Lead Opinion
Judge KATZMANN concurs in a separate opinion.
Petitioner Albert Lloyd Higgins petitions for review of a February 11, 2011 decision issued by the Board of Immigra
BACKGROUND
Albert Lloyd Higgins (“Higgins” or “petitioner”), a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident in April 1987. On May 4, 2001, Higgins was convicted, following a jury trial, of one count of tampering with a witness in violation of CGS § 53a-151. The conviction stemmed from allegations that Higgins sexually assaulted a minor and later instructed her that, if she talked to the police, she should tell them that “nothing ever happened.” See State v. Higgins,
In November 2008, Higgins applied for admission, and was admitted, to the United States at Miami International Airport as a returning lawful permanent resident. On March 9, 2009, the Department of Homeland Security served Higgins with a Notice to Appear (“NTA”) in immigration proceedings, charging him with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien convicted of a crime involving moral turpitude. On May 28, 2009, Higgins submitted a written pleading denying the allegation concerning his criminal conviction and denying he was removable as charged. He also indicated his intent to seek termination of his immigration proceedings, cancellation of removal, adjustment of status and, in the alternative, voluntary departure. In hearings held before an immigration judge (“IJ”) on June 30, 2009 and September 8, 2009, Higgins conceded that his conviction constituted a crime involving moral turpitude, but argued that it did not constitute an aggravated felony. He also indicated his intent to apply for a waiver of inadmissibility under § 212(h) of the INA, 8 U.S.C. § 1182(h).
On September 30, 2009, the IJ denied Higgins’s applications for relief and ordered him removed to Jamaica. Employing the analytical framework set forth by the BIA in its precedential decision In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc), the IJ concluded that Higgins’s conviction under CGS § 53a-151 constitutes an offense “relating to obstruction of justice,” an aggravated felony rendering Higgins ineligible for cancellation of removal and a waiver of inadmissibility. Higgins appealed to the BIA,
DISCUSSION
In his petition, Higgins argues that his conviction for violating CGS § 53a-151 does not constitute an “offense relating to obstruction of justice” within the meaning of 8 U.S.C. § 1101(a)(43)(S), and that he did not in fact obstruct justice as that term is defined under federal law. The Attorney General counters that: (1) this Court should defer to the BIA’s reasonable interpretation of “an offense relating to obstruction of justice” as set forth in Espinoza-Gonzalez; (2) Higgins’s conviction for witness tampering under CGS § 53a-151 constitutes an “offense relating to obstruction of justice”; and (3) Higgins may not use this appeal to collaterally attack his witness-tampering conviction.
I. Jurisdiction and Standard of Review
Under the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231, 302, we lack jurisdiction to review “any final order of removal against an alien who is removable by reason of having committed [certain drug and aggravated felony] offense[s].” 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to review the legal question of whether a conviction underlying an order of removal, or the denial of relief from an order of removal, constitutes an aggravated felony. See 8 U.S.C. § 1252(a)(2)(D); Oouch v. U.S. Dep’t of Homeland Sec.,
Under the circumstances of this case, it is well-established that we review the IJ’s decision as supplemented by the BIA as the final agency determination. See Mufied v. Mukasey,
II. Applicable Law: The INA’s Definition of “Aggravated Felony” and Our Categorical Approach
A conviction for an “aggravated felony” renders Higgins ineligible for both cancellation of removal and a waiver of inadmissibility. See 8 U.S.C. § 1229b(a); 8 U.S.C. § 1182(h). The INA defines the term “aggravated felony” to include, as relevant here, “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(S). In this case, there is no question that Higgins was convicted of an offense “for which the term of imprisonment is at least one year.” See United States v. Pacheco,
In order to determine whether a conviction under CGS § 53a-151 “relat[es] to obstruction of justice,” we apply a categorical approach “that looks to the elements of the penal statute rather than the particulars of the alien’s conduct.” Oouch,
III. Deference to the BIA’s Decision in In re Espinoza-Gonzalez
The meaning of the phrase “relating to obstruction of justice” presents a question of first impression in this Circuit. The BIA, however, has issued a precedential opinion analyzing its meaning. In Espinoza-Gonzalez, the BIA considered whether the federal crime of misprision of a felony
Congress did not adopt a generic descriptive phrase such as “obstructing justice” or “obstruct justice,” but chose instead a term of art utilized in the United States Code to designate a specific list of crimes. It employed that term in conjunction with other crimes (e.g., perjury and bribery) that also are clearly associated with the affirmative obstruction of a proceeding or investigation. We do not believe that every offense that, by its nature, would tend to “obstruct justice” is an offense that should properly be classified as “obstruction of justice.” ... To include all offenses that have a tendency to, or by their nature do, obstruct justice would cast the net too widely.
