[00:00:00] Speaker 01:
First case, please make your appearance, counsel, and proceed.

[00:00:11] Speaker 00:
Good morning, justices.

[00:00:13] Speaker 00:
May it please the court, counsel, and my name is T. Laura Louie, and I am the attorney for the petitioner in this case, Raul Mariscal Ortiz.

[00:00:25] Speaker 00:
Now, there are four points.

[00:00:27] Speaker 00:
that I would like to address the court this morning.

[00:00:30] Speaker 00:
But given that I only have 15 minutes, the reality is I will probably only get to one.

[00:00:34] Speaker 00:
If I'm lucky, two.

[00:00:38] Speaker 00:
But I'd like to bring those four points up to the court.

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The first one is that this court should not give any deference to Chevron.

[00:00:47] Speaker 00:
And the reason is because the United States Supreme Court has already addressed the issue of recklessness Andrea.

[00:00:57] Speaker 00:
I apologize.

[00:00:57] Speaker 00:
And therefore there's no need to defer to the Board of Immigration Appeals or the Department of Homeland Security in this case.

[00:01:06] Speaker 00:
Because the statute in question, which is namely 18 U.S.C.

[00:01:11] Speaker 00:
16, has been decided by the U.S.

[00:01:13] Speaker 00:
Supreme Court, so it is not ambiguous.

[00:01:15] Speaker 01:
Well, I might as well jump in and stop your cadence right now.

[00:01:20] Speaker 01:
By the United States Supreme Court, you're talking about the Borden case?

[00:01:23] Speaker 01:
Correct, Your Honor.

[00:01:23] Speaker 01:
And why is Borden relevant?

[00:01:25] Speaker 01:
It's an ACCA case.

[00:01:27] Speaker 01:
What does that have to do with this?

[00:01:29] Speaker 00:
Your Honor, thank you for your question.

[00:01:31] Speaker 00:
That actually leads to my second point of why Borden is relevant to the issue here.

[00:01:36] Speaker 00:
It is an ACCA case.

[00:01:38] Speaker 00:
That is true.

[00:01:39] Speaker 00:
But Borden analyzed 18 USC subsection 16, which is the definition of a crime of violence.

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And when you're talking about a domestic violence deportation ground of removal found in the Immigration and Nationality Act, it's found in 8 USC section 1227 subsection 8, subsection AE8,

[00:02:07] Speaker 00:
which talks about the domestic violence ground of removability.

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And the very definition in that statute is that it has to be a crime of violence.

[00:02:19] Speaker 00:
So although Borden dealt with ACCA, the court in Borden gave us what does not constitute a crime of violence under

[00:02:33] Speaker 00:
18 USC section 16.

[00:02:36] Speaker 01:
And let me follow you.

[00:02:38] Speaker 01:
Are you saying that the same definition for crime of violence that is operative in Gordon is operative here?

[00:02:47] Speaker 00:
Yes, Your Honor.

[00:02:49] Speaker 00:
Because when you look at the section that contains the definition of a domestic violence ground of removability,

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That is the overall umbrella found in 1227.

[00:03:01] Speaker 00:
Then under that umbrella, there are four different subsections.

[00:03:08] Speaker 00:
One subsection has to do with domestic violence.

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One subsection has to do with child abuse.

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neglect or abandonment.

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One section has to do with stalking and then the fourth subset has to do with a violation of a protective order.

[00:03:26] Speaker 01:
And aren't we dealing with the second subsection here?

[00:03:29] Speaker 00:
We are, but the underlying definition of a domestic violence ground.

[00:03:36] Speaker 00:
So we have the general umbrella definition of domestic violence and that is 16.

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Section 16, in which Borden, the US Supreme Court, took the crime of violence definition and held that recklessness mens rea does not equate to a crime of violence.

[00:04:02] Speaker 03:
But doesn't the federal definition of the child abuse, child neglect, child abandonment statute here as interpreted by Madame Velasquez

[00:04:15] Speaker 03:
Zerate include recklessness.

[00:04:18] Speaker 00:
It does, Your Honor, and that's the respondent's position is this court should give deference to Velasquez, Herrera, and other cases from the board.

[00:04:31] Speaker 03:
Is it really a matter of giving deference?

