Ariel Marcelo Bastias v. U.S. Attorney General

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11416

____________________

ARIEL MARCELO BASTIAS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A074-344-653

____________________

ON REMAND FROM THE SUPREME COURT OF THE

UNITED STATES

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2 Opinion of the Court 21-11416

Before NEWSOM, MARCUS, Circuit Judges, and MIDDLEBROOKS,*

DISTRICT JUDGE.

PER CURIAM:

This case is back before us for a second time, this go-round

on remand from the Supreme Court.

In 2019, Ariel Bastias, a native and citizen of Chile and a

lawful permanent resident of the United States, pleaded guilty to

violating a Florida law that, in pertinent part, makes it a crime to

“willfully or by culpable negligence neglect[] a child without

causing great bodily harm, permanent disability, or permanent

disfigurement to the child.” Fla. Stat. § 827.03(2)(d). As a result of

Bastias’s plea, the government sought to remove him from the

country pursuant to a provision of the Immigration and

Nationality Act that, as relevant here, states that “[a]ny alien who

at any time after admission is convicted of . . . a crime of child

abuse, child neglect, or child abandonment is deportable.” 8 U.S.C.

§ 1227(a)(2)(E)(i).

At Bastias’s removal proceeding, the Immigration Judge

held that his Florida conviction rendered him deportable because

it qualifies as “a crime of child abuse, child neglect, or child

abandonment” within the meaning of § 1227(a)(2)(E)(i) as

interpreted by the Board of Immigration Appeals. The IJ separately

denied Bastias’s application for cancellation of removal.

* Honorable Donald M. Middlebrooks, United States District Judge for the

Southern District of Florida, sitting by designation.

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3 Opinion of the Court 21-11416

Bastias appealed to the Board of Immigration Appeals,

which affirmed the IJ’s decision. In likewise concluding that

Bastias’s child-neglect conviction constitutes “a crime of child

abuse, child neglect, or child abandonment” for § 1227(a)(2)(E)(i)

purposes, the Board explained that it had previously interpreted the

statutory phrase “‘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.” Admin. R. at

4 (emphasis added) (quoting Matter of Velazquez-Herrera, 24 I. & N.

Dec. 503, 512 (BIA 2008)). Its interpretation, the Board said, doesn’t

require “actual harm or injury to a child” if the defendant’s mental

state was “greater than common law negligence” and there is

“proof of a likelihood or reasonable probability that a child will be

harmed.” Id. (quotation marks omitted) (citing Matter of Soram, 25

I. & N. Dec. 378, 381 (BIA 2010), and Matter of Rivera-Mendoza, 28

I. & N. Dec. 184, 187–89 (BIA 2020)). The Board went on to hold

that child neglect under Fla. Stat. § 827.03(2)(d) categorically falls

within its interpretation of the INA because child neglect requires

a mental state of “culpable negligence”—more than ordinary

negligence—and encompasses conduct that “could reasonably be

expected to result in” serious injury or death. Id. at 4–5 (citing, inter

alia, Jones v. State, 292 So. 3d 519, 522 (Fla. Dist. Ct. App. 2020), and

quoting Fla. Stat. § 827.03(1)(e) (defining “neglect of a child”)).

Bastias filed a petition for review of the Board’s decision in

this Court, which we denied. See Bastias v. U.S. Att’y Gen., 42 F.4th

1266, 1276 (11th Cir. 2022), vacated and remanded, 144. S. Ct. 2704

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4 Opinion of the Court 21-11416

(2024) (mem.). Applying the deference principles enunciated in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984), overruled by Loper Bright Enters. v. Raimondo, 603

U.S. 369 (2024), we concluded that the Board had reasonably

interpreted § 1227(a)(2)(E)(i)’s phrase “crime of child abuse, child

neglect, or child abandonment” to cover Bastias’s child-neglect

conviction under Fla. Stat. § 827.03(2)(d). See Bastias, 42 F.4th at

1272–76. In particular, we held that we were bound by our earlier

decision in Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th Cir.

2018), to conclude (1) that § 1227(a)(2)(E)(i) is ambiguous, see

Bastias, 42 F.4th at 1272, and (2) that the Board had adopted a

reasonable interpretation of the statute, id. at 1274–75.

Bastias then filed a petition for a writ of certiorari in the

Supreme Court, which the Court held pending its decision in Loper

Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In Loper Bright,

the Court overruled Chevron, holding that deference to an agency’s

interpretation of a statute contravenes the Administrative

Procedure Act’s directive that courts independently decide

statutory and legal questions. See id. at 396–413. Following its

decision, the Supreme Court granted Bastias’s petition, vacated this

Court’s decision, and remanded “for further consideration in light

of Loper Bright.” Bastias v. Garland, 144 S. Ct. 2704, 2705 (2024)

(mem.).

For the reasons explained in the opinions to follow, we

DENY Bastias’s petition for review.

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21-11416 NEWSOM, J., Concurring 1

NEWSOM, Circuit Judge, concurring in the judgment:

I concur in the Court’s judgment denying Ariel Bastias’s

petition for review. There’s no easy way to put this, but in capsule

form, here’s why: In Pierre v. U.S. Attorney General, 879 F.3d 1241

(11th Cir. 2018), applying the principles enunciated in Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369

(2024), we accepted the Board of Immigration Appeals’

interpretation of the phrase “crime of child abuse,” as used in 8

U.S.C. § 1227(a)(2)(E)(i), to include a state-law offense involving

criminally negligent conduct that constitutes maltreatment but

doesn’t cause physical injury. Under the Board’s broad reading, the

state-law offense to which Bastias pleaded guilty—engaging in an

act of culpably negligent child neglect that doesn’t result in serious

injury, see Fla. Stat. § 827.03(2)(d)—constitutes a deportable “crime

of child abuse.” The only truly difficult question, in my mind—and

I do find it difficult—is whether Pierre remains good law, despite

the facts (1) that it specifically grounded its interpretive analysis in

Chevron and (2) that the Supreme Court expressly overruled

Chevron in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

Counterintuitive though the conclusion may be, I believe that we

remain bound by Pierre.

Let me explain.

I

All here agree that in order to determine whether Bastias’s

state-law child-neglect conviction constitutes a “crime of child

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21-11416 NEWSOM, J., Concurring 2

abuse” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i)—and thus

renders him deportable—we must apply the so-called “categorical

approach.” See Esquivel-Quintana v. Sessions, 581 U.S. 385, 389

(2017). The categorical approach requires, in essence, a side-by-

side comparison of the applicable state and federal statutes: In

particular, a reviewing court must assess the “relevant [state]

statute of conviction, as construed by the state courts, and ask

whether it ‘categorically fits’ within the generic definition of the

federal offense.” Kemokai v. U.S. Att’y Gen., 83 F.4th 886, 892 (11th

Cir. 2023) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 (2013)). A

state conviction is a categorical match “only if the statute’s

elements are the same as, or narrower than, those of the generic

offense.” Id. (citation and quotation marks omitted). “Under the

categorical approach, we consider only the fact of conviction and

the statutory definition of the [state] offense, rather than the

specific facts underlying the defendant’s case.” Gelin v. U.S. Att’y

Gen., 837 F.3d 1236, 1241 (11th Cir. 2016).

So, at the risk of grossly oversimplifying matters, a

categorical-approach analysis entails two basic inputs: (1) the

meaning of the governing federal statute, and (2) the meaning of

the applicable state statute. I’ll unpack each in turn. Fair warning:

It’s the former—discerning the meaning of § 1227(a)(2)(E)(i)—that,

to my mind, presents the thorniest issue in this case.

A

In pertinent part, the INA provides that “[a]ny alien who at

any time after admission is convicted of . . . a crime of child abuse,

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child neglect, or child abandonment is deportable.” 8 U.S.C.

§ 1227(a)(2)(E)(i). As today’s per curiam opinion recounts, the

Board of Immigration Appeals has interpreted § 1227(a)(2)(E)(i)

broadly. See Maj. Op. at 3. In particular, and as relevant here, the

Board has held that the statutory term “crime of child abuse”

(1) encompasses “any offense involving a[] . . . criminally negligent

act or omission that constitutes maltreatment of a child or that

impairs a child’s physical or mental well-being,” Matter of Velazquez-

Herrera, 24 I. & N. Dec. 503, 512 (BIA 2008), and (2) is not limited

to state-law crimes “requiring proof of actual harm or injury to the

child,” Matter of Soram, 25 I. & N. Dec. 378, 381 (BIA 2010). Both

in our initial opinion in this case and in the decision on which we

principally relied, Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th

Cir. 2018), we held that § 1227(a)(2)(E)(i) was ambiguous and

therefore deferred to the Board’s interpretation under the

principles set forth in Chevron. See Bastias v. U.S. Att’y Gen., 42 F.4th

1266, 1274–75 (11th Cir. 2022), vacated and remanded, 144 S. Ct. 2704

(2024) (mem.).

But then came Loper Bright Enterprises v. Raimondo, 603 U.S.

369 (2024), in which the Supreme Court expressly overruled

Chevron. Unsurprisingly, given Loper Bright’s directive that courts

must “exercise their independent judgment” in construing the

statutes before them and, further, that they “may not defer to an

agency interpretation of the law simply because a statute is

ambiguous,” id. at 412–13, the parties here vigorously debate

§ 1227(a)(2)(E)(i)’s proper interpretation as a matter of first

principles, without regard to the Board’s preexisting interpretation.

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So, for instance, Bastias contends that § 1227(a)(2)(E)(i) is best read

not to include most negligent, non-injurious conduct. See Br. of

Appellant at 30. The government, by contrast, insists that the

federal generic definition is properly understood to cover state-law

crimes that involve negligent conduct that risks harm to a child.

See Br. of Appellee at 25. Judges Marcus and Middlebrooks have

likewise weighed in with their own (slightly different) readings. See

Marcus Concurring Op. at 26–33; Middlebrooks Concurring Op. at

4–13. All make good points and raise interesting arguments.

Before considering the various competing readings of

§ 1227(a)(2)(E)(i), however, there’s an antecedent question that we

have to address: While it’s no doubt true under Loper Bright that

we “need not”—and indeed “may not”—defer to the Board’s

interpretation as such, 603 U.S. at 413, might we nonetheless be

bound, despite Loper Bright, by our earlier decision in Pierre, which

adopted the Board’s interpretation? It’s complicated, but I’ve

concluded—more than a little reluctantly—that we are.

I’ll first detail what Pierre said, and then explain why I think

we’re bound by it.

1

In Pierre, we addressed a situation very much like the one in

this case. There, as here, the government sought to remove a

lawful permanent resident on the ground that he had committed

“a crime of child abuse” within the meaning of § 1227(a)(2)(E)(i).

The alien in Pierre had pleaded guilty to battery of a child, in

violation of a different state statute—namely, Fla. Stat.

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§ 784.085(1), which, in pertinent part, makes it a crime to

“knowingly cause or attempt to cause a child to come into contact

with” any of several bodily fluids. See Pierre, 879 F.3d at 1245–46.

In performing the required categorical-approach analysis—

which, as already explained, requires a comparison of the

applicable federal and state statutes—the Pierre court first turned its

attention to the meaning of the term “crime of child abuse” as used

in § 1227(a)(2)(E)(i). Employing the then-extant Chevron

framework, the panel noted that “[t]he INA does not define ‘child

abuse’” and therefore treated the statute as “silent on the issue.”

Id. at 1249. Accordingly, the panel continued, “we may defer to the

BIA’s interpretation of the INA, so long as that interpretation is

reasonable and consistent with the statute.” Id. (citing Chevron, 467

U.S. at 843).

The Pierre court then proceeded to unpack the Board’s

interpretation of § 1227(a)(2)(E)(i). In so doing, the panel pointed

to the same two decisions that principally underlay the Board’s

decision in this case: Velazquez-Herrera, 24 I. & N. Dec. 503, and

Soram, 25 I. & N. Dec. 378. In particular, the Pierre panel observed

that under Velazquez-Herrera, the term “crime of child abuse”

encompasses “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.” Pierre, 879 F.3d at 1249 (quoting Velazquez-Herrera, 24

I. & N. Dec. at 517). And per Soram, the panel continued, “child

abuse crimes under the INA are not limited to those offenses

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‘requiring proof of actual harm or injury to the child’” but, rather,

also include “endangerment-type crimes” as well as any “act or

omission that constitutes maltreatment of a child.” Id. at 1250

(quoting Soram, 25 I. & N. Dec. at 381, 383).

Having settled on the prevailing interpretation of

§ 1227(a)(2)(E)(i), the Pierre panel shifted its focus to state law and,

in particular, to the question whether the child-battery statute

under which the alien there had been convicted was a categorical

match: “With this background in mind, we now examine whether

the Florida statute fits within the [Board’s] generic and broad

definition of ‘child abuse.’” Id. The panel held that it did: The

state statute, the panel observed, “requires an overt act” for

conviction of either a completed battery or an attempt, and “[a]t a

minimum, th[e] repugnant type of battery or attempted battery”

entailed in knowingly directing bodily fluids at a child “constitutes

maltreatment of a child.” Id. (citing Soram, 25 I. & N. Dec. at 382–

83).

Putting the pieces together, the Pierre panel announced its

judgment (as relevant here) as follows: “[A]pplying Chevron

deference to the definitions of ‘child abuse’ found in Velazquez-

Herrera and Soram, we (1) uphold them as reasonable

interpretations of the INA, to the extent they apply to Pierre’s case,

and (2) conclude that the [Board] did not err in concluding that

Pierre’s conviction for battery on a child constituted a crime of

child abuse.” Id. at 1251. Importantly—because it gives rise to an

argument for cabining Pierre’s reach that I’ll explore shortly—the

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panel appended a footnote to its decision: “Because Pierre’s

conviction necessarily involved a knowing and overt act, Pierre’s

case does not require us to determine whether purely negligent

acts with no injury to the child proscribed by a state statute

constitute generic crimes of child abuse.” Id. at 1251 n.3.

