do, and I apologize for that.

[00:11:50] Speaker 02:
I dodged the question by simply saying we don't even need negligence to sustain a conviction under prong two of 237, I'm sorry, of the California Statute 273A.

[00:12:05] Speaker 03:
So, counsel, I'm not sure I understand your mens rea argument.

[00:12:09] Speaker 03:
So Congress says a crime of child abuse and child neglect or child abandonment.

[00:12:13] Speaker 03:
Right.

[00:12:14] Speaker 03:
In all cases where they specify these types of crimes, we're supposed to look at the categorical crime and then look at what the mens rea is in the categorical crime.

[00:12:23] Speaker 03:
And so here, at least under the Collins concurrence and Diaz-Riaz-Riguez, categorically, child neglect has had criminal negligence as a mens rea.

[00:12:32] Speaker 03:
So what's the ambiguity?

[00:12:35] Speaker 03:
What's the void for vagueness problem?

[00:12:38] Speaker 02:
Oh, the void for vagueness problem?

[00:12:40] Speaker 02:
No, we're conflating an argument here.

[00:12:43] Speaker 02:
I'm very happy with any finding that says criminal negligence is the minimum threshold of intent.

[00:12:51] Speaker 02:
I'm very happy with that.

[00:12:52] Speaker 02:
So I don't challenge the statute from that perspective.

[00:12:58] Speaker 02:
I challenge the statute on a void for vagueness level because we have had to go back over this time after time after time for 15 years

[00:13:10] Speaker 02:
and we can't settle it because Congress chose language.

[00:13:15] Speaker 03:
So I'm not sure I understand your argument.

[00:13:17] Speaker 03:
You're happy with criminal negligence as being the minimal standard?

[00:13:20] Speaker 02:
I am, but that doesn't solve the problem with the statute.

[00:13:25] Speaker 03:
Why not?

[00:13:26] Speaker 02:
Because again, Congress chose language that we can't apply in any kind of rational or equal way, especially across states that have different ideas and different concepts.

[00:13:42] Speaker 02:
I mean, the states are not settled on what constitutes child endangerment.

[00:13:48] Speaker 02:
Diaz is no longer a case that we can...

[00:13:52] Speaker 02:
you know, uses binding authority, but boy, did it go through the whole litany of states and how these state statutes are, and we got to compare them to language that Congress chose that has no meaning.

[00:14:05] Speaker 01:
It's meaningless language.

[00:14:11] Speaker 01:
Why isn't it an answer that your adversary might give to the point you're just making about intent that

[00:14:20] Speaker 01:
By crime, all congressmen was whatever the state, whatever state is the relevant state, considers a crime.

[00:14:36] Speaker 01:
And that, to take an extreme example we're not presented with, but if a state determined that the protection of children was so important,

[00:14:47] Speaker 01:
that it would be a crime to expose them to any form, any risk of harm, even if it was done totally unintentionally, accidentally.

[00:15:02] Speaker 01:
Why couldn't it be argued that when they used the terms of the federal statute convicted of a crime, that included that extreme situation?

[00:15:16] Speaker 02:
If I understand your question correctly, Your Honor, I think it goes all the way back to Taylor.

[00:15:22] Speaker 02:
It's because we have to have a uniform treatment of immigration matters across the country.

[00:15:32] Speaker 02:
So it's an uncomfortable situation under the law to say some conduct in Arizona

[00:15:40] Speaker 02:
you know, is a removable offense, but the identical conduct in California is not a removable offense, which is why Taylor starts with, you know, you got to come to some generic definition.

[00:15:53] Speaker 02:
So what they did in Diaz here in the Ninth Circuit, and again, Diaz not a good case anymore, the decision vacated is, my understanding is we can't rely on that

[00:16:03] Speaker 02:
for anything at all, but the logic in it is good and I think it could be used persuasively.

[00:16:08] Speaker 02:
You know, they went ahead and they did a survey of all 50 states and they said, we can't glean.

[00:16:15] Speaker 02:
a generic definition by looking at what all 50 states does.

[00:16:18] Speaker 02:
They're all over the board.

[00:16:20] Speaker 02:
So you can't get past even that first prong of the Taylor definition of coming up with a generic definition based upon a survey of the states.

