ARIEL MARCELO BASTIAS

v.

U.S. ATTORNEY GENERAL

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&#x²⁷;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&#x²⁷;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&#x²⁷;s application for cancellation of removal. * Honorable Donald M. Middlebrooks, United States District Judge for the Southern District of Florida, sitting by designation.

3 21-11416 Bastias appealed to the Board of Immigration Appeals, which affirmed the IJ&#x²⁷;s decision. In likewise concluding that Bastias&#x²⁷;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&#x²⁷; 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&#x²⁷;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&#x²⁷;t require "actual harm or injury to a child” if the defendant&#x²⁷;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&#x²⁷;s decision in this Court, which we denied. See Bastias v. U.S. Attʼy Gen., 42 F. 4th 1266, 1276 (11th Cir. 2022), vacated and remanded, 144 S. Ct. 2704 (mem.).

4 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)&#x²⁷;s phrase "crime of child abuse, child neglect, or child abandonment” to cover Bastias&#x²⁷;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&#x²⁷;s interpretation of a statute contravenes the Administrative Procedure Act&#x²⁷;s directive that courts independently decide statutory and legal questions. See id. at 396–413. Following its decision, the Supreme Court granted Bastias&#x²⁷;s petition, vacated this Court&#x²⁷;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&#x²⁷;s petition for review.

21-11416 1 NEWSOM, Circuit Judge, concurring in the judgment: I concur in the Court&#x²⁷;s judgment denying Ariel Bastias&#x²⁷;s petition for review. There&#x²⁷;s no easy way to put this, but in capsule form, here&#x²⁷;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&#x²⁷; interpretation of the phrase "crime of child abuse,” as used in⁸ U.S.C. § 1227(a)(2)(E)(i), to include a state-law offense involving criminally negligent conduct that constitutes maltreatment but doesn&#x²⁷;t cause physical injury. Under the Board&#x²⁷;s broad reading, the state-law offense to which Bastias pleaded guilty-engaging in an act of culpably negligent child neglect that doesn&#x²⁷;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&#x²⁷;s state-law child-neglect conviction constitutes a “crime of child

21-11416 2 abuse" within the meaning of⁸ 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 &#x²⁷;categorically fits&#x²⁷; within the generic definition of the federal offense.” Kemokai v. U.S. Attʼy 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&#x²⁷;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&#x²⁷;s case.” Gelin v. U.S. Att&#x²⁷;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&#x²⁷;ll unpack each in turn. Fair warning: It&#x²⁷;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,

21-11416 3 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. Attʼy 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)&#x²⁷;s proper interpretation as a matter of first principles, without regard to the Board’s preexisting interpretation.

21-11416 4 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&#x²⁷;s an antecedent question that we have to address: While it&#x²⁷;s no doubt true under Loper Bright that we "need not”—and indeed "may not"-defer to the Board&#x²⁷;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&#x²⁷;s interpretation? It&#x²⁷;s complicated, but I&#x²⁷;ve concluded more than a little reluctantly—that we are. I&#x²⁷;ll first detail what Pierre said, and then explain why I think we&#x²⁷;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.

21-11416 5 § 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 state and federal 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&#x²⁷;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&#x²⁷;s interpretation of § 1227(a)(2)(E)(i). In so doing, the panel pointed to the same two decisions that principally underlay the Board&#x²⁷;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&#x²⁷;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

21-11416 6 &#x²⁷;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&#x²⁷;s] generic and broad definition of &#x²⁷;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 &#x²⁷;child abuse&#x²⁷; found in Velazquez-Herrera and Soram, we (1) uphold them as reasonable interpretations of the INA, to the extent they apply to Pierre&#x²⁷;s case, and (2) conclude that the [Board] did not err in concluding that Pierre&#x²⁷;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&#x²⁷;s reach that I&#x²⁷;ll explore shortly—the

