The Nevada statute at issue defines as a misdemeanor (1) an act or omission (2) by a person “responsible for the safety or welfare of a child” (3) who has no prior child abuse convictions, (4) which act or omission “permits or allows” (5) the child “to be placed in a situation where the child may suffer physical pain or mental suffering” (6) as a result of the responsible person’s “abuse or neglect,” (7) even if “substantial bodily or mental harm does not result to the child.”
Like the generic definition of a crime of child abuse, the statute requires a mens rea of at least negligence. However, the statute does not specify what probability of harm to the child the “situation” in which the child is placed must carry; it merely refers to situations “where the child may suffer physical pain or mental suffering” as a result of “abuse or neglect.” The Court then assumed that a “reasonable foreseeability” standard would apply to the issue of the probability of harm.
The generic definition of a crime of child abuse includes conduct that creates at least a “reasonable probability” or a likelihood of harm to a child. But the Nevada statute is even broader: It includes conduct that creates only a “reasonable foreseeability” of harm to a child.
The Court remanded the case to allow the agency to determine if the application of the modified categorical approach was appropriate.
The full text of Alvarez-Cerriteno v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/16-73486.pdf