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Ninth Circuit to Decide En Banc If Man Who Feloniously Imperiled Child Can Be Deported
By a MetNews Staff Writer
Active judges of the Ninth U.S. Circuit Court of Appeals have voted to rehear en banc a case in which the majority of a three-judge panel declared last year that a non-citizen who was convicted in California of felony child endangerment, by driving while intoxicated with his six-year-old daughter in the car, cannot be deported.
A rehearing was granted on Friday. Oral argument before an en banc panel was scheduled for the week of June 21 in Pasadena, with the date and time to be pinpointed later.
The Sept. 10, 2021 majority opinion was authored by Circuit Judge Paul J. Watford and was joined in U.S. District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation. Circuit Judge Consuelo M. Callahan dissented.
Watford wrote that under the “unusual circumstances” present, the panel was not bound by the general rule that there must be adherence by as three-judge panel to the holdings of prior published decisions within the circuit. He declared that Rafael Diaz-Rodriguez, the holder of a green card since 1990, cannot be deported because California’s Penal Code §273a(a) permits a conviction based on mere negligence and does not constitute “a crime of child abuse, child neglect, or child abandonment” which would constitute a deportable offense under 8 U.S.C. §1227(a)(2)(E)(i).
Circumstances Delineated
Excusing the rule of strict application of stare decisis, Watford said, is that the two published decisions finding that a conviction under §273a(a) were based on adherence to the pronouncement of a three-judge panel’s majority decision in the 2018 case of Martinez-Cedillo v. Sessions. However, he noted, that decision was rendered non-precedential when an en banc rehearing was granted and was vacated when the appeal was dismissed as moot upon the death of the appellant.
The decisions following Martinez-Cedillo, he wrote, cannot be regarded as warranting deference any more than Martinez-Cedillo can. Addressing the merits, he said that under definitions in legal dictionaries, when the statutory list of deportable offences was compiled in 1996, “child abuse, child neglect, and child abandonment were well-understood concepts with distinct meanings that do not encompass negligent child endangerment offenses.”
Separation From Parents
He explained:
“Under the common meaning of the terms child abuse, child neglect, and child abandonment…, non-citizens convicted of those crimes have either inflicted harm on a child or forsaken their parental responsibilities altogether. Making such conduct a ground for removal will in many cases result in separation of the victims of those offenses from the convicted parent, at least in cases where (as here) the children are U.S. citizens or otherwise have lawful status in the United States. Congress could readily have viewed the forced separation of parent and child—and its impact on the child’s future well-being—with less concern when the child has been abused, neglected, or abandoned by the very parent facing removal.
“We do not think the same can be said when the parent in question has been convicted of negligent child endangerment. That offense can be predicated on a single lapse in parental judgment, such as leaving young children at home alone while the parent is at work.”
Callaghan’s Dissent
Callaghan disagreed that the panel was privileged to disregard the two published decisions and rejected the view that the California statutes dies not entail “a crime of child abuse, child neglect, or child abandonment.”
The offense upon which deportation is sought occurred in 2009. Diaz-Rodriguez had previously been convicted of felony child endangerment based on driving while intoxicated in 2003 with his 5-year-old son in the car.
He has also twice been convicted of drunk driving without a child as a passenger.
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