[00:00:02] Speaker 02:
I see two of you there, but I'm assuming one of you is going to make the argument, correct? Oh, yeah, just me. Okay, thank you. All right, we're ready.

[00:00:12] Speaker 03:
Thank you. Good morning, Your Honors, and may it please the Court. David Zimmer on behalf of Mr. Rivera-Mendoza, and I'm going to try to reserve two minutes if I can.

[00:00:22] Speaker 03:
I want to sort of pick up on what Judge Rakoff was getting at, which is just that at a high level, when we think about crimes, we generally imagine one, if not both, of two things. One would be some sort of harm to the victim, and the other would be some sort of intent to harm the victim or engage in the conduct that is deemed wrongful by the statute. And what is really unusual about the type of negligent endangerment statute at issue in this case, like Oregon's, is it actually requires neither of those things. It doesn't require that the child be harmed in any way, and it doesn't even require that the defendant be aware that her conduct was putting the child at a risk of harm.

[00:00:59] Speaker 03:
And I think the Oregon Court of Appeals decision in Obeidi really makes both of those points really true.

[00:01:04] Speaker 02:
Well, in that court, it held that the conviction under the statute required a showing that the risk of, quote, harm occurring was substantial and unjustifiable, unquote, and that defendants, quote, lack of awareness of that risk was a gross deviation from the normal standard of care, unquote. So how does that really differ from the mens rea of criminal negligence required by 1227?

[00:01:28] Speaker 03:
Well, we don't think that that is the mens rea required by 1227. I mean, our whole point is that when you're interpreting a crime under the Supreme Court's decision in Rouen and applying ordinary tools of construction, that 1227 requires a higher mens rea, at least recklessness and maybe knowledge or intent. That's our argument in this case. We're not disputing that the Oregon statute requires a men's right of negligence. That's the That is the mens rea of the statute. But I think our point is that OBEED highlights just how broad these negligence-based statutes are, where you have a mother who left her one-year-old child in a car seat in a locked car to run into a store to buy diapers.

[00:02:07] Speaker 03:
And the Court of Appeals upheld the conviction based on the attenuated risk that the child might have been abducted while the mother was in the store. And even though it was basically undisputed at trial that the mother did not actually believe she was putting her children at a risk of harm. It was an objective standard that was imposed there. And, you know, under the 10th Circuit's decision in Ibarra and under both the concurrences that were recently put out in the 11th Circuit Bastia's decision, That type of negligence is not enough, and I'd really point the court in particular.

[00:02:41] Speaker 04:
I don't know if they said that. I think they said recklessness was the statute, and so you didn't have to go further. They didn't rule that criminal negligence was below the threshold.

[00:02:52] Speaker 03:
Well, Judge Marcus explicitly interpreted the statute to require recklessness or more, so we would win under that. Right, but he didn't rule that below recklessness is outside of the statute. I think he did. I mean, it wasn't because he interpreted that statute to require recklessness. Arguably, it was dictated. But I mean, when he describes the meaning of the statute. he says explicitly that it requires recklessness or greater. So, I mean, maybe that's dicta given the way he interpreted the Florida statute, but I think that was his interpretation.

[00:03:24] Speaker 03:
And Judge Newsom sort of said that the unmistakable upshot of applying the ordinary tools of construction was that even recklessness wasn't enough. And he also, of course, didn't reach it because of other reasons.

[00:03:35] Speaker 04:
You must know I joined Judge Collins' concurrence with Diaz-Rodriguez. Assuming I haven't changed my mind, I mean...

[00:03:41] Speaker 03:
Is this issue closed for me? So if you haven't changed your mind, it is an issue that's closed for you. I'll be honest. But if you wouldn't mind, I'm going to at least take a shot at convincing you why you should change your mind. And I'll note that actually Judge Newsom changed his mind, right? So in the initial Bastia's decision, he, just like Judge Collins, relied very heavily on the fact that neglect and negligence have the same underlying root and said that, well, therefore, neglect must mean negligence. And we represent the petitioner in that case as well.

[00:04:11] Speaker 03:
And actually put before Judge Newsom on remand from the Supreme Court, before the whole panel, obviously.

[00:04:16] Speaker 02:
Well, I think any time we're talking about kids, you know, that we don't assume that parents or other people always know what's safe for children. And so as a society, we're very protective of the most vulnerable not being subjected to a kind of behavior that puts them at risk. So it's different than when we're talking about men's race about adults a lot of times.

[00:04:44] Speaker 03:
Well, and I think that's why there's a robust civil law that is intended to protect kids, and it does have very broad definitions of these terms. But when you're talking about imposing criminal penalties on people for conduct that they didn't even understand to be wrongful— That's extremely unusual.

