[00:00:02] Speaker 02:
I only, I see two of you there, but I'm assuming one of you is going to make the argument, correct?

[00:00:07] Speaker 02:
Oh yeah, just me.

[00:00:08] Speaker 02:
Okay, thank you.

[00:00:11] Speaker 02:
All right, we're ready.

[00:00:12] Speaker 03:
Thank you.

[00:00:13] Speaker 03:
Good morning, Your Honors, and may it please the Court, David Zimmer on behalf of Mr. Rivera Mendoza.

[00:00:18] Speaker 03:
I'm going to try to reserve two minutes if I can.

[00:00:21] Speaker 03:
I want to sort of pick up on what Judge Rakoff was getting at, which is just that at a high level, when we think about crimes, we generally imagine one, if not both, of two things.

[00:00:31] Speaker 03:
One would be some sort of harm to the victim, and the other would be some sort of intent to harm the victim or engage in the conduct that is deemed wrongful by the statute.

[00:00:40] Speaker 03:
And what is really unusual about the type of negligent endangerment statute at issue in this case, like Oregon's,

[00:00:46] Speaker 03:
is that it actually requires neither of those things.

[00:00:48] Speaker 03:
It doesn't require that the child be harmed in any way.

[00:00:52] Speaker 03:
And it doesn't even require that the defendant be aware that her conduct was putting the child at a risk of harm.

[00:00:59] Speaker 03:
And I think the Oregon Court of Appeals decision in OBEIDI really makes both of those points really true.

[00:01:04] Speaker 02:
Well, in that court, it held that the conviction under the statute required a showing that the risk of, quote, harm occurring was substantial and unjustifiable, unquote.

[00:01:15] Speaker 02:
and that defendants, quote, lack of awareness of that risk was a gross deviation from the normal standard of care, unquote.

[00:01:23] Speaker 02:
So how does that really differ from the mens rea of criminal negligence required by 1227?

[00:01:28] Speaker 03:
Well, we don't think that that is the mens rea required by 1227.

[00:01:32] Speaker 03:
I mean, our whole point is that when you're interpreting a crime under the Supreme Court's decision in Ruan and applying ordinary tools of construction, the 1227 requires a higher mens rea.

[00:01:43] Speaker 03:
at least recklessness and maybe knowledge or intent.

[00:01:45] Speaker 03:
That's our argument in this case.

[00:01:47] Speaker 03:
We're not disputing that the Oregon statute requires a mens rea of negligence.

[00:01:52] Speaker 03:
That is the mens rea of the statute.

[00:01:53] Speaker 03:
But I think our point is that OBEAD highlights just how broad these negligence-based statutes are, where you have a mother who left her one-year-old child in a car seat in a locked car to run into a store to buy diapers.

[00:02:07] Speaker 03:
And the Court of Appeals upheld the conviction based on the attenuated risk that the child might have been abducted while the mother was in the store.

[00:02:16] Speaker 03:
And even though it was basically undisputed at trial, that the mother did not actually believe she was putting her children at a risk of harm.

[00:02:24] Speaker 03:
It was an objective standard that was imposed there.

[00:02:27] Speaker 03:
And under the 10th Circuit's decision in Abara and under both the concurrences that were recently put out in the 11th Circuit Bastia's decision,

[00:02:36] Speaker 03:
that type of negligence is not enough.

[00:02:39] Speaker 03:
And I'd really point the court in particular.

[00:02:41] Speaker 04:
I don't know if they said that.

[00:02:43] Speaker 04:
I think they said that recklessness was the statute, and so you didn't have to go further.

[00:02:49] Speaker 04:
They didn't rule that criminal negligence was below the threshold.

[00:02:52] Speaker 03:
Well, Judge Marcus explicitly interpreted the statute to require recklessness or more.

[00:02:57] Speaker 03:
So we would win under that.

[00:03:00] Speaker 03:
But he didn't rule that below recklessness is outside of the statute.

[00:03:05] Speaker 03:
I think he did.

[00:03:07] Speaker 03:
I mean, it wasn't because he interpreted that statute to require recklessness.

[00:03:10] Speaker 03:
Arguably, it was addictive.

[00:03:12] Speaker 03:
But when he describes the meaning of the statute...