[00:04:34] Speaker 03:
The statute itself doesn't define crime of child abuse, child neglect, or child abandonment.

[00:04:42] Speaker 03:
The definition's been fleshed out in these other cases.

[00:04:49] Speaker 03:
Are you saying that that's the wrong federal definition?

[00:04:53] Speaker 00:
That is our position, Your Honor.

[00:04:54] Speaker 03:
Where do we find the federal definition then?

[00:04:57] Speaker 00:
Our position is that you find the federal definition under

[00:05:01] Speaker 00:
the Federal Child Abuse and Treatment Act, which does define what child abuse is on a federal level to constitute a federal crime.

[00:05:14] Speaker 00:
But then our position is that Borden, when it rendered the decision, when the Supreme Court rendered its decision under 16, crime of violence, it is meant to encompass all the four subsets.

[00:05:31] Speaker 00:
When the Supreme Court in Borden says, and held, recklessness mens rea does not constitute a crime of violence.

[00:05:41] Speaker 03:
Well, that's because there's no, 16 doesn't even have a mens.

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They had to interpret what the mens rea was.

[00:05:48] Speaker 03:
But here we have authority that says reckless is part of this crime.

[00:05:54] Speaker 00:
We have authority from the Board of Immigration of Appeals.

[00:05:58] Speaker 03:
Our position is now we have... But we have authority from Zarate too, don't we?

[00:06:03] Speaker 03:
That's this court.

[00:06:04] Speaker 00:
That's this court.

[00:06:05] Speaker 00:
That's true.

[00:06:06] Speaker 00:
We have authority from the Board of Immigration Appeals.

[00:06:09] Speaker 00:
We have some circuit courts, not only out of this court, but we do have some out of the Fourth Circuit, Sixth Circuit as well.

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But now we have intervening U.S.

[00:06:19] Speaker 00:
Supreme Court case law that has defined the issue of recklessness.

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And that is the issue before this court.

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It is whether a recklessness mens rea constitutes a crime of violence such that the subset under 16A crime of violence can render someone removable.

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And our position is the US Supreme Court has spoken, they have rendered that decision, and therefore,

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It is not an ambiguous statute and Chevron does not apply.

[00:06:59] Speaker 01:
Let me articulate what I see to be a problem with the argument.

[00:07:06] Speaker 01:
Even assuming that I accepted your position that Borden in some way is apposite here, in other words, it is relevant.

[00:07:19] Speaker 01:
specifically included recklessness in the definition as it relates to the matter that is particularly before us now.

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And our case law sets a pretty high bar for us to view our own precedent as being abrogated.

[00:07:34] Speaker 01:
And so what you've got is you've got this Borden case that dealt with a different statute, different regime, articulating what a crime of violence is.

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there's a pretty high threshold for mapping that onto this situation.

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And in fact, I'm struggling to see how one could do it.

[00:07:54] Speaker 01:
And so what I'm asking you is in light of the fact that we would have to take the premise, I think based upon what you're saying, that Borden abrogates the portion at least of Zarate that says that recklessness is included in the mens rea.

[00:08:10] Speaker 01:
What would be the best case for us to do that?

[00:08:15] Speaker 00:
Well, I think this Utah statute that was in effect when the petitioner was convicted, Your Honor, would be the best scenario.

[00:08:28] Speaker 00:
Because under Utah statute at that time, it held

[00:08:37] Speaker 00:
that physical injury means an injury to or condition of a child, which impairs the physical condition of a child, including any other condition which imperils the child's health or welfare, and which is not a serious physical injury.

[00:08:57] Speaker 00:
I think under Leocal, under Borden, under Descamps, even under this court's decision in Johnson,

[00:09:07] Speaker 00:
which was rendered in 2020, that's essentially what we're asking the court to do.

[00:09:12] Speaker 00:
We're asking the court to follow Borden, notwithstanding this court's decision in Saratse.

[00:09:18] Speaker 01:
And I'm sorry, I asked you, I tried to articulate what I viewed as being the problem with that, which is that you have one entire regime of law, Borden,

[00:09:29] Speaker 01:
desk camp, all of those cases come out of a certain area, and most of them involving the ACCA or the analog statutes, and what basis do we have

[00:09:41] Speaker 01:
to abrogate, which is I think what you're saying, that's what we'd have to do, right?

