25 I. & N. Dec. 838
BIA2012Background
- Respondent Agustin Valenzuela Gallardo, a Mexican native and U.S. permanent resident since 2002, was convicted of accessory to a felony under Cal. Penal Code §32 on 12/28/2007 and sentenced to 16 months.
- DHS initiated removal proceedings, charging respondent with removable as an alien convicted of an aggravated felony under 8 U.S.C. § 1101(a)(43)(S) because the accessory offense relates to obstruction of justice and carries over a year of imprisonment.
- Initial IJ decision (2010) found respondent removable under §237(a)(2)(A)(iii) and ordered removal; the Board dismissed the timely appeal (2010).
- Respondent filed a timely motion to reconsider (2011) which the Board denied; an interim order reopened proceedings in 2011 to consider Trung Thanh Hoang v. Holder, and reinstated the appeal.
- Both parties briefed the issue; the Board ultimately concluded the respondent’s offense is an aggravated felony under §101(a)(43)(S) because it relates to obstruction of justice, and dismissed the appeal.
- The Board reaffirmed that accessory to a felony under Cal. §32 is an offense relating to obstruction of justice, applying Chevron deference and national uniformity concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. §32 accessory to a felony qualifies as an offense relating to obstruction of justice. | Valenzuela Gallardo argues the statute does not require ongoing proceedings and thus does not relate to obstruction of justice. | Board argues the phrase should be interpreted under the Federal approach to obstruction of justice; the offense involves affirmative, specific intent to hinder justice. | Yes; the offense relates to obstruction of justice. |
Key Cases Cited
- Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (accessory after the fact relates to obstruction of justice)
- Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999) (clarified scope of obstruction of justice; distinguished misprision vs. accessory)
- Brand X Internet Servs., 545 U.S. 967 (2005) (deference to agency interpretation of ambiguous statutes allowed if reasonable)
- Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011) ( Ninth Circuit discussion on deference vs. de novo review of Board definition)
- Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (conviction for misprision distinguished from obstruction of justice)
- Rodriguez-Valencia v. Holder, 652 F.3d 1157 (9th Cir. 2011) (interprets 'relating to' broadly in obstruction context)