[00:16:30] Speaker 02:
You can't do it by looking at other federal statutes.

[00:16:33] Speaker 02:
They tried doing that.

[00:16:34] Speaker 02:
You can't do it by looking at Black's law dictionary.

[00:16:37] Speaker 02:
We tried doing that.

[00:16:39] Speaker 02:
So the only thing that this court has ever been able to do is say, well, we defer to the Board of Immigration Appeals.

[00:16:47] Speaker 02:
But now, you know, we can also take the position that the Board of Immigration Appeals has no particular expertise in interpreting, you know, state laws or what have you.

[00:16:59] Speaker 02:
So deference isn't owed.

[00:17:01] Speaker 02:
And of course, that's the reason I'm back here, you know, six

[00:17:05] Speaker 02:
six years later or five years later because we're out of the deference.

[00:17:09] Speaker 02:
But I want to make clear to the court... Well, you're out of... You're over time.

[00:17:13] Speaker 04:
So let me find out... You're two minutes over.

[00:17:16] Speaker 04:
Let me find out if my colleagues have any additional questions.

[00:17:19] Speaker 04:
They don't.

[00:17:20] Speaker 04:
So I will give you two minutes for rebuttal.

[00:17:22] Speaker 02:
I appreciate it, Your Honor, and I apologize for going over.

[00:17:26] Speaker 04:
I know, it's confusing.

[00:17:29] Speaker 04:
All right, we'll hear from the government.

[00:17:36] Speaker 04:
Good morning.

[00:17:37] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:17:39] Speaker 00:
Imran Zaydi for the government.

[00:17:41] Speaker 04:
So we're going to see a bit of you this morning, I guess.

[00:17:43] Speaker 00:
You're going to see a bit of me.

[00:17:45] Speaker 00:
You're going to see a bit of me this morning.

[00:17:46] Speaker 04:
The same mister, how do we say it?

[00:17:48] Speaker 00:
Zadie.

[00:17:49] Speaker 04:
Zadie?

[00:17:49] Speaker 04:
Zadie, yes.

[00:17:50] Speaker 04:
All right, thank you.

[00:17:51] Speaker 00:
Yes, Your Honor, you'll be seeing me in the first, the second, and the fifth case.

[00:17:55] Speaker 00:
I'll try to keep it as painless as possible.

[00:17:59] Speaker 00:
I suspect that's going to include me trying not to repeat myself and saying less and less affirmatively and successive arguments, certainly on the

[00:18:07] Speaker 00:
Child abuse and generic definition side of things but all of that of course is subject to the panel's questions So well, you've sort of heard where your friend on the other side has focused us.

[00:18:17] Speaker 04:
So Is the level of mens re required for a conviction under California statute at least as high as that required by a USC section 1227 a to e I

[00:18:34] Speaker 00:
Yes, Your Honor.

[00:18:35] Speaker 00:
It's criminal negligence.

[00:18:36] Speaker 00:
I think I'm not fully following some of petitioners' arguments here when it comes to the mens rea, but it's criminal negligence.

[00:18:42] Speaker 00:
We've accepted that.

[00:18:43] Speaker 01:
Well, when you say, please tell me what you mean by criminal negligence.

[00:18:47] Speaker 00:
Well, criminal negligence, Your Honor, as California has defined it, and somewhat similar to how other state statutes that we're going to talk about today have, is a gross deviation from a standard of care.

[00:18:59] Speaker 00:
What California said is that it is gross, reckless, or culpable conduct that is a substantial departure from what an ordinary person would do in their reasonable care.

[00:19:11] Speaker 01:
So let me make sure I understand that.

[00:19:15] Speaker 01:
the the statute we're dealing with here two seventy three uh... the california penal code says willfully willfully willfully but which the supreme court united states has always interpreted to mean in the criminal context uh... knowing an intentional uh...

[00:19:42] Speaker 01:
The California Supreme Court says that it's not a lesser form of intent.

[00:19:53] Speaker 01:
Reckless, yes, but reckless is a separate question.

[00:19:57] Speaker 01:
They say even less than reckless, not involving intent, but involving just conduct that is, as you say, a gross deviation, et cetera.