[00:09:45] Speaker 01:
You're saying that what basis would we have to say that those cases are so closely related to this case that we can clearly say that Zerate is no longer good law?

[00:09:58] Speaker 01:
I guess what I'm saying is what case can you point to where we have done a similar thing?

[00:10:05] Speaker 01:
That's what I'm getting at, because that's what you'd be asking us to do, is point, look at Borden, say, okay, well, Borden renders Zarate, our own case, bad law.

[00:10:21] Speaker 00:
My answer to this probably is gonna be memorialized for many years.

[00:10:28] Speaker 00:
But essentially, that's what we're asking this court to do.

[00:10:31] Speaker 00:
We're asking this court to

[00:10:33] Speaker 00:
follow Gordon and reverse its decision on Zarate.

[00:10:40] Speaker 00:
Because of, yeah.

[00:10:42] Speaker 03:
When you started your reference to the Utah statute, because we're really comparing the scope of the Utah statute to the scope of the federal statute, correct?

[00:10:55] Speaker 03:
We're doing a categorical analysis?

[00:10:59] Speaker 03:
Yes.

[00:10:59] Speaker 03:
OK.

[00:11:00] Speaker 03:
And the part of the statute you pointed to dealt more with the conduct that it covers, not so much the mens rea.

[00:11:09] Speaker 03:
So it seems to me your Borden argument goes to this question of recklessness.

[00:11:15] Speaker 03:
But the part of the statute you talked about wasn't about that.

[00:11:19] Speaker 03:
It was more about the scope of the conduct that the statute covers.

[00:11:24] Speaker 03:
And so that leads me to this question.

[00:11:27] Speaker 03:
Which is whether the Utah statute, including the part that you quoted about imperiling a child's health or welfare, does the Utah statute require physical injury?

[00:11:42] Speaker 00:
And that's my third point, Your Honor, is that the Utah statute is overly broad.

[00:11:48] Speaker 00:
It doesn't require physical injury, whereas the federal definition of child abuse and neglect, that's codified in 42 USCIA Section 5016G, which is the Federal Child Abuse and Prevention Treatment Act.

[00:12:06] Speaker 00:
It states any recent act or failure to act on the part of a parent or caretaker resulting in death, serious physical injury, serious physical or emotional harm, sexual abuse or exploitation or an act or failure to act which presents an imminent risk of serious harm.

[00:12:26] Speaker 00:
Well, I'd like to get back to the Utah statute.

[00:12:29] Speaker 00:
Yes.

[00:12:29] Speaker 03:
And it says, it defines physical injury.

[00:12:34] Speaker 03:
And it includes these four subsections, including the one you quoted.

[00:12:39] Speaker 03:
But it's all one sentence.

[00:12:42] Speaker 03:
And it says, physical injury means.

[00:12:45] Speaker 03:
So my question is, the part of it that says, imperils the child's health or welfare, does that, that doesn't say that that's part of what is physical injury?

[00:12:57] Speaker 00:
Not necessarily, Your Honor.

[00:12:59] Speaker 03:
It could be like in our... Well, how can you reconcile that with the very first words of the statute, physical injury means?

[00:13:09] Speaker 03:
That's what it says.

[00:13:10] Speaker 00:
But it also means, Your Honor, any other condition which impairs the child's health or welfare.

[00:13:16] Speaker 00:
Right.

[00:13:16] Speaker 03:
It says physical injury means including that.

[00:13:19] Speaker 00:
It doesn't necessarily mean physical injury.

[00:13:24] Speaker 00:
So it doesn't mean what it says?

[00:13:26] Speaker 00:
No, it doesn't.

[00:13:27] Speaker 00:
Not in 2016.

[00:13:29] Speaker 03:
How do we deal with our decision in the borrower versus holder where we said that this very statute did not appear to criminalize child abuse unless the child was injured?

[00:13:42] Speaker 03:
Are we going to have to abrogate that decision, too, to rule to your client?

[00:13:47] Speaker 00:
Not in this, no, Your Honor.

[00:13:49] Speaker 00:
The court does not need to abrogate a borough in this case.

[00:13:54] Speaker 00:
You have instances in which conduct doesn't necessarily lead to physical injury, but may result in a child abuse conviction in Utah, not in other states.