[00:05:00] Speaker 02:
Does that make the kids more safe because their parents didn't know what they were doing? Okay, so you send them out and they can't swim and you let them go into the pool and you go in and... But, Your Honor, I guess I... I'm sorry. I think that's the whole idea that we're not counting on people... having good judgment, we're counting on protecting children from bad judgment.

[00:05:22] Speaker 03:
Right, and that's exactly what civil law does. And what criminal law does is it doesn't protect children. It imposes criminal penalties on people who do particularly extreme things. And that's exactly what the Supreme Court, not in the context of children, but if you look at the Supreme Court's decision in Rouen, it basically says explicitly that You know, the federal law almost never interprets crimes to have – absent something explicit in the statute.

[00:05:45] Speaker 02:
Well, I think the other circuits don't help your arguments here. The fourth in Cruz, the fifth with Sandoval, and the 11th with Bastias. I think they've – held that 1227 encompasses child endangerment even when the child is not hurt. So why isn't that the best reading of the statute?

[00:06:05] Speaker 03:
Well, we're not disputing that point, Your Honor. We're not actually arguing that there's a harm requirement. We're arguing that when you're talking about non-injurious conduct, negligence isn't enough. I think, if anything, actually, it's the government's position in our case that would create a circuit split with the 10th Circuit's... It would clearly create a circuit split with the 10th Circuit's decision in Ibarra, and we think it would create a split. I mean, it's not quite an outright split, but certainly in tension with the two recent concurrences in Bastias. And, in fact, we don't see anything inconsistent. I mean, with Cruz...

[00:06:37] Speaker 03:
That wasn't a negligence case, and I agree you could sort of read it, but I think that's dicta. I don't think there would be a conflict with Cruz to adopt our position. But if I could get back to just to the point to answer the Judge Bumate's question, you know, we put before the panel on remand the same sort of the same definitions from blacks and the same definitions from blacks.

[00:06:55] Speaker 03:
the other legal dictionaries that basically actually go out of their way to say that the word neglect does not imply negligence, that in fact these are different things. That doesn't answer the question at all. And Judge Newsom changed his mind, right? He actually, based on those arguments, and you can listen to the argument, we talked about this at length, We also pointed out that the contemporary state criminal codes in 1996, the ones that used the word neglect, almost none of them had a mens rea of negligence. They almost all had a mens rea of recklessness or higher. And so I actually think that there's really very little support for the idea that the word neglect itself, and that was the whole concurrence, right?

[00:07:28] Speaker 03:
And this didn't come up in fairness in the briefing in that case. But basically the whole reasoning in Judge Collins' concurrence was, as to why negligence was enough, was that it was inherent in the word neglect. And I just don't, I just respectfully, I don't think that that's right. And again, Judge Newsom changed his mind on this exact point.

[00:07:48] Speaker 03:
I'm not disputing that if you stick with that, we lose. But we actually agree with almost everything in that concurrence, except for that, right? You know, and it's an important point because that concurrence applies an objective rather than subjective standard. And if you look at Rouen, you know, it's pretty clear. I mean, you know, this is a quote from Rouen. We have long been reluctant to infer that a negligence standard was intended in criminal statutes. And it goes on to explain that the reasonable... Do you want to save two minutes to try to change his mind?

[00:08:17] Speaker 03:
Sure, I'll save my remaining time. Thank you very much.

[00:08:20] Speaker 02:
Okay, thanks.

[00:08:30] Speaker 00:
Good morning, Your Honors. Me again. I'm Zadie. I'm Ron Zadie.

[00:08:33] Speaker 02:
The same Mr. Zadie.

[00:08:35] Speaker 00:
The same Mr. Zadie. Welcome back. Thank you very much. I think I'll start with Obeidi because I think when we...

[00:08:43] Speaker 00:
entered the conversation in a case like this where we're talking about negligent endangerment, which is, as I understand it, a petitioner's only challenge. They don't really, despite all of the child endangerment is a separate crime arguments, they're not arguing that child endangerment is not included within the concept of child abuse. They're only arguing that you just need to lop off this concept of negligent endangerment, that somehow that makes it beyond the pale. On that point, I'd like to make two broad points. One is about, again, criminal negligence, which I just spent some time talking about. This is not a standard that is just meant to encompass single, one-time parent lapsing, walk out of the bedroom while the child's on the bed.

[00:09:21] Speaker 00:
Walk into the store really quickly to get something while the child's in the car seat. This is not that standard. This is a gross deviation from a standard of care to a child or standard of care in general that creates a substantial and unjustifiable risk. So that's on the definition side of it. And then I also want to highlight how, in terms of the cases where it is applied, none of them reflect the types of circumstances where you think of it as a one-time parental lapse.