So, it’s pretty (although not perfectly) clear what we said in

Pierre about the scope and meaning of the phrase “crime of child

abuse” as used in § 1227(a)(2)(E)(i): Deferring under Chevron, we

accepted the Board’s interpretation—namely, that it includes a

state-law offense that involves a criminally negligent conduct that

constitutes maltreatment but that doesn’t cause any actual injury.

The much thornier question—to which I’ll turn next—is whether,

despite Loper Bright’s overruling of Chevron, we remain bound by

that aspect of Pierre. I believe we are.

2

I begin with our “prior panel precedent” rule. In this Circuit,

“a prior panel’s holding is binding on all subsequent panels unless

and until it is overruled or undermined to the point of abrogation

by the Supreme Court or by this court sitting en banc.” In re

Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (citation omitted). We

haven’t overruled or abrogated Pierre en banc. (Yet—more on that

in a bit.) The more pertinent question is whether the Supreme

Court’s decision in Loper Bright did so. It’s a close call, but I don’t

think it did.

The bar for concluding that the Supreme Court has

abrogated one of our decisions is high: “[T]he later Supreme Court

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decision must ‘demolish[]’ and ‘eviscerate[]’ each of its

‘fundamental props.’” Del Castillo v. Sec’y, Fla. Dep’t of Health, 26

F.4th 1214, 1223 (11th Cir. 2022) (second and third alterations in

original). Loper Bright doesn’t clear that hurdle. To be sure, Pierre’s

interpretation of § 1227(a)(2)(E)(i) was grounded in Chevron. See

Pierre, 879 F.3d at 1251 (applying “Chevron deference to the

definitions of ‘child abuse’ found in Velazquez-Herrera and Soram”).

And to be sure, the Supreme Court in Loper Bright overruled

Chevron and instituted a new interpretive framework, requiring

courts to “exercise their independent judgment in deciding

whether an agency has acted within its statutory authority.” 603

U.S. at 412.

Conspicuously, though, the Court didn’t stop there. It went

on to cabin the scope of its ruling in a passage that, given its

importance here, bears quoting in full:

[W]e do not call into question prior cases that relied

on the Chevron framework. The holdings of those

cases that specific agency actions are lawful—

including the Clean Air Act holding of Chevron itself—

are still subject to statutory stare decisis despite our

change in interpretive methodology. See CBOCS West,

Inc. v. Humphries, 553 U.S. 442, 457 (2008). Mere

reliance on Chevron cannot constitute a “‘special

justification’” for overruling such a holding, because

to say a precedent relied on Chevron is, at best, “just

an argument that the precedent was wrongly

decided.” Halliburton Co. v. Erica P. John Fund, Inc., 573

U.S. 258, 266 (2014) (quoting Dickerson v. United States,

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530 U.S. 428, 443 (2000)). That is not enough to justify

overruling a statutory precedent.

Id.

Here’s what I take to be clear: The Supreme Court

overruled Chevron, but it did so only on a prospective basis; the

Court expressly “d[id] not call into question prior cases that relied

on the Chevron framework.” Id. The “holdings” of those cases—

more, shortly, on exactly what those may be—remain good law

and are entitled to stare decisis effect. Id. While the Court held

open the possibility that some “special justification” might warrant

departing from a Chevron-era case’s holding, “[m]ere reliance on

Chevron” doesn’t constitute such a justification. Id. Beyond that,

so much uncertainty.

Unsurprisingly, Loper Bright has vexed the lower courts. Our

sister circuits have expressed divergent views about what sorts of

“holdings” the Supreme Court meant to preserve—and in

particular, whether stare decisis treatment extends to a court’s

Chevron-era adoption of an agency’s statutory interpretation or,

instead only, and more narrowly, to the court’s case-specific

application of that interpretation to the facts before it. Compare,

e.g., Tennessee v. Becerra, 131 F.4th 350, 366 (6th Cir. 2025)

(observing, relatively broadly, that “a ‘specific agency action’

attaches to an agency’s particular construction of a statute”), with,

e.g., In re MCP No. 185, 124 F.4th 993, 1002 (6th Cir. 2025)

(observing, relatively narrowly, that “[t]he ‘specific agency action’

that the [Supreme] Court approved in [National Cable &

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Telecommunications Association v. Brand X Internet Services, 545 U.S.

967 (2005)] was the FCC’s 2002 [] Ruling” whereas “[t]he specific

action before us here is the FCC’s 2024 Safeguarding

Order . . . [which] means we are not bound by Brand X’s holding

as a matter of statutory stare decisis”); see also Lopez v. Garland, 116

F.4th 1032, 1045 (9th Cir. 2024) (finding itself bound by a Chevron-

era panel’s acceptance of the BIA’s “reasonable interpretation” of

the Immigration and Nationality Act).

A similar question confronts us here. What is the

“holding[]” of Pierre? Bastias contends—and my colleague Judge

Marcus agrees—that Pierre’s holding is narrowly limited to the

circumstances of that case—in particular, to the court’s

determination there that a different Florida criminal statute, Fla.

Stat. § 784.085, was a categorical match for the INA’s “crime of

child abuse” provision. See Br. of Appellant at 22–23; Marcus

Concurring Op. at 13–15. It’s not a trivial argument. As already

noted, having settled on a (Chevron-based) reading of

§ 1227(a)(2)(E)(i), and then compared that interpretation to the

state law at issue, the Pierre court summed up its conclusion—as

relevant here—in these terms: “[A]pplying Chevron deference to

the definitions of ‘child abuse’ found in Velazquez–Herrera and

Soram, we . . . uphold them as reasonable interpretations of the

INA, to the extent they apply to Pierre’s case.” Pierre, 879 F.3d at 1251

(emphasis added). And as already noted, to that statement the

panel appended the following footnote: “Because Pierre’s

conviction necessarily involved a knowing and overt act, Pierre’s

case does not require us to determine whether purely negligent

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acts with no injury to the child proscribed by a state statute

constitute generic crimes of child abuse.” Id. at 1251 n.3. Thus,

Bastias contends, Pierre blessed the Board’s broad reading of the

phrase “crime of child abuse” only “to the extent [it] appl[ied]” to

the case before it—which is to say, only vis-à-vis a state-court

conviction that involved a “knowing and overt act,” and not one,

as in this case, that involved only “purely negligent acts with no

injury to the child.” Id.; see Br. of Appellant at 21–23.

As I said, Bastias’s position isn’t trivial—but I think it’s

misguided for three (related) reasons. I’ll address them in turn.

a

As an initial matter, I think Bastias’s position misunderstands

Loper Bright. To repeat, the Supreme Court said there that despite

its repudiation of the Chevron framework, “[t]he holdings of

[Chevron-era] cases that specific agency actions are lawful—

including the Clean Air Act holding of Chevron itself—are still

subject to statutory stare decisis.” Loper Bright, 603 U.S. at 412.

Hardly perfectly pellucid, but in that passage I find two clues

that when the Supreme Court said it meant to preserve the

“holdings” of Chevron-era cases, it was referring not, as Bastias

seems to suggest, only to a court’s case-specific application of a

judicially approved agency interpretation to a particular set of facts,

but rather, and more broadly, to that court’s antecedent

determination that the agency’s reading of the governing statute

was “lawful.”

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The first clue is the Court’s invocation of “statutory stare

decisis.” That, it seems to me, is a pretty strong signal that we

should be focused on the legal rule that a Chevron-era precedent

establishes rather than just its fact- and party-bound result. To be

sure, there are doctrines like res judicata that train narrowly on

particular litigants, claims, and judgments. See, e.g., Bryan A.

Garner et al., The Law of Judicial Precedent 374 (2016). But stare

decisis is different—bigger, in a sense. Whereas res judicata

“involves a judgment that results from a particular application of a

legal principle to particular facts,” stare decisis “dictates”—more

broadly—“which legal principle should apply.” Id.; see also Payne v.

Tennessee, 501 U.S. 808, 827 (1991) (“Stare decisis . . . promotes the

evenhanded, predictable, and consistent development of legal

principles . . .”) (citing Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986))

(emphasis added). And indeed, with respect to statutory stare

decisis—of the sort specifically addressed by Loper Bright—the focus

on the court’s interpretation is even clearer, because “[t]he

traditional Anglo-American view is that an authoritative

interpretation of the written law (legislation) acquires the power of

law and becomes part of the statute itself.” Id. at 333. All of which

is to say that I take the Supreme Court’s reference to “statutory

stare decisis” to indicate an intent to preserve Chevron-era courts’

interpretations, not just their results.

The second clue: The Loper Bright Court provided an

example of the sort of holding it meant to accord stare decisis

effect—namely, “the Clean Air Act holding of Chevron itself.” And

what was that holding? Per the Chevron Court’s own words, it at

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the very least included the approval of the EPA’s interpretation of

the Act, as well as its ensuing application of that reading to the

particular facts of the case: “We hold that the EPA’s definition of

the term ‘source’ is a permissible construction of the statute.”

Chevron, 467 U.S. at 866 (emphasis added). By parity of reasoning,

the “holding” of Pierre, in Loper Bright terms, at the very least

included the panel’s approval of the Board’s broad reading of

§ 1227(a)(2)(E)(i), as well as its ensuing categorical-approach

application of that interpretation to the particular Florida child-

battery statute there at issue. 1

b

Second, and more generally, Bastias’s position

misunderstands the nature of the Chevron determination. Under

the Chevron framework, which applied at the time Pierre was

decided, the reasonableness of an administrative agency’s

interpretation of a statute is an all-or-nothing thing: The agency’s

interpretation is either reasonable or it isn’t. In construing a

statutory phrase—here, “crime of child abuse” in

§ 1227(a)(2)(E)(i)—the agency in effect says, “Here’s what that

phrase means.” The reviewing court can then either bless or reject

the agency’s reading—thumbs up or thumbs down. But it makes

1 On balance, this reading of Loper Bright is reinforced by the Court’s citation,

see 603 U.S. at 412, of CBOCS West, Inc. v. Humphries, which had emphasized

that “considerations of stare decisis . . . impose a considerable burden upon

those who would seek a different interpretation that would necessarily unsettle

many Court precedents.” 553 U.S. at 451–52 (emphasis added).

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no sense to say that an agency’s interpretation of a statute is

reasonable with respect to some concrete applications—say, the

one at issue in Pierre—but potentially unreasonable with respect to

others—say, the one at issue in this case. If an agency’s

interpretation entails potentially odd results—here, for example,

that it might reach purely negligent conduct that doesn’t actually

injure a child—that might provide the court a basis to reject it as

unreasonable. But I don’t think it’s coherent for a court applying

Chevron to say that the agency’s interpretation of a statutory term

is reasonable . . . sometimes. Cf. Barnhart v. Thomas, 540 U.S. 20, 29

(2003) (“The proper Chevron inquiry is not whether the agency

construction can give rise to undesirable results in some

instances . . . , but rather whether, in light of the alternatives, the

agency construction is reasonable.”). Accordingly, it seems to me,

the only logical and coherent way to understand our (admittedly

confusing) Pierre opinion is that the panel there (1) accepted as

reasonable the Board’s broad interpretation of the phrase “crime of

child abuse” in § 1227(a)(2)(E)(i) and then (2) applied that

interpretation to the state child-battery statute before it, leaving

open for a future case (like this one) the question how—and this is

the key point—that same interpretation would apply to a different

state statute that criminalized purely negligent misconduct.

c

Finally, and more generally still, Bastias’s argument

misunderstands the nature of holdings. Whatever else it said and

did, Loper Bright expressly preserved Chevron-era “holdings.” 603

U.S. at 412. And what, under our precedent about precedent, is a

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holding? It’s not, as Bastias suggests, just the bottom-line result.

While it’s true that we’ve said that “the holding[] of a prior decision

can reach only as far as the facts and circumstances presented to

the Court in the case which produced that decision,” United States

v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (quoting United

States v. Hunter, 172 F.3d 1307, 1309 (11th Cir. 1999) (Carnes, J.,

concurring)), we’ve also emphasized—ad nauseam—that “[t]he

holding of a case comprises both the result of the case and those

portions of the opinion necessary to that result.” United States v.

Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (emphases added)

(quoting United States v. Caraballo-Martinez, 866 F.3d 1233, 1244

(11th Cir. 2017)); accord United States v. Kaley, 579 F.3d 1246, 1253

n.10 (11th Cir. 2009). It is sufficient to “holding” status, therefore,

that a statement in a court’s opinion was “necessary to th[e]

result.” 2

So what about Pierre, what was its “holding[]”—and, in

particular, was its adoption of the Board’s interpretation of

§ 1227(a)(2)(E)(i) a holding? I think it pretty clearly was. As already

explained, see supra at 4–7, the Pierre panel laid out the logic of its

decision in three steps. First, deferring under Chevron, it accepted

2 To be clear, “strict necessary-ness is not essential to a statement’s

holdingness.” United States v. Files, 63 F.4th 920, 930 (11th Cir. 2023) (emphasis

added). To the contrary, we have treated some statements that aren’t strictly

necessary to a decision’s outcome—alternative holdings, non-supportive

holdings, etc.—as nonetheless entitled to holding status. See id. at 927–30. But

by all accounts, necessary-ness is a sufficient basis for treating a court’s

statement as part of its holding.