[00:14:07] Speaker 03:
What are we talking about?

[00:14:09] Speaker 00:
Do you got some examples?

[00:14:11] Speaker 00:
Yeah, for example, let's say a couple gets in.

[00:14:15] Speaker 03:
No, no, I mean a real example, a case.

[00:14:18] Speaker 03:
Yeah.

[00:14:19] Speaker 03:
If you've got a case, can you cite the case, the Utah case?

[00:14:24] Speaker 00:
There are not too many Utah cases that deal with conduct other than physical injury.

[00:14:31] Speaker 00:
There are instances, but that have not gone to the Utah Supreme Court in which law enforcement arrives.

[00:14:39] Speaker 00:
A partnership are involved in a domestic dispute.

[00:14:47] Speaker 00:
Law enforcement's called.

[00:14:49] Speaker 00:
Children may be inside the home.

[00:14:51] Speaker 00:
They may be asleep.

[00:14:54] Speaker 00:
But under a Utah statute in existence, when Mr. Mariscal was convicted, would have led to him being charged with child abuse for the reason that the children were in the- Well, I guess what I'm trying to- has that actually happened?

[00:15:13] Speaker 03:
I mean, isn't that part of determining the scope of the state law?

[00:15:20] Speaker 00:
Yes, Your Honor.

[00:15:22] Speaker 00:
Reasonable probability.

[00:15:23] Speaker 00:
Has it happened?

[00:15:24] Speaker 00:
Yes, it's happened.

[00:15:25] Speaker 03:
The government cites a couple of Utah Court of Appeals cases that you don't talk about.

[00:15:30] Speaker 03:
Has your failure to refer to those in your briefing waived any reliance on those cases?

[00:15:36] Speaker 03:
Provost Citty and Pete?

[00:15:38] Speaker 03:
No, Your Honor.

[00:15:40] Speaker 03:
No, Your Honor.

[00:15:41] Speaker 03:
Why not?

[00:15:43] Speaker 00:
Well, because those are cases like, for example, on the child's endangerment

[00:15:51] Speaker 00:
where it was extreme instances where the parents were arrested and charged with child abuse.

[00:16:02] Speaker 00:
But they are extreme instances that went all the way to the Utah Supreme Court.

[00:16:07] Speaker 00:
There are instances, and there are cases, in Utah that do not necessarily reach the Utah Supreme Court, but they are still charged with child abuse

[00:16:19] Speaker 00:
but not under conduct or not under physical injury, but just conduct.

[00:16:24] Speaker 00:
That would under the statute in existence in 2016.

[00:16:27] Speaker 00:
Any other questions?

[00:16:36] Speaker 00:
Okay, my time's up.

[00:16:38] Speaker 00:
Thank you.

[00:16:51] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:16:53] Speaker 04:
My name is Rebecca Nahas, and I'm representing the United States Attorney General.

[00:16:58] Speaker 04:
The Court should affirm the agency's conclusion here that Petitioner is statutorily ineligible for cancellation of removal because his Utah child abuse statute categorically constitutes a crime of child abuse, child neglect, or child abandonment.

[00:17:14] Speaker 04:
And the court can affirm this conclusion that the Utah statute categorically qualifies as a crime of child abuse under two theories, depending on how the court interprets Utah's law.

[00:17:25] Speaker 01:
I thought you gave us three in the brief.

[00:17:28] Speaker 04:
Well, we gave you three alternatives in terms of the generic definition, but the two theories that the government is proposing is the first one is that this statute covers actual injury.

[00:17:42] Speaker 04:
So the matter of Alaska's Herrera definition of a crime of child abuse is referring to injurious types of child abuse crimes, and then matter of Sorum,

[00:17:53] Speaker 04:
expanded that or clarified that and said that it also included non-injurious endangerment crimes.

[00:17:59] Speaker 04:
And so starting with sort of the first bucket for injurious crimes, we agree with Your Honor Judge Mathis that this statute as written does refer to actual injury and it would satisfy the board's generic definition under matter of Alaska's Herrera

[00:18:20] Speaker 04:
which requires a reckless act or omission that impairs a child's well-being, whether physical or mental.

