44 F.4th 1181
9th Cir.2022Background
- Petitioner Fernando Cordero-Garcia, a lawful permanent resident, was convicted in California of two counts under Cal. Penal Code § 136.1(b)(1) (dissuading a victim/witness from reporting a crime) and other sex-related offenses; DHS charged removability as an aggravated felony under 8 U.S.C. § 1101(a)(43)(S).
- The immigration judge and the BIA concluded § 136.1(b)(1) was an "offense relating to obstruction of justice" and thus an aggravated felony; the BIA applied a broad construction (Matter of Valenzuela Gallardo) that did not require an ongoing proceeding.
- This Court, following its controlling precedent in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020), holds that the statutory phrase requires a nexus to an ongoing or pending proceeding or investigation.
- Applying the categorical approach, the panel compared elements of CPC § 136.1(b)(1) to the generic federal definition of obstruction and to 18 U.S.C. § 1512(b)(3) (witness tampering) and found no categorical match.
- The Ninth Circuit granted the petition for review, concluding § 136.1(b)(1) lacks the required nexus element and is broader than § 1512(b)(3) (it does not require intimidation, threats, misleading conduct, or corrupt persuasion), and remanded to the BIA; Judge VanDyke dissented.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 136.1(b)(1) is an "offense relating to obstruction of justice" under 8 U.S.C. § 1101(a)(43)(S) | § 136.1(b)(1) is a categorical match to § 1101(a)(43)(S) and therefore an aggravated felony | The statute is not an aggravated felony because it lacks the federal obstruction element (nexus to an ongoing/pending proceeding) | Not an aggravated felony; no categorical match because § 136.1(b)(1) lacks nexus to an ongoing/pending proceeding |
| Whether the federal Chapter 73 offenses (e.g., 18 U.S.C. § 1512) serve as the generic comparator and thus bring § 136.1(b)(1) within § 1101(a)(43)(S) | § 136.1(b)(1) is categorically equivalent to 18 U.S.C. § 1512(b)(3) (witness tampering), so it falls within Chapter 73 | The BIA did not analyze this comparator; even on the merits § 136.1(b)(1) is broader than § 1512(b)(3) | § 1512(b)(3) is not an appropriate generic comparator here; § 136.1(b)(1) is broader than § 1512(b)(3) |
| Whether the BIA’s broader construction (including interference with "reasonably foreseeable" proceedings) is permissible | N/A (BIA argued broader construction) | N/A | Court follows Valenzuela Gallardo II: the phrase unambiguously requires a nexus to an ongoing or pending proceeding; the BIA’s broader construction cannot serve as the generic definition |
Key Cases Cited
- Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (holds that § 1101(a)(43)(S) requires a nexus to an ongoing or pending proceeding)
- Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) (addressed vagueness and remanded to the BIA)
- Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011) (panel that interpreted obstruction to require nexus to ongoing proceedings)
- Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008) (describing reliance on BIA for generic obstruction definition)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability standard for categorical mismatches)
- United States v. Doss, 630 F.3d 1181 (9th Cir. 2011) (explaining distinction between corrupt persuasion and innocent persuasion)