[00:20:13] Speaker 01:
How's that consistent with federal law?

[00:20:18] Speaker 00:
I'm sorry, Your Honor, you're still talking about California's criminal negligence now, correct?

[00:20:23] Speaker 00:
Correct.

[00:20:25] Speaker 00:
I think it's consistent because it appears to provide what is even more than the criminal negligence that perhaps the board contemplated here.

[00:20:32] Speaker 00:
Because when you talk about a gross deviation from or the way Oregon and other statutes described it as a substantial departure from the ordinary level of care,

[00:20:43] Speaker 00:
California describes it as something that is not something on the plane of what a normal parent would think about or do.

[00:20:49] Speaker 00:
This is not thinking about a substantial risk.

[00:20:52] Speaker 00:
And in this case, it's something that would create a likelihood of harm that is death or great bodily injury to a child.

[00:20:59] Speaker 01:
Let me distinguish.

[00:21:02] Speaker 01:
or have you distinguish for me the difference between this and recklessness.

[00:21:08] Speaker 01:
So the classic definition of recklessness is that you choose to take

[00:21:17] Speaker 01:
or to disregard, depending whether it's an omission or a commission, a risk of harm that is highly probable, substantial, in this case to a child.

[00:21:33] Speaker 01:
That's recklessness.

[00:21:34] Speaker 01:
Everyone agrees that's covered.

[00:21:37] Speaker 01:
Criminal negligence, therefore, is something less than that.

[00:21:43] Speaker 01:
And the way it is less, as I read the California Supreme Court, is that it doesn't have to involve any conscious choice at all.

[00:21:54] Speaker 01:
It just happens to be behavior even if undertaken accidentally that creates a gross risk of harm to a child.

[00:22:06] Speaker 01:
And my question is, I'm not saying California can't criminalize that, I'm saying how is that consistent with Congress's notion of what a crime is?

[00:22:19] Speaker 00:
It's consistent, Your Honor, because under all the tools of construction, I'm not going to get into them now, but I will, of course, if the panel wants, that we've described for this case and for all of the cases this morning, this conduct, especially when you look at criminal neglect in this statute,

[00:22:35] Speaker 00:
encompasses a mens rea of negligence, because the conduct itself, or the words child neglect, suggest or imply negligence.

[00:22:44] Speaker 00:
And when you look at the statutes that were contemporaneous.

[00:22:47] Speaker 01:
If I remember my first year torts class, negligence doesn't require any intent.

[00:22:56] Speaker 00:
Well, this is criminal negligence, Your Honor, and we're not saying that it requires.

[00:23:00] Speaker 01:
And the Supreme Court of California

[00:23:04] Speaker 01:
seems to say that criminal negligence doesn't require any mental state either.

[00:23:11] Speaker 01:
It just requires that the act should be more severe.

[00:23:14] Speaker 01:
Gross negligence, in effect.

[00:23:15] Speaker 00:
Gross negligence.

[00:23:16] Speaker 00:
That's right.

[00:23:17] Speaker 00:
And I think to the extent, Your Honor, suggesting that it doesn't involve intent or consciousness, we're fine with that.

[00:23:22] Speaker 00:
That's how we understand negligence, too.

[00:23:25] Speaker 00:
Again, criminal negligence is, I think we are agreeing, a gross departure from an ordinary standard of care and something that would lead to a substantial and unjustifiable risk of harm.

[00:23:37] Speaker 04:
Here, likely, the likely harm... Well, is the California statute, does it require circumstances or conditions likely to produce great bodily harm or death?

[00:23:46] Speaker 00:
Yes.

[00:23:47] Speaker 04:
Is that what it is?

[00:23:48] Speaker 00:
Yes.

[00:23:50] Speaker 01:
And... It says the statute three times over.

[00:23:53] Speaker 01:
Pardon me?

[00:23:54] Speaker 01:
the California statute, and again, of course, we have to defer to the California Supreme Court as to what the statute means, but 273A says, any person who under circumstances or condition likely to produce great bodily harm or death willfully causes or remits any child, et cetera, or

[00:24:24] Speaker 01:
willfully causes or permits the child to be placed in a situation, et cetera.