[00:18:27] Speaker 04:
And the reason is, even though the statute under subsection four of the definition of physical injury, even though it refers to endangerment type of crimes, it's clear when you look at the statutory structure as well as the two Utah decisions that discuss it, that Utah really does view this

[00:18:48] Speaker 04:
actual or real endangerment prong as an injury itself.

[00:18:53] Speaker 04:
So even though the child doesn't necessarily

[00:18:57] Speaker 04:
suffer any physical harm as a result of the defendant's action, there is still an injury by placing that child in a real situation of endangerment.

[00:19:10] Speaker 01:
Well, but to be clear then, the endangerment does not necessarily come with either a physical injury or necessarily a mental injury.

[00:19:22] Speaker 01:
The question is simply that Utah, as a matter of law, has defined this as being an injury, right?

[00:19:31] Speaker 04:
That's right.

[00:19:32] Speaker 04:
I think I am trying to reconcile that Provo v. Kinnon and

[00:19:40] Speaker 04:
which are the only two decisions that sort of discuss that fourth prong, and the statutory language, and I think you're correct, Your Honor, that Utah is defining physical injury, and I think it's important to point out the definition of physical injury in the statute has a header that reads an injury to or a condition of a child which impairs the physical condition of a child, including

[00:20:05] Speaker 04:
And then it goes on the list, four subsections, and I think including qualifies those four subsections.

[00:20:10] Speaker 04:
So what that means is the fourth prong is qualified by, it needs to have an injury or a condition that impairs a child's physical well-being.

[00:20:21] Speaker 04:
Now, Provo v. Cannon, it's a court of appeals decision out of Utah.

[00:20:26] Speaker 04:
They explain that that physical, how they put it, is that

[00:20:32] Speaker 04:
Physical injury under this definition may include conditions that are not the result of physical impact.

[00:20:39] Speaker 04:
So the impact itself doesn't need to be physical, but ultimately there is gonna be an injury because the statute requires that as an element.

[00:20:46] Speaker 01:
Well, as a matter of law then, it becomes a physical injury, but it doesn't require physical impact.

[00:20:51] Speaker 01:
And also, at least to the extent that we can measure it, it necessarily doesn't require mental impact either, right?

[00:20:58] Speaker 01:
I mean, you don't need to have somebody say,

[00:21:01] Speaker 01:
this person has PTSD to be able to qualify under the statute, right?

[00:21:05] Speaker 04:
That's right, Your Honor.

[00:21:07] Speaker 01:
Okay.

[00:21:08] Speaker 01:
Let me just take one thing perhaps off the table.

[00:21:12] Speaker 01:
The third alternative in your briefing, which included viewing it as a unitary concept, how does that square with the ebara?

[00:21:21] Speaker 01:
I mean, we can't do that, right?

[00:21:22] Speaker 01:
It's a non-starter, because ebara says that you cannot have criminal negligence as being a permissible mens rea.

[00:21:29] Speaker 04:
So yes, Your Honor, I'd like to clarify that that third point was requesting Chevron deference in full as to the board's generic definition of a crime of child abuse, except for negligent endangerment crimes, which this court has already found does not reasonably fall within the generic definition.

[00:21:48] Speaker 04:
So we were asking the court as a third alternative to defer in full to the rest of the definition apart from the Barra language.

[00:21:57] Speaker 04:
But we don't really think the court needs to do that.

[00:22:00] Speaker 04:
I think there's an easier path for the court.

[00:22:03] Speaker 04:
In Zarate, this court found that the board reasonably determined that a reckless non-injurious endangerment crime fell within the generic definition of a crime of child abuse, and so necessarily,

[00:22:21] Speaker 04:
a crime like this one that is injurious and more serious than the one at issue in Zarate is also reasonably included within the crime of child abuse provision.

[00:22:32] Speaker 04:
So we think that this court implicitly has already deferred to the generic definition as including this type of conduct.

[00:22:45] Speaker 03:
In Provo City, the court said under Utah's Child Abuse Act, physical injury can include acts that imperil or threaten a child's health or welfare without an actual physical impact on the child.

[00:23:04] Speaker 03:
Why doesn't that go broader than the federal definition?

[00:23:11] Speaker 03:
Why would it fit within the federal definition?