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as reasonable—and thus as binding—the Board’s broad reading of

the phrase “crime of child abuse” as encompassing a state-law

offense that involves criminally negligent conduct that constitutes

maltreatment but that doesn’t cause any actual injury. See Pierre,

879 F.3d at 1249–50 (citing Velazquez-Herrera, 24 I. & N. Dec. at 517;

and Soram, 25 I. & N. Dec. at 378, 381, 383). Second, having

established that federal-law baseline, the panel delineated the state-

law elements of the Florida child-battery statute at issue. See id. at

1250. And finally, having discerned the requirements of both

federal and state law, the panel proceeded to conduct a categorical-

approach analysis and concluded that the state law was a match

for—and therefore that it qualified as—a “crime of child abuse” for

removal purposes. See id. at 1251. In the terminology that we have

consistently used to characterize a statement in an opinion as part

of a decision’s holding, the Pierre panel’s adoption of the Board’s

reading of § 1227(a)(2)(E)(i) was “necessary to th[e] result” it

reached. Gillis, 938 F.3d at 1198. In particular, it supplied the major

premise of the panel’s logic; without a federal baseline against

which to measure the Florida battery statute at issue there, the

panel couldn’t have conducted the comparison that underlay its

categorical-approach analysis. 3

3 Separately—and perhaps more broadly—we have suggested a court’s

“statement[] of a legal rule” constitutes a holding, even if “technically

unnecessary to a case’s resolution.” Files, 63 F.4th at 928. So even if the Pierre

panel’s adoption of the BIA’s interpretation wasn’t strictly, logically necessary

to its decision—in the deductive sense that I’ve outlined above the line—it

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* * *

To sum up: Loper Bright didn’t “overrule[]” or “abrogat[e]”

Pierre in any way that would justify us walking away from it. See

Lambrix, 776 F.3d at 794. To the contrary, the Supreme Court there

expressly preserved the “holdings” of Chevron-era decisions like

Pierre. Loper Bright, 603 U.S. at 412. And for the reasons I’ve tried

to explain, the Pierre panel’s adoption of the Board’s broad reading

of § 1227(a)(2)(E)(i) was indeed part of its “holding[].” Accordingly,

under our prior-panel-precedent rule, we are bound by Pierre’s

interpretation of the phrase “crime of child abuse” to include

offenses that involve criminally negligent conduct that constitutes

maltreatment but does not cause physical injury.

B

The lone remaining question—which, happily, is much

simpler—is whether the state-law offense to which Bastias pleaded

guilty is a categorical match for, and thus qualifies as, a “crime of

child abuse” under the binding, Pierre-approved interpretation of

that phrase as used in § 1227(a)(2)(E)(i). It is, and it does.

To repeat, the pertinent Florida statute extends to any

“person who willfully or by culpable negligence neglects a child

without causing great bodily harm, permanent disability, or

permanent disfigurement to the child.” Fla. Stat. § 827.03(2)(d).

seems to me that it would qualify for holding status as the “statement[] of a

legal rule.”

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Here, there is a categorical match, both with respect to the mens

rea and with respect to the actus reus.

As for the mental state, Fla. Stat. § 827.03(2)(d) requires

“culpable negligence,” which Bastias concedes is at the very least

“akin to criminal negligence.” Br. of Appellant at 51. It thus

follows that the mens rea prescribed by the applicable Florida

statute is encompassed within § 1227(a)(2)(E)(i)’s requirement of

an “intentional, knowing, reckless, or criminally negligent” mental

state. Pierre, 879 F.3d at 1249 (quoting Velazquez-Herrera, 24 I&N

Dec. at 517) (emphasis added).

As for the actus reus, the Florida statute criminalizes

“neglect[],” which it defines as a caregiver’s failure to provide “care,

supervision, and services necessary to maintain the child’s physical

and mental health,” or the “failure to make a reasonable effort to

protect a child from abuse, neglect, or exploitation by another

person.” Fla. Stat. § 827.03(1)(e). The state law further clarifies that

“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. That explanation of

“neglect[]” fits comfortably within the scope of § 1227(a)(2)(E)(i),

which, as interpreted in Pierre, “is sufficiently broad to encompass

endangerment-type crimes.” Pierre, 879 F.3d at 1250 (quoting

Soram, 25 I. & N. Dec. at 379, 383). And to be clear, it’s no answer

to say, as Bastias does, that the Florida statute isn’t a categorical

match because it doesn’t require harm. Pierre squarely forecloses

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that argument, as it explained that “child abuse crimes under the

INA are not limited to those offenses ‘requiring proof of actual

harm or injury to the child.’” Id. (quoting Soram, 25 I. & N. Dec.

at 381).

C

Before I close, let me say a few words in response to Judge

Marcus’s characteristically thoughtful separate opinion, which

concludes (1) that we are not bound by Pierre but (2) that Bastias’s

petition is nonetheless due to be denied on a de novo reading of

§ 1227(a)(2)(E)(i).

First, with respect to Pierre, Judge Marcus contends that the

panel’s “adoption of the BIA’s definition of the [phrase] ‘crime of

child abuse’ was not complete or all-encompassing.” Marcus

Concurring Op. at 16. Rather, he says, the panel accepted only the

“part[]” of the BIA’s interpretation that covers knowing violations

and actual injuries and rejected the “part[]” that went further. Id.

at 16–17. And as I’ve acknowledged, Judge Marcus’s reading of

Pierre isn’t without some foundation. After all, the panel there (1)

purported to “uphold” the BIA’s interpretations of

§ 1227(a)(2)(E)(i) in Velazquez-Herrera and Soram “to the extent they

appl[ied] to Pierre’s case” and (2) said that “[b]ecause Pierre’s

conviction necessarily involved a knowing and overt act, [his] case

d[id] not require [the panel] to determine whether purely negligent

acts with no injury to the child proscribed by a state statute

constitute generic crimes of child abuse.” 879 F.3d at 1251 & n.3.

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In the usual case, a court may well be entitled to trim its sails

in that manner—i.e., to cabin the scope of its holding simply by

speaking a limitation into existence.4 For reasons I’ve tried to

explain, though, the particular determinations that Chevron

required courts to make take us out of usual-case territory. For

good or ill, the Chevron framework presented a reviewing court

with a pair of yes-no questions. Is the statute ambiguous, and if so,

is the agency’s interpretation reasonable? The answer to that all-

important second question was, as I’ve described it, an “all-or-

nothing thing: The agency’s interpretation is either reasonable or

it isn’t.” Supra at 13. Chevron simply didn’t leave courts a

“concurring in part” option. So despite the Pierre panel’s seeming

(?) desire to narrow its adoption of the BIA’s reading of

§ 1227(a)(2)(E)(i) to the particular set of facts before it, I don’t think

it was capable of doing so.

Second, Judge Marcus concludes—Pierre aside, and

considering the issue de novo—that Bastias’s petition should be

denied on the ground that his state crime is a categorical match for

the generic federal offense specified in 8 U.S.C. § 1227(a)(2)(E)(i).

See Marcus Concurring Op. at 19 et seq. As a reminder, that

provision, in relevant part, renders deportable any alien who is

convicted of “a crime of child abuse, child neglect, or child

4 Even in the usual case, a court’s authority simply to decree the breadth of its

holding isn’t entirely free from doubt. See, e.g., Garner et al., supra, at 59

(observing that “while the court’s statement of the holding is important, it

doesn’t necessarily decide the matter,” including when it gives “too narrow a

statement of the issue and answer”).

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abandonment.” In his categorical-approach analysis, Judge Marcus

focuses on what he calls “the federal ‘crime of . . . child neglect’

standing alone, rather than making the comparison to the

enumerated bundle of crimes against children found in the INA

(‘child abuse, child neglect, or child abandonment’).” Id. at 26.

Narrowing the focus to “child neglect,” he maintains, is “easier and

more direct” and “avoids the unnecessary task of divining the

meaning of the broader generic ‘crime of child abuse.’” Id. at 26–

27.

I’m not so sure. As an initial matter, it’s not obvious to me

that § 1227(a)(2)(E)(i) can be carved up the way that Judge Marcus

asserts—that is, among what he takes to be the three separate

offenses of “child abuse,” “child neglect,” and “child

abandonment.” The parties here, at least, seem to disagree with

Judge Marcus’s discrete-offenses interpretation; they read

§ 1227(a)(2)(E)(i) to criminalize a “single category” of crimes that

“encompasses the entire phrase.” Supp. Br. of Appellee 8; accord

Supp. Br. of Appellant 6 n.3. Judge Middlebrooks likewise reads

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

abandonment” to “represent[] a single category of crimes,” not to

comprise three distinct offenses. Middlebrooks Concurring Op. at

4–5 (quoting Cruz v. Garland, 101 F.4th 361, 365 (4th Cir. 2024)).

Perhaps Judge Marcus will ultimately be proven correct, but his

interpretation—which takes several pages to unpack and, as he

acknowledges, has to overcome § 1227(a)(2)(E)’s title as well as

existing sister-circuit precedent—doesn’t strike me as a particularly

“eas[y].” Marcus Concurring Op. at 26–30 & n.2.

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Moreover, and in any event, even if Judge Marcus is right

that “child neglect” can be broken out as a standalone federal

comparator, it’s not clear to me that the comparison nets the result

that Judge Marcus thinks it does. On the state side of the equation,

Judge Marcus concludes—after an exhaustive survey of legislative

history and Florida caselaw—that the term “culpable negligence,”

as used in Fla. Stat. § 827.03(2)(d), requires a showing of something

like “recklessness.” See Marcus Concurring Op. at 26. (After a

similarly exhaustive analysis, Judge Middlebrooks seems to land in

a similar, although not quite identical, place. See Middlebrooks

Concurring Op. at 8–13.) The problem, as I see it, is on the federal

side. Not all that long ago, in an effort to determine the mens rea

required in § 1227(a)(2)(E)(i) cases in which no actual injury occurs,

a Tenth Circuit panel conducted an exhaustive 50-state survey of

contemporaneous state criminal laws. Its most significant finding

was that “twenty-seven states”—an absolute majority—“required

a mens rea of knowing or intentional.” Ibarra v. Holder, 736 F.3d 903,

915 (10th Cir. 2013). The unmistakable upshot of that analysis, it

seems to me—at least on a de novo review of the sort that Judge

Marcus thinks is required—is that federal law likely requires proof

of a mental state higher than recklessness. Accordingly, the

comparison on which Judge Marcus insists yields a result—namely,

that there is no categorical match and that Bastias’s petition should

thus be granted—with which Judge Marcus disagrees. 5

5 Judge Marcus doesn’t mention the results of the Ibarra panel’s survey, and he

disclaims any need to “dive too deeply into” the mens rea issue because, he

says, Bastias “acknowledges that a mens rea of recklessness is sufficient to

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II

Here, then, is my conclusion: Taking the Board’s Pierre-

approved interpretation of § 1227(a)(2)(E)(i) as the federal

baseline—as I think we must, under both Loper Bright and our own

prior-panel-precedent rule—the crime to which Bastias pleaded

guilty under Fla. Stat. § 827.03(2)(d) is a categorial match for the

INA’s generic federal “crime of child abuse.” Accordingly, Bastias’s

state-law conviction is a valid ground for his removal, and his

petition for review should be denied.

But.

I favor rehearing this case en banc, for two reasons. First,

the Board’s definition of “crime of child abuse,” which we

approved in Pierre, is exceedingly broad—it arguably sweeps in all

manner of conduct that might not square with the ordinary

sustain a conviction on the federal side of the equation.” Marcus Concurring

Op. at 36 (citing Reply Br. of Appellant at 9). With respect, I think Judge

Marcus may be overreading what he calls Bastias’s “acknowledge[ment].”

.Bastias simply contends that “negligent, non-injurious conduct falls within

neither” the term “child abuse” nor the term “child neglect.” Reply Br. of

Appellant at 9. Bastias isn’t so much conceding recklessness as much as he’s

ruling out negligence. Moreover, and in any event, we have long held that

“[a] court is not bound by the parties’ stipulations of law, particularly when

those stipulations are erroneous.” United States v. Lightsey, 120 F.4th 851, 859

(11th Cir. 2024) (quoting King v. United States, 641 F.2d 253, 258 (5th Cir. 1981)).

So no matter how aggressively one reads Bastias’s reply brief, the legal fact

remains: Section 1227(a)(2)(E)(i) crimes that don’t result in an injury may well

require a mens rea north of recklessness—which, on a de novo categorical-

approach comparison, would flip this case’s outcome.

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understanding of that phrase. At the very least, I think that Bastias

has presented substantial arguments that the Board’s reading of

§ 1227(a)(2)(E)(i) isn’t the best one. Which leads me to the second,

and more fundamental, reason that I favor en banc rehearing: It

would permit the full Court to carefully consider and decide (1)

how Loper Bright’s recognition of “statutory stare decisis” principles

interacts—if at all—with our own prior-panel-precedent rule, (2)

how we ought to deal with Chevron-era precedents on a going-

forward basis, and (3) whether (depending on the answers to those

questions) we should continue to consider ourselves bound by

Pierre.

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MARCUS, Circuit Judge, concurring in the judgment:

Today we hold that Bastias’s Petition for Review should be

denied, although we reach this conclusion for different reasons. As

I see it, the essential questions in this case are: (1) whether this

Court’s decision in Pierre v. U.S. Attorney General, 879 F.3d 1241

(11th Cir. 2018), which found a categorical match between the

Florida state crime of battery of a child involving bodily fluids and

the generic “crime of child abuse” found in the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1227, provides the rule of

decision in this case; and (2) whether there is a “match” under the

categorical approach between Bastias’s state crime of conviction

for child neglect in violation of the Florida penal code and the

federal “crime of . . . child neglect” found in the INA. My colleague

Judge Newsom concludes that Bastias is removable because we are

bound by our decision in Pierre. I write separately to explain why I

think we are not bound by Pierre, which decided a different

question and made a different match between a different state

crime and the crimes enumerated in the INA, and to offer a

different basis for why I’ve concluded that the state crime of child

neglect “matches” with the federal “crime of . . . child neglect”

found in the INA. Id.

I.

Ariel Marcelo Bastias is a native and citizen of Chile. On

February 6, 1997, Bastias adjusted status to that of a Lawful

Permanent Resident. On October 4, 2019, Bastias pleaded guilty to

an offense under Florida Statute § 827.03(2), which reads this way:

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827.03 Abuse, aggravated abuse, and neglect of a

child; penalties.--

...

(2) OFFENSES.--

(a) A person who commits aggravated child abuse

commits a felony of the first degree . . . .

(b) A person who willfully or by culpable negligence

neglects a child and in so doing causes great bodily

harm, permanent disability, or permanent

disfigurement to the child commits a felony of the

second degree . . . .

(c) A person who knowingly or willfully abuses a child

without causing great bodily harm, permanent

disability, or permanent disfigurement to the child

commits a felony of the third degree . . . .

(d) 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(2).

As we explained in our first panel opinion, it is unclear which

of these enumerated crimes Bastias pleaded guilty to. See Bastias v.

