Post–Loper Bright framework: Florida “culpable negligence” child‑neglect is a categorical “crime of child neglect” under INA § 1227(a)(2)(E)(i), and Chevron‑era Pierre remains operative (for now)

Introduction

In Ariel Marcelo Bastias v. U.S. Attorney General, the Eleventh Circuit—on remand from the Supreme Court following Loper Bright Enterprises v. Raimondo’s abrogation of Chevron deference—again denied a lawful permanent resident’s petition for review, holding that his Florida conviction for child neglect under Fla. Stat. § 827.03(2)(d) renders him removable as convicted of “a crime of child abuse, child neglect, or child abandonment” under 8 U.S.C. § 1227(a)(2)(E)(i).

The panel issued a brief per curiam disposition stating the petition is denied “for the reasons explained in the opinions to follow.” Three separate concurring opinions then supply those reasons, each taking a distinct path:

• Judge Newsom concludes the court is still bound by its Chevron‑era precedent in Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th Cir. 2018), because Loper Bright preserved the holdings of prior Chevron cases via statutory stare decisis. Under Pierre’s acceptance of the BIA’s broad definition of “crime of child abuse,” Florida’s culpable‑negligence neglect offense categorically qualifies.
• Judge Marcus rejects Pierre’s controlling force here, reads the statute de novo, and finds a categorical match between Florida’s § 827.03(2)(d) and the federal “crime of child neglect” specifically (without resolving the full breadth of “child abuse”), because the generic offense requires at least recklessness and a risk of serious harm—elements Florida’s statute meets.
• Judge Middlebrooks agrees that, even de novo, Florida’s offense is a categorical fit within the single, unitary statutory category “a crime of child abuse, child neglect, or child abandonment,” because Congress intended to cover endangerment‑type crimes, injury is not required, and Florida’s “culpable negligence” is an egregious, near‑reckless mental state.

The upshot is a precedential denial of the petition and a practical rule for immigration cases in the Eleventh Circuit: a Florida conviction under § 827.03(2)(d) is a deportable child‑neglect crime, even absent actual injury, because it requires culpable negligence (at least akin to recklessness) and a serious risk of harm.

Summary of the Opinion

The court holds that Bastias’s Florida child‑neglect conviction is a categorical match to the removal ground in INA § 237(a)(2)(E)(i), and thus he is removable. The panel issues no unified rationale. Instead:

• Judge Newsom (concurring in the judgment): Despite Loper Bright, the Eleventh Circuit remains bound by Pierre’s Chevron-based acceptance of the BIA’s broad “crime of child abuse” definition. Loper Bright preserves “holdings” of Chevron-era decisions through statutory stare decisis, and the court’s prior‑panel‑precedent rule requires adherence. On that federal baseline (which includes endangerment-type crimes and does not require actual injury), Florida’s § 827.03(2)(d) categorically qualifies.
• Judge Marcus (concurring in the judgment): Pierre does not control because it accepted the BIA’s definition only “to the extent [it] appl[ied]” to a knowing battery-by-bodily-fluids crime and expressly declined to reach purely negligent, noninjurious conduct. Conducting a de novo categorical analysis, he isolates the federal comparator as the enumerated “crime of child neglect” (not the bundled phrase writ large), interprets the generic offense to require at least recklessness and a risk of serious harm, and finds Florida’s culpable‑negligence neglect a match.
• Judge Middlebrooks (concurring in the judgment): Even de novo, Congress’s single category “a crime of child abuse, child neglect, or child abandonment” encompasses noninjurious endangerment by caregivers; Florida “culpable negligence” marks highly egregious conduct akin to reckless indifference, so Florida’s statute fits the federal generic offense.

The panel therefore denies the petition for review. Judge Newsom signals that en banc review would be appropriate to clarify how Loper Bright’s statutory stare decisis interacts with the circuit’s prior‑panel‑precedent rule and to reconsider Pierre’s breadth.