[00:23:14] Speaker 04:
Well, we think it fits within, depending on how the court interprets Utah's law, we think it could fit within the injurious definition, and I just outlined that with the statutory language referring to physical injury and defining physical injury and requiring an injury or condition that impairs the child's well-being.

[00:23:35] Speaker 04:
Also, if you look at the actual facts of those cases that interpret the fourth prong, while the child luckily didn't slip out of the defendant's hand, it was an instance where the defendant held a nine-month-old baby by its arms over a third-story balcony for several minutes.

[00:23:54] Speaker 04:
And while the baby luckily didn't fall, there was still that actual endangerment.

[00:24:00] Speaker 04:
It was so serious that it caused an injury as the court has interpreted the definition of physical injury.

[00:24:06] Speaker 03:
So we think it meets that prom, but to perhaps- That addresses whether it fits under the Utah statute, but does that conduct fit under the federal definition?

[00:24:18] Speaker 03:
In other words, does maintaining a filthy house

[00:24:23] Speaker 03:
qualify as a child abuse offense under the federal statute.

[00:24:28] Speaker 04:
Sure, so the board's definition for injurious crimes requires the impairment of a child's physical or mental well-being.

[00:24:36] Speaker 04:
And so we think that these endangerment equals injury.

[00:24:41] Speaker 04:
I think Utah is unique.

[00:24:42] Speaker 04:
I think that it's one of the only statutes that defines physical.

[00:24:45] Speaker 03:
Well, sometimes we like to think that.

[00:24:48] Speaker 03:
That they do find it.

[00:24:49] Speaker 03:
But where do the Utah Court of Appeals say that the Utah statute extends to mental?

[00:24:57] Speaker 03:
injury or mental well-being?

[00:25:00] Speaker 04:
Well, it did compare the definition of physical injury under the statute with the definition of serious physical injury.

[00:25:09] Speaker 04:
And it said that serious physical injury refers to emotional abuse and emotional harm.

[00:25:15] Speaker 04:
And so that supported interpreting physical injury as encompassing injuries that aren't necessarily physical.

[00:25:26] Speaker 04:
And so I think that in that way, but I think ultimately what Utah was doing was saying endangerment, actual real endangerment equals injury.

[00:25:37] Speaker 04:
And that satisfies the board's generic definition which requires impairment to a child's well-being, whether physical or mental.

[00:25:45] Speaker 02:
Do you think those cases correctly interpreted the Utah statute?

[00:25:51] Speaker 04:
I think that

[00:25:55] Speaker 04:
We have strained ourselves to come up with a way of reconciling everything, but I think there is a way of reconciling it.

[00:26:02] Speaker 04:
That when the endangerment is so serious or real, it can be an injury to a child, regardless of whether the child catches a disease, for example, in a filthy home.

[00:26:16] Speaker 04:
But I would like to spend the last few minutes discussing our alternative argument in case I haven't convinced your honor about Utah's

[00:26:25] Speaker 04:
interpretation of the fourth prime.

[00:26:28] Speaker 04:
So even if this court determines that Utah's statute is really reaching endangerment types of crimes, non-injurious endangerment, this court has already deferred to the board's generic definition for that non-injurious endangerment crime that involves a reckless mental state.

[00:26:47] Speaker 04:
So we already have our generic definition under this court's precedent, which the court is bound by.

[00:26:51] Speaker 04:
And this statute meets the mental state requirement, because it requires a mental state of recklessness.

[00:26:58] Speaker 04:
And it also meets the requirement under Zerate that there be a sufficiently high risk of harm to a child.

[00:27:06] Speaker 04:
And the reason is, again, we don't have a lot of case law.

[00:27:10] Speaker 03:
Well, I just want to jump in there.

[00:27:11] Speaker 03:
on Maserati, it says, as an element of the crime, a sufficiently high risk of harm to a child.

[00:27:20] Speaker 03:
Where in the Utah statute do we find the high risk element?

[00:27:25] Speaker 04:
Sure, Your Honor.

[00:27:25] Speaker 04:
So under the definition of physical injury, this state, as we've talked about, defines physical injury as any other condition

[00:27:38] Speaker 04:
which imperils the child's health or welfare.