U.S. Att’y Gen. (“Bastias I”), 42 F.4th 1266, 1269 (11th Cir. 2022),

vacated sub nom., Bastias v. Garland, 144 S. Ct. 2704 (2024). The state

judgment of conviction lists “AGGRAVATED CHILD ABUSE”

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under “827.03(2),” but it lists the “Level/Degree” as

“Felony/SECOND DEGREE.” Meanwhile, the state court

sentencing scoresheet describes Bastias’s offense as “Child Neglect”

and lists the “FELONY DEGREE” as 3. Further adding to the

confusion is Bastias’s plea colloquy. The state court judge said to

Bastias: “I will adjudicate you guilty of [the] charge of aggravated

child -- nope, of child neglect -- child abuse, child neglect, a felony

of the third degree so it’s a lesser included offense of what you were

originally charged with.” And later, when the clerk asked for the

statute number under which Bastias was convicted, the judge said,

“Oh, I don’t know” and then replied, “Whatever” after one of the

attorneys suggested “827” for the statute number.

On August 4, 2020, Bastias was served with a Notice to

Appear before an immigration judge, which charged that he was

subject to removal from the United States pursuant to Section

237(a)(2)(E)(i) of the INA, 8 U.S.C. § 1227(a)(2)(E)(i), because he

was “an alien who at any time after entry has been convicted of a

crime of domestic violence, a crime of stalking, or a crime of child

abuse, child neglect, or child abandonment.”

After losing his petition before the immigration judge,

Bastias appealed to the Board of Immigration Appeals (“BIA”),

arguing that child neglect under Section 827.03(2)(d) contains

elements falling outside of the generic definition of child abuse,

thus barring a match between the least culpable conduct necessary

to sustain the state conviction and the “crime of child abuse, child

neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i).

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On April 2, 2021, the BIA dismissed Bastias’s appeal, having

determined that the conduct needed to sustain a conviction under

Section 827.03(2)(d) qualifies as a “crime of child abuse” as the BIA

had previously interpreted the phrase.

Bastias appealed the BIA’s ruling to our Court. After oral

argument, we denied Bastias’s petition for review. Bastias I, 42 F.4th

at 1268. We approached the BIA’s determination deferentially,

invoking the rules enunciated by the Supreme Court in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984),

and we concluded that the BIA had reasonably interpreted the

“crime of child abuse, child neglect, or child abandonment,” 8

U.S.C. § 1227(a)(2)(E)(i), to include Bastias’s child neglect

conviction under Florida Statute § 827.03. We said we were bound

by this Court’s earlier decision in Pierre, where a panel of this Court

determined, among other things, that the meaning of “crime of

child abuse” is ambiguous under “step one” of Chevron. Bastias I,

42 F.4th at 1272; Pierre, 879 F.3d at 1249. Because the term is

undefined and ambiguous, we proceeded to “step two” of Chevron

and determined that the agency’s definition was “based on a

permissible construction of the statute.” Chevron, 467 U.S. at 843;

Bastias I, 42 F.4th at 1274. Accordingly, we affirmed the BIA’s

dismissal of Bastias’s appeal. Bastias I, 42 F.4th at 1276.

On June 28, 2024, the Supreme Court overruled Chevron in

Loper Bright Enterprises v. Raimondo, 142 S. Ct. 2244 (2024). Loper

Bright rejected the Chevron framework and the requirement that

courts defer to agency interpretations. The Court observed that

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the Administrative Procedure Act (“APA”) “incorporates the

traditional understanding of the judicial function, under which

courts must exercise independent judgment in determining the

meaning of statutory provisions,” id. at 2262, and “in deciding

whether an agency has acted within its statutory authority, as the

APA requires,” id. at 2273. Although “[c]areful attention to the

judgment of the Executive Branch may help inform that inquiry,”

“courts need not and under the APA may not defer to an agency

interpretation of the law simply because a statute is ambiguous.”

Id. Rather, “[t]he weight of [an agency’s interpretation] in a

particular case . . . depend[s] upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency with

earlier and later pronouncements, and all those factors which give

it power to persuade, if lacking power to control.” Id. at 2259

(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). We are

obliged to fulfill our obligation under Article III of the Constitution

“to adjudicate ‘Cases’ and ‘Controversies.’” Id. at 2257. Thus,

although a court may be persuaded by an agency’s interpretation,

it is not bound by that interpretation; it must conduct the analysis

de novo.

However, the Supreme Court also made a second point in

Loper Bright: that its holding did not “call into question prior cases

that relied on the Chevron framework. The holdings of those cases

that specific agency actions are lawful -- including the Clean Air Act

holding of Chevron itself -- are still subject to statutory stare decisis

despite our change in interpretive methodology.” Id. at 2273. In

support of its determination that statutory stare decisis applied, the

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Supreme Court cited to a prior case, CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008), where it affirmed on the basis of stare decisis a

previous interpretive holding even though the prior case relied on

a now-disfavored approach to statutory interpretation. Id. at 451,

457.

The Court explained that “[m]ere reliance on Chevron

cannot constitute a ‘special justification’ for overruling [holdings

relying on the Chevron framework], because to say a precedent

relied on Chevron is, at best, ‘just an argument that the precedent

was wrongly decided.’” Loper Bright, 144 S. Ct. at 2273 (quoting

Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

“That is not enough to justify overruling a statutory precedent.”

Id.

Bastias then petitioned the Supreme Court for a writ of

certiorari, since Bastias I had been based in large measure on

Chevron. The Supreme Court granted the writ, vacated our

opinion, and remanded the case back to us. Bastias, 144 S. Ct. at

2705.

II.

I begin with an explanation of the categorical approach, and

detail why, as I see it, we are not bound by our decision in Pierre,

but rather we are required to analyze de novo the basic substantive

question at issue -- whether Bastias’s state crime conviction for

child neglect qualifies as a crime under Section 237(a)(2)(E)(i) of the

INA, 8 U.S.C. § 1227(a)(2)(E)(i). Finally, I conclude that there is a

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categorical match between the state crime for which Bastias stands

convicted and the federal “crime of . . . child neglect.”

We all agree that determining whether a state conviction

qualifies as a “crime of child abuse, child neglect, or child

abandonment” under the INA requires us to apply the “categorical

approach.” This method calls upon us to “ask[] whether the ‘least

culpable conduct necessary to sustain a conviction under the [state]

statute’” matches the generic federal offense. Pierre, 879 F.3d at

1250 (quoting Gelin v. U.S. Att’y Gen., 837 F.3d 1236, 1241 (11th Cir.

2016)); see also Taylor v. United States, 495 U.S. 575, 599 (1990)

(discussing application of categorical approach to burglary

statutes). The categorical approach “focuses not on the criminal

conduct a defendant commits, but rather what facts are necessarily

established by a conviction for the state offense.” Moncrieffe v.

Holder, 569 U.S. 184, 205 n.11 (2013) (citation modified). In this

way, the categorical approach “ensures that all defendants whose

convictions establish the same facts will be treated consistently,

and thus predictably, under federal law.” Id.

“Under the categorical approach, we consider only the fact

of conviction and the statutory definition of the offense, rather than

the specific facts underlying the defendant’s case.” Gelin, 837 F.3d

at 1241. “In other words, we presume that the state conviction

‘rested upon . . . the least of th[e] acts’ criminalized by the statute,

and then we determine whether that conduct would fall within the

federal definition of the crime.” Esquivel-Quintana v. Sessions, 581

U.S. 385, 389 (2017) (alterations in original) (quoting Johnson v.

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United States, 559 U.S. 133, 137 (2010)). Bastias’s state conviction

therefore would match the generic federal “crime of . . . child

neglect” found in the INA “only if the least of the acts criminalized

by the state statute falls within the generic federal definition of” the

crime. Id. at 390.

Moreover, we all agree about the meaning of a holding in a

case. “As we’ve said many times, ‘[t]he holding of a case comprises

both the result of the case and those portions of the opinion

necessary to that result.’” Finn v. Cobb Cnty. Bd. of Elections &

Registration, 111 F.4th 1312, 1317 (11th Cir. 2024) (alteration in

original) (quoting United States v. Gillis, 938 F.3d 1181, 1198 (11th

Cir. 2019) (per curiam)). Thus, the holding also consists of the

rationale or reasoning necessary to reach the result of a case. See

Dana’s R.R. Supply v. Att’y Gen., 807 F.3d 1235, 1240 n.3 (11th Cir.

2015) (noting that a statement is dicta only if it “could have been

deleted without seriously impairing the analytical foundations of

the holding” (quoting Denno v. Sch. Bd., 218 F.3d 1267, 1283 (11th

Cir. 2000) (Forrester, J., concurring in part and dissenting in part))).

“Any other statements that are not necessary to the result are dicta

and do not bind us.” Finn, 111 F.4th at 1317. Moreover, “[t]he

holdings of a prior decision can reach only as far as the facts and

circumstances presented to the Court in the case which produced

that decision.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th

Cir. 2000) (per curiam) (quoting United States v. Hunter, 172 F.3d

1307, 1310 (11th Cir. 1999) (Carnes, J., concurring)).

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It is in the application of these basic principles to Pierre that I

disagree with my colleague and conclude that we are not bound by

this Court’s holding in Pierre. Pierre was tasked with matching the

federal crime of child abuse in the INA with a different state crime

-- battery of a child involving bodily fluids. As I see it, nothing in

its holding, nothing in its reasoning, and nothing necessary to

reaching its holding answers the basic question we face today.

In Pierre, the BIA reviewed an immigration judge’s order

applying the categorical approach in making a comparison

between battery of a child involving bodily fluids under Fla. Stat. §

784.085 and the INA’s definition of the federal “crime of child

abuse.” The BIA conducted its analysis de novo and concluded that

Pierre was removable and ineligible for cancellation of removal

based on his felony conviction for battery of a child involving

bodily fluids. Pierre, 879 F.3d at 1245. The federal crime of child

abuse and the state crime of battery of a child involving bodily

fluids required the same mens rea -- knowledge -- and there was also

a match between the actus reus required for both crimes. As for the

federal crime, the BIA reasoned, a child abuse conviction “‘at a

minimum’ . . . is one ‘involving the infliction on a child of physical

harm, even if slight’ or ‘mental or emotional harm.’” The state law

battery statute, in turn, requires the act of “[t]hrowing, tossing,

projecting, or expelling personal bodily fluids or feces onto a child,”

which among other things “carries a significant risk that the child

will be exposed to fluid-borne or fecal pathogens.” Since there was

in essence a match between the mens rea required by both the state

and federal crimes, and a match between the actus reus required by

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the state and federal crimes, there was a categorical match between

the two statutes, and, therefore, the BIA determined that Pierre

was removable.

When Pierre petitioned for review in this Court, we

addressed the same question. We defined the categorical

approach, observing that it requires matching the “least culpable

conduct necessary to sustain a conviction under the [state] statute”

against the federal crime listed in the INA. Id. at 1250 (quoting

Gelin, 837 F.3d at 1241). Turning first to the definition of the “crime

of child abuse” found in the INA, we said that “[i]f an INA term or

provision is undefined or ambiguous, and the BIA has interpreted

that term or provision in a published, precedential decision, we

defer to the BIA’s interpretation under Chevron, as long as it reflects

a permissible construction of the INA statute.” Id. at 1249. We

then observed that since the INA does not define “child abuse,” and

the term is ambiguous, we may defer to the BIA’s interpretation so

long as its interpretation was reasonable and consistent with the

statute. Id. We quoted the BIA’s broad definition of a “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.” Id. (quoting In re Velazquez-Herrera, 24 I. & N. Dec.

503, 517 (B.I.A. 2008)). Next, we explained the rationale the BIA

used in its definition and accepted it as a reasonable one. Id. at

1249–51.

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Finally, we compared the elements of the federal “crime of

child abuse” to the elements of the state crime of battery of a child

involving bodily fluids. We found that the least culpable conduct

criminalized under the state statute required an actus reus of an

overt act and a mens rea of knowledge, and therefore it matched the

elements of the BIA’s definition of a crime of child abuse found in

the INA. See id. at 1250. The Court summarized its holding in

Pierre this way: “[A]pplying Chevron deference to the definitions of

‘child abuse’ found in Velazquez-Herrera and [In re Soram, 25 I. & N.

Dec. 378 (B.I.A. 2010)], we (1) uphold them as reasonable

interpretations of the INA, to the extent they apply to Pierre’s case,

and (2) conclude that the BIA did not err in concluding that Pierre’s

conviction for battery on a child constituted a crime of child

abuse.” Id. at 1251.

We expressly limited the scope of our holding in Pierre at

least two times. First, we observed that “[b]ecause Pierre’s

conviction necessarily involved a knowing and overt act, Pierre’s

case does not require us to determine whether purely negligent

acts with no injury to the child proscribed by a state statute

constitute generic crimes of child abuse.” Id. at 1251 n.3. We

recognized that our sister circuits were divided over whether the

BIA’s broad definition of “crime of child abuse” was overly

inclusive, but we had no occasion to dive into that debate because

we had no need to address or adopt that broad definition. See id.

(comparing the Tenth Circuit’s opinion in Ibarra v. Holder, 736 F.3d

903 (10th Cir. 2013), which “criticiz[ed] the BIA’s definitions of

‘child abuse’ as overly inclusive” and held that a conviction under

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a Colorado state statute “for criminally negligent conduct with no

injury did not fit the generic federal definition of child abuse,” with

the Second Circuit’s opinion in Florez v. Holder, 779 F.3d 207 (2d

Cir. 2015), which “criticiz[ed] Ibarra” and affirmed the BIA’s ruling

that a conviction under a New York state statute for “‘knowingly

act[ing] in a manner likely to be injurious to the physical, mental

or moral welfare of a child’ qualified as a generic crime of child

abuse” (second alteration in original) (quoting N.Y. Penal Law §

260.10(1) (McKinney 2010))). Second, we upheld the BIA’s broad

definition of the crime of child abuse only insofar as it applied to

the circumstances surrounding Pierre’s case.