Guided by these principles and applying the categorical approach, the BIA concluded that misprison of a felony does not constitute an “offense relating to obstruction of justice” because “it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.” Espinoza-Gonzalez, 22 I. & N. Dec. at 894. In other words, the BIA concluded that, for a crime to qualify as an “offense relating to obstruction of justice,” it must include as elements both (1) the actus reus of an “active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate in the process of justice,” and (2) the mens rea of a “specific intent to interfere with the process of justice.” Id. at 893; see also Renteria-Morales v. Mukasey,
A threshold question is the appropriate level of deference we should accord the BIA’s interpretation. In general, to the extent that a legal question requires us to construe state or federal criminal laws, we owe no deference to the BIA, and our review is de novo. See Santos v. Gonzales,
A more difficult question, however, is whether we owe deference to the BIA’s interpretation of the INA’s key phrase, “relating to obstruction of justice.” In general, pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
At Chevron step one, we consider de novo whether Congress has clearly spoken to the question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. To ascertain Congress’s intent, we begin with the statutory text because if its language is unambiguous, no further inquiry is necessary.... If the statutory language is ambiguous, however, we resort first to canons of statutoryconstruction, and, if the statutory meaning remains ambiguous, to legislative history, to see if these interpretive clues clearly reveal Congress’s intent.
If we determine that Congress has not directly addressed the precise question at issue, we proceed to Chevron step two, which instructs us to defer to an agency’s interpretation of the statute, so long as it is reasonable. While unpublished BIA decisions do not constitute agency interpretations of law warranting Chevron deference, where, as in this case, the challenged unpublished decision relies on a binding published decision, Chevron deference will extend to that earlier decision’s reasonable resolution of statutory ambiguity.
Mizrahi v. Gonzales,
There is a circuit split on the question of whether deference is owed to the BIA’s reasoning in Espinoza-Gonzalez. On the one hand, the Fifth and Ninth Circuits have both concluded that deference is warranted. In Alwan v. Ashcroft,
The Third Circuit, however, has declined to defer to the BIA’s reasoning. In Denis v. Att’y Gen. of U.S.,
This circuit split raises questions regarding the appropriate level of deference to accord the BIA’s decision in Espinoza-Gonzalez; in particular, it poses the issue of what deference to accord an agency’s interpretation of the statute it is charged with administering when that interpretation is itself based on the agency’s construction of federal criminal statutes. We need not definitively resolve these questions today, however. Because the Third Circuit’s interpretation of the phrase “relating to obstruction of justice” is broader than the one adopted by the BIA, any crime qualifying as an “offense relating to obstruction of justice” under the BIA’s definition will necessarily constitute an “offense relating to obstruction of justice” under the Third Circuit’s reasoning as well. Consequently, because we conclude, for the reasons explained below, that a conviction for witness tampering under CGS § 53a-151 constitutes an “offense relating to obstruction of justice” even under the BIA’s more restrictive definition, we need not definitively decide whether deference to the BIA’s decision in Espinoza-Gonzalez is required.
III. Connecticut General Statutes § 53a-151
Adopting for now the BIA’s interpretation and applying the categorical approach, we must consider whether CGS § 53a-151(a) includes as elements the requisite actus reus and mens rea. The statute provides:
Sec. 53a-151. Tampering with a witness: Class C felony.