Analysis

Precedents and Authorities Cited

• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overrules Chevron deference; courts must exercise independent judgment on statutory meaning. Critically, it preserves Chevron‑era “holdings that specific agency actions are lawful” under statutory stare decisis, cautioning that “mere reliance on Chevron” is not a special justification to overrule those holdings.
• Pierre v. U.S. Attorney General, 879 F.3d 1241 (11th Cir. 2018): Applying Chevron, accepted the BIA’s broad “crime of child abuse” definition (intentional, knowing, reckless, or criminally negligent maltreatment or impairment) and held a knowing “battery of a child by bodily fluids” is a categorical match. Footnote reserved the question whether purely negligent, noninjurious crimes qualify.
• BIA precedents:
  • Matter of Velazquez‑Herrera, 24 I. & N. Dec. 503 (BIA 2008): Broad definition of “crime of child abuse” encompassing intentional, knowing, reckless, or criminally negligent maltreatment or impairment.
  • Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010): No requirement of actual harm; endangerment‑type crimes qualify.
  • Matter of Rivera‑Mendoza, 28 I. & N. Dec. 184 (BIA 2020): Affirms risk-of-harm framework.
• Supreme Court categorical approach line: Taylor v. United States, Moncrieffe v. Holder, Esquivel‑Quintana v. Sessions, Johnson v. United States, and Leocal v. Ashcroft—requiring a elements-only, least‑culpable‑conduct comparison to a generic federal definition.
• Florida culpable negligence cases: Russ v. State (1939), Preston v. State (1952), State v. Green (1977), State v. Joyce (1978), McCloud v. State (2017), Taylor v. State (2023), Ristau v. State (2016), Arnold v. State (2000), Hill v. State (2003), Jones v. State (2020), Kelley v. State (2022), Ibeagwa v. State (2014): Together show “culpable negligence” is egregious, grossly flagrant conduct evincing reckless disregard or conscious indifference; well above simple negligence.
• Competing circuit views on mens rea and injury:
  • Ibarra v. Holder, 736 F.3d 903 (10th Cir. 2013): Criticized BIA’s breadth; suggested noninjurious child endangerment often requires higher mens rea (knowledge/intent) across states.
  • Florez v. Holder, 779 F.3d 207 (2d Cir. 2015): Approved BIA’s risk‑of‑harm approach; no injury required.
  • Cruz v. Garland, 101 F.4th 361 (4th Cir. 2024): Read the INA phrase as a “single category” of child‑abuse crimes broad enough to include neglect/abandonment without injury.
  • Sandoval Argueta v. Bondi, 137 F.4th 265 (5th Cir. 2025): Addressed child‑abuse predicates (sexual/solicitation context).
  • Lopez v. Garland, 116 F.4th 1032 (9th Cir. 2024): Recognized binding effect of some Chevron-era acceptances of BIA interpretations post–Loper Bright.
• Methodological authorities: Skidmore v. Swift (persuasive weight of agency views), CBOCS West v. Humphries (statutory stare decisis), Halliburton v. Erica P. John Fund (special justification), and treatises on stare decisis and precedent (Garner et al.).

Legal Reasoning

1) The Loper Bright question: What survives of Pierre?

Judge Newsom reads Loper Bright’s statutory stare decisis passage to preserve Chevron‑era holdings that specific agency actions were lawful—including a court’s antecedent adoption of an agency’s statutory interpretation—not just case‑specific applications. Coupled with the Eleventh Circuit’s prior‑panel‑precedent rule, Pierre’s acceptance of the BIA’s broad “crime of child abuse” definition governs until abrogated en banc or by the Supreme Court. He emphasizes Chevron’s “all‑or‑nothing” step‑two inquiry: an agency interpretation is either reasonable or not; a court cannot deem it reasonable “only in part.” On that view, Pierre’s approval of the BIA’s inclusion of criminal negligence and noninjurious endangerment within “crime of child abuse” is part of Pierre’s holding.

Judge Marcus reads Loper Bright differently: what survives is only “the result and those portions of the opinion necessary to that result.” Because Pierre addressed a different Florida statute (a knowing battery-by-bodily-fluids offense), accepted the BIA’s definition only “to the extent [it] appl[ied]” to that case, and expressly reserved the negligence/no‑injury question, Pierre does not control this case. The court must interpret § 1227(a)(2)(E)(i) de novo.

Judge Middlebrooks largely sidesteps the stare‑decisis puzzle, reasoning that even without Pierre the best reading of the INA (as of 1996) captures risk‑of‑harm neglect and abandonment as part of a single child‑abuse category.