Thus, the holding of Pierre is that, using Chevron deference

because there is no definition of the term “crime of child abuse” in

the INA, the crime of battery of a child involving bodily fluids

under Florida law is a categorical “match” with the federal “crime

of child abuse” found in the INA. We compared the state crime for

which Pierre was convicted to the removable crime listed in the

federal statute -- child abuse. Comparing the state battery crime to

the federal crime of child abuse made the most sense, since the state

battery crime is more than just a crime of child neglect and different

from a crime of child abandonment. Again, we cabined our

holding to the particular circumstances found in Pierre’s case, and

we declined to answer whether purely negligent conduct resulting

in no injury to a child would constitute a federal crime of child

abuse. Stripping away Chevron deference, which Loper Bright

requires us to do, I agree with my colleague that we are required

to read the holding of Pierre as being a de novo determination.

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However, I depart from my colleague’s reading of Pierre in a

few ways. Under Judge Newsom’s theory, the holding of Pierre is

composed of two pieces: that the Court (1) accepted, in its entirety,

the BIA’s broad interpretation of the phrase “crime of child abuse”

under Chevron deference, and (2) applied this accepted definition to

find a match to the underlying state offense under the categorical

approach. He suggests that by cabining its holding, Pierre did no

more than “leav[e] open for a future case . . . the question how . . .

that same interpretation would apply to a different state statute that

criminalized purely negligent misconduct.” In other words, Pierre

hedged only as to the second element of its holding: the application

of the definition to the underlying offense. By accepting the BIA’s

definition in the first instance, Judge Newsom says, Pierre endorsed

even those parts of the BIA’s interpretation that were not relevant

in the underlying dispute, and we are therefore bound by the BIA’s

definition of “crime of child abuse.” A central assumption of this

reading of Pierre is that “the reasonableness of an administrative

agency’s interpretation of a statute is an all-or-nothing thing.”

According to my colleague, if a court found a definition reasonable

under Chevron in one circumstance, it necessarily endorsed the

definition in all circumstances, since “it makes no sense to say that

an agency’s interpretation of a statute is reasonable with respect to

some concrete applications” but not others.

I necessarily read the holding of Pierre more narrowly than

my colleague does. I do not agree that under Chevron, the panel in

Pierre was required to accept the entirety of the BIA’s definition to

reach its ultimate conclusion. Agency interpretations of statutory

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language are often multifaceted, and not all aspects of a proffered

definition are implicated in every dispute. Just as a holding includes

those portions of the opinion that are necessary to reach the result,

Gillis, 938 F.3d at 1198, it has remained a cardinal principle of

judicial restraint that where “it is not necessary to decide more, it

is necessary not to decide more.” Dean v. Warren, 12 F.4th 1248,

1263 (11th Cir. 2021) (quoting PDK Lab’ys, Inc. v. U.S. Drug Enf’t

Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring

in part and concurring in the judgment)). In an ordinary case of

statutory interpretation, a reviewing court should address only the

portions of the statute that are relevant to the underlying dispute.

Nothing in Chevron changed this obligation. Chevron did no more

than grant courts a new tool of deference to review the lawfulness

of an agency’s action. See Loper Bright, 144 S. Ct. at 2264 (explaining

that Chevron “articulated and employed a now familiar two-step

approach broadly applicable to review of agency action”). As I see

it, that tool did not change the obligation of a reviewing court to

explicate a holding tailored to the underlying dispute, despite its

use of binary “yes-no questions” at each stage of analysis.

Otherwise, a court applying Chevron would have been required to

issue advisory opinions on the reasonableness of agency statutory

interpretations that were never at issue.

As exemplified by the holding of Pierre, it was perfectly

appropriate for a reviewing court applying Chevron to determine

that, on the facts before it, the contested portion of the agency’s

definition was reasonable, and to defer to its interpretation.

Consider what the panel in Pierre did and did not say in its analysis

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under the categorial approach. On the state crime side of the

matching equation, Pierre did not construe the Florida statute at

issue today. Pierre had no occasion to tell us what the crime of

“child neglect” under Florida Statute § 827.03 means. Pierre did not

look at the state crime of child neglect, since the petitioner had

been convicted of the crime of battery of a child involving bodily

fluids. Indeed, if Pierre had explicated the meaning of “child

neglect,” that commentary would have been dicta wholly

unnecessary to its holding.

In fact, the elements of the two state criminal statutes are

completely different: the Florida battery statute requires that a

person “knowingly cause or attempt to cause a child to come into

contact with blood, seminal fluid, or urine or feces by throwing,

tossing, projecting, or expelling such fluid or material.” Fla. Stat.

§ 784.085(1). Thus, to sustain a conviction for battery, this

requires: (1) a mens rea of knowledge; (2) causing or attempting to

cause a child to come into contact with blood, seminal fluid, urine,

or feces; and (3) throwing, tossing, projecting, or expelling blood,

seminal fluid, urine, or feces. See id.; accord Fla. Standard Crim. Jury

Instructions § 8.33.

In contrast, Florida’s criminal child neglect statute, for

which Bastias stands convicted, requires proving that a person

“willfully or by culpable negligence neglects a child without

causing great bodily harm, permanent disability, or permanent

disfigurement to the child.” Fla. Stat. § 827.03(2)(d). The elements

of the crime of child neglect are: (1) a mens rea of willfulness or

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culpable negligence; (2) a failure to provide a child with the care,

supervision, and services necessary to maintain his physical or

mental health; and (3) the absence of great bodily harm, permanent

disability, or permanent disfigurement. See id.; accord Fla. Standard

Crim. Jury Instructions § 16.6.

On the federal side of the equation, Pierre expressly chose

not to adopt the broad definition of “crime of child abuse” used by

the BIA in Velazquez-Herrera and Soram because there was no need

to. Again, remember the breadth of the BIA’s definition of the

“crime of child abuse”: it includes any offense involving

intentional, knowing, reckless, or criminally negligent acts or

omissions that constitute the maltreatment of a child, or impair a

child’s physical or mental well-being, including sexual abuse or

exploitation, and its definition of the crime of child abuse did not

require actual harm or injury. But because Pierre’s state conviction

necessarily involved both a knowing and an overt act, Pierre had no

need to determine whether a state crime involving only criminal

negligence that resulted in no injury to a child constituted the

federal crime of child abuse.

On Pierre’s own terms, its adoption of the BIA’s definition of

the “crime of child abuse” was not complete or all-encompassing:

it declined to endorse those parts of the BIA’s interpretation that

went beyond a mens rea of knowledge and an actus reus of an overt

act yielding an actual harm to the child. Pierre adopted only those

parts of the BIA’s broad definition “to the extent they apply to

Pierre’s case.” Pierre, 879 F.3d at 1251. Any other parts of the BIA’s

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definition, such as the inclusion of noninjurious, purely negligent

acts, were “not necessary to the result . . . and do not bind us.” Finn,

111 F.4th at 1317. The view that accepting the BIA’s definition

“supplied the major premise” of the Pierre panel’s logic, then, is

only half right. Pierre accepted only part of the BIA’s definition,

which formed the premise needed to match the definition to the

underlying Florida child battery crime. Thus, the most that can be

said of the holding in Pierre is that there is a match under the

categorical approach between the state crime of battery of a child

involving bodily fluids and the federal crime of child abuse. That

is the principle holding we are obliged to follow in the wake of

Loper Bright. See Loper Bright, 144 S. Ct. at 2273.

My colleague suggests that the Chevron-era “holdings”

preserved by the Court in Loper Bright must always include the past

court’s “antecedent determination that the agency’s reading of the

governing statute was ‘lawful,’” not just the “case-specific

application of a judicially approved agency interpretation to a

particular set of facts.” Once more, this strikes me as only half

right. The theory risks saying too much and taking Loper Bright too

far, enabling Chevron, which is now a dead letter, to continue to cast

a long shadow over our understanding of prior decisions. In

conjunction with my colleague’s all-or-nothing interpretation of

Chevron, this reading would transform dicta on agency definitions

into binding precedent through the vehicle of statutory stare decisis.

To my thinking, the better reading is that a holding under Loper

Bright is precisely what we have always read it to mean: “the result

of the case and those portions of the opinion necessary to that

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result.” Finn, 111 F.4th at 1317 (quoting Gillis, 938 F.3d at 1198). To

the extent, then, that a Chevron-era decision found an agency’s

definition to be reasonable, and to the extent that finding was

necessary to resolve the case, that finding is part of the holding and

remains good law. And where, as in the Clean Air Act example my

colleague cites, an agency’s full definition is accepted to reach the

result, the holding preserved by Loper Bright sweeps more broadly.

The critical question is whether the Chevron-era court adopted an

agency’s proffered reading in full.

Pierre did not do so. It plainly did not consider itself to be

applying the all-or-nothing reading of Chevron deference that my

colleague advances. Instead, it accepted the BIA’s definition only

“to the extent [it] appl[ies] to Pierre’s case,” a finding preserved by

Loper Bright. Pierre, 879 F.3d at 1251. As explained, the panel was

correct to limit its review based on the facts before it. But even if

Pierre misapplied Chevron or otherwise erred in cabining its holding,

we would still be obliged under the prior panel precedent rule to

adhere to Pierre’s holding until the panel’s decision is abrogated en

banc or by the Supreme Court. See United States v. Fritts, 841 F.3d

937, 942 (11th Cir. 2016) (“Under this Court’s prior panel precedent

rule, there is never an exception carved out for overlooked or

misinterpreted Supreme Court precedent.”). Accordingly, I do not

believe Pierre provides the rule of decision here, or even helps us

compare the state crime Bastias was convicted of -- the crime of

child neglect -- to the crimes embodied in the INA.

III.

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Since neither Pierre nor Chevron binds us in any way, we are

required to apply the categorical approach de novo. Moreover,

Bastias I is not binding on us either, because it was vacated by the

Supreme Court and remanded to us. See United States v. Sigma Int’l,

Inc., 300 F.3d 1278, 1280 (11th Cir. 2002) (en banc) (per curiam)

(stating that vacated opinions “are officially gone. They have no

legal effect whatever. They are void. None of the statements made

in . . . them has any remaining force and cannot be considered to

express the view of this Court.”); Iranian Students Ass’n v. Edwards,

604 F.2d 352, 354 n.4 (5th Cir. 1979) 1 (“[V]acating . . . [a] decision

deprives it of precedential value.”); O’Connor v. Donaldson, 422 U.S.

563, 577 n.12 (1975) (“Of necessity our decision vacating the

judgment of the Court of Appeals deprives that court’s opinion of

precedential effect, leaving this Court’s opinion and judgment as

the sole law of the case.”).

The question before us, then, is whether there is a match

between the state crime of child neglect and the federal crimes

against children found in the INA. In this case, I think the better

and more refined comparison is made between the state crime of

child neglect under Fla. Stat. § 827.03(2)(d) and the federal crime in

the INA using the exact same language -- the “crime of . . . child

neglect” under 8 U.S.C. § 1227(a)(2)(E)(i). Today, we need go no

further than making the comparison between the state crime of

1 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we

adopted as binding precedent all Fifth Circuit decisions issued before October

1, 1981. Id. at 1209.

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child neglect and the federal crime of child neglect. We have no

need to explore the difficult interpretive questions surrounding the

scope and meaning of the generic “crime of child abuse.” After all,

the categorical approach asks whether the state crime matches the

“generic federal definition of a corresponding [crime].” Esquivel-

Quintana, 581 U.S. at 389 (emphasis added) (citation modified).

Merriam-Webster Dictionary defines “corresponding,” among

other things, as “related, accompanying.” Corresponding, Merriam-

Webster Dictionary, https://www.merriam-

webster.com/dictionary/corresponding (last visited Oct. 28, 2025).

Since Bastias’s state conviction was for the crime of child neglect,

the logical, corresponding, or related generic federal crime is the

“crime of . . . child neglect” found in the INA. Although a

definition of a “crime of child abuse” might encompass the crime

of child neglect and more, we have no occasion to make that

comparison because in this case, we find the same words

enumerating the same crime -- the crime of child neglect -- on both

sides of the ledger.

Turning, then, to the match, I conclude that the state crime

for which Bastias was convicted corresponds to the federal generic

crime found in the INA, because both statutes require a mens rea of

recklessness or higher and an actus reus of creating at least a risk of

real harm to a child. Again, “[u]nder the categorical approach, we

consider only the fact of conviction and the statutory definition of

the offense, rather than the specific facts underlying the defendant’s

case.” Gelin, 837 F.3d at 1241. This process, in turn, requires

determining what type of harm and mens rea are necessary to

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sustain a conviction for each offense. I agree with much of my

colleague Judge Middlebrooks’s analysis in conducting the match,

but I would explain the match in slightly different terms.

A.

I address first what conduct (actus reus) and what mens rea are

required to sustain a conviction for child neglect under the Florida

penal code. Based on my reading of the text and Florida’s case law,

the state crime of child neglect requires at a minimum conduct

creating a risk of serious harm or death to a child, rather than

conduct inflicting actual harm, along with at least a mens rea of

recklessness.

It is undisputed that the “least culpable conduct” under Fla.

Stat. § 827.03(2) is found in subsection (d), which states, “A person

who . . . 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(2)(d).

Turning first to the harm required to sustain a conviction

under this section of the statute, the “least culpable conduct”

criminalized does not require inflicting any actual harm to the

child. Subsection (d) speaks of neglecting a child and not causing

great bodily harm, permanent disability, or permanent

disfigurement to the child. Id. This must mean that the statute

envisions the criminalization of conduct that may cause only

minor harm to the child or no harm at all. And if there be any

doubt about this, the statute defines “[n]eglect of a child” to include

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“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. § 827.03(1)(e). Because the

statute covers conduct that “could reasonably be expected to result

in . . . injury,” id. (emphasis added), it necessarily encompasses

culpable conduct that may not result in actual injury. Thus, to be

convicted of child neglect under Fla. Stat. § 827.03(2)(d), a

defendant need not have caused actual harm to the child; but he

must have done something or failed to do something that could

reasonably be expected to result in serious injury or a substantial

risk of death to the child. The Florida case law is consistent with

this interpretation. See, e.g., Arnold v. State, 755 So. 2d 796, 797 (Fla.