[00:03:14] Speaker 03:
he says explicitly that it requires recklessness or greater.

[00:03:18] Speaker 03:
So I mean, maybe that's dicta given the way he interpreted the Florida statute.

[00:03:22] Speaker 03:
But I think that was his interpretation.

[00:03:24] Speaker 03:
And Judge Newsom sort of said that the unmistakable upshot of applying the ordinary tools of construction was that even recklessness wasn't enough.

[00:03:33] Speaker 03:
And he also, of course, didn't reach it because of other reasons.

[00:03:36] Speaker 04:
You must know I joined Judge Collins' concurring, Diaz Rodriguez.

[00:03:39] Speaker 04:
Assuming I haven't changed my mind, I mean,

[00:03:41] Speaker 03:
Is this issue closed for me?

[00:03:42] Speaker 03:
So if you haven't changed your mind, it is an issue that's closed for you.

[00:03:46] Speaker 03:
I'll be honest.

[00:03:47] Speaker 03:
But if you wouldn't mind, I'm going to at least take a shot and convince you why you should change your mind.

[00:03:51] Speaker 03:
And I'll note that actually Judge Newsom changed his mind, right?

[00:03:53] Speaker 03:
So in the initial Bastius decision, he, just like Judge Collins, relied very heavily on the fact that neglect and negligence have the same underlying root and said that, well, therefore neglect must mean negligence.

[00:04:09] Speaker 03:
And we represent the petitioner in that case as well.

[00:04:11] Speaker 03:
And actually, put before Judge Newsom on remand from the Supreme Court, before the whole panel, obviously.

[00:04:16] Speaker 02:
Well, I think any time we're talking about kids, we don't assume that parents or other people always know what's safe for children.

[00:04:28] Speaker 02:
And so as a society, we're very protective of the most vulnerable not being subjected to a kind of behavior that puts them at risk.

[00:04:37] Speaker 02:
So it's different than when we're talking about men's race, about adults a lot of times.

[00:04:44] Speaker 03:
Well, and I think that's why there's a robust civil law that is intended to protect kids and that does have very broad definitions of these terms.

[00:04:51] Speaker 03:
But when you're talking about imposing criminal penalties on people for conduct that they didn't even understand to be wrongful,

[00:04:59] Speaker 03:
That's extremely unusual.

[00:05:00] Speaker 02:
Does that make the kids less more safe because their parents didn't know that what they were doing, okay, so you send them out, you know, and they can't swim and you let them go into the pool and you go in and... Well, but Your Honor, I guess I... I'm sorry.

[00:05:12] Speaker 02:
I think that's the whole idea that we're not counting on people

[00:05:18] Speaker 02:
having good judgment, we're counting on protecting children from bad judgment.

[00:05:22] Speaker 02:
Right.

[00:05:22] Speaker 03:
And that's exactly what civil law does.

[00:05:25] Speaker 03:
And what criminal law does is it doesn't protect children.

[00:05:28] Speaker 03:
It imposes criminal penalties on people who do particularly extreme things.

[00:05:32] Speaker 03:
And that's exactly what the Supreme Court, not in the context of children, but if you look at the Supreme Court's decision in Rouen, it basically says explicitly that

[00:05:40] Speaker 03:
You know, the federal law almost never interprets crimes to have amends, absent something explicit in the statute.

[00:05:45] Speaker 02:
Well, I think the other circuits don't help your arguments here.

[00:05:49] Speaker 02:
The fourth includes the fifth with Sandoval and the 11th with Bastias.

[00:05:54] Speaker 02:
I think they've

[00:05:56] Speaker 02:
held that 1227 encompasses child endangerment even when the child is not hurt.

[00:06:02] Speaker 02:
So why isn't that the best reading of the statute?

[00:06:05] Speaker 03:
Well, we're not disputing that point, Your Honor.

[00:06:06] Speaker 03:
We're not actually arguing that there's a harm requirement.

[00:06:09] Speaker 03:
We're arguing that when you're talking about non-injurious conduct, negligence isn't enough.

[00:06:15] Speaker 03:
I think, if anything, actually, it's the government's position in our case that would create a circuit split with the 10th Circuit's, it would clearly create a circuit split with the 10th Circuit's decision in Abara.

