                                                                 [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                             U.S. COURT OF APPEALS
                                 No. 09-15925                  ELEVENTH CIRCUIT
                                                                FEBRUARY 4, 2011
                           ________________________
                                                                    JOHN LEY
                                                                     CLERK
                            Agency No. A088-685-703

LUCIA I. MEDINA MARTINEZ,


                                                                           Petitioner,

                                       versus

U.S. ATTORNEY GENERAL,

                                                                         Respondent.

                           ________________________

                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                           _________________________

                                 (February 4, 2011)


Before BARKETT, MARCUS and FAY, Circuit Judges.

MARCUS, Circuit Judge:

      This is one of those difficult cases where the law yields a conclusion that is

onerous and, at its core, inequitable. Lucia Medina Martinez seeks review of the
Board of Immigration Appeals’ (“BIA”) decision affirming the denial of her

petition for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The BIA found

that Martinez’s 2007 Florida conviction for child neglect was a “crime of child

abuse,” as used in 8 U.S.C. § 1227(a)(2)(E)(i), precluding her eligibility for the

Attorney General’s discretionary ability to cancel a removal proceeding on

hardship grounds. On appeal, Martinez argues that her conviction for child neglect

does not meet the BIA’s definition of a “crime of child abuse.” For the reasons we

detail below, we are regrettably constrained to deny her petition for review.

                                          I.

      Martinez, a native and citizen of Mexico, entered the United States illegally

in 1994 when she was fifteen years old. After she entered the United States,

Martinez married a year later and had two children, Alexander and Astrid, in the

United States. After four years of marriage, Martinez divorced her husband

because he was abusive. She then moved from California to Florida, where she

met Arnoldo Cortez. Martinez lived with Cortez for five years before they married

in 2004. Martinez now has six children, all of whom were born in the United

States.

      In 2006, Astrid, who was then seven years old, told Martinez that Cortez had

touched her vaginal area and her breasts. This molestation appears to have

occurred on multiple occasions when Astrid was seven years old. Martinez
                                           2
initially kicked Cortez out of their home, but did not call the police because she

was afraid that her children would be taken away from her. Martinez confided in

her pastor about the incident, and he provided her with guidance. He told her that

he would speak with Cortez and advised her to allow Cortez to return to her home

because he was the father of four of her children, including a newborn baby, and

because he was her husband.1 Based on her pastor’s advice, Martinez did not

report the crime and allowed her husband to return while Astrid continued living in

the home.

       Martinez, however, was deeply troubled by her pastor’s advice and sought

additional counseling through her church about whether she should have allowed

Cortez to return home. After learning of Cortez’s conduct, the counselor, with

Martinez’s concurrence, notified the police, and Cortez was arrested for sexually



       1
        Martinez’s testimony before the immigration judge included the following relevant
colloquy:

       Q. . . . So tell me about it. You went to talk to the pastor and what happened?

       A. He told me he was going to talk to my husband because what had occurred
       wasn’t right. I told him not to because I no longer wanted to live with him
       because of what had occurred. But he [w]as telling me I should think about the
       other children and the baby had just been born. And I allowed him to return to
       the house. I did not feel well living with him. I couldn’t sleep in peace. So I
       went to a counselor to ask what I should do. She told me what to do, that she was
       going to file a report, and I said to her that it was all right. What I told her is that
       all I wanted was for my children not to suffer more trauma, and she said they
       were going to go there and that he was going to be arrested, and that they were
       not going to take my children away. And that -- well, well, you know. They were
       going to help me with the children, I wasn’t going to be left alone.
                                                   3
molesting Astrid. As Martinez expressed it, “. . . all I wanted was for my children

not to suffer more trauma . . .” There were no alleged incidents of molestation

during the three weeks that Martinez allowed Cortez to return to their home. The

state of Florida subsequently removed Martinez’s children from her home, and

charged Martinez with child neglect in violation of Fla. Stat. § 827.03(3)(a), (c).

Martinez did not contest the charges, instead pleading no contest in July 2007. She

pled no contest because she believed that such a plea would allow her children to

be returned to her care and custody as soon as possible. Martinez was sentenced to

two days of confinement, with credit for two days served, 364 days of probation,

seventy-five hours of community service, and other various fines. Cortez was

convicted of child molestation and is currently serving a fifteen-year prison

sentence. Soon after her conviction, on August 17, 2007, upon motion of the

Department of Children and Family Services, all six children were returned to the

custody and care of their mother.