2d DCA 2000) (“[T]he legislature has required that the defendant’s

acts or omissions create a ‘reasonably expected’ potential for the

child to suffer, at a minimum, serious injury.”); see also State v.

Sammons, 889 So. 2d 857, 860 (Fla. 4th DCA 2004).

Turning next to the mens rea required to sustain a conviction

for child neglect, the least culpable conduct found in the statute

requires a mens rea of “culpable negligence.” The Supreme Court

of Florida has, for many years now, defined culpable negligence for

the crime of manslaughter as “consciously doing an act or

following a course of conduct that the defendant must have known

or reasonably should have known was likely to cause death or great

bodily injury.” McCloud v. State, 209 So. 3d 534, 541 (Fla. 2017).

Indeed, the Supreme Court of Florida has repeatedly and

consistently defined culpable negligence over the years in terms

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that resemble recklessness. As long ago as 1939, Florida’s high

court explained that culpable negligence for manslaughter requires

proving “a gross and flagrant character, evincing reckless disregard

of human life or of the safety of persons exposed to its dangerous

effects; or that entire want of care which would raise the

presumption of indifference to consequences; or such wantonness

or recklessness or grossly careless disregard of the safety and

welfare of the public, or that reckless indifference to the rights of

others, which is equivalent to an intentional violation of them.”

Russ v. State, 191 So. 296, 298 (Fla. 1939). And in Preston v. State, 56

So. 2d 543 (Fla. 1952), the Supreme Court of Florida again wrote

that culpable negligence “must be of ‘a gross and flagrant

character, evincing reckless disregard of human life or of the safety

of persons exposed to its dangerous effects; or that entire want of

care which would raise the presumption of indifference to

consequences; or such wantonness or recklessness or grossly

careless disregard of the safety and welfare of the public, or that

reckless indifference to the rights of others, which is equivalent to

an intentional violation of them.” Id. at 544 (quoting Savage v. State,

11 So. 2d 778, 779 (Fla. 1943)). More recently, in State v. Greene, 348

So. 2d 3 (Fla. 1977), the Supreme Court of Florida repeated that

“reckless indifference or grossly careless disregard of the safety of

others is necessary to prove ‘culpable negligence.’” Id. at 4. It

elaborated: “Whether members of the public would describe

reckless acts which create a great risk of danger to others as

culpable negligence or not, they know that such acts are criminally

outlawed.” Id.

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Notably, the Supreme Court of Florida has applied the same

definition for culpable negligence -- the requirement that the

conduct be reckless, consciously creating a great risk of danger to

others -- to cases involving crimes against children. See, e.g., State v.

Joyce, 361 So. 2d 406, 407 (Fla. 1978) (citing to Greene, a

manslaughter case, when discussing the culpable negligence

requirement for the state crime of child abuse). “Where the

highest court -- in this case, the Florida Supreme Court -- has

spoken on the topic, we follow its rule.” Molinos Valle Del Cibao, C.

por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011).

The Florida District Courts of Appeal have also applied this

definition of culpable negligence in criminal child neglect cases,

either using language that resembles recklessness or invoking

recklessness outright. See, e.g., Taylor v. State, 363 So. 3d 126, 130

(Fla. 1st DCA 2023) (“For negligence to be called culpable

negligence, it must be gross and flagrant. The negligence must be

committed with an utter disregard for the safety of others.

Culpable negligence is consciously doing an act or following a

course of conduct that the defendant must have known, or

reasonably should have known, was likely to cause death or great

bodily harm.” (quoting Kish v. State, 145 So. 3d 225, 227–28 (Fla. 1st

DCA 2014))); Ristau v. State, 201 So. 3d 1254, 1257 (Fla. 2d DCA

2016) (“This court has defined culpable negligence as ‘consciously

doing an act which a reasonable person would know is likely to result

in death or great bodily harm to another person, even though done

without any intent to injure anyone but with utter disregard for the

safety of another.’” (quoting Arnold, 755 So. 2d at 798)); Hill v. State,

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846 So. 2d 1208, 1214 (Fla. 5th DCA 2003) (“Proof of [the crime of

child neglect] requires the state to establish a high degree of

culpability on the part of the defendant, equivalent to the kind of

wanton and reckless behavior necessary to prove manslaughter or

punitive damages.”).

What’s more, we know that culpable negligence requires

more than simple negligence from an examination of the

legislative and judicial history surrounding Florida’s criminal child

neglect statute. In State v. Winters, 346 So. 2d 991 (Fla. 1977), the

Supreme Court of Florida ruled that the 1975 predecessor of

Florida’s criminal child neglect statute, which required only a mens

rea of simple negligence, was unconstitutional. Id. at 994. The

court explained that unlike requiring that a defendant’s action “be

willful []or culpably negligent,” the lesser requirement of simple

negligence meant that “[c]riminal penalties may be inflicted on

anyone who, by an act of commission or omission involving only

simple negligence, fails to meet the nebulous test of what is

necessary,” rendering the statute unconstitutional for vagueness.

Id. at 993–94. In its amendment to the Florida criminal child

neglect statute in 1991, the Florida legislature added additional

requirements to the statute but did not change the simple

negligence mens rea requirement, leading Florida’s appellate courts,

once again, to find the statute unconstitutional. See State v. Mincey,

658 So. 2d 597, 598 (Fla. 4th DCA 1995); State v. Ayers, 665 So. 2d

296, 297 (Fla. 2d DCA 1995); Arnold, 755 So. 2d at 797. In response

to these judicial rulings, the Florida legislature finally amended the

statute in 1996 to require a mens rea of willfulness or culpable

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negligence, which has remained a requirement to this day. See

Arnold, 755 So. 2d at 797–98; Fla. Stat. § 827.03.

In light of the legislative history surrounding Florida’s

criminal child neglect statute, and Florida’s case precedent defining

culpable negligence as requiring recklessness or some comparable

version of the conscious disregard of the substantial risk of injury

or death, I conclude that the lowest mens rea for culpable negligence

found in Fla. Stat. § 827.03(2)(d) is recklessness. See Model Penal

Code § 2.02(2)(c) (“A person acts recklessly with respect to a

material element of an offense when he consciously disregards a

substantial and unjustifiable risk that the material element exists or

will result from his conduct.”); 1 Wharton’s Criminal Law § 5:6

(16th ed. 2025) (“The reckless actor is aware of the risk and

consciously disregards it.”).

B.

The next step in the matching process requires us to

determine what federal crime enumerated in the INA we should

compare to Bastias’s state conviction for child neglect. As I’ve said,

I would focus on the federal “crime of . . . child neglect” standing

alone, rather than making the comparison to the enumerated

bundle of crimes against children found in the INA (“child abuse,

child neglect, or child abandonment”). Making the match this way

is easier and more direct; it compares crimes on both sides of the

equation that use precisely the same words; and it avoids the

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unnecessary task of divining the meaning of the broader generic

“crime of child abuse.” 2

I begin with the text. See Ross v. Blake, 578 U.S. 632, 638

(2016) (“Statutory interpretation, as we always say, begins with the

text . . . .”). The text of the statute reads this way: “Any alien who

at any time after admission is convicted of a crime of domestic

violence, a crime of stalking, or a crime of child abuse, child

neglect, or child abandonment is deportable.” 8 U.S.C. §

1227(a)(2)(E)(i). Our focus, of course, is on the enumerated bundle

of crimes against the child -- a “crime of child abuse, child neglect,

or child abandonment.”

2 The case law drawn from our sister circuits does not help us decide what the

proper federal crime of comparison ought to be in this case. Before the

Supreme Court decided Loper Bright, uniformly, the cases applying the

categorical approach to assess whether an immigrant was deportable under 8

U.S.C. § 1227(a)(2)(E)(i) compared a variety of state crimes involving a child

with a unitary concept bundling together these federal crimes against a child.

This is unsurprising since the federal courts were still required to defer to the

BIA’s broad definition of a “crime of child abuse” if they found ambiguity in

the statute. See, e.g., Florez v. Holder, 779 F.3d 207, 211–12 (2d Cir. 2015);

Mondragon-Gonzalez v. Att’y Gen., 884 F.3d 155, 158–59 (3d Cir. 2018); Garcia v.

Barr, 969 F.3d 129, 133–34 (5th Cir. 2020). More recently, the Fourth and Fifth

Circuits have applied the categorical approach to match up certain state crimes

against children to the crime of child abuse found in the INA, but the relevant

state crimes in each of those cases -- sexual abuse of a minor and online

solicitation of a minor -- plainly were crimes of child abuse, not crimes of child

neglect or child abandonment. See Cruz v. Garland, 101 F.4th 361, 363 (4th Cir.

2024); Sandoval Argueta v. Bondi, 137 F.4th 265, 268 (5th Cir. 2025).

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I start by giving the words in the statute their ordinary

meaning. See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474, 1481–82

(2021) (“[U]ntil and unless someone points to evidence suggesting

otherwise, . . . courts . . . are entitled to assume statutory terms

bear their ordinary meaning.”); Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 69 (2012) (“Words are

to be understood in their ordinary, everyday meanings . . . .”). The

parties observe that, based on the introductory phrase “a crime of ”

in the INA, the BIA has understood the phrase “a crime of child

abuse, child neglect, or child abandonment” to be a unitary

concept, which sweeps in all three categories of offenses into one

amorphous bundle. See In re Soram, 25 I. & N. Dec. at 380–81; Cruz,

101 F.4th at 363. In my view, the better reading is that the ordinary

meanings conveyed by these terms are distinct, even if they overlap

in some ways.

In essence, child neglect suggests the failure to fulfill a duty

imposed by law that creates a risk of harm to a child, see Merriam

Webster’s Dictionary of Law 324 (1996) (“a disregard of duty

resulting from carelessness, indifference, or willfulness; esp: a

failure to provide a child under one’s care with proper food,

clothing, shelter, supervision, medical care, or emotional

stability.”). Child abuse suggests a broader nature of offending

conduct including a variety of sins against a child, see Child Abuse,

Black’s Law Dictionary (6th ed. 1990) (“Any form of cruelty to a

child’s physical, moral or mental well-being.”); while child

abandonment, in turn, suggests a different kind of crime, that is,

one leaving a child without an intent to return, see Abandonment,

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Black’s Law Dictionary (6th ed. 1990) (“Desertion or willful

forsaking.”).

What’s more, we have been taught repeatedly that under the

surplusage canon, “[i]f possible, every word and every provision is

to be given effect . . . . None should be ignored. None should

needlessly be given an interpretation that causes it to duplicate

another provision or to have no consequence.” Scalia & Garner,

Reading Law, at 174. “The canon against surplusage is strongest

when an interpretation would render superfluous another part of

the same statutory scheme.” City of Chicago v. Fulton, 141 S. Ct. 585,

591 (2021) (quoting Yates v. United States, 574 U.S. 528, 543 (2015)

(plurality opinion)). Congress chose to enumerate three separate

crimes against children -- abuse, neglect, and abandonment.

Although they may overlap in some ways, I do not think we should

read this bundle of child crimes as being singular. “[W]e must

presume that Congress said what it meant and meant what it said.”

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc).

I think it is easier, at least for our purposes, and wiser to compare

the state crime of child neglect to one of the enumerated federal

crimes set out by Congress as a separate and distinct crime.

I also note that Congress chose to list these federal crimes in

the disjunctive. Again, the statute references “a crime of child

abuse, child neglect, or child abandonment.” 8 U.S.C.

§ 1227(a)(2)(E)(i) (emphasis added). And “[a]s ‘a general rule, the

use of a disjunctive in a statute indicates alternatives and requires

that those alternatives be treated separately.’” Brown v. Budget Rent-

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A-Car Sys., Inc., 119 F.3d 922, 924 (11th Cir. 1997) (per curiam)

(quoting Quindlen v. Prudential Ins. Co. of Am., 482 F.2d 876, 878 (5th

Cir. 1973)). Congress used the disjunctive “or” when it listed three

crimes against children, so it seems to me to be perfectly reasonable

for matching purposes to read each of these crimes as distinct, each

rendering an alien deportable. And although the heading in 8

U.S.C. § 1227(a)(2)(E)(i) says, “Domestic violence, stalking, and

child abuse,” and it does not list child neglect or child

abandonment, that does not affect my interpretive conclusion

because “[w]here [the] statutory text and title are inconsistent, we

go with the text.” Kanapuram v. Dir., USCIS, 131 F.4th 1302, 1308

(11th Cir. 2025); see also Brotherhood of R.R. Trainmen v. Balt. & Ohio

R.R. Co., 331 U.S. 519, 528–29 (1947) (“[T]he title of a statute and

the heading of a section cannot limit the plain meaning of the

text.”). Congress, after all, could have limited the words it used in

the text of the statute to just the “crime of child abuse,” but it chose

to separately enumerate the crimes of “child neglect” and “child

abandonment” as well.

In any event, even assuming arguendo that the phrase “a

crime of child abuse, child neglect, or child abandonment” refers

to an all-encompassing unitary concept under the broad offense of

“child abuse,” it would still be correct to focus on the crime of

“child neglect,” because the unitary concept of abuse sweeps in all

of the crimes included in the INA. Put differently, as my colleague

Judge Middlebrooks observes, even if “[the] broad definition of

child abuse describes the entire phrase,” In re Soram, 25 I. & N. Dec.

at 381, the bundle of offenses contained within a “crime of child

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abuse” would necessarily include child neglect, just as it would also

include child abandonment. Thus, regardless of whether the

“crime of child abuse, child neglect, or child abandonment” found

in the INA is read as a unitary concept or as a list of three individual

crimes, the appropriate question is whether the Florida child

neglect statute fits the meaning of “child neglect” under the INA.

In either case, the same phrase -- “child neglect” -- is central to both

the state and federal offense.

Having concluded that the correct match here is between

the Florida crime of conviction and the INA-enumerated “crime of

. . . child neglect,” our task is to divine the meaning of this generic

federal crime.

