The Ninth Circuit, sitting en banc has determined that that the terms “child abuse” and “child neglect” are ambiguous. The Court deferred to the e Board of Immigration Appeals’ (BIA) interpretation that the phrase “crime of child abuse, child neglect, or child abandonment” can include offenses that involve a mens rea of criminal negligence and acts or circumstances that create a substantial risk of harm to a child’s health or welfare, rather than causing an actual injury to the child. The Court also deferred to the BIA’s treatment of this phrase as a unitary category of crimes against children.
The court then proceeded to analyze the elements of Penal Code 273a(a). The least of the acts criminalized by the fourth branch of the statute requires proof that a defendant (1) had care of custody of a child, whether or not a parent or legal guardian; and (2) with criminal negligence, meaning in a manner that a reasonable person would have known creates a high risk of death or great bodily injury; (3) purposely put the child into an abusive situation in which the probability of serious injury was great.
The BIA defines the generic federal offense of “child abuse, child neglect, or child abandonment” to include the element of a mens rea of criminal negligence (a match to the second element of a section 273a(a) conviction), and the element of allowing a child to be placed in a situation that create a substantial risk of harm to a child’s health or welfare (a match to the third element of a section 273a(a) conviction).
The full text of Diaz Rodriguez v. Garland can be found here: https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/08/13-73719.pdf