Post–Loper Bright Seventh Circuit Rule: Independent Construction of § 1227(a)(2)(E)(i) and a “Unitary” Generic Crime of Child Abuse Requiring (At Least) Criminal Negligence

A. Precedents Cited

1. Standard of review and scope of review

• Aguirre-Zuniga v. Garland: supplied the de novo standard for reviewing the legal question whether a conviction fits a removal-related category, and the rule that when the BIA provides its own analysis while affirming, the court reviews both the IJ and BIA reasoning.

2. The demise of Chevron deference and the new interpretive posture

• Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.: described as the prior regime under which the court would have assessed whether the BIA’s interpretation was reasonable and, if so, deferred.
• Loper Bright Enterprises v. Raimondo: the pivotal methodological authority. The panel treated Loper Bright as requiring independent judicial construction of § 1227(a)(2)(E)(i), using traditional tools of statutory construction and giving careful attention (not deference) to executive-branch judgment.

3. The categorical approach and building a generic federal offense

• Esquivel-Quintana v. Sessions: cited for the core categorical-approach rule—focus on the statute of conviction rather than underlying facts.
• Hassan v. Bondi: cited for assessing the “minimum conduct” necessary for conviction under the state statute.
• Shular v. United States and Mathis v. United States: cited for the concept of crafting a “generic” definition when the federal statute references an offense without enumerating elements—i.e., the elements “as commonly understood.”
• Mwendapeke v. Garland: cited for the mismatch principle—no categorical match if the state statute sweeps more broadly than the generic federal offense.

4. Identifying the elements of Wisconsin’s statute

• Parzych v. Garland: provided the methodology for determining state-law elements by consulting statutory text and state-court interpretations.
• State v. Evans: used to confirm the elements and definitions embedded in Wisconsin’s understanding of “intentionally” and “neglect,” including the explanation (via the model jury instruction) that neglect involves failure (other than poverty) to provide necessities “so as to seriously endanger the physical health of the child.”

5. Prior agency and circuit constructions of § 1227(a)(2)(E)(i)

• Garcia v. Barr: cited to illustrate that courts of appeals have regarded § 1227(a)(2)(E)(i) as silent or ambiguous as to the meaning of “crime of child abuse.”
• Matter of Rivera-Mendoza: described the BIA’s broad definition (intentional/knowing/reckless/criminally negligent act or omission constituting maltreatment or impairment), and the BIA’s “unitary concept” approach.
• Matter of Soram: referenced for the BIA’s view that “crime of child abuse” includes neglect and abandonment and may encompass child endangerment.
• Sandoval Argueta v. Bondi: cited both for historical Chevron-era deference by sister circuits to the BIA and for its post-Cruz adoption of Cruz’s approach.
• Cruz v. Garland: the centerpiece persuasive authority. The Seventh Circuit adopted Cruz’s “unitary concept” reading and its elements-based definition requiring harm or a sufficiently high risk of harm to a child, with a culpable mental state of at least criminal negligence.
• Leon-Briviesca v. Blanche: cited as additional post-Cruz circuit support adopting similar reasoning.
• Bastias v. U.S. Att’y Gen.: cited to show Eleventh Circuit concurrence support for similar definitions (including discussion of mens rea thresholds).

6. Waiver and contrary authority

• Rock Hemp Corp. v. Dunn: applied to deem the vagueness argument waived because it was underdeveloped.
• Ibarra v. Holder: acknowledged as a narrower Tenth Circuit approach rejecting the BIA’s broad view in a specific “criminal negligence—no injury” context. The Seventh Circuit distinguished it on the facts and mens rea of the Wisconsin statute, concluding that—even under Ibarra’s more restrictive premise—the intentional Wisconsin offense would still fall within the federal ambit.

B. Legal Reasoning

1. Independent judicial construction after Loper Bright

The opinion’s methodological move is explicit: where the court previously would have evaluated the BIA’s reasonableness under Chevron, Loper Bright Enterprises v. Raimondo requires the court to interpret § 1227(a)(2)(E)(i) itself. The panel still considered the BIA’s and other courts’ reasoning as persuasive authority, but not as binding deference.