[00:06:23] Speaker 03:
And we think it would create a split, I mean, not as quite an outright split, but certainly in tension with the two recent concurrences in Bastius.

[00:06:32] Speaker 03:
And in fact, we don't see anything inconsistent, I mean, with Cruz,

[00:06:37] Speaker 03:
That wasn't a negligence case, and I agree you could sort of read it, but I think that's dicta.

[00:06:41] Speaker 03:
I don't think there would be a conflict with Cruz to adopt our position.

[00:06:44] Speaker 03:
But if I could get back to just to the point, to answer the Judge Brumatey's question, you know, we put before the panel on remand the same sort of the same definitions from Blacks and the same definitions from

[00:06:55] Speaker 03:
the other legal dictionaries that basically actually go out of their way to say that the word neglect does not imply negligence, that in fact these are different things.

[00:07:03] Speaker 03:
That doesn't answer the question at all.

[00:07:04] Speaker 03:
And Judge Newsom changed his mind, right?

[00:07:06] Speaker 03:
He actually, based on those arguments, and you can listen to the argument, we talked about this at length,

[00:07:10] Speaker 03:
We also pointed out that the contemporary state criminal codes in 1996, the ones that use the word neglect, almost none of them had a mens rea of negligence.

[00:07:18] Speaker 03:
They almost all had a mens rea of recklessness or higher.

[00:07:21] Speaker 03:
And so I actually think that there's really very little support for the idea that the word neglect itself.

[00:07:26] Speaker 03:
And that was the whole concurrence, right?

[00:07:28] Speaker 03:
And this didn't come up in fairness in the briefing in that case.

[00:07:31] Speaker 03:
But basically the whole reasoning in Judge Collins's concurrence

[00:07:34] Speaker 03:
as to why negligence was enough, was that it was inherent in the word neglect.

[00:07:39] Speaker 03:
I just respectfully don't think that that's right.

[00:07:43] Speaker 03:
And again, Judge Newsom changed his mind on this exact point.

[00:07:48] Speaker 03:
I'm not disputing that if you stick with that, we lose.

[00:07:50] Speaker 03:
But we actually agree with almost everything in that concurrence, except for that, right?

[00:07:55] Speaker 03:
And it's an important point, because that concurrence applies an objective rather than subjective standard.

[00:08:00] Speaker 03:
And if you look at Ruan, it's pretty clear.

[00:08:04] Speaker 03:
This is a quote from Ruan.

[00:08:06] Speaker 03:
We have long been reluctant to infer that a negligence standard was intended in criminal statutes.

[00:08:11] Speaker 03:
And it goes on to explain that the reasonable per- Do you want to save two minutes to try to change his mind?

[00:08:16] Speaker 03:
Sure, I'll save I'll save my remaining time.

[00:08:19] Speaker 00:
Thank you very much Morning your honors me again me zady Imran zady The same mr. Zadie the same welcome back.

[00:08:36] Speaker 00:
Thank you very much I think I'll start with the obeyed II because I think when we when we

[00:08:43] Speaker 00:
Enter the conversation in a case like this where we're talking about negligent endangerment, which is, as I understand it, a petitioner's only challenge.

[00:08:49] Speaker 00:
They don't really, despite all of the child endangerment as a separate crime argument, they're not arguing that child endangerment is not included within the concept of child abuse.

[00:08:57] Speaker 00:
They're only arguing that you just need to lop off this concept of negligent endangerment, that somehow that makes it beyond the pale.

[00:09:04] Speaker 00:
And on that point, I'd like to make two broad points.

[00:09:07] Speaker 00:
One is about, again, criminal negligence, which I just spent some time talking about.

[00:09:12] Speaker 00:
This is not a standard that is just meant to encompass single, one-time parent lapsing, you know, walk out of the bed, do another child on the bed.

[00:09:21] Speaker 00:
walk into the store really quickly to get something while the child's in the car seat.

[00:09:25] Speaker 00:
This is not that standard.

[00:09:26] Speaker 00:
This is a gross deviation from a standard of care to a child or standard of care in general that creates a substantial and unjustifiable risk.

[00:09:36] Speaker 00:
So that's on the definition side of it.

