                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 23 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

LAKHWINDER SINGH SANGHERA,                      No.    14-73507
AKA Lakhwinder Sanghera,                               15-71240

                Petitioner,
                                                Agency No. A046-866-497
 v.

JEFFERSON B. SESSIONS III, Attorney             MEMORANDUM*
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted August 28, 2017
                              Pasadena, California

Before: WARDLAW and BYBEE, Circuit Judges, and ILLSTON,** District
Judge.

      Lakhwinder Singh Sanghera, a native and citizen of India, petitions for

review of the Board of Immigration Appeals’ (BIA or Board) order of removal

pursuant to 8 U.S.C. § 1227(a)(2)(E)(i), which deemed Sanghera removable for


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Susan Illston, United States District Judge for the
Northern District of California, sitting by designation.
committing a “crime of child abuse.” Sanghera also petitions for review of the

Board’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. §

1252(a)(1), and we grant the petition without reaching the Board’s denial of

Sanghera’s motion to reopen.

      1.     The IJ abused his discretion by applying the Board’s 2008 definition

of “crime of child abuse” retroactively to Sanghera’s 2001 conviction for violation

of California Penal Code section 273a(a).1 See Garfias-Rodriguez v. Holder, 702

F.3d 504, 518 (9th Cir. 2012) (en banc) (quoting Montgomery Ward & Co. v. FTC,

691 F.2d 1322, 1328 (9th Cir. 1982)) (explaining the five-factor retroactivity test).

Two years prior to his 2001 conviction, the BIA intimated, in a published decision

in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999),2 that its definition of the

“crime of child abuse” in § 1227(a)(2)(E)(i) would conform to the “common


1
   Sanghera did not waive his retroactivity arguments by failing to raise them to
the Board or the IJ. “[E]xhaustion of administrative remedies with respect to the
retroactivity issue is not required, except to invite the agency to correct its own
error, if ‘record development is unnecessary and the [agency] has no special
expertise to do the retroactivity analysis.’” Garfias-Rodriguez v. Holder, 702 F.3d
504, 514 (9th Cir. 2012) (en banc) (quoting Chang v. United States, 327 F.3d 911,
925 (9th Cir. 2003)). Because no further record development is necessary, the
parties have briefed the issue before this court, and deference is not required, we
consider the issue here in the first instance.
2
    While the dissent correctly notes that Rodriguez focused on the separate crime
of “child sexual abuse,” we see no reason to ignore Rodriguez’s discussion of the
“crime of child abuse,” particularly when Rodriguez offered the Board’s sole
discussion of that separate crime at the time of Sanghera’s no-contest plea to
California Penal Code section 273a(a).

                                          2
usage” of that term as defined in the 1990 edition of Black’s Law Dictionary. Id.

at 996. The dictionary defined “child abuse” as “(a)ny form of cruelty to a child’s

physical, moral or mental well-being.” Id.

      Sanghera reasonably relied on Rodriguez in anticipating the immigration

consequences of his conviction. As the only pronouncement from the Board

interpreting “crime of child abuse” at the time, Rodriguez had the power to

persuade. See Nguyen v. Holder, 763 F.3d 1022, 1028 (9th Cir. 2014). Moreover,

while the BIA issued unpublished decisions interpreting § 1227(a)(2)(E)(i) after

Rodriguez, see, e.g., In re Palfi, 2004 WL 1167145 (BIA 2004); In re Pacheco

Fregozo, 2005 WL 698590 (BIA 2005), Rodriguez remained the only precedential

decision discussing the scope of § 1227(a)(2)(E)(i)’s “crime of child abuse” for

nearly a decade. See Miguel-Miguel v. Gonzales, 500 F.3d 941, 952 (9th Cir.

2007) (recognizing that “the longer and more consistently an agency has followed

one view of the law, the more likely it is that private parties have reasonably relied

to their detriment on that view”). We ultimately deemed Rodriguez’s commentary

on § 1227(a)(2)(E)(i) dicta, Velazquez-Herrera v. Gonzales, 466 F.3d 781, 782–83

(9th Cir. 2006) (“Velazquez I”), but Sanghera could not have reasonably

anticipated this result or what would happen eight years later. In fact, in the period

between Rodriguez and Velazquez I, and even after, many of our sister circuits

accepted Rodriguez as a reasonable interpretation of § 1227(a)(2)(E)(i). See, e.g.,



                                          3
Ochieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th Cir. 2008); Nguyen v.

Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007); Loeza-Dominguez v. Gonzales, 428

F.3d 1156 (8th Cir. 2005).3

      The Board did not issue a precedential interpretation of what constituted a

crime of child abuse until 2008 in Matter of Velazquez-Herrera, 24 I. & N. Dec.