      In September 2007, the Department of Homeland Security (“DHS”) issued

Martinez a Notice to Appear, charging her with removability under 8 U.S.C. §

1182(a)(6)(A)(i), as an alien present in the United States without being admitted or

paroled. Martinez conceded removability at an initial hearing, and she applied for

cancellation of removal and adjustment of status for certain nonpermanent

residents, under 8 U.S.C. § 1229b(b)(1). After a hearing, the immigration judge
                                           4
found Martinez removable as charged, and denied her application for cancellation

of removal, because her conviction for a “crime of child abuse” made her

statutorily ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(C).

The BIA dismissed Martinez’s appeal, finding that her Florida conviction for child

neglect was a conviction for a “crime of child abuse.”

                                                II.

               Martinez places a single question before us: whether a conviction for

child neglect under Fla. Stat. § 827.03(3) constitutes a “crime of child abuse” under

8 U.S.C. § 1227(a)(2)(E)(i). While discretionary decisions related to the denial of

cancellation of removal are not reviewable by this Court, 8 U.S.C. §

1252(a)(2)(B)(i), we can consider, de novo, Martinez’s claim to the extent that it

presents a question of law related to statutory eligibility for cancellation of

removal, 8 U.S.C. § 1252(a)(2)(D); Martinez v. U.S. Att’y Gen., 446 F.3d 1219,

1221-23 (11th Cir. 2006).

       The plain language of the Immigration and Nationality Act (the “INA”)

permits the Attorney General to exercise his discretion to cancel the removal of a

nonpermanent resident, such as Martinez, only if that nonpermanent resident meets

the four requirements outlined in 8 U.S.C. § 1229b(b)(1).2 For our present

       2
         The Attorney General’s discretion to cancel an order of removal is limited by 8 U.S.C.
§ 1229b. Under that statute, the Attorney General can exercise his discretion to cancel the
removal of an alien if certain criteria are met by that alien. See Lopez v. Gonzales, 549 U.S. 47,
                                                   5
purposes, we are concerned only with the third requirement, that the alien “has not

been convicted of an offense under section . . . 1227(a)(2)” of the INA. 8 U.S.C. §

1229b(b)(1)(C). Among the offenses listed in § 1227(a)(2) are “crimes against

children.” 8 U.S.C. § 1227(a)(2)(E). Specifically, the statutory provision says that

“[a]ny alien who at any time after admission is convicted of . . . a crime of child

abuse . . . is deportable.” Id. § 1227(a)(2)(E)(i). The term “crime of child abuse,”

as used in 8 U.S.C. § 1227(a)(2)(E)(i), is not defined in the INA. However, the

BIA has supplied definitions of a “crime of child abuse” in Matter of Velazquez-

Herrera, 24 I & N Dec. 503 (BIA 2008) and Matter of Soram, 25 I & N Dec. 378

(BIA 2010).

       In Velazquez-Herrera, the BIA “broadly” defined the term “crime of child

abuse” as “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.” 24 I



50 (2006). For nonpermanent residents, such as Martinez, the following four criteria must be
met. First, the alien must be “physically present in the United States for a continuous period of
not less than 10 years immediately preceding the date of such application.” 8 U.S.C. §
1229b(b)(1)(A). Second, the alien must have “been a person of good moral character during
such period.” Id. § 1229b(b)(1)(B). Third, the alien must not have “been convicted of an
offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph
(5).” Id. § 1229b(b)(1)(C). And, finally, the alien must “establish[] that removal would result in
exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for permanent residence.” Id. §
1229b(b)(1)(D).

                                                6
& N Dec. at 512. The BIA further indicated that, “[a]t a minimum, this definition

encompasses convictions for offenses involving the infliction on a child of physical

harm, even if slight; mental or emotional harm, including acts injurious to morals;

sexual abuse, including direct acts of sexual contact.” Id. In Soram, the BIA

quoted extensively from Velazquez-Herrera, finding that a “crime of child abuse”

does not require proof of actual harm or injury to the child by the petitioner. 25 I

& N Dec. at 381. In addition, the BIA clarified that the crime of child neglect can

be a “crime of child abuse” under the INA. Id.