[00:09:38] Speaker 00:
And then I also want to highlight how, in terms of the cases where it is applied, none of them reflect the types of circumstances where you think of it as a one-time parental lapse.

[00:09:48] Speaker 02:
I think petitioners trying, I think I'm understanding that saying that the Oregon statute covers not just a risk of harm, but a risk of a risk of harm.

[00:09:59] Speaker 02:
And that's just broader than 1227.

[00:10:01] Speaker 00:
That's the argument, Judge Callahan.

[00:10:03] Speaker 00:
So a response to that, and I want to highlight why OB-AD does not involve anything like the type of attenuated risk that they describe.

[00:10:12] Speaker 00:
One, that language, the sort of maybe likely to endanger.

[00:10:15] Speaker 00:
I think this is just a common parlance problem.

[00:10:19] Speaker 00:
When you say risk of endangerment, well, the word endangerment itself,

[00:10:22] Speaker 00:
is to place somebody at a risk of harm.

[00:10:24] Speaker 00:
So when you say risk of endangerment, yes, technically that is literally a risk of a risk or may be likely to endanger.

[00:10:30] Speaker 00:
And yet, that's the language you see when describing all of these, almost any one of these state criminal statutes.

[00:10:36] Speaker 00:
That's just what it means.

[00:10:37] Speaker 00:
They're not trying to create this sort of attenuated two levels of risk removed from the harm.

[00:10:42] Speaker 00:
But you don't need to believe me.

[00:10:43] Speaker 00:
You can look at what Oregon has said in interpreting this very same statute.

[00:10:46] Speaker 00:
So in cases like Obeidi, it says, a risk of likely harm is exactly what the case said.

[00:10:52] Speaker 00:
And then perhaps most succinctly was the savage case that we cited in our brief, in which again it said, this statute can only be satisfied by proving beyond a reasonable doubt that you created a risk of likely harm.

[00:11:04] Speaker 00:
So the attenuated risk or risk of a risk argument, we think, just fails right out of the gates.

[00:11:08] Speaker 00:
Now on the circumstances of Obeidi, just to be very clear,

[00:11:12] Speaker 00:
This is not the way the petitioner described it.

[00:11:14] Speaker 00:
It wasn't just walking into the store while you were, you know, to get diapers for the child in the car.

[00:11:19] Speaker 00:
This was leaving your child in the car in a high crime area for 30 minutes while you walked into a store where you could not see the child.

[00:11:26] Speaker 00:
And the court went out of its way to describe all of the particular types of harm that could have befallen the child.

[00:11:32] Speaker 00:
Two children.

[00:11:33] Speaker 00:
There was a one-year-old and a three-year-old.

[00:11:35] Speaker 00:
And the reason all of this came to anybody's attention is because somebody saw the three-year-old reaching out of the window which had been left open to try to open the door from the outside and almost fell out of the car, which led the mother in that case to concede that they had met the three-year-old had met the standard and they were just challenging as to the one-year-old.

[00:11:51] Speaker 00:
And the court specifically said you could have an abduction, you could have an assault, you could have somebody just opening the door

[00:11:58] Speaker 00:
and the one-year-old falling out of the car seat because the three-year-old could unbuckle themselves, like the three-year-old did for himself.

[00:12:04] Speaker 01:
Yeah.

[00:12:04] Speaker 01:
So can I take this to a higher level and get your response?

[00:12:13] Speaker 01:
So I think everyone is agreed, and it's certainly been part of the jurisprudence of the Supreme Court of the United States.

[00:12:27] Speaker 01:
that absent some special function or policy, crime normally means an act intentionally taken, mens rea, evil thought, evil act, mens rea and actus reus.

[00:12:51] Speaker 01:
States and even the federal government at times have said

[00:12:57] Speaker 01:
that where it's unintentional, but so risky to society as in the case of child abuse, child neglect, or classically in the Park case, adulterated food,

[00:13:24] Speaker 01:
we will allow criminal penalties to be imposed even when there was no conscious intent, in order to encourage an extreme care.

[00:13:42] Speaker 01:
That's the ultimate purpose, is to encourage extreme care.

[00:13:47] Speaker 01:
But now, that's fine.