503 (BIA 2008) (“Velazquez II”), and when it did, the Board included criminally

negligent conduct, see id. at 511, and conduct that did not result in any injury to the

child, see Matter of Soram, 25 I. & N. Dec. 378, 380–81 (BIA 2010). Because our

law requires us to assume that immigrant defendants will be “acutely aware of the

immigration consequences of their convictions” when they enter plea agreements,

see INS v. St. Cyr, 533 U.S. 289, 322 (2001), and because deportation is “‘a

particularly severe penalty,’ which may be of greater concern to a convicted

sentence than ‘any potential jail sentence,’” Sessions v. Dimaya, 138 S. Ct. 1204,

1213 (2018), we conclude that the majority of the Montgomery Ward retroactivity

factors weigh against retroactive application in this instance, and we deem the

Board’s retroactive application of Velazquez II an abuse of discretion.




3
  It makes no difference that these out-of-circuit opinions post-dated Sanghera’s
conviction, though the dissent thinks otherwise. We reference these decisions to
show only that Sanghera reasonably relied on Rodriguez, as the Board’s then only
commentary of what amounted to a “crime of child abuse.”

                                          4
      2.     Because the Board abused its discretion in applying Velazquez II

retroactively to Sanghera’s 2001 no-contest plea to California Penal Code section

273a(a), we rely on Rodriguez as the basis for a categorical analysis to determine

whether Sanghera’s conviction under California Penal Code section 273a(a) is a

categorical match for the generic definition of a crime of child abuse. See Fregozo

v. Holder, 576 F.3d 1030, 1035 (9th Cir. 2009) (citing Fernandez-Ruiz v.

Gonzales, 466 F.3d 1133 (9th Cir. 2006)) (applying categorical analysis without

remand to the Board). Section 273a(a) criminalizes conduct with a minimum mens

rea of criminal negligence. Under Rodriguez, the federal generic definition of a

“crime of child abuse” criminalized conduct that “intentional[ly] and

malicious[ly]” inflicted pain on the child. Velazquez I, 466 F.3d at 782–83.

Because section 273a(a) criminalizes a broader array of conduct than Rodriguez’s

federal generic definition of the crime, the California statute is not a categorical

match to the federal generic definition. And because we previously concluded that

section 273a(a) is not divisible, see Ramirez v. Lynch, 810 F.3d 1127, 1138 (9th

Cir. 2016), our analysis stops here, see Sandoval v. Yates, 847 F.3d 697, 704 (9th

Cir. 2017) (“Only divisible statutes are subject to the modified categorical

approach.”). Section 273a(a) is broader than the definition of “crime of child

abuse” in Rodriguez and section 273a(a) is not divisible, so Sanghera’s conviction

under California Penal Code section 273a(a) was not a crime of child abuse.



                                           5
Sanghera is not removable under Rodriguez based on his 2001 conviction, and we

vacate the order of removal.

      Petition GRANTED.




                                       6
                                                                            FILED
Sanghera v. Sessions, Nos. 14-73507, 15-71240
                                                                                JUL 23 2018
BYBEE, Circuit Judge, dissenting:                                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      In a published opinion also issued today, we hold that the BIA’s

interpretation of the phrase “a crime of child abuse, child neglect, or child

abandonment” in 8 U.S.C. § 1227(a)(2)(E)(i) is entitled to Chevron deference and

applies retroactively to a conviction under California Penal Code § 273a(a). See

Martinez-Cedillo v. Sessions, No. 14-71742, slip op. at 2 (9th Cir. 2018). The only

relevant difference between that case and this one is that the petitioner here was

convicted under the same statute seven years earlier. That is a distinction without a

difference. Because I believe this case is substantially identical to Martinez-

Cedillo, I would deny the petition for review.

      1.     In 2001, when Lakhwinder Singh Sanghera was convicted of felony

child endangerment under California Penal Code § 273a(a), the BIA had never

interpreted § 1227(a)(2)(E)(i) in a precedential decision. See Martinez-Cedillo,

No. 14-71742, slip op. at 6 (noting that “the BIA’s interpretation of a crime of

child abuse, neglect, or abandonment was unclear” at this time). The BIA did not

offer a precedential interpretation of § 1227(a)(2)(E)(i) until May 2008, when it

“interpret[ed] the term ‘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, including sexual abuse or exploitation.” Matter of Velazquez-Herrera,

24 I. & N. Dec. 503, 512 (BIA 2008). Later, the BIA clarified that Velazquez’s

definition encompassed child-endangerment crimes even if no actual injury to a

child resulted. Matter of Soram, 25 I. & N. Dec. 378, 380–81 (BIA 2010).