[00:24:29] Speaker 01:
Three times of the statute, they use the term willfully, which under the common law was, and as the Supreme Court of the United States has repeatedly said, in the criminal context means intent.

[00:24:49] Speaker 00:
That's right, Your Honor.

[00:24:50] Speaker 00:
We don't disagree with that.

[00:24:51] Speaker 00:
I'm not sure that we disagree that much.

[00:24:53] Speaker 00:
We do understand criminal negligence to be less than willful.

[00:24:57] Speaker 00:
We don't believe it to require an intentional or willful or necessarily conscious act.

[00:25:02] Speaker 00:
But it does mean a substantial departure from the standard of care.

[00:25:06] Speaker 00:
And we do believe that that is consistent.

[00:25:08] Speaker 00:
I think your question is, how does that match then the federal definition of child abuse?

[00:25:13] Speaker 00:
And that's where, under the tools of construction, we believe the very words, child neglect, as the concurrence in Diaz Rodriguez suggested, implicates negligence.

[00:25:22] Speaker 03:
Right.

[00:25:22] Speaker 03:
So that's my question.

[00:25:23] Speaker 03:
You mentioned child neglect several times, and that clearly shows that a mens rea of criminal negligence is sufficient for the statute.

[00:25:34] Speaker 03:
But in your briefs, you advocate for this broader unitary definition

[00:25:38] Speaker 03:
What do you want us to do?

[00:25:40] Speaker 03:
Should we follow what the DS Rodriguez concurrence does, which just focuses on what child neglect says?

[00:25:46] Speaker 03:
Or do we need to adopt this grand unitary theory?

[00:25:50] Speaker 00:
No, Your Honor.

[00:25:51] Speaker 00:
The grand unitary theory is certainly what Velasquez Herrera and Madrasorum set forth.

[00:25:58] Speaker 00:
And that is 100% our primary position here.

[00:26:00] Speaker 00:
The reason I go to child neglect, I think the concurrence gets directly.

[00:26:03] Speaker 04:
But after Loper-Brite, we don't

[00:26:06] Speaker 04:
Do we defer to either of those decisions?

[00:26:10] Speaker 00:
You don't defer to a matter of Sorem.

[00:26:11] Speaker 00:
That was the question for the court in Martina Cedillo and in Diaz Rodriguez without question.

[00:26:15] Speaker 00:
Did you not?

[00:26:16] Speaker 00:
Chabran is dead.

[00:26:17] Speaker 00:
But you have Velasquez Herrera, which this court has already deferred to in its Fragoso decision.

[00:26:22] Speaker 00:
So let me be very clear.

[00:26:24] Speaker 00:
We're not writing on a blank slate here as we set forth in our brief.

[00:26:29] Speaker 00:
This court has already deferred the board's definition of crime of child abuse in matter of Alaska's Herrera.

[00:26:34] Speaker 00:
And that means a few important things.

[00:26:35] Speaker 03:
But that was through Chevron though.

[00:26:37] Speaker 00:
That was through Chevron, Your Honor.

[00:26:39] Speaker 00:
But Loper-Brite makes very clear that courts defer to, with statutory stare decisis, precedents that have relied on the Chevron methodology.

[00:26:49] Speaker 03:
I don't leave Loper-Brite that way, but go ahead.

[00:26:51] Speaker 00:
I understand Judge Bumate, and I believe your reading is that the Loper-Bright-Sari decisis language is limited to the Supreme Court's precedent, is that right?

[00:27:00] Speaker 03:
He wrote my concurrence, my dissent.

[00:27:01] Speaker 00:
The dissent, yes.

[00:27:02] Speaker 01:
And so, I don't think that's a... That's the position of Justice Barrett in a Law Review article many years ago.

[00:27:10] Speaker 01:
before all this arose, I think laid out very clearly why that would not apply to the circuit courts, but only to the Supreme Court's stare decisis.