[00:09:50] Speaker 02:
I think I'm understanding that saying that the Oregon statute covers not just a risk of harm, but a risk of a risk of harm.

[00:09:59] Speaker 02:
and thus is broader than 1227.

[00:10:01] Speaker 00:
That's the argument, Judge Callahan. So a response to that, and I want to highlight why OBE does not involve anything like the type of attenuated risk that they describe. One, that language, the sort of may be likely to endanger, I think this is just a common parlance problem. When you say risk of endangerment, well, the word endangerment itself is to place somebody at a risk of harm. So when you say risk of endangerment, yes, technically that is literally a risk of a risk or maybe likely to endanger. And yet that's the language you see when describing all of these, almost any one of these state criminal statutes.

[00:10:36] Speaker 00:
That's just what it means. They're not trying to create this sort of attenuated two levels of risk removed from the harm. But you don't need to believe me. You can look at what Oregon has said in interpreting this very same statute. So in cases like Obeidi, it says a risk of likely harm is exactly what the case said, and then perhaps most succinctly was the Savage case that we cited in our brief, in which again it said this statute can only be satisfied by proving beyond a reasonable doubt that you created a risk of likely harm. So the attenuated risk or risk of a risk argument, we think, just fails right out of the gates.

[00:11:08] Speaker 00:
Now on the circumstances of Obeidi, just to be very clear, This is not the way the petitioner described it. It wasn't just walking into the store while you were, you know, to get diapers while the child was in the car. This was leaving your child in the car in a high-crime area for 30 minutes while you walked into a store where you could not see the child. And the court went out of its way to describe all of the particular types of harm that could have befallen the child. Two children. There was a one-year-old and a three-year-old. And the reason all of this came to anybody's attention is because somebody saw the three-year-old reaching out of the window, which had been left open, to try to open the door from the outside and almost fell out of the car, which led the mother in that case to concede that they had met.

[00:11:48] Speaker 00:
The three-year-old had met the standard, and they were just challenging as to the one-year-old. And the court specifically said, you could have an abduction, you could have an assault, you could have somebody who's opening the door. and the one-year-old falling out of the car seat because a three-year-old could unbuckle themselves like the three-year-old did for himself.

[00:12:04] Speaker 01:
Can I take this to a higher level and get your response?

[00:12:13] Speaker 01:
So I think everyone has agreed, and it's certainly been part of the jurisprudence of the Supreme Court of the United States, that absent some special function or policy, crime normally means an act intentionally taken, mens rea, evil thought, evil act, mens rea and actus reus.

[00:12:51] Speaker 01:
States and even the federal government at times have said, that where it's unintentional but so risky to society, as in the case of child abuse, child neglect, or classically in the Park case, adulterated food, We will allow criminal penalties to be imposed even when there was no conscious intent in order to encourage an extreme care.

[00:13:42] Speaker 01:
That's the ultimate purpose, is to encourage extreme care.

[00:13:47] Speaker 01:
But now, that's fine. The guy gets convicted of a crime even though hypothetically no intent because of that greater risk. But now Congress says if he commits the crime of such, such, such, he gets deported, a further consequence.

[00:14:16] Speaker 01:
That certainly would not be a factor in encouraging greater super compliance to avoid negligence. It's a different kind of consequence. And so my question is, when they use the term crime there, it doesn't seem to me that Congress was thinking about the super deterrence effect that is present in the underlying gross negligence type of criminality, but they were thinking of just ordinary meaning of the word crime, which would include mens rea.

[00:14:57] Speaker 01:
So if you're following my very convoluted point, what I'm saying is that the word crime, as used by Congress, in this deportation context doesn't carry necessarily the same meaning that would apply in the cases you're relying on.

[00:15:21] Speaker 00:
Your Honor, I think if I'm understanding your question, at least the premise behind it, I don't disagree. I think we agree completely that there are certain circumstances in which this concept of criminal negligence would be applied because you were trying to encourage certain conduct. And I think this is exactly the type of circumstance where that would extend to or where Congress was intending to extend that level of mens rea because you are talking about protecting the vulnerable. We know based on Matter of Velazquez Herrera and based on the history of the statute that it was trying to expand the criminal grounds of removal in general and that it was trying in particular to create a comprehensive scheme to protect children from predators and from predatory behavior or from crimes that would victimize them.