(a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.
Id.
From the plain language of the statute, it is apparent that CGS § 53a-151
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades [2 ] another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been summoned by legal process;
shall be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 1512. Both the federal and Connecticut statutes criminalize the act of “induc[ing]” or attempting to “induce” another person to “withhold testimony” or testify falsely. They also prohibit inducing a witness to either “evade” or “elude” “legal process,” or to “absent” himself from an “official proceeding.” Additionally, both statutes require a nexus to an official proceeding. Compare Arthur Andersen LLP v. United States,
CGS § 53a-151 also includes the requisite mens rea: the “specific intent to interfere with the process of justice.” Espinoza-Gonzalez, 22 I. & N. Dec. at 893. By its terms, CGS § 53a-151 provides that “[a] person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely.” The Connecticut Supreme Court has explained that this text contains an “implicit” intent requirement:
The language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent. The legislature’s unqualified use of the word “induce” clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend tocause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole. By limiting the statute’s application to situations where the perpetrator believes that an official proceeding is pending or about to be instituted, the legislature indicated that it did not envisage outlawing conduct that inadvertently convinces a witness to testify falsely or to refuse to testify. The legislature’s choice of the verb “induce” connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as “cause.” Furthermore, the statute’s application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct.
State v. Cavallo,
Higgins maintains, however, that CGS § 53a-151 cannot qualify as an “offense relating to obstruction of justice” because CGS § 53a-151, unlike its federal counterpart, does not include a specific provision clarifying that, in a prosecution for witness tampering, “it is an affirmative defense, as to which the defendant has the burden of proof by a preponderance of the evidence, that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.” 18 U.S.C. § 1512(e). This argument is unavailing. The Connecticut statute criminalizes only the act of inducing or attempting to induce a witness to testify “falsely” or to “withhold testimony.” CGS § 53a-151(a). Accordingly, if a Connecticut jury finds a defendant guilty under the statute, it necessarily determined that the defendant was not encouraging the witness to testify truthfully. Moreover, because the State of Connecticut is required to prove, as part of its case in chief, that the defendant sought to induce a witness to testify falsely or to withhold testimony, the Connecticut statute is actually more protective of the defendant than the federal statute, which places the burden of proof on the defendant to show that his intention was to encourage the other person to testify truthfully. See 18 U.S.C. § 1512(e) (requiring the defendant to prove the affirmative defense by a preponderance of the evidence).
Higgins’ principal remaining arguments — that his conviction for witness tampering is inconsistent with his acquittal on the underlying sexual assault charges and that he did not, in fact, “obstruct justice” — are easily dismissed because they amount to nothing more than collateral attacks on his prior conviction. We have repeatedly held that such collateral attacks on state convictions are not available in a petition for review of the agency’s final order of removal. See Arriaga v. Mukasey,
CONCLUSION
We have considered Higgins’s remaining arguments and find them to be without merit. Because CGS § 53a-151 fulfills the elements of the generic offense of “obstruction of justice,” we conclude that a conviction under CGS § 53a-151 is categorically “an offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43). Thus, the BIA did not err in affirming the IJ’s holding that Higgins’s conviction for witness tampering under Connecticut state law qualified as an aggravated felony, and we therefore DISMISS the petition for review.
Notes
. The United States Code defines "misprision of a felony” as follows:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
18 U.S.C. § 4.
. The Ninth Circuit has applied the same analysis in two other cases following its decision in Renteria-Morales. See Salazar-Luviano v. Mukasey,
. We have previously interpreted "corruptly persuades” to mean that "the government must prove that the defendant's attempts to persuade were motivated by an improper purpose.” United States v. Thompson,
Concurrence Opinion
concurring:
I concur in the Court’s judgment and agree with its reasoning. I write separately simply to add my views on the question the Court’s opinion does not reach, namely, whether we owe deference to the BIA’s opinion in In re EspinozarGonzalez, 22 I. & N. Dec. 889 (BIA 1999).