[00:27:25] Speaker 00:
Yes, Judge Rakoff, and I think that's the wrong reading of both statutory stare decisis,

[00:27:31] Speaker 00:
in part for some of the reasons persuasively laid out in the Bastias decision, one of the concurrences in Bastias, but also I think the language of Loper-Brite itself talks about why the methodology, when you have a precedent that's relied on that methodology, to then say that that no longer governs is sort of just saying there's a special justification based on the fact that you relied on this methodology, that that's not good enough.

[00:27:54] Speaker 00:
who recognized that this court in the Lopez decision, I recognize Judge Bumenti, that's what you were dissenting from the denial of Van Bong from, but that decision is already recognized that stare decisis applies to circuit court precedents that have relied on the Chevron.

[00:28:07] Speaker 03:
Although even the Lopez majority opinion did overrule prior precedent based off the Chevron, so I think it's clearly, it's really unclear what our circuit precedent is on that.

[00:28:16] Speaker 03:
So just assuming that we don't follow your deference model, that stare decisis model,

[00:28:21] Speaker 03:
What should we apply independently like what roll over right says we should do sure and just just to be very clear.

[00:28:27] Speaker 00:
We don't need Forgo, yes, so we do believe it's a unitary concept, and there's two reasons all now tools of construction So no more chevron no more board deference So two main reasons why we think the unitary definitions of best read the statute first starting with a plain language of the child abuse provision you have a single category of

[00:28:47] Speaker 00:
crime of child abuse, child neglect, or child abandonment, rather than discreetly listed offenses such as the other crimes or

[00:28:56] Speaker 00:
conduct listed in that same provision, crime of domestic violence, crime of stalking.

[00:29:01] Speaker 00:
And you add to that the fact that if you look at any definitions of these terms, whether through dictionaries, whether through state code, whether through federal code, criminal or civil, you see immediately a significant amount of overlap, of cross-referencing, and wide varieties of labels used for the same types of conduct.

[00:29:19] Speaker 04:
So we think the best- If I understand the petitioner's argument,

[00:29:23] Speaker 04:
The petitioner asserts that child endangerment is distinct from child abuse, child neglect, and child abandonment and therefore is not included in Section 1227.

[00:29:34] Speaker 04:
What is your response to that argument?

[00:29:37] Speaker 00:
Your Honor, the response to that is part and parcel of what I was just saying, which is given how wide the divergence is and the labels used, when you look at what's inside the labels in these variety of state statutes, sometimes they say abuse, sometimes they say neglect, sometimes they say, and this is the plurality in the Diaz-Rodriguez en banc opinion noted, you have criminal non-support, you have cruelty towards children, you have endangering the welfare of children.

[00:30:02] Speaker 00:
The terminology used to define these types of crimes or this type of conduct

[00:30:07] Speaker 00:
is all over the place.

[00:30:09] Speaker 00:
So we don't recognize crime of child endangerment to be a separate distinct set of crimes.

[00:30:14] Speaker 00:
This is not something like burglary from the Supreme Court's decision in Taylor.

[00:30:18] Speaker 00:
This is not a common law offense.

[00:30:20] Speaker 00:
None of these are.

[00:30:21] Speaker 00:
And so you have a wide variety of labels.

[00:30:23] Speaker 00:
We know that there is not a sort of uniform nomenclature for understanding these concepts.

[00:30:29] Speaker 03:
So, you know, I take what you're saying, you know, about how it's a crime of, you know, the three things.

[00:30:35] Speaker 03:
And so Congress is meaning something by that, right?

[00:30:37] Speaker 03:
I don't think we need to adopt your unitary theory, though.

[00:30:42] Speaker 03:
I think, can't we just say that because of the way they've constructed this that we should be giving the broadest possible definition to all these subcategories.

[00:30:50] Speaker 03:
So we take the broadest possible.

[00:30:52] Speaker 03:
Definition of child abuse child neglect and child abandonment and then go that way I don't think we because you the weird unitary theory that doesn't make much sense to me because there's three separate things and Why do you need that?

[00:31:04] Speaker 00:
We don't need it, to be very clear.

[00:31:05] Speaker 00:
So I don't disagree with you that if you are going to go with the sort of discreetly defined crimes, which to be clear, we do that too, right?

[00:31:12] Speaker 00:
So if you go with the grand unitary theory, you still then need to do something to flesh out what that theory is, and that's what we did in our brief.