2) Choosing the federal comparator: The “bundle” vs. the “piece”

A key interpretive choice is whether to compare Florida’s child‑neglect statute:

• To the entire bundled phrase “a crime of child abuse, child neglect, or child abandonment” as one unitary category (Judge Middlebrooks’s view; consistent with BIA/Soram and the Fourth Circuit in Cruz); or
• To the discrete enumerated offense most closely corresponding by text—here, “child neglect” (Judge Marcus’s view, invoking the disjunctive “or,” the anti‑surplusage canon, and conventional matching under the categorical approach).

In practical terms, both approaches converged in outcome: whether as part of the broader “child abuse” category or as the discrete “child neglect” offense, the federal generic definition does not require actual injury and embraces risk‑based endangerment.

3) The federal generic definition: injury, risk, and mens rea

Across the concurrences, three core propositions emerge about the federal generic offense:

• No injury requirement. The phrase must be broad enough to reach “neglect” and “abandonment,” which are deprivations and supervisory failures that often manifest as serious risk rather than realized harm. Dictionaries circa 1996, BIA precedents, and Pierre all support a risk‑of‑harm understanding.
• Mens rea of at least recklessness (or its equivalent) for neglect. Judge Marcus grounds this in ordinary meaning and (notably) Petitioner’s own concession; Judge Middlebrooks stresses that the statute’s structure and contemporary sources say nothing that elevates the mens rea to knowledge or intent for neglect, and that egregious risk‑creating conduct suffices.
• No categorical “parent/guardian only” limitation. Contemporary definitions focus on duties arising from status or role—“one’s care,” “parental substitute,” or “caregiver”—not strictly legal parenthood. Congress did not textually confine the offense to parents.

4) The state statute’s elements: Florida culpable negligence and neglect

Florida’s § 827.03(2)(d) criminalizes willful or culpably negligent “neglect” of a child without causing great bodily harm, permanent disability, or disfigurement. “Neglect” is defined to include a caregiver’s failure to provide care/supervision necessary to maintain a child’s health, and it expressly covers a single omission that “results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death.”

Florida “culpable negligence,” as interpreted by the Florida Supreme Court for decades, is not simple negligence; it is grossly flagrant conduct showing reckless disregard for human life or an entire want of care akin to intentional wrongdoing. Lower Florida courts sometimes articulate the standard using “knew or should have known” phrases, but the cases collectively demonstrate a demanding, egregious standard—often as (or more) serious than recklessness—reserved for the worst supervisory failures. Examples where culpable negligence was found (e.g., meth use while caring for a newborn; leaving very young children alone for hours who then drowned) underscore its gravity; several close cases where convictions were reversed (e.g., Kelley, Jones, Kish) show that ordinary negligence or poor judgment is not enough.

5) The categorical match

Given the federal generic elements and Florida’s statutory elements:

• Actus reus: Florida’s statute expressly encompasses risk‑of‑harm neglect (“could reasonably be expected to result in” serious injury or substantial risk of death), aligning with the federal understanding that neglect covers endangerment without realized injury.
• Mens rea: Florida’s “culpable negligence” is at least the functional equivalent of recklessness (and sometimes described as more), which satisfies the federal generic requirement articulated by Judges Marcus and Middlebrooks. Under Judge Newsom’s Pierre‑controlled baseline, even criminally negligent endangerment suffices.
• Victim‑care relationship: The Florida “caregiver” concept fits contemporary federal generic usage (duty “under one’s care” or by status), not limited to parents/guardians.

On both the Newsom (Pierre‑controlled) and Marcus/Middlebrooks (de novo) paths, the result is the same: § 827.03(2)(d) is a categorical “crime of child neglect” (and thus within the INA’s child‑abuse category).