2. Categorical approach mechanics

The court applied a classic categorical approach, focusing solely on the elements of Wis. Stat. Ann. § 948.21(1) (2011) and the generic federal definition of “crime of child abuse.” It emphasized “minimum conduct” and compared elements, not facts.

3. The state offense (Wis. Stat. Ann. § 948.21(1)-(2) (2011))

From the statutory text—confirmed by State v. Evans—the court derived the essential features:

• Mens rea: intentional conduct (purpose or awareness of practical certainty).
• Actus reus: action or failure to act by a person responsible for the child’s welfare.
• Result/risk concept: “contributes to the neglect,” including liability even if neglect does not occur where natural and probable consequences would cause neglect (§ 948.21(2)).

The panel rejected reliance on the statute’s later amendment (changing mens rea to negligence) because the categorical inquiry is anchored to the version of the statute of conviction at the time of the plea.

4. The federal generic offense under 8 U.S.C. § 1227(a)(2)(E)(i)

Adopting the reasoning of Cruz v. Garland and the multi-circuit consensus it described, the Seventh Circuit held:

• The phrase “a crime of child abuse, child neglect, or child abandonment” is a single category, treated as “a crime of child abuse” for generic-definition purposes.
• Generic elements: (1) culpable mental state (≥ criminal negligence); (2) act or omission causing harm or creating a reasonable probability of harm; (3) to a child.

5. Element-by-element match

The match was straightforward in the court’s view:

• Act/omission: both statutes cover an act or omission.
• Mens rea: Wisconsin’s “intentional” requirement is stricter than the federal floor (criminal negligence), so every Wisconsin conviction necessarily satisfies the federal mens rea requirement.
• Harm/risk to a child: Wisconsin’s neglect framework (including § 948.21(2)’s natural-and-probable-consequences clause) fits within the generic federal requirement of harm or a reasonable probability of harm to a child.

The court therefore concluded Wis. Stat. Ann. § 948.21(1) (2011) is categorically a “crime of child abuse” under § 1227(a)(2)(E)(i), rendering Reynoso-Salgado ineligible for cancellation under § 1229b(b).

6. Disposition of petitioner’s arguments

• Vagueness: waived for lack of development under Rock Hemp Corp. v. Dunn.
• Congressional intent / “no harm” neglect: the court distinguished Ibarra v. Holder and concluded that, regardless of whether federal law’s mens rea floor is set at criminal negligence or higher, Wisconsin’s intentional neglect offense falls within the federal generic definition adopted.

C. Impact

1. Seventh Circuit alignment on a national post-Loper Bright definition

This opinion places the Seventh Circuit alongside the Fourth (Cruz v. Garland), Fifth (Sandoval Argueta v. Bondi), and Ninth (Leon-Briviesca v. Blanche) in treating § 1227(a)(2)(E)(i) as a unitary category and adopting a generic definition that includes endangerment-type conduct (harm or a reasonable probability of harm) with mens rea down to criminal negligence.

2. Practical consequences for cancellation of removal eligibility

Because § 1229b(b) conditions eligibility on not having a conviction that triggers certain removal-related bars, the decision makes Wisconsin’s intentional child-neglect convictions under the 2011 version of § 948.21(1) a clear disqualifier for cancellation within the Seventh Circuit. The analysis also signals that courts may treat a wide range of neglect/endangerment statutes as matches if they require at least criminal negligence and contemplate harm or a sufficiently high risk.

3. Reduced agency interpretive primacy, increased judicial harmonization efforts

While rejecting Chevron-style deference, the court nonetheless built its rule by adopting the reasoning of sister circuits and by acknowledging the BIA’s experience as potentially persuasive. The likely systemic impact is less about agency control and more about how quickly circuits converge (or diverge) on shared generic definitions when independently construing ambiguous removal categories.

4. Continued tension with narrower readings

The opinion does not overrule Ibarra v. Holder (a Tenth Circuit decision), but it narrows its practical influence within the Seventh Circuit by emphasizing that higher-mens-rea neglect statutes will qualify even if one assumes a more restrictive federal baseline. Future conflict may remain where a state statute is truly “no injury” and at a mens rea no higher than criminal negligence, a scenario more closely resembling Ibarra.