[00:13:51] Speaker 01:
the guy gets convicted of a crime, even though, hypothetically, no intent, because of that greater risk.

[00:14:00] Speaker 01:
But now Congress says if he commits the crime of such, such, such, such, he gets deported, a further consequence.

[00:14:14] Speaker 01:
And

[00:14:16] Speaker 01:
That certainly would not be a factor in encouraging greater super compliance to avoid negligence.

[00:14:30] Speaker 01:
It's a different kind of consequence.

[00:14:33] Speaker 01:
And so my question is when they use the term crime there, it doesn't seem to me that Congress was thinking about the super deterrence effect that is present

[00:14:45] Speaker 01:
in the underlying gross negligence type of criminality, but they were thinking of just ordinary meaning of the word crime, which would include men's rape.

[00:14:57] Speaker 01:
So if you're following my very convoluted point is what I'm saying is that the word crime as used by Congress

[00:15:08] Speaker 01:
in this deportation context doesn't carry necessarily the same meaning that would apply in the cases you're relying on.

[00:15:21] Speaker 00:
Your Honor, I think if I'm understanding your question, at least the premise behind it, I don't disagree.

[00:15:27] Speaker 00:
I think we agree completely that there are certain circumstances in which this concept of criminal negligence would be applied because you were trying to incur certain conduct.

[00:15:37] Speaker 00:
And I think this is exactly the type of circumstance where that would extend to or where Congress was intending to extend that level of mens rea because you are talking about protecting the vulnerable.

[00:15:51] Speaker 00:
We know based on matter of Alaska's Herrera and based on the history of the statute that it was trying to expand the criminal grounds of removal in general and that it was trying in particular to create a comprehensive scheme

[00:16:02] Speaker 00:
to protect children from predators and from predatory behavior or from crimes that would victimize them.

[00:16:10] Speaker 00:
And so I think this is exactly the type of situation where you would read a criminal negligence statute or criminal negligence mens rea into a statute and that even though it is a removal ground and it's not a federal criminal statute,

[00:16:21] Speaker 00:
it would have the exact same effect of extending to that level to protect the vulnerable and protect a vulnerable class.

[00:16:29] Speaker 00:
So if I'm understanding your question correctly and your premise, I think that's exactly why we think it is appropriate to define this removal ground with that mens rea.

[00:16:38] Speaker 04:
Can you respond to your friend's argument that, you know, at least under the Collins concurrence, the argument was that because criminal negligence, I mean, criminal neglect almost implies negligence, but that's not a sufficient reason.

[00:16:50] Speaker 04:
Do you have a response to that?

[00:16:52] Speaker 00:
I'm sorry, I thought his argument was two things.

[00:16:55] Speaker 00:
One is that it's not ready to neglect the definition.

[00:16:58] Speaker 04:
The Collins concurrence kind of suggested because the concept of criminal neglect clearly indicates criminal negligence is sufficient.

[00:17:08] Speaker 04:
He's casting doubt on that analysis.

[00:17:11] Speaker 00:
Sure.

[00:17:11] Speaker 00:
Yeah, I think there's a couple responses to that.

[00:17:14] Speaker 00:
One, I think every sentence in the brief that tried to distinguish between those two things had a lot of strain in it.

[00:17:20] Speaker 00:
I think the concept of neglect is, as petitioners themselves define it, failing a duty or a failure of care.

[00:17:28] Speaker 00:
And then the concept of criminal negligence as they define it is the mental state in doing that and saying that that's different, that's the mental state in doing that.

[00:17:35] Speaker 00:
But then how do you define that mental state?

[00:17:37] Speaker 00:
A gross deviation from a standard of care.

[00:17:40] Speaker 00:
So it feels like they're two parts of the same thing and maybe we're just talking about a noun and an adjective.

[00:17:46] Speaker 00:
And then even there, some of the definitions for child neglect that they've cited to the Garner's common legal usage definition defines neglect to say intentional or negligent conduct.

[00:17:57] Speaker 00:
We think all roads lead back to negligence here.

[00:17:59] Speaker 00:
The second part of that answer and I think I assume this is part of what you were asking because they talked about the Ruan presumption.