[00:27:42] Speaker 04:
And so we can draw from that statutory definition which is incorporated within the element of infliction of physical injury or the crime that the state requires that the defendant imperils a child.

[00:27:59] Speaker 04:
And that language which isn't qualified by, for example, may imperil

[00:28:03] Speaker 04:
or potentially imperils, or possibly imperils, that language refers to actual impairment, which the Utah court interprets as endangerment.

[00:28:12] Speaker 04:
So actual endangerment, which is even higher than likelihood, which is usually the threshold for the high risk of injury to a child.

[00:28:25] Speaker 04:
And so we have the statutory language itself, which says which impairs, and we also have some of the language in the state court decisions,

[00:28:33] Speaker 04:
So Provo indicates that the defendant does not challenge the trial court's finding that this conduct imperiled the child.

[00:28:41] Speaker 04:
It didn't say could imperil the child or could have or may have.

[00:28:47] Speaker 04:
They also say they conclude that physical injury can include acts that imperil or threaten a child's health or welfare.

[00:28:54] Speaker 04:
PEEP, again, they conclude the filthiness of the home created a condition that endangered the health and welfare of the children who live there.

[00:29:03] Speaker 04:
So we think the statutory language, which says which imperils and these state decisions that discuss that prong, they all use language that refer to an actual or real endangerment, which is a sufficiently high risk of harm to a child.

[00:29:22] Speaker 04:
This is also supported by some of the circuit court decisions.

[00:29:26] Speaker 04:
So for example, Alma Saudi in the Eighth Circuit analyzed a Nebraska statute, and we do cite that decision in our brief.

[00:29:34] Speaker 04:
The Nebraska statute used similar language placed in a situation that endangers.

[00:29:41] Speaker 04:
And the court found that that was sufficient.

[00:29:44] Speaker 04:
Nunez in the Third Circuit looked at a New Jersey statute which used the language which would impair.

[00:29:50] Speaker 04:
and would meant likely, so the court found that that was a sufficiently high risk of harm to a child.

[00:29:58] Speaker 03:
And I just want to address... Before you leave that, can I just ask you one other thing?

[00:30:03] Speaker 03:
Yes, of course.

[00:30:06] Speaker 03:
In Ibarra, we said the Utah statute did not appear to criminalize child abuse unless the child was injured.

[00:30:13] Speaker 03:
How would you interpret the word injured in a bar?

[00:30:18] Speaker 03:
Is it limited to physical injury or would it be broader than that?

[00:30:26] Speaker 04:
Ibarra has been now limited in Zarate.

[00:30:31] Speaker 04:
Zarate has explained that Ibarra was really only concerned with non-injurious endangerment crimes that require negligent mens rea.

[00:30:41] Speaker 04:
So I think we have some clarification that Ibarra was really just concerned with that minimal conduct is not reasonably falling within

[00:30:49] Speaker 04:
the definition of a crime of child abuse.

[00:30:52] Speaker 04:
But I do think that going back to the board's generic definition, injury refers to, and it's in the board's definition expressly, mental or physical well-being.

[00:31:03] Speaker 04:
It's not limited to physical.

[00:31:04] Speaker 04:
So it could be a mental injury.

[00:31:09] Speaker 04:
But that's distinct from the matter of sorum definition, which is non-injurious endangerment crime.

[00:31:17] Speaker 04:
In my remaining seconds, I just want to address petitioners' claim that Borden has an impact here.

[00:31:24] Speaker 04:
It was interpreting an entirely separate removability ground for a crime of violence.

[00:31:33] Speaker 04:
distinct statutory language and it's entirely, her position is entirely inconsistent with Zarate.

[00:31:42] Speaker 04:
Zarate precludes that argument as it has deferred to reckless endangerment as recently included within the definition.

[00:31:51] Speaker 04:
Thank you.

[00:31:51] Speaker 04:
Unless your honors have any other questions.

[00:31:53] Speaker 04:
Thank you.

[00:31:54] Speaker 01:
Thank you, counsel.

[00:31:57] Speaker 01:
Did you have any rebuttal time?

[00:32:00] Speaker 01:
No.

[00:32:01] Speaker 01:
All right.

[00:32:02] Speaker 01:
Case is submitted.

[00:32:02] Speaker 01:
Thank you, counsel, for your fine arguments.