Turning first to the actus reus required by the generic “crime

of . . . child neglect” found in the INA, again, I begin with the

ordinary meaning of the term at the time this provision was added

to the INA. See Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)

(stating that “the law’s ordinary meaning at the time of enactment

usually governs”); Scalia & Garner, Reading Law, at 69 (“Words are

to be understood in their ordinary, everyday meanings . . . .”); id. at

78 (“Words must be given the meaning they had when the text was

adopted.”). The plain meaning of the term “neglect” encompasses

conduct that creates a risk of harm as well as conduct that actually

inflicts harm. Contemporaneous dictionaries defined “neglect” in

various ways:

• “the act or condition of disregarding”;

“[n]eglect indicates, as a purely objective fact,

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that a person has not performed a duty.” Bryan

A. Garner, A Dictionary of Modern Legal Usage

585 (2d ed. 1995) (emphasis omitted);

• “a disregard of duty resulting from

carelessness, indifference, or willfulness; esp: a

failure to provide a child under one’s care with

proper food, clothing, shelter, supervision,

medical care, or emotional stability.”

Merriam-Webster’s Dictionary of Law 324

(1996);

• “failure to do or perform some work, act, or

duty, required by one’s status or by law.”

Ballentine’s Law Dictionary (1994);

• “to omit, fail, or forbear to do a thing that can

be done, or that is required to be done, but it

may also import an absence of care or

attention in the doing or omission of a given

act. And it may mean a designed refusal,

indifference, or unwillingness to perform one’s

duty.” Black’s Law Dictionary (6th ed. 1990).

As these definitions explain, the kind of harm required by

the “crime of . . . child neglect,” is conduct that creates a risk of

harm, as well as conduct that inflicts actual harm. The definitions

also explain that child neglect involves the failure to do something

for a child that is required by law. The definition in Merriam-

Webster’s Dictionary lists specific things that someone has failed to

provide to a child that do not directly result in harm -- such as

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proper supervision -- thereby contemplating a risk of harm because

of a person’s failure to perform his duty.

Other dictionary definitions also contemplate that child

neglect encompasses conduct that creates a risk of harm. Thus, for

example, the definition found in Black’s Law Dictionary includes

“an absence of care or attention,” which would create a risk of

harm even without causing actual harm to a child. Likewise, the

definition in Ballentine’s Law Dictionary ties the failure to act as

required to “one’s status,” which in the context of child neglect and

someone with a duty to a child, could be interpreted as creating at

least a risk of harm to the child; after all, a person who has a legal

duty to a child generally creates, at the very least, a risk of harm to

the child if he fails to fulfill that duty.

Bastias argues, however, citing the rule of ejusdem generis,

that based on the severity of the other crimes with which it is listed

and with which it should be read together -- specifically, domestic

violence and stalking -- the “crime of . . . child neglect” should

include only conduct that actually harms a child and not conduct

that only creates a risk of harm, since that conduct is insufficiently

severe to be considered alongside the other crimes.

The argument is unconvincing because “a crime of child

abuse,” “a crime of . . . child neglect,” or “a crime of . . . child

abandonment” could be as severe as “a crime of stalking” even in

the absence of actual harm, depending on the degree of risk

created and the severity of the potential harm. Even accepting as

true that actual injury may be related to how severe neglectful

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conduct is, neglectful conduct may nonetheless be very severe even

in the absence of actual injury. Thus, for example, an adult could

place a child in a dangerous situation that has a high risk of serious

injury or death but where, due to sheer luck, no actual injury

occurs, like where a driver of a car leaves a six-month-old child in

the back seat of the car when the temperature exceeds 85 degrees

and goes into the store to shop for some time. In that scenario, the

adult would have been “severely” neglectful -- even if no injury

actually occurs -- in light of the very substantial risk of causing

serious bodily injury or death. Whether or not a child suffers an

actual injury is a different inquiry from how severe child neglect

may be: that is, the risk of injury could be very high and injury

could be avoided due only to sheer luck, yet the “crime of . . . child

neglect” would still be a very severe one. Put differently, it may be

true that the “crime of child abuse, child neglect, or child

abandonment” criminalizes only severe conduct, but such severe

conduct may include conduct that creates a serious and substantial

risk of bodily harm or death to a child as well as conduct resulting

in actual harm.

I am also unpersuaded by Bastias’s other argument -- that the

generic federal crime of child neglect requires the defendant to be

the child’s parent or guardian. In fact, the dictionary definitions of

“neglect” do not require a parental or parent-like duty at all. Thus,

for example, the definition Merriam-Webster’s Dictionary of Law

defines neglect as a failure to provide a child “under one’s care”

with his physical or emotional needs and does not limit the

definition to parents or guardians caring for a child. Similarly, the

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definition in Ballentine’s Law Dictionary refers to a failure to do

something that is required by “one’s status or by law,” again

including in its ambit not just parents or those like parents. These

definitions of child neglect include within their scope all people

who have a duty to take care of children, not just parents or

guardians.

Turning, then, to the next issue, the mens rea actually

required by the generic federal crime of child neglect is recklessness

or higher. Beginning with the plain meaning of “neglect” or “child

neglect,” the contemporaneous dictionary definitions do not help

us discern what specific mens rea is required for a generic crime of

child neglect. Thus, as we’ve seen, the entry for “neglect” in

Black’s Law Dictionary includes “willful neglect” as a related entry,

clearly envisioning that the mens rea for neglect could be willful.

Neglect, Black’s Law Dictionary (6th ed. 1990). On the other hand,

Garner’s Dictionary of Modern Legal Usage says that neglect “does

not necessarily involve negligence. For example, ‘neglect of a child’

may be either negligent or willful.” Garner, A Dictionary of Modern

Legal Usage, at 585. Because the dictionary definitions of “neglect”

and “child neglect” reference various levels of mens rea, it is unclear

at least based on a dictionary definition what specific level of mens

rea is encompassed by “a crime of . . . child neglect.” 8 U.S.C.

§ 1227(a)(2)(E)(i). For similar reasons, our recognition in Bastias I

that “neglect” and “negligence” derive from the same Latin root,

neglegere, does not help us determine what level of mens rea is

required to sustain a conviction for the crime of child neglect in the

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INA, inasmuch as neglect can encompass different levels of mens

rea. See Bastias I, 42 F.4th at 1275.

We need not dive too deeply into this issue, however,

because Bastias acknowledges that a mens rea of recklessness is

sufficient to sustain a conviction on the federal side of the equation.

The Petitioner argues that the generic federal crime of child neglect

“require[s] at least recklessness,” and he never makes the argument

that the crime requires a higher mens rea such as intent or

knowledge. Accordingly, recklessness found in Florida’s criminal

child neglect statute is sufficient to match the mens rea of

recklessness required by the generic federal crime of child neglect.

In a footnote, my colleague Judge Newsom questions

whether this conclusion “overread[s]” Bastias’s brief, surmising

that Bastias may have intended to do no more than “rul[e] out

negligence” rather than “conced[e] recklessness.” In my view, this

hinges on a strained reading of the brief’s plain language. The brief

reads this way: “That reasoning ignores Mr. Bastias’s argument

that ‘child abuse’ does require harm and ‘child neglect’ does require

at least recklessness and a parent-like duty—so negligent, non-

injurious conduct falls within neither term.” By summarizing his

position as one where “child neglect” “require[s] at least

recklessness,” Bastias recognizes recklessness to be the irreducible

minimum of the generic offense’s mens rea. This is the grammatical

and logical conclusion borne out by various dictionary definitions

of the term “at least.” See, e.g., Least, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/at%20least (last

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visited Oct. 28, 2025) (defining “at least” as “at the minimum”);

Least, Oxford English Dictionary,

https://www.oed.com/dictionary/least_adj?tab=meaning_and_

use#1223232300 (last visited Oct. 28, 2025) (defining “at least” as

“indicating that the amount is the smallest admissible or is

otherwise a minimum”). This definition applies with equal force

regardless of whether the referent is numerical or conceptual. In

either case, “at least” is the lowest permissible amount—anything

more is allowed, anything less is not. What’s more, in numerous

contexts the phrase “at least” indicates the irreducible minimum.

Thus, for example, Article I of the Constitution states that “each

State shall have at Least one Representative,” meaning one or

more representatives. U.S. Const. art I, § 2, cl. 3. Likewise, the

Twentieth Amendment states that “[t]he Congress shall assemble

at least once every year,” meaning that it may assemble once per

year, or it may assemble more than once per year. Id. amend. XX,

§ 2; see also Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999)

(“Use of the phrase ‘at least one’ means that there could be only

one or more than one.” (citation omitted)). This reading is again

bolstered by the position Bastias has taken throughout these

proceedings. He has never suggested or even remotely hinted that

the crime of child neglect requires a mens rea of knowledge or

intent. Recklessness is quite enough.

Judge Newsom also suggests that we need not adopt

Bastias’s concession -- even if the concession is clear -- where the

concession may be erroneous. As the Second Circuit has observed,

“[w]hen a party makes a concession on appeal as to an issue of law

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or fact,” a court “typically accept[s] or assume[s] the accuracy of

the concession without question. This practice permits the parties

to frame the litigation . . . . [and grants] flexibility in [the court’s]

decision-making process.” D.S. ex rel. M.S. v. Trumbull Bd. of Educ.,

975 F.3d 152, 162 (2d Cir. 2020). We have explained, however, that

“there is a difference between concessions about the law and those

about how the law applies and the result it produces given the facts

of a specific case.” Nesbitt v. Candler County, 945 F.3d 1355, 1357–58

(11th Cir. 2020). Where the concession involves a question of law,

such as the interpretation of a statute, we need not take it wholly

at face value. See Bourdon v. U.S. Dep’t of Homeland Sec., 940 F.3d

537, 547 n.6 (11th Cir. 2019) (“[T]he Government cannot concede

away the proper interpretation of a statute . . . .”).

Nevertheless, a party’s concession on a point of law may

supply grounds to affirm what is otherwise a sound conclusion. See

Roberts v. Galen of Va., Inc., 525 U.S. 249, 253 (1999) (per curiam)

(“Although the concession of a point on appeal by respondent is by

no means dispositive of a legal issue, we take it as further indication

of the correctness of our decision today . . . .”). And as my

colleague Judge Middlebrooks observes, nothing in the text of the

INA demands a mens rea higher than recklessness. See Diaz-

Rodriguez v. Garland, 55 F.4th 697, 741 (9th Cir. 2022) (Collins, J.,

concurring in part and concurring in the judgment) (reviewing the

INA de novo and concluding “there is a compelling textual reason

not to construe ‘crime . . . of child neglect’ as requiring either

knowledge or intent. The operative term, after all, is ‘neglect,’ and

the relevant offense is the ‘crime of . . . child neglect.’ ‘Nothing’ in

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that language ‘indicates that [it] applies exclusively to knowing or

intentional’ acts or omissions.” (second alteration in original)

(quoting Voisine v. United States, 579 U.S. 686, 692 (2016)). Bastias’s

concession is a wise one, then, since it tracks the best reading of the

statute. It is therefore perfectly fair to hold Bastias to his

unambiguous concession.

In short, the generic federal crime of child neglect requires a

mens rea of recklessness and conduct creating a risk of harm to a

child, which matches the mens rea and conduct needed for the “least

culpable conduct” criminalized under Bastias’s Florida statute of

conviction. Thus, as I see it, there is a categorical match between

the Florida state crime and the federal crime found in the INA, and

therefore I agree with my colleagues that Bastias’s Petition for

Review must be denied.

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21-11416 MIDDLEBROOKS, J., Concurring 1

MIDDLEBROOKS, District Judge, concurring in the judgment:

In 1996, Congress amended the Immigration and

Nationality Act (the “INA”) to impose severe immigration

consequences on noncitizens convicted of specific child-related

offenses. Namely, the INA renders removable all persons convicted

of a “crime of child abuse, child neglect, or child abandonment.” 8

U.S.C. § 1227(a)(2)(E)(i). Congress did not supply a statutory

definition for this provision, requiring courts and the Board of

Immigration Appeals (the “Board”) to fill in the gaps. The Board’s

definition of a “crime of child abuse” has shifted several times since

the 1996 amendments were implemented, but under its most

recent iteration, the Board’s proffered reading covers “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.” Matter of Soram, 25

I. & N. Dec. 378, 380 (BIA 2010) (quoting Matter of Velazuez-Herrera,

24 I. & N. Dec. 503, 512 (BIA 2008)).

Previously, in reading the INA we have deferred to the

Board, as was required by the legal regime of Chevron, U.S.A. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See

Bastias v. U.S. Att’y Gen., 42 F.4th 1266 (11th Cir. 2022); Pierre v.

United States Attorney General, 879 F.3d 1241 (11th Cir. 2018). With

the Supreme Court’s decision in Loper Bright Enterprises v.

Raimondo, 603 U.S. 369 (2024), Chevron has been displaced, casting

doubt on previous statutory interpretation decisions resting on

Chevron deference. So too here. I nevertheless defer to my

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colleagues on the question of whether the Eleventh Circuit’s prior

decision in Pierre, effectuated through the doctrine of statutory

stare decisis, dispositively answers the interpretive problems raised

in this matter. I agree that following Loper Bright, the question is far

from settled. I write separately, however, to observe that even if

this case were not governed by Pierre, Mr. Bastias’s deportation

would still be proper on a de novo reading of the INA. That is, the

“best reading” of the statute confirms Mr. Bastias was convicted of

a “crime of child abuse.” Loper Bright, 144 S. Ct. at 2266.

I

To uncover the best reading of the INA, we must look to

Congress’s intent as effectuated by the statutory text. Leocal v.

Ashcroft, 543 U.S. 1, 8 (2004). Here, the disputed phrase, a “crime of

child abuse, child neglect, or child abandonment,” lacks a

congressionally sanctioned definition, and so we must use the

ordinary tools of statutory interpretation to divine its meaning.

Loper Bright, 144 S. Ct. at 2268. This case is abnormal, however, as

8 U.S.C. § 1227(a)(2)(E)(i) does not concern just any ambiguity, but

turns on the critical word “crime,” which both Parties agree

captures a “single category” of offenses that “encompasses the

entire phrase.” Respondent’s Supp. Brief at 8; Petitioner’s Supp.

Brief at 6 n.3. Where Congress fails to define a federal crime, courts

must clarify its contours and supplement the statute’s text using the

so-called “categorical approach.” Taylor v. United States, 495 U.S.