21-11416 7 panel appended a footnote to its decision: “Because Pierre&#x²⁷;s constitute generic crimes of child abuse." Id. at 1251 n.3. So, it&#x²⁷;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&#x²⁷;s interpretation—namely, that it includes a state-law offense that involves a criminally negligent conduct that constitutes maltreatment but that doesn&#x²⁷;t cause any actual injury. The much thornier question—to which I&#x²⁷;ll turn next—is whether, despite Loper Bright&#x²⁷;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&#x²⁷;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&#x²⁷;t overruled or abrogated Pierre en banc. (Yet—more on that in a bit.) The more pertinent question is whether the Supreme Court&#x²⁷;s decision in Loper Bright did so. It&#x²⁷;s a close call, but I don&#x²⁷;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 decision must &#x²⁷;demolish[]&#x²⁷; and &#x²⁷;eviscerate[]&#x²⁷; each of its &#x²⁷;fundamental props.&#x²⁷;" Del Castillo v. Sec&#x²⁷;y, Fla. Dep&#x²⁷;t of Health,²⁶ F. 4th 1214, 1223 (11th Cir. 2022) (second and third alterations in original). Loper Bright doesn&#x²⁷;t clear that hurdle. To be sure, Pierre&#x²⁷;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 &#x²⁷;child abuse&#x²⁷; 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&#x²⁷;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,

530 U.S. 428, 443 (2000)). That is not enough to justify overruling a statutory precedent. Id. Here&#x²⁷;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&#x²⁷;s holding, "[m]ere reliance on Chevron" doesn&#x²⁷;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&#x²⁷;s Chevron-era adoption of an agency&#x²⁷;s statutory interpretation or, instead only, and more narrowly, to the court&#x²⁷;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 &#x²⁷;specific agency action&#x²⁷; attaches to an agency&#x²⁷;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&#x²⁷; that the [Supreme] Court approved in [National Cable &

Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005)] was the FCC&#x²⁷;s 2002 [] Ruling” whereas “[t]he specific action before us here is the FCC&#x²⁷;s 2024 Safeguarding Order... [which] means we are not bound by Brand X&#x²⁷;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&#x²⁷;s acceptance of the BIA&#x²⁷;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&#x²⁷;s holding is narrowly limited to the circumstances of that case-in particular, to the court&#x²⁷;s determination there that a different Florida criminal statute, Fla. Stat. § 784.085, was a categorical match for the INA&#x²⁷;s “crime of child abuse" provision. See Br. of Appellant at 22-23; Marcus Concurring Op. at 13-15. It&#x²⁷;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 &#x²⁷;child abuse&#x²⁷; found in Velazquez-Herrera and Soram, we... uphold them as reasonable interpretations of the INA, to the extent they apply to Pierre&#x²⁷;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&#x²⁷;s

11 constitute generic crimes of child abuse." Id. at 1251 n.3. Thus, Bastias contends, Pierre blessed the Board&#x²⁷;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&#x²⁷;s position isn&#x²⁷;t trivial—but I think it&#x²⁷;s misguided for three (related) reasons. I&#x²⁷;ll address them in turn. a As an initial matter, I think Bastias&#x²⁷;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&#x²⁷;s case-specific application of a judicially approved agency interpretation to a particular set of facts, but rather, and more broadly, to that court&#x²⁷;s antecedent determination that the agency&#x²⁷;s reading of the governing statute was "lawful."

12 The first clue is the Court&#x²⁷;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&#x²⁷;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&#x²⁷;s reference to “statutory stare decisis" to indicate an intent to preserve Chevron-era courts&#x²⁷; 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&#x²⁷;s own words, it at

13 the very least included the approval of the EPA&#x²⁷;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&#x²⁷;s definition of the term &#x²⁷;source&#x²⁷; 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&#x²⁷;s approval of the Board&#x²⁷;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&#x²⁷;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&#x²⁷;s interpretation of a statute is an all-or-nothing thing: The agency&#x²⁷;s interpretation is either reasonable or it isn&#x²⁷;t. In construing a statutory phrase—here, "crime of child abuse" in § 1227(a)(2)(E)(i)—the agency in effect says, "Here&#x²⁷;s what that phrase means.” The reviewing court can then either bless or reject the agency&#x²⁷;s reading—thumbs up or thumbs down. But it makes¹ On balance, this reading of Loper Bright is reinforced by the Court&#x²⁷;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).