[00:16:10] Speaker 00:
And so I think this is exactly the type of situation where you would read a criminal negligence statute or a criminal negligence mens rea into a statute and that even though it is a removal ground and is not a federal criminal statute, it would have the exact same effect of extending to that level to protect the vulnerable and protect a vulnerable class. So if I'm understanding your question correctly and your premise, I think that's exactly why we think it is appropriate to define this removal ground with that mens rea.

[00:16:38] Speaker 04:
Can you respond to your friend's argument that, you know, at least under the Collins concurrence, the argument was that because criminal negligence, I mean criminal neglect almost implies negligence, but that's not a sufficient reason. Do you have a response to that?

[00:16:52] Speaker 00:
I'm sorry, was it that it's not, I thought his argument was like two things. One is that it's not ready to neglect the definition.

[00:16:57] Speaker 04:
Correct, yeah. The Collins concurrence kind of suggested because the term, you know, the concept of criminal neglect clearly indicates criminal negligence is sufficient. He's casting doubt on that analysis.

[00:17:10] Speaker 00:
Sure. Yeah, I think there's a couple responses to that. One, I think every sentence in the brief that tried to distinguish between those two things had a lot of strain in it. I think the concept of neglect is, as petitioners themselves define it, failing a duty or a failure of care.

[00:17:29] Speaker 00:
And then the concept of criminal negligence, as they define it, is the mental state in doing that and saying that that's different. That's the mental state in doing that. But then how do you define that mental state? A gross deviation from a standard of care. So it feels like there are two parts of the same thing. And maybe we're just talking about a noun and an adjective. And then even there, some of the definitions for child neglect that they've cited to the Garner's common legal usage definition defines neglect to say intentional or negligent conduct. We think all roads lead back to negligence here.

[00:18:01] Speaker 00:
The second part of that answer, and I assume this is part of what you were asking because they talked about the Rouen presumption. This court has managed to define this about a million times in all the different panels, going back to Martina Cedillo and Diaz-Rodriguez panel and Diaz-Rodriguez en banc, without resorting to a canon of construction like that or an interpretation or a principle of construction like that. We don't think there's any resort to it here. I'm not even sure it applies when you're construing a generic definition rather than a federal criminal statute, which was the basis for Rouen.

[00:18:28] Speaker 00:
So I don't think we need to turn to that. We've been using the tools of construction for every other aspect of our arguments here. I think they are perfectly adequate to the task of finding the mens rea in this case.

[00:18:39] Speaker 02:
All right. Thank you for your argument.

[00:18:49] Speaker 03:
Thanks.

[00:18:51] Speaker 03:
Thank you, Your Honors. I mean, I think just briefly I want to respond to what he was saying at the end there, because I think in many ways that's the key to the case. Correct. Like, there was a concurrence. You joined the concurrence. Again, we agree with most of the concurrence, and it really does come down to this mens rea issue. And I just don't think there was really a response at the end of the day to these definitions that we quoted that actually go out of their way, almost unusually, to clarify the fact that neglect does not mean negligence. Neglect means that you violate a duty to care for a duty of care, right? And you can do that intentionally. You can have a kid who you have a duty of care for, and you say, I don't care about that kid.

[00:19:24] Speaker 03:
You know, I'm going to go to the bar and drink and leave that kid alone, right? You could also do it negligently, like the woman in Obeidi. And I'm not in any way suggesting that What she did was correct, or that I would do that. But it's a very different thing than making a conscious decision to violate your duty to a child. And I think that's what these definitions get at. And yes, the words are similar. They both get at violating duties. But very different duties and in very different ways. And again, two different contemporary legal dictionaries go out and say that. And the contemporary criminal codes that use the word neglect...

[00:19:56] Speaker 03:
all have a mens rea... Not all, but almost all have a mens rea of recklessness or higher.

[00:20:00] Speaker 04:
So I actually genuinely... But some states do have negligence, right?

[00:20:04] Speaker 03:
Absolutely, and we're not saying there's anything inconsistent about...

[00:20:09] Speaker 03:
You definitely can be negligently neglectful. But again, these definitions aren't talking about just the criminal law. They're just talking about it in general. So I think our point isn't that you can't have negligent neglect. It's that you can have neglect with any men's right. And so you have to apply other tools to try to understand what the crime means. And I think that's why Ruan is helpful. And Ruan isn't some kind of like... you know, ambiguity-resolving canon. It's just talking about what the word, how we understand the criminal law. And so when you have a provision that is focused on crimes in general, you don't think that what it's talking about is negligent conduct.

[00:20:44] Speaker 03:
You think it's talking about intent or at least knowledge.

[00:20:48] Speaker 03:
I see my time has expired, but thank you very much.

[00:20:50] Speaker 02:
Thank you both for your argument. This matter will stand submitted.