Impact and Implications

• Immediate effect in the Eleventh Circuit. Florida convictions for child neglect under § 827.03(2)(d)—even where no serious injury resulted—can trigger deportability under § 1227(a)(2)(E)(i), because the offense requires culpable negligence (practically, at least recklessness) and a serious risk of harm.
• Post–Loper Bright transition rules. The decision exposes a key doctrinal tension: how to treat Chevron‑era panel decisions in the wake of Loper Bright. Judge Newsom would treat Pierre’s adoption of the BIA’s interpretation as preserved by statutory stare decisis and binding via the prior‑panel‑precedent rule; Judge Marcus would confine Pierre to its facts, compelling de novo interpretation now. Expect further en banc clarification in the Eleventh Circuit, and continued divergence among circuits.
• Breadth of “child abuse” in immigration law. The court’s analyses reinforce that endangerment‑type offenses (neglect/abandonment) are within the INA even without actual harm, provided the mens rea and risk thresholds are sufficiently serious. For statutes keyed to ordinary negligence with no serious risk, litigants may still have viable categorical arguments—especially outside Florida or under materially different mens rea formulations.
• Mens rea debates will persist. Some circuits (e.g., Ibarra) have suggested that noninjurious child‑endangerment crimes often required knowledge/intent in 1996. The Eleventh Circuit’s concurrences indicate that, at least for “child neglect,” recklessness (or its Florida equivalent, culpable negligence) suffices; nothing in the INA text elevates the mens rea to knowledge/intent for neglect.
• Caregiver scope. The generic offense is not limited to parents or legal guardians; persons who assume responsibility for a child’s welfare fall within the ambit. This matches Florida’s “caregiver” definition and contemporary legal usage.
• Agency interpretations after Loper Bright. Although Chevron deference no longer applies, BIA precedents may still carry Skidmore persuasive weight. Here, even on de novo review, the BIA’s endangerment‑inclusive understanding proved persuasive to two judges and controlling under Pierre to the third.

Complex Concepts Simplified

• Categorical approach. A two‑step, elements‑only comparison: (1) define the generic federal offense; (2) ask whether the least conduct criminalized by the state statute necessarily fits that generic definition. The court ignores the actual facts of the defendant’s case.
• “Culpable negligence” (Florida) vs. negligence vs. recklessness.
  • Simple negligence: failure to perceive a risk that a reasonable person would perceive.
  • Recklessness: conscious disregard of a substantial and unjustifiable risk.
  • Culpable negligence (Florida): egregious, grossly flagrant disregard akin to intentional wrongdoing—regularly described in terms equal to or exceeding recklessness.
• Statutory stare decisis (post–Loper Bright). Even though Chevron is overruled, the Supreme Court instructed that “holdings” of cases decided under Chevron—those upholding specific agency actions—remain in place absent a special justification to overrule. The lower courts now wrestle with what counts as the “holding” preserved and how that interacts with circuit rules on prior‑panel precedent.
• Unitary phrase vs. disjunctive list. INA § 1227(a)(2)(E)(i) uses “a crime of child abuse, child neglect, or child abandonment.” Some read this as one broad category (“child abuse” embracing neglect/abandonment), others as three distinct enumerations. Either way, neglect is textually central and can be analyzed on its own terms for categorical matching.

Conclusion

On remand from the Supreme Court’s seismic rejection of Chevron deference in Loper Bright, the Eleventh Circuit denied Bastias’s petition for review, holding that Florida’s “culpable negligence” child‑neglect offense is a categorical “crime of child neglect” under INA § 1227(a)(2)(E)(i). The panel’s separate concurrences chart two doctrinal roads to the same destination:

• One emphasizes continuity—Pierre’s Chevron‑era acceptance of the BIA’s broad child‑abuse definition remains binding via statutory stare decisis and the prior‑panel‑precedent rule.
• The other two emphasize independent judicial judgment—on a de novo reading, the generic federal crime of child neglect requires at least a reckless mental state and serious risk of harm (not actual injury), a standard Florida’s culpable‑negligence statute meets.

Substantively, the decision confirms that risk‑based child‑neglect offenses, when anchored in a sufficiently serious mens rea (here, Florida’s egregious “culpable negligence”) and a serious risk of harm, fall within the INA’s child‑abuse removal ground—even without actual injury and even when the offender is a non‑parent caregiver. Institutionally, the decision spotlights a live, consequential question for the Eleventh Circuit: how to calibrate the force of Chevron‑era holdings after Loper Bright. Judge Newsom’s invitation for en banc review suggests that the court may soon offer broader guidance on that jurisprudential transition.

Key Takeaways

• Florida child‑neglect convictions under § 827.03(2)(d) categorically trigger removability under INA § 1227(a)(2)(E)(i).
• Actual injury to the child is not required; a serious, reasonably expected risk of harm suffices.
• Florida’s “culpable negligence” is at least recklessness‑equivalent; it is far above simple negligence.
• Caregivers beyond parents (e.g., babysitters, adult household members) can commit child neglect within the INA’s scope.
• The Eleventh Circuit’s treatment of Chevron‑era holdings after Loper Bright remains in flux; Pierre’s status may see en banc clarification.