14 no sense to say that an agency&#x²⁷;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&#x²⁷;s interpretation entails potentially odd results-here, for example, that it might reach purely negligent conduct that doesn&#x²⁷;t actually injure a child-that might provide the court a basis to reject it as unreasonable. But I don&#x²⁷;t think it&#x²⁷;s coherent for a court applying Chevron to say that the agency&#x²⁷;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&#x²⁷;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&#x²⁷;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

15 holding? It&#x²⁷;s not, as Bastias suggests, just the bottom-line result. While it&#x²⁷;s true that we&#x²⁷;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&#x²⁷;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&#x²⁷;s opinion was "necessary to th[e] result." [fn²] So what about Pierre, what was its “holding[]"—and, in particular, was its adoption of the Board&#x²⁷;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 accepted² To be clear, “strict necessary-ness is not essential to a statement&#x²⁷;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&#x²⁷;t strictly necessary to a decision&#x²⁷;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&#x²⁷;s statement as part of its holding.

16 as reasonable—and thus as binding—the Board&#x²⁷;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&#x²⁷;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&#x²⁷;s holding, the Pierre panel&#x²⁷;s adoption of the Board&#x²⁷;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&#x²⁷;s logic; without a federal baseline against which to measure the Florida battery statute at issue there, the panel couldn&#x²⁷;t have conducted the comparison that underlay its categorical-approach analysis. [fn³] 3 Separately—and perhaps more broadly—we have suggested a court&#x²⁷;s “statement[] of a legal rule” constitutes a holding, even if "technically unnecessary to a case&#x²⁷;s resolution.” Files, 63 F. 4th at 928. So even if the Pierre panel&#x²⁷;s adoption of the BIA&#x²⁷;s interpretation wasn&#x²⁷;t strictly, logically necessary to its decision—in the deductive sense that I&#x²⁷;ve outlined above the line—it

17 To sum up: Loper Bright didn&#x²⁷;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&#x²⁷;ve tried to explain, the Pierre panel&#x²⁷;s adoption of the Board&#x²⁷;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&#x²⁷;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).

18 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)&#x²⁷;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&#x²⁷;s failure to provide "care, supervision, and services necessary to maintain the child&#x²⁷;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&#x²⁷;s no answer to say, as Bastias does, that the Florida statute isn&#x²⁷;t a categorical match because it doesn&#x²⁷;t require harm. Pierre squarely forecloses

19 that argument, as it explained that "child abuse crimes under the INA are not limited to those offenses &#x²⁷;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&#x²⁷;s characteristically thoughtful separate opinion, which concludes (1) that we are not bound by Pierre but (2) that Bastias&#x²⁷;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&#x²⁷;s "adoption of the BIA&#x²⁷;s definition of the [phrase] ‘crime of child abuse&#x²⁷; was not complete or all-encompassing." Marcus Concurring Op. at 16. Rather, he says, the panel accepted only the "part[]" of the BIA&#x²⁷;s interpretation that covers knowing violations and actual injuries and rejected the "part[]" that went further. Id. at 16-17. And as I&#x²⁷;ve acknowledged, Judge Marcus&#x²⁷;s reading of Pierre isn&#x²⁷;t without some foundation. After all, the panel there (1) purported to "uphold" the BIA&#x²⁷;s interpretations of § 1227(a)(2)(E)(i) in Velazquez-Herrera and Soram “to the extent they appl[ied] to Pierre&#x²⁷;s case” and (2) said that "[b]ecause Pierre&#x²⁷;s conviction necessarily involved a knowing and overt act, [his] case d[id] not require [the panel] to determine whether purely negligent constitute generic crimes of child abuse." 879 F. 3d at 1251 & n.3.

20 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. [fn⁴] 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 in⁸ 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 child⁴ 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”).

21 abandonment." In his categorical-approach analysis, Judge Marcus focuses on what he calls “the federal &#x²⁷;crime of . . . child neglect&#x²⁷; standing alone, rather than making the comparison to the enumerated bundle of crimes against children found in the INA (&#x²⁷;child abuse, child neglect, or child abandonment&#x²⁷;).” 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&#x²⁷;m not so sure. As an initial matter, it&#x²⁷;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&#x²⁷;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 Appellee⁸; accord Supp. Br. of Appellant⁶ 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)&#x²⁷;s title as well as existing sister-circuit precedent—doesn&#x²⁷;t strike me as a particularly "eas[y]." Marcus Concurring Op. at 26–30 & n.2.