      In Martinez-Cedillo, we hold that the BIA’s decision in Soram applies

retroactively to Martinez-Cedillo’s August 2008 conviction under California Penal

Code § 273a(a). No. 14-71742, slip op. at 3, 31–33. The only difference between

that case and this one is that Martinez-Cedillo’s conviction occurred between the

BIA’s decisions in Velazquez and Soram, while Sanghera’s conviction occurred

before Velazquez during the period when the BIA had not yet given a precedential

interpretation of § 1227(a)(2)(E)(i). Thus, the only question before us is whether

to give Velazquez retroactive effect here, as we do for Soram in Martinez-Cedillo.

      2.     We apply the five-factor Montgomery Ward test to decide whether to

give the BIA’s decisions retroactive effect. Garfias-Rodriguez v. Holder, 702 F.3d

504, 518 (9th Cir. 2012) (en banc) (citing Montgomery Ward & Co. v. FTC, 691

F.2d 1322, 1328 (9th Cir. 1982)). The five factors are: (1) “whether the particular

case is one of first impression,” (2) “whether the new rule represents an abrupt

departure from well established practice or merely attempts to fill a void in an

unsettled area of law,” (3) “the extent to which the party against whom the new

                                          2
rule is applied relied on the former rule,” (4) “the degree of the burden which a

retroactive order imposes on a party,” and (5) “the statutory interest in applying a

new rule despite the reliance of a party on the old standard.” Id.

      The first factor is generally not “well suited to the context of immigration

law” and does not weigh either for or against retroactivity. Id. at 521. The second

and third factors both support retroactive application here: the BIA’s decision in

Velazquez was precisely an “attempt[ ] to a fill a void in an unsettled area of law,”

and because the law was unsettled, there was no “former rule” on which Sanghera

could have reasonably relied. See Martinez-Cedillo, No. 14-71742, slip op. at

4–15. The fourth factor cuts in Sanghera’s favor because deportation is a

substantial burden. But the fifth factor, like the second and third factors, favors

retroactive application because “non-retroactivity impairs the uniformity of a

statutory scheme, and the importance of uniformity in immigration law is well

established.” Garfias-Rodriguez, 702 F.3d at 523. Because three of the five

Montgomery Ward factors support retroactive application, I would apply Velazquez

retroactively to Sanghera’s conviction and deny the petition for review.

      3.     The only reason the majority gives for reaching the opposite

conclusion is that, at the time of his conviction, Sanghera supposedly relied on the

BIA’s decision in Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (BIA 1999). That

                                           3
case did not concern § 1227(a)(2)(E)(i) but rather dealt with a different provision

of the INA. At most, Rodriguez noted in dictum that:

      By its common usage, “child abuse” encompasses actions or inactions
      that also do not require physical contact. See Blacks Law Dictionary
      [(6th ed. 1990)] (defining child abuse as “(a)ny form of cruelty to a
      child’s physical, moral or mental well-being”).

Id. at 996. It is the parenthetical to the citation in this dictum that the majority

claims formed the basis of Sanghera’s reliance. It strains credulity to suggest this

impacted Sanghera’s decision to plead no contest to the California crime.1

      In the end, the majority applies a definition of § 1227(a)(2)(E)(i) that we

recognized as dictum in 2009 and that we hold today was “never in fact the

[BIA’s] position.” Martinez-Cedillo, No. 14-71742, slip op. at 27. I respectfully

dissent.




      1
        The majority claims Sanghera’s reliance on Rodriguez was bolstered by
three out-of-circuit decisions. Ochieng v. Mukasey, 520 F.3d 1110, 1114–15 (10th
Cir. 2008); Nguyen v. Chertoff, 501 F.3d 107, 114 n.9 (2d Cir. 2007);
Loeza-Dominguez v. Gonzales, 428 F.3d 1156, 1158 (8th Cir. 2005). But all these
decisions postdated Sanghera’s conviction by four years or more. If we are going
to assess Sanghera’s reliance in light of decisions from after his conviction, we
should look instead to our own decision holding that Rodriguez’s brief reference to
§ 1227(a)(2)(E)(i) was dictum and suggesting that the California statute under
which Sanghera was convicted is in fact a crime of child abuse, neglect, or
abandonment. Pacheco Fregozo v. Holder, 576 F.3d 1030, 1036 (9th Cir. 2009).

                                            4