[00:31:18] Speaker 00:
But going with the way you described it and the way the concurrence and Diaz Rodriguez laid it out, I do agree 100% Judge Bumate that you do broadly then describe or define the discrete crimes.

[00:31:29] Speaker 00:
And then, as the concurrence and you also did,

[00:31:32] Speaker 00:
is you say that the conduct for any particular case can then match collectively against all of those, right?

[00:31:39] Speaker 00:
In that case, you said, and I think correctly, that it happened to fall fully under child neglect.

[00:31:44] Speaker 00:
But even if it did not, anything that would fall outside of that could still match up against the other definitions.

[00:31:49] Speaker 00:
And we think that is an appropriate reading of the statute, too.

[00:31:51] Speaker 00:
But again, for the reasons I said before, we still think the better overall reading would be unitary concept.

[00:31:56] Speaker 00:
But no, we don't think that that is indispensable to the government's position.

[00:31:59] Speaker 00:
We think that under the separately listed crimes, it would still make sense.

[00:32:02] Speaker 01:
So this is a different point, and maybe I haven't articulated this as clearly as I should.

[00:32:12] Speaker 01:
I'm talking about the term crime.

[00:32:19] Speaker 01:
What did Congress mean by the single word crime?

[00:32:24] Speaker 01:
Before you get to what kind of crime it is.

[00:32:28] Speaker 01:
And what I was asking is,

[00:32:32] Speaker 01:
When Congress uses that term, doesn't it mean something that is committed with mens rea, or at least reckless, which still involves a conscious decision?

[00:32:51] Speaker 01:
And therefore,

[00:32:55] Speaker 01:
If the Supreme Court of California has construed the statute that's involved in this appeal, although not in the other appeals, to involve, as I think you conceded a minute ago, crime that doesn't involve any state of mind at all, but just conduct that is gross negligence, but conduct, isn't that inconsistent with what Congress

[00:33:23] Speaker 01:
That's the point I'm trying to make.

[00:33:27] Speaker 00:
It's not, Your Honor, and let me be very clear.

[00:33:29] Speaker 00:
We were not conceding that this does not include a culpable mental state.

[00:33:34] Speaker 00:
We understand criminal negligence to be very much a culpable mental state that is sufficient for a crime.

[00:33:43] Speaker 01:
What's a mental state that's not reckless?

[00:33:46] Speaker 00:
What is a mental state that's not reckless?

[00:33:48] Speaker 00:
So the criminal negligence, again, as California here, and I think Oregon is similar,

[00:33:52] Speaker 00:
has described it is conduct that is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances as to be incompatible with a proper regard for human life or an indifference to consequences.

[00:34:10] Speaker 01:
I think the very quote you gave is talking about the conduct, right?

[00:34:14] Speaker 01:
Not the mental state.

[00:34:15] Speaker 00:
It is focused on the conduct, but the concept of criminal negligence and the idea of a gross deviation from a standard of care that creates a substantial non-justifiable risk is a conduct that's common to many states and to federal criminal law.

[00:34:29] Speaker 00:
It is sufficient for a coupleable mental state for any statute so long as, again, it matches what that statute has provided as the coupleable mental state.

[00:34:38] Speaker 00:
And I would just refer you, Your Honor, to the Cruz decision from the Fourth Circuit, which did a lot of this same work pre-Loper-Brite, but they did it outside of the Chevron context.

[00:34:48] Speaker 00:
Looked at the tools of construction and arrived at a very simple definition, which ends up being quite similar to what we're asking the court to do, which is just a coupleable mental state

[00:34:56] Speaker 00:
a crime that creates harm or a risk of likely harm to a child.

[00:34:59] Speaker 00:
And culpable mental state, the Fourth Circuit included, was criminal negligence because, again, that is tantamount to any culpable mental state for a crime.

[00:35:09] Speaker 00:
I see my time is well up.

[00:35:10] Speaker 04:
Have my colleagues had their questions answered?

[00:35:12] Speaker 00:
I'll be back.

[00:35:14] Speaker 04:
All right.

[00:35:14] Speaker 04:
OK.

[00:35:15] Speaker 04:
We took you over.

