27 I. & N. Dec. 652
BIA2019Background
- Respondent (Cordero-Garcia) was convicted under Cal. Penal Code §136.1(b)(1) for attempting to prevent/dissuade a victim or witness from reporting a crime; Immigration Judge found him removable as convicted of an aggravated felony and denied cancellation of removal.
- The Board previously concluded §136.1(b)(1) was an aggravated felony relating to obstruction of justice and dismissed the respondent’s appeal in 2012; the Ninth Circuit remanded to reconsider in light of Valenzuela Gallardo v. Lynch.
- The Board in Matter of Valenzuela Gallardo II (2018) adopted a clarified generic definition of an ‘‘offense relating to obstruction of justice’’ requiring: (1) an affirmative and intentional attempt, (2) motivated by specific intent, (3) to interfere with an ongoing, pending, or reasonably foreseeable investigation/proceeding or another’s punishment from a completed proceeding.
- The Board analyzed California case law interpreting §136.1(b)(1) (People v. Navarro and related cases) and concluded the statute requires specific intent to influence a report or testimony and thus fits the Valenzuela Gallardo II definition categorically.
- The respondent argued Valenzuela Gallardo II could not be applied retroactively to his pre-decision conviction; the Board conducted a Montgomery Ward retroactivity balancing and concluded retroactive application was permissible given unsettled law and Congress’s directive that aggravated-felony definitions apply regardless of conviction date.
- Result: The Board held §136.1(b)(1) is categorically an aggravated felony under 8 U.S.C. §101(a)(43)(S), applied Valenzuela Gallardo II retroactively, affirmed removability under §237(a)(2)(A)(iii), and dismissed the appeal.
Issues
| Issue | Respondent's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code §136.1(b)(1) is categorically an aggravated felony "relating to obstruction of justice" under INA §101(a)(43)(S) | §136.1(b)(1) does not categorically meet the federal generic definition; conviction should not be an aggravated felony | California law requires specific intent to influence reporting/testimony; under Valenzuela Gallardo II the statute fits the generic obstruction definition | Held: §136.1(b)(1) is categorically an aggravated felony relating to obstruction of justice |
| Whether the Board may apply Valenzuela Gallardo II retroactively to respondent’s pre-decision conviction | Retroactive application is improper and unfair because the standard changed after conviction | Retroactivity is permissible; aggravated-felony definitions apply regardless of conviction date and uniformity favors retroactivity | Held: Valenzuela Gallardo II may be applied retroactively to respondent’s conviction |
| Whether respondent is removable and ineligible for cancellation of removal due to aggravated-felony conviction | Respondent contended denial of cancellation was erroneous (reasserted) | Aggravated-felony conviction renders him removable and ineligible for cancellation under INA §240A(a)(3) | Held: Removable under §237(a)(2)(A)(iii); ineligible for cancellation |
| Whether the Board must consider other grounds of removability after finding aggravated felony | (Implicit) Respondent relied on prior proceedings and arguments | Board need not address alternative grounds once disposition resolved by aggravated-felony finding | Held: No need to decide other removability grounds; appeal dismissed |
Key Cases Cited
- Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) (Ninth Circuit remanding BIA’s obstruction-of-justice definition and expressing vagueness concerns)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (agency discretion to adopt rules and apply them retroactively after reasoned consideration)
- INS v. St. Cyr, 533 U.S. 289 (2001) (Congressional indication that aggravated-felony definitions apply regardless of conviction date supports retroactivity)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical approach for comparing statute elements to generic federal definition)
- Montgomery Ward & Co. v. FTC, 691 F.2d 1322 (9th Cir. 1982) (factors used to assess retroactivity of administrative decisions)