575, 588 (1990).

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Under the categorical approach, a court will ignore the

particulars of the defendant’s conduct, and instead apply a two-step

statutory analysis. First, the court must fashion its own “generic”

definition of the federal crime at issue, which “reflect[s] the ‘cluster

of ideas’ behind the terms Congress actually used.” Ibarra v. Holder,

736 F.3d 903, 914 (10th Cir. 2013) (quoting Morissette v. United

States, 342 U.S. 246, 263 (1952)). The Supreme Court has instructed

that at this stage, a court should uncover the “contemporary

meaning” of the crime using relevant sources, such as legal

dictionaries, other federal statutes, and contemporaneous state

criminal codes. See Taylor, 495 U.S. at 596. Next, the court asks

whether the state statute under which the defendant was convicted

“categorically fits” the generic definition of the federal crime. That

is, the court must determine whether the statute’s “least culpable

conduct necessary to sustain a conviction” would satisfy the

elements of the generic federal offense. Daye v. U.S. Att’y Gen., 38

F.4th 1355, 1361 (11th Cir. 2022) (quoting Zarate v. U.S. Att’y Gen.,

26 F.4th 1196, 1199 (11th Cir. 2022)).

II

Here, the first step of the categorical approach is simplified

by the nature of the Parties’ dispute. The Parties both agree that

under Florida Statute § 827.03(2), the least culpable conduct

necessary to sustain a conviction is governed by section (d). The

provision states 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

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commits a felony of the third degree.” 1 Fla. Stat. § 827.03(2)(d).

Petitioner cites three reasons why Florida Statute § 827.03(2)(d)

does not categorically fit the “crime” of child abuse, neglect, or

abandonment Congress meant to render deportable in 1996. First,

Petitioner claims that as Congress intended, a crime of child abuse,

neglect, or abandonment requires some harm or injury to befall the

child, whereas Florida Statute § 827.03(2)(d) requires no such

injury for criminal liability to attach. Second, Petitioner contends

that Florida Statute § 827.03(2)(d) targets criminally negligent

conduct using the phrase “culpable negligence,” whereas Congress

intended for the INA to embrace only crimes committed with a

mens rea of recklessness or greater. Finally, Petitioner insists

Florida Statute § 827.03(2)(d) extends to many potential adult

offenders, whereas a crime of child abuse, neglect, or abandonment

is misconduct by only a parent or guardian. These three

contentions culminate in Petitioner’s ultimate thesis, that

“negligent, non-injurious conduct by someone without a legal duty

akin to a parent or guardian” falls outside the meaning of “child

abuse.” Petitioner’s Brief at 1. Petitioner’s thesis is unpersuasive.

A

To begin, the generic definition of a “crime of child abuse,

neglect, or abandonment” is not cabined to only injurious conduct.

The plain text of 8 U.S.C. § 1227(a)(2)(E)(i) specifies the crime may

be one of child abuse, neglect, or abandonment. “Because ‘a crime

1 Under Florida law, a conviction for a third-degree felony carries a “term of

imprisonment not exceeding 5 years.” Fla. Stat. § 775.082(3)(b)(2)(e).

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of child abuse, child neglect, or child abandonment’ represents a

single category of crimes—crimes of child abuse—the intended

sweep of the term must be broad enough to encompass all three of

the listed offenses: abuse, neglect, and abandonment.” Cruz v.

Garland, 101 F.4th 361, 365 (4th Cir. 2024). While the concept of

“abuse” may readily conjure the image of a harmed child, one can

“neglect” or “abandon” a child without causing tangible injury.

Both are kinds of deprivation, which need not always graduate into

harm. As the Fourth Circuit explained, “it is not necessary for a

child to have been actually harmed. One can engage in

abandonment or neglect by creating a substantial risk of harm to

the child due to lack of supervision or protection. . . . This requisite

risk of harm to a child fully effectuates Congress’s intent to single

out those who have been convicted of maltreating or preying upon

children.” Cruz, 101 F.4th at 365 (quoting Matter of Aguilar-Barajas,

28 I. & N. Dec. 354, 359 (BIA 2021)) (internal quotation marks

omitted).

This intuitive account of a “crime of child abuse” is reflected

in contemporary legal dictionaries. Although some dictionaries in

1996 defined “child abuse” as intentional cruelty to a child, see

Black's Law Dictionary at 239 (6th ed. 1990), others clarified that

“maltreatment of a child, esp. by beating, sexual interference, or

neglect” was sufficient, Oxford English Dictionary at 114 (2d ed.

1989). Moreover, “child neglect” was defined as the “failure on the

part of a parent or parental substitute to supervise a child and

provide requisite care and protection,” Webster’s II New College

Dictionary at 194 (1995), and “child abandonment” was a “failure

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to communicate with or provide financial support for one’s child

over a period of time that shows a purpose to forgo parental duties

and rights,” Merriam-Webster’s Dictionary of Law at 1 (1996). See

also Diaz-Rodriguez v. Garland, 55 F.4th 697, 713–15 (9th Cir. 2022)

(collecting sources). The majority of dictionary sources thereby do

not require conduct to harm a child to be classified as neglect or

abandonment, as the operative phrases employed, such as

“maltreatment” and “failure . . . to supervise,” may be readily

applicable without proof of actual injury.

Finally, the holding of Pierre reinforces the conclusion that

the federal definition of “crime of child abuse” does not require

actual injury or harm. While Petitioner correctly observes that

Pierre did not decide whether a “crime of child abuse” embraces

purely negligent acts, Pierre, 879 F.3d at 1250 n.3, Pierre did

expressly hold that “child abuse crimes under the INA are not

limited to those offenses ‘requiring proof of actual harm or injury

to the child,’” id. at 1250. In so holding, the Court recognized and

adopted the Board’s reading of child abuse as a “well-recognized

legal concept,” which must be broad enough “to encompass

endangerment-type crimes” in order to accomplish “uniform

nationwide application.” Id. at 1249-50. None of these conclusions

are displaced by the fall of Chevron, and they retain their persuasive

power as evidence of the best reading of the statute. Were the INA

constrained to only criminal conduct that resulted in actual injury

to a child, swaths of neglectful, abusive conduct may escape the

ambit of 8 U.S.C. § 1227(a)(2)(E)(i), an impermissible result in light

of Congress’s “aggressive legislative movement to expand the

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criminal grounds of deportability” for crimes against children. Id.

at 1249.

B

Next is perhaps the greatest controversy at issue in this case:

the mens rea required for the generic federal crime of child abuse.

The bare text of 8 U.S.C. § 1227(a)(2)(E)(i) does not itself provide a

mens rea, but appears to refer only to the grounds for criminally

culpable actus reus: abuse, neglect, or abandonment. Where a

statute does not supply a mens rea, the Supreme Court has

occasionally read into the statute a mens rea of knowledge or

intent. Ruan v. United States, 142 S. Ct. 2370, 2377 (2022). As other

courts interpreting 8 U.S.C. § 1227(a)(2)(E)(i) have found, however,

“there is a compelling textual reason not to construe ‘crime . . . of

child neglect’ as requiring either knowledge or intent. The

operative term, after all, is ‘neglect,’ and the relevant offense is the

‘crime of . . . child neglect.’ ‘Nothing’ in that language ‘indicates

that [it] applies exclusively to knowing or intentional’ acts or

omissions.” Diaz-Rodriguez, 55 F.4th at 741 (Collins, J., concurring

in part and concurring in the judgment) (quoting Voisine v. United

States, 579 U.S. 686, 692 (2016). The Parties have instead proffered

alternative readings of 8 U.S.C. § 1227(a)(2)(E)(i), disputing

whether a “crime of child abuse” embraces the lowest culpable

mental state: criminal negligence. Whereas Respondent insists the

generic federal crime of child abuse captures criminally negligent

conduct, Petitioner argues that in 1996 “child neglect required the

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defendant to have a men rea greater than criminal negligence.”

Petitioner’s Brief at 2.

Ultimately however, both Parties misconstrue the critical

inquiry demanded by the categorical approach. The question

before us is not whether, in the abstract, the generic federal crime

of child abuse requires a particular mens rea. Rather, it is whether

there is a categorical fit between the generic federal crime and the

particular provisions of Florida Statute § 827.03(2)—including the

attendant mens rea that accompanies them. Florida Statute §

827.03(2)(d) references two mens rea standards that attach criminal

liability: “willfully” and “culpabl[y] negligen[t].” Fla. Stat. §

827.03(2)(d). Neither Party contests that willful—i.e., intentional or

purposeful—abusive conduct against children is deportable under

8 U.S.C. § 1227(a)(2)(E)(i). We must therefore determine whether

“culpable negligence,” as defined in Florida law, is a culpable

mental state under the generic federal crime of child abuse.

The meaning of “culpable negligence” itself presents a

puzzle of statutory interpretation. The statute does not define

culpable negligence, and both Parties have largely proceeded under

the assumption that culpable negligence is akin to ordinary

criminal negligence. This assumption is not borne out by Florida

law. Ordinarily, a “person acts recklessly, in the most common

formulation, when he ‘consciously disregards a substantial and

unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from

accepted standards.” Borden v. United States, 593 U.S. 420, 427 (2021)

(quoting Model Penal Code § 2.02(2)(c); Voisine, 579 U.S. at 694).

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Conversely, “a person acts negligently if he is not but ‘should be

aware’ of such a ‘substantial and unjustifiable risk,’ again in ‘gross

deviation’ from the norm.” Borden, 593 U.S. at 427 (quoting Model

Penal Code § 2.02(2)(d)). The key distinction, then, is whether a

person’s gross deviation reflects a conscious or reckless disregard

of a substantial and unjustifiable risk, or merely an unreasonable

failure to perceive the risk associated with one’s conduct.

For more than eighty years, Florida courts have read

“culpable negligence” in a manner that does not quite match either

traditional recklessness or classic criminal negligence. “Where the

highest court . . . has spoken on the topic, we follow its rule.”

Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1348 (11th

Cir. 2011). Here, the Florida Supreme Court has explained that the

standard for culpable negligence is “at least as high as that required

for the imposition of punitive damages in a civil action,” requiring

“a gross and flagrant character, evincing reckless disregard for

human life” or an “entire want of care which would raise the

presumption of indifference to consequences.” Russ v. State, 191 So.

296, 298 (Fla. 1939); see also Preston v. State, 56 So. 2d 543, 544 (Fla.

1952) (“The ‘culpable negligence’ required to sustain a

manslaughter charge must be of ‘a gross and flagrant character,

evincing reckless disregard of human life . . . or that entire want of

care which would raise the presumption of indifference to

consequences.’”); State v. Green, 348 So. 2d 3, 4 (Fla. 1977) (“Thus,

reckless indifference or grossly careless disregard of the safety of

others is necessary to prove ‘culpable negligence.’”). The Florida

Supreme Court has also at times defined culpable negligence with

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reference to the standard for recklessness, requiring “reckless

disregard of human life or a conscious indifference to the

consequences.” Behn v. State, 621 So. 2d 534, 537 (Fla. 1993)

(emphasis added).

Across these cases are several consistent requirements,

including that the dereliction of care be so egregious as to be

tantamount to intentional misconduct. At the very least, the

Florida Supreme Court has explained that although the phrase

“negligent” is used, “culpable negligence” is a distinct concept2

comparable to scienter. See State v. Joyce, 361 So. 2d 406, 407 (Fla.

1978). While not binding authority, Florida’s jury instructions

further reflect the divergence between negligence and culpable

negligence, explaining that “culpable negligence is more than a

failure to use ordinary care for others. . . . Culpable negligence is a

course of conduct showing reckless disregard for human life, . . . or

such an entire want of care as to raise a presumption of a conscious

2 In fact, the Florida Supreme Court clarified this distinction in the context of

a constitutional challenge. In State v. Winters, the Florida Supreme Court

declared an older child neglect statute, Florida Statute § 827.04(2),

unconstitutionally vague. 246 So. 2d 991, 994 (Fla. 1977). There, the statute

criminalized “negligent treatment of children,” which was held to be too

indefinite and overbroad. Id. at 993-94. In State v. Joyce, however, the Court

clarified that Florida Statute § 827.03(2) did not suffer from the same

constitutional deficiencies, explaining that whereas the statute in Winters “made

criminal acts of simple negligence conduct which was neither willful nor

culpably negligent,” Florida Statute § 827.03(2) required a higher showing of

“willfulness (scienter) or culpable negligence.” 361 So. 3d at 407. Because

culpable negligence was comparable to scienter, the Court explained, the statute

employing it did not “suffer from the constitutional infirmity of vagueness.” Id.

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indifference to consequences . . . [or] such an indifference to the

rights of others as [to be] equivalent to an intentional violation of

such rights.” Fla. Std. Jury Instr. (Crim) 8.9.

Although the Florida Supreme Court has been relatively

consistent with its interpretation of “culpable negligence,” lower

Florida courts have suffered from greater variance. Whereas some

have more or less adopted the standard used by the Florida

Supreme Court, see, e.g., Ibeagwa v. State, 141 So. 3d 246, 247 (Fla.

Dist. Ct. App. 2014) (defining culpable negligence to include “gross

or flagrant” conduct showing “reckless disregard of human life,” an

“entire want of care as to raise a presumption of a conscious

indifference to consequences,” or such “wantonness or

recklessness” as to equal the intentional violation of the rights of

others), others have woven in standards that resemble criminal

negligence, see, e.g., Kish v. State, 145 So. 3d 225, 227–28 (Fla. Dist.

Ct. App. 2014) (contending culpable negligence involves conduct a

defendant knew or should have known was likely to produce great

harm); Taylor v. State, 363 So. 3d 126, 130 (Fla. Dist. Ct. App. 2023)

(same).

This web of court precedent and jury instructions

notwithstanding, what is clear from a survey of Florida sources of

law is that culpable negligence cannot be neatly categorized as

either recklessness or criminal negligence. While a defendant

evidently need not consciously disregard a risk in order to be

culpably negligent—the traditional hallmark of recklessness—

liable acts qualifying under the standard are so egregious as to be

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