[00:35:16] Speaker 04:
So I gave you two minutes for rebuttal, Mr. Burke.

[00:35:19] Speaker 04:
So go ahead and.

[00:35:22] Speaker 02:
Thank you very much, Your Honor.

[00:35:23] Speaker 02:
I have three points I want to make in rebuttal.

[00:35:26] Speaker 02:
I'll rattle them off.

[00:35:26] Speaker 02:
I probably won't need the whole two minutes.

[00:35:30] Speaker 02:
But starting with the government's assertion that criminal negligence is necessary for a conviction under 273A sub A, referring to the Valdez case at page 789, my read of that suggests that

[00:35:50] Speaker 02:
There's no requirement for criminal negligence under prong number two.

[00:35:55] Speaker 02:
That's the prong that doesn't have willfulness attached to it as pointed out by Our visiting judge I apologize your name slip me, but as pointed out by our visiting judge three prongs of 273 a sub a have willfulness and

[00:36:13] Speaker 02:
The second prong does not, and Valdez makes clear it's a general intent crime and a general intent crime only, requiring nothing more than the intent that would be required of a battery, which is a general intent to do the act with absolutely no reference to an awareness of a consequence.

[00:36:32] Speaker 02:
The second point that I want to make is in response to Your Honor's question about giving the broadest possible read, instead of taking this unified theory, but giving the broadest possible read to each of the three aspects.

[00:36:49] Speaker 02:
I think exactly the opposite is what has to happen under the rule of levity.

[00:36:53] Speaker 02:
Congress wrote an unclear law.

[00:36:55] Speaker 02:
Congress wrote a law we can't understand.

[00:36:58] Speaker 02:
We have to give it the strictest, the most restrictive read we possibly can to make this an alien-based read.

[00:37:05] Speaker 03:
Does lenity apply to immigration proceedings?

[00:37:08] Speaker 02:
I'm sorry?

[00:37:08] Speaker 03:
Does lenity apply to immigration proceedings?

[00:37:10] Speaker 02:
Sure it does.

[00:37:11] Speaker 02:
Yeah, absolutely.

[00:37:13] Speaker 02:
I might have authority at hand if you want me to suffer.

[00:37:16] Speaker 02:
I would have to go through my papers.

[00:37:18] Speaker 02:
Don't worry about it.

[00:37:19] Speaker 02:
But yes, the rule of lenity applies.

[00:37:21] Speaker 02:
We've taken alien-based read to immigration laws.

[00:37:27] Speaker 02:
It's not always applied.

[00:37:28] Speaker 02:
In fact, the authority, the sheet that I printed out with authority, has a list of cases where lenity was applied and lenity wasn't applied.

[00:37:37] Speaker 04:
All right, you're over your two, which is over your other.

[00:37:41] Speaker 04:
So you can just wrap up in 15 seconds.

[00:37:44] Speaker 02:
Oh, I can do it.

[00:37:46] Speaker 02:
OK.

[00:37:46] Speaker 02:
And also as far as the intent goes, even though I'm saying there is no intent, we're looking at removability.

[00:37:53] Speaker 02:
So a level of mental culpability is generally implied in a removability statute.

[00:38:00] Speaker 02:
So just the intent to do the act versus the intent of consequence.

[00:38:04] Speaker 02:
has to be looked at in a very specific immigration-based way.

[00:38:08] Speaker 02:
That's the best I can do in the 15 seconds on that issue.

[00:38:11] Speaker 04:
Well, thank you both for your argument.

[00:38:12] Speaker 04:
This matter will stand submitted.

[00:38:14] Speaker 04:
And of course, you're more than welcome to listen to the other arguments.

[00:38:17] Speaker 02:
Thank you very much, Your Honors.

[00:38:18] Speaker 02:
I appreciate the patience and the play.

[00:38:19] Speaker 04:
Thank you.

[00:38:21] Speaker 04:
All right.

[00:38:22] Speaker 04:
This matter will be submitted.

[00:38:23] Speaker 04:
The next matter on calendar is Sotero-Rivera-Mendoza versus Pamela Bondi.

[00:38:29] Speaker 04:
That's 21-70107.