In Espinoza-Gonzalez, the BIA interpreted the meaning of 8 U.S.C. § 1101(a)(43)(S), a definitional section of the statute the BIA is charged with administering: the Immigration and Nationality Act (“INA”). When reviewing the agency’s interpretation of the statute it administers, we employ the familiar two step inquiry set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
In this case, 8 U.S.C. § 1101(a)(43)(S) does not define the term “relating to obstruction of justice” by reference to state law or to another portion of the United States Code; in fact, Section 1101(a)(43)(S) does not define the phrase at all. The absence of a definition is particularly significant'here because many of the aggravated felonies listed in Section 1101(a)(43) are, in fact, defined by references to the United States Code. For example, the term “illicit trafficking in a controlled substance” is defined by reference to Section 102 of the Controlled Substances Act, 21 U.S.C. § 802. See 8 U.S.C. § 1101(a)(43)(B). Similarly, the subsection regarding “illicit trafficking in firearms or destructive devices ... or in explosive materials” specifically defines “destructive devices” by reference to 18 U.S.C. § 921, and “explosive materials” by reference to 18 U.S.C. § 841(c). Indeed, many of the offenses listed under 8 U.S.C. § 1101(a)(43) are described first by reference to provisions in the United States Code, and only later by parenthetical descriptions of the general nature of the crime. See, e.g., 8 U.S.C. § 1101(a)(43)(H) (listing as an aggravated felony “an offense described in section 875, 876, 877, or 1202 of Title 18[, United States Code] (relating to the demand for or receipt of ransom)”).
Only a minority of the subsections under 8 U.S.C. § 1101(a)(43) contain no description or elaboration whatsoever. In addition to 8 U.S.C. § 1101(a)(43)(S), another undefined subsection is 8 ■ U.S.C. § 1101(a)(43)(A), which specifies that the
Section 1101 (a)(43)(A) is devoid of any descriptive or restrictive parentheticals and simply lists the crimes of “murder, rape, or sexual abuse of a minor” without further definition. When contrasted with the structure of the statute as a whole, such an omission is instructive, for it is typically understood that the legislature proceeds purposefully when it inserts specific language in one statutory section but omits it in another. In other § 1101(a)(43) sections, Congress specified certain aggravated felonies by cross-referencing criminal statutory provisions. The fact that it did not do so with “sexual abuse of a minor” indicates that it intended that the phrase be given its common law definition. Alternatively, Congress may have intended for the BIA to utilize its expertise to define the phrase, or it may have inserted the generic phrase because the definition of sexual abuse of a minor varies by state and federal law. In any case, the pertinent point is that the precise definition of the phrase is most assuredly not clear and unambiguous.
Restrepo v. Att’y Gen. of U.S.,
So too in this case, the INA is silent on the meaning of “relating to obstruction of justice.” It includes no indication of what specific crimes, or even what types of crimes, may qualify as “offenses relating to obstruction of justice.” Nor does the INA specify where one should look for interpretive guidance. Thus, because the INA is silent with respect to the specific issue at hand, I believe the statute is most assuredly not' “clear and unambiguous,” see, e.g., Bodansky v. Fifth on the Park Condo, LLC,
At Chevron step two, we must consider whether the agency’s resolution of the ambiguity is based on a permissible construction of the statute. Chevron,
That being said, however, there is no reason to defer to the BIA’s interpretation of the federal obstruction-of-justice offenses. It is well established that “analysis of a federal criminal statute ... [is] beyond the BIA’s administrative responsibility and expertise.” Mugalli v. Ashcroft,
On the question of deference, therefore, I would adopt an approach somewhere in between the two adopted by our sister circuits. Unlike the Third Circuit, I believe the statute is silent on the meaning of 8 U.S.C. § 1101(a)(43)(S), and that we must therefore defer to the BIA’s construction of the statute, to the extent that it is within the domain of the agency’s special expertise in immigration law, as long as it is reasonable. Unlike the Fifth and Ninth Circuits, however, I would not simply defer to the BIA’s interpretation of the federal obstruction of justice statutes, over which the BIA has no special expertise, but rather review them de novo.