[00:18:06] Speaker 00:
This court has managed to define this about a million times in all the different panels going back to Martina Cedillo and Diaz Rodriguez panel and Diaz Rodriguez en banc without resorting to a candidate of construction like that or an interpretation or a principle of construction like that.

[00:18:19] Speaker 00:
We don't think there's any resort to it here.

[00:18:20] Speaker 00:
I'm not even sure it applies when you're construing a generic definition rather than a federal criminal statute which was the basis for Ruan.

[00:18:27] Speaker 00:
So I don't think we need to turn to that.

[00:18:29] Speaker 00:
We've been using the tools of construction for every other aspect of our arguments here.

[00:18:33] Speaker 00:
I think they are perfectly adequate to the task of finding the mens rea in this case.

[00:18:39] Speaker 02:
All right.

[00:18:40] Speaker 02:
Thank you for your argument.

[00:18:49] Speaker 03:
Thanks.

[00:18:51] Speaker 03:
Thank you, Your Honor.

[00:18:52] Speaker 03:
I mean, I think just briefly I want to respond to what he was saying at the end there, because I think in many ways that's the key to the case.

[00:18:57] Speaker 03:
Correct.

[00:18:57] Speaker 03:
Like, there was a concurrence.

[00:18:58] Speaker 03:
You joined the concurrence.

[00:18:59] Speaker 03:
Again, we agree with most of the concurrence.

[00:19:01] Speaker 03:
And it really does come down to this mens rea issue.

[00:19:03] Speaker 03:
And I just don't think there was really a response at the end of the day to these definitions that we quoted that actually go out of their way almost unusually to clarify the fact that neglect does not mean negligence.

[00:19:14] Speaker 03:
Neglect means that you violate a duty to care

[00:19:17] Speaker 03:
a duty of care, right?

[00:19:18] Speaker 03:
And you can do that intentionally.

[00:19:19] Speaker 03:
You can have a kid who you have a duty to care for and you say, I don't care about that kid.

[00:19:24] Speaker 03:
You know, I'm going to go to the bar and drink and leave that kid alone, right?

[00:19:27] Speaker 03:
You could also do it negligently, like the woman in Obeidi.

[00:19:30] Speaker 03:
And I'm not in any way suggesting that

[00:19:32] Speaker 03:
what she did was correct or that I would do that.

[00:19:35] Speaker 03:
But it's a very different thing than making a conscious decision to violate your duty to a child.

[00:19:40] Speaker 03:
And I think that's what these definitions get at.

[00:19:41] Speaker 03:
And yes, the words are similar.

[00:19:43] Speaker 03:
They both get at violating duties, but very different duties and in very different ways.

[00:19:48] Speaker 03:
And again, two different contemporary legal dictionaries go out and say that.

[00:19:52] Speaker 03:
And the contemporary criminal codes that use the word neglect

[00:19:56] Speaker 03:
All have a mens rea- not all, but almost all have a mens rea of recklessness or higher.

[00:20:00] Speaker 04:
So I actually genuinely don't- But some states do have negligence, right?

[00:20:04] Speaker 03:
Absolutely, and we're not saying there's anything inconsistent about-

[00:20:08] Speaker 03:
You definitely can be negligently neglectful.

[00:20:12] Speaker 03:
But again, these definitions that aren't talking about just the criminal law, they're just talking about in general.

[00:20:18] Speaker 03:
So I think our point isn't that you can't have negligent neglect, it's that you can have neglect with any mens rea.

[00:20:23] Speaker 03:
And so you have to apply other tools to try to understand what the crime means.

[00:20:27] Speaker 03:
And I think that's why Rouen is helpful.

[00:20:28] Speaker 03:
And Rouen isn't some kind of like,

[00:20:30] Speaker 03:
you know, ambiguity resolving canon.

[00:20:33] Speaker 03:
It's just talking about what the word, how we understand the criminal law.

[00:20:36] Speaker 03:
And so when you have a provision that is focused on crimes in general, you don't think that what it's talking about is negligent conduct.

[00:20:44] Speaker 03:
You think it's talking about intent or at least knowledge.

[00:20:48] Speaker 03:
I see my time has expired, but thank you very much.

[00:20:50] Speaker 02:
Thank you both for your argument.

[00:20:51] Speaker 02:
This matter will stand submitted.