      Because Velazquez-Herrera and Soram are precedential opinions of the BIA

decided by three-member panels, under Chevron, we defer to their interpretation of

“crime of child abuse” so long as the law is ambiguous and the BIA’s

determination is reasonable and does not contradict the clear intent of Congress.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-44

(1984); Chen v. U.S. Att’y Gen., 565 F.3d 805, 809 (11th Cir. 2009) (noting that

“[t]he degree of deference is especially great in the field of immigration”) (internal

quotation marks omitted); Quinchia v. U.S. Att’y Gen., 552 F.3d 1255, 1258 (11th

Cir. 2008) (explaining that Chevron deference is only appropriate in cases

involving precedential three-member decisions of the BIA). The INA is

ambiguous because it provides no definition of the term “crime of child abuse.”

And, because neither party challenges Velazquez-Herrera or Soram as being
                                           7
unreasonable, we assume that the BIA’s definition of a “crime of child abuse” is

reasonable.

      The Florida law under which Martinez was convicted categorically meets the

definition of a “crime of child abuse” under the INA. The pertinent statute says

that a person who “willfully or by culpable negligence neglects a child without

causing great bodily harm, permanent disability, or permanent disfigurement to the

child commits a felony of the third degree.” Fla. Stat. § 827.03(3)(c). The

statutory scheme defines “neglect of a child” as:

      1. A caregiver’s failure or omission to provide a child with the care,
      supervision, and services necessary to maintain the child’s physical
      and mental health, including, but not limited to, food, nutrition,
      clothing, shelter, supervision, medicine, and medical services that a
      prudent person would consider essential for the well-being of the
      child; or

      2. A caregiver’s failure to make a reasonable effort to protect a child
      from abuse, neglect, or exploitation by another person.

Id. § 827.03(3)(a). “Neglect of a child may be based on repeated conduct or on a

single incident or omission that results in, or could reasonably be expected to result

in, serious physical or mental injury, or a substantial risk of death, to a child.” Id.

      There is no question that all of the conduct criminalized under Fla. Stat. §

827.03(3) constitutes a “crime of child abuse” under the BIA’s definition of that

term in Velazquez-Herrera and Soram. Whether committed willfully or with

culpable negligence, the BIA could reasonably determine -- as it did -- that child
                                            8
neglect is a “crime of child abuse.” Indeed, the BIA’s definition of a “crime of

child abuse” expressly refers to an “intentional, knowing, reckless, or criminally

negligent act or omission that constitutes maltreatment of a child . . . including

sexual abuse.” Velazquez-Herrera, 24 I & N Dec. at 512. In addition, the BIA

specified that it had read “broadly” the term “crime of child abuse,” which

encompasses a wide range of standards for intent. Id.

      Martinez also argues that she did not commit a “crime of child abuse,”

because the Florida statue allows a conviction for a “failure to provide care,” and

that, Martinez argues, requires merely a risk of harm to a child, and not a showing

of actual injury to the child. However, as is described above, Soram clearly and

unquestionably precludes this argument. The BIA has determined that a “crime of

child abuse” under the INA does not require proof of an actual injury or harm to

the child. Soram, 25 I & N Dec. at 381. Accordingly, Martinez’s argument that

she did not commit a “crime of child abuse” because there is no evidence that any

physical harm was inflicted upon Astrid as a result of Cortez’s return to the family

home for three weeks is unavailing.

      Similarly, Martinez’s argument that she did not commit a “crime of child

abuse” because she could have been convicted for either a failure to provide

adequate supervision or a failure to protect under Fla. Stat. § 827.03(3)(a) is

without merit. A conviction on either ground would fall within the BIA’s broad
                                           9
definition of a “crime of child abuse,” because either creates an “impair[ment of] a

child’s physical or mental well-being,” which Velazquez-Herrera holds is the

definition of a “crime of child abuse.” Velazquez-Herrera, 24 I & N Dec. at 512.

Indeed, Velazquez-Herrera pointed out that the above-quoted definition of a “crime

of child abuse” would “subsume most, if not all, crimes of ‘child neglect.’” Id. at

512 n.14. And, again, as was made clear in Soram, no actual injury to the child is

required; a failure to prevent or avoid the risk of harm is enough. 35 I & N Dec. at

381. Accordingly, a failure to provide adequate supervision as well as a failure to

protect, even if the child is not physically harmed, would still impair the child’s

mental well-being; thus, the BIA could find that either is a “crime of child abuse”

under the INA.