22 Moreover, and in any event, even if Judge Marcus is right that "child neglect” can be broken out as a standalone federal comparator, it&#x²⁷;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&#x²⁷;s petition should thus be granted—with which Judge Marcus disagrees. [fn⁵] 5 Judge Marcus doesn&#x²⁷;t mention the results of the Ibarra panel&#x²⁷;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

23 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&#x²⁷;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&#x²⁷;t so much conceding recklessness as much as he&#x²⁷;s ruling out negligence. Moreover, and in any event, we have long held that “[a] court is not bound by the parties&#x²⁷; 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&#x²⁷;s reply brief, the legal fact remains: Section 1227(a)(2)(E)(i) crimes that don&#x²⁷;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&#x²⁷;s outcome. II Here, then, is my conclusion: Taking the Board&#x²⁷;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 categorical match for the INA&#x²⁷;s generic federal "crime of child abuse." Accordingly, Bastias&#x²⁷;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&#x²⁷;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

24 understanding of that phrase. At the very least, I think that Bastias has presented substantial arguments that the Board&#x²⁷;s reading of § 1227(a)(2)(E)(i) isn&#x²⁷;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&#x²⁷;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.

I.

Ariel Marcelo Bastias is a native and citizen of Chile. On February⁶, 1997, Bastias adjusted status to that of a Lawful Permanent Resident. On October⁴, 2019, Bastias pleaded guilty to an offense under Florida Statute § 827.03(2), which reads this way:

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&#x²⁷;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

United States, 559 U.S. 133, 137 (2010)). Bastias&#x²⁷;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&#x²⁷;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&#x²⁷;s R.R. Supply v. Att&#x²⁷;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)).

III.

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&#x²⁷;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

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&#x²⁷;s more, we know that culpable negligence requires more than simple negligence from an examination of the legislative and judicial history surrounding Florida&#x²⁷;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&#x²⁷;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&#x²⁷;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&#x²⁷;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

B.

The next step in the matching process requires us to determine what federal crime enumerated in the INA we should compare to Bastias&#x²⁷;s state conviction for child neglect. As I&#x²⁷;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

Black&#x²⁷;s Law Dictionary (6th ed. 1990) (“Desertion or willful forsaking."). What&#x²⁷;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 &#x²⁷;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-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 in⁸ 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

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&#x²⁷;s care with proper food, clothing, shelter, supervision, medical care, or emotional stability." Merriam-Webster&#x²⁷;s Dictionary of Law 324 (1996); • "failure to do or perform some work, act, or duty, required by one&#x²⁷;s status or by law." Ballentine&#x²⁷;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&#x²⁷;s duty." Black&#x²⁷;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&#x²⁷;s Dictionary lists specific things that someone has failed to provide to a child that do not directly result in harm—such as

III

Having established that the generic federal offense of child abuse is not confined to injurious conduct, embraces culpably negligent acts, and may extend to those who are not parents nor guardians of the victim, it is a fairly straightforward matter to

[fn¹]: 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 October¹, 1981. Id. at 1209. [fn²]: 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. [fn³]: Separately—and perhaps more broadly—we have suggested a court&#x²⁷;s “statement[] of a legal rule” constitutes a holding, even if "technically unnecessary to a case&#x²⁷;s resolution.” Files, 63 F. 4th at 928. So even if the Pierre panel&#x²⁷;s adoption of the BIA&#x²⁷;s interpretation wasn&#x²⁷;t strictly, logically necessary to its decision—in the deductive sense that I&#x²⁷;ve outlined above the line—it seems to me that it would qualify for holding status as the “statement[] of a legal rule." [fn⁴]: 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”). [fn⁵]: Judge Marcus doesn&#x²⁷;t mention the results of the Ibarra panel&#x²⁷;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 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&#x²⁷;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&#x²⁷;t so much conceding recklessness as much as he&#x²⁷;s ruling out negligence. Moreover, and in any event, we have long held that “[a] court is not bound by the parties&#x²⁷; 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&#x²⁷;s reply brief, the legal fact remains: Section 1227(a)(2)(E)(i) crimes that don&#x²⁷;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&#x²⁷;s outcome.