27 I. & N. Dec. 449
BIA2018Background
- Respondent Valenzuela Gallardo, a lawful permanent resident from Mexico, was convicted in California (Cal. Penal Code §32) in 2007 of accessory to a felony and sentenced to 16 months.
- Immigration authorities charged him as removable under INA §237(a)(2)(A)(iii) as convicted of an aggravated felony: “an offense relating to obstruction of justice” (INA §101(a)(43)(S)).
- The IJ and BIA initially held the California accessory conviction was an aggravated felony because it requires specific intent to help a principal avoid arrest, trial, conviction, or punishment.
- The Ninth Circuit vacated the BIA’s interpretation as impermissibly vague and remanded, instructing the BIA to reconsider or refine its construction, citing uncertainty about the scope of the phrase “process of justice.”
- On remand, the BIA clarified the generic definition of an offense “relating to obstruction of justice,” adopting a categorical approach and surveying federal law, sentencing guidelines, the Model Penal Code, and legislative history.
- The BIA ruled that §32 California accessory-to-a-felony is categorically an aggravated felony under INA §101(a)(43)(S) because it requires an affirmative, intentional act with specific intent to interfere with an investigation/proceeding (ongoing, pending, or reasonably foreseeable) or with punishment from a completed proceeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether INA §101(a)(43)(S) requires interference with an ongoing/pending proceeding | Valenzuela Gallardo: conviction not covered because no ongoing proceeding at time of conduct | Government/BIA: statute covers interference in ongoing, pending, or reasonably foreseeable proceedings (or punishment from completed proceedings) | BIA: not limited to ongoing proceedings; includes reasonably foreseeable investigations/proceedings or interference with punishment |
| Proper generic definition of “offense relating to obstruction of justice” | Respondent: BIA’s prior language ("process of justice") is vague and overbroad | BIA: must adopt a clearer generic definition rooted in federal law and common usage at enactment | BIA: defines offense to require (1) affirmative, intentional attempt (2) with specific intent (3) to interfere in an investigation/proceeding (ongoing, pending, or reasonably foreseeable) or punishments from completed proceedings |
| Whether accessory statutes (like Cal. Penal Code §32) fit the generic definition | Respondent: §32 may not implicate the generic federal concept if no ongoing proceeding | Government/BIA: §32 requires knowledge and specific intent to thwart arrest/trial/punishment and thus fits | BIA: §32 is categorically within §101(a)(43)(S) and renders respondent removable |
| Whether BIA’s reinterpretation is entitled to deference | Respondent/Ninth Circuit: prior BIA formulation was vague and non-deferable | BIA: Chevron/Brand X defer to reasonable agency interpretation filling statutory ambiguity | BIA: adopts clarified reasonable construction and applies it to affirm removal |
Key Cases Cited
- Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th Cir. 2016) (Ninth Circuit vacated BIA’s prior interpretation as vague and remanded)
- Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011) (interpreted BIA precedent to require interference with an ongoing proceeding or investigation)
- Marinello v. United States, 138 S. Ct. 1101 (2018) (proceeding must be reasonably foreseeable to show requisite intent to obstruct)
- Aguilar v. United States, 515 U.S. 593 (1995) (intent to influence judicial or grand jury proceedings required for §1503 obstruction)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (categorical-approach framework for comparing state statute elements to federal generic offense)
- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (requirements for proving intent under §1512 for shredding documents)
- Negusie v. Holder, 555 U.S. 511 (2009) (agency may resolve statutory ambiguities reasonably)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (using contemporaneous statutory meaning to define aggravated-felony terms)
- Descamps v. United States, 570 U.S. 254 (2013) (if state statute lacks an element of the generic offense, categorical match fails)