      Martinez’s conviction for child neglect under Florida law, therefore,

qualifies as a “crime of child abuse,” and the BIA did not commit legal error in

concluding that this conviction precluded her eligibility for cancellation of removal

under 8 U.S.C. § 1229b(b)(1).

      While we are constrained by the law to reach this result, because it yields a

profoundly unfair, inequitable, and harsh result, we urge the Attorney General to

closely review the facts of this heartbreaking case once again.

      As we understand the basic facts, Martinez arrived in this country when she

was only fifteen years old, and she has continued to reside here for more than
                                          10
sixteen years. She has six children, all of whom were born in the United States,

and she has now left two abusive spouses. Martinez was not personally involved

in the sexual abuse of Astrid, nor is it alleged anywhere that she knew this abuse

had occurred before Astrid told her about it. Indeed, in August 2006, Martinez

noticed that Astrid was acting strange, and she spoke to the child to find out what

was wrong. Upon learning from Astrid that Cortez, Martinez’s husband and the

father of her four younger children, had inappropriately touched Astrid, Martinez

immediately kicked Cortez out of their home. Martinez was so distraught over her

husband’s actions towards his step-daughter that she consulted her pastor. It was

only on her pastor’s advice that she decided not to contact the police and to allow

Cortez to return to their home; this advice appears to have been largely based on

the fact that, during this time, Martinez and Cortez had four children together,

including a newborn son, and on the pastor’s belief that Martinez should remain

loyal to her husband. Concerned that her pastor’s guidance was not correct,

Martinez sought additional counseling through her church within weeks of

Cortez’s return regarding whether to allow her husband to stay in their home.

Martinez told her counselor that she was afraid to contact the police because she

feared the authorities would take her six children away from her. After their

session, the counselor notified the police, ironically with Martinez’s concurrence.



                                          11
Soon thereafter, Martinez’s children were removed from her custody and sent to

live with Cortez’s mother, and Martinez was prosecuted for child neglect.

      The entire basis of Martinez’s child neglect conviction was that she allowed

her husband, and the father of several of her children, to return to their home for a

period of three weeks on the unambiguous advice of her pastor. In the process of

seeking additional guidance, Martinez’s case was turned over to law enforcement,

and both she and her husband were arrested and prosecuted. Martinez chose not to

contest the charge of child neglect, which was based only on the fact that she had

allowed Cortez to return to their home for three weeks after Astrid had told her

about her husband’s conduct. In July 2007, Martinez was sentenced to two days of

confinement, with credit for two days served, 364 days of probation, seventy-five

hours of community service, and other various fines. There is no allegation that

Astrid suffered any molestation at the hands of Cortez during the three-week

period he spent in their home after Martinez initially kicked him out. On August

17, 2007, approximately ten months after the children were taken from Martinez’s

custody and only one month after her conviction, upon the motion of the

Department of Children and Family Services, all six children were returned to her

custody and care; the State of Florida does not appear to be concerned that

Martinez is a neglectful or otherwise unfit parent. And there is no danger that



                                          12
Cortez will come into contact with Astrid while she lives with her mother; he is

currently serving a fifteen-year prison sentence.

       Simply put, this case calls for more mercy than the law permits this Court to

provide. There is no evidence that Martinez has ever been anything less than a

caring parent. Her initial reaction to learning from Astrid that her step-father had

inappropriately touched her was to immediately remove Cortez from their home.

She also repeatedly sought guidance from multiple sources (including her pastor),

who gave her conflicting advice about how to handle the situation. Martinez has

six young children who are all United States citizens. Four of Martinez’s young

children are also Cortez’s children, and their father will remain in the United States

long after they would be forced to leave the country if their mother is forcibly

removed. Martinez has lived in the United States since she was fifteen years old,

which is more than half of her lifetime. Under the peculiar facts of this case,

removing Martinez and her six young children to Mexico, a country in which they

no longer have any relatives, would work an extreme hardship on a family that has

already been forced to endure domestic abuse, the molestation of a child by her

step-father, and the incarceration of a father and husband. We, therefore, urge the

Attorney General of the United States to review this matter again.3



       3
        The Clerk of Court is directed to send a copy of this opinion directly to the Attorney
General of the United States.
                                               13
PETITION FOR REVIEW DENIED.




                       14
