Juan Francisco ARMENTA-LAGUNAS, Petitioner v. Eric H. HOLDER, Jr., Attorney General of United States, Respondent.
No. 12-2219
United States Court of Appeals, Eighth Circuit
Submitted: Dec. 11, 2012. Filed: Aug. 1, 2013.
724 F.3d 1019
Illinois law reflects a fairly strong reluctance to salvage unreasonable covenants by judicial modification, though the case law seems to allow a fair amount of room for equitable judgment that can make it difficult for parties to foresee potential modifications in litigation. In House of Vision, Inc. v. Hiyane, 37 Ill.2d 32, 225 N.E.2d 21, 25 (1967), the Illinois Supreme Court reversed an injunction issued after a trial court had modified an overly broad covenant, explaining: “To stake out unrealistic boundaries in time and space, as the employer did in this case, is to impose upon an employee the risk of proceeding at his peril, or the burden of expensive litigation to ascertain the scope of his obligation. While we do not hold that a court of equity may never modify the restraints embodied in a contract of this type and enforce them as modified, the fairness of the restraint initially imposed is a relevant consideration to a court of equity.” Accord, e.g., Pactiv Corp. v. Menasha Corp., 261 F.Supp.2d 1009, 1015–17 (N.D.Ill.2003) (summarizing Illinois law and declining to modify overly broad covenant); Eichmann v. National Hosp. & Health Care Svcs., 308 Ill.App.3d 337, 241 Ill.Dec. 738, 719 N.E.2d 1141, 1149 (1999) (declining to modify overly broad covenant). Thus far, however, we have predicted that Illinois courts would be more willing than courts in Wisconsin or Indiana to allow avoidance of these doctrines of Illinois law through a choice-of-law clause, at least if the choice has a reasonable connection to the contract. See Curtis 1000, 24 F.3d at 948.
Whether the Illinois courts will ultimately agree with that prediction remains to be seen. Cf. Cambridge Engineering, Inc. v. Mercury Partners 90 BI, Inc., 378 Ill.App.3d 437, 316 Ill.Dec. 445, 879 N.E.2d 512, 529-30 (2007) (stating that “allowing extensive judicial reformation of blatantly unreasonable posttermination restrictive covenants may be against public policy,” but deciding case on other grounds).
Paul Forney, argued, Omaha, NE, Chris Buckley, on the brief, for petitioner.
Liza Murcia, USDOJ, OIL, argued, Washington, DC, for respondent.
Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.
Petitioner Juan Francisco Armenta-Lagunas seeks review of a Board of Immigration Appeals (BIA) order denying his motion to terminate deportation proceedings. For the reasons stated below, we deny the petition for review.
I. Background
Petitioner obtained Lawful Permanent Resident status in 2001. Subsequently, Petitioner was convicted in Nebraska state court of witness tampering in violation of
The IJ denied Petitioner‘s motion, finding that his state conviction for witness tampering was an aggravated felony, and ordered him removed. Petitioner appealed to the BIA. The BIA adopted the IJ‘s analysis, finding that Petitioner‘s arguments “were directly and adequately addressed and rejected” by the IJ and dismissed Petitioner‘s appeal. Petitioner now petitions this Court for review.
II. Analysis
Conviction of an aggravated felony subjects an alien to removal.
“‘We review the BIA‘s legal determinations de novo, ‘according substantial deference to the [BIA‘s] interpretation of the statutes and regulations it administers.‘” Olmsted v. Holder, 588 F.3d 556, 558 (8th Cir.2009) (alteration in original) (quoting Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.2000)). “[T]o the extent the BIA adopts the finding or reasoning of the IJ, the court also reviews the IJ‘s decision.” Shaghil v. Holder, 638 F.3d 828, 833 (8th Cir.2011). “Judicial review is generally precluded in cases involving aliens who are removable as aggravated felons.” Olmsted, 588 F.3d at 558 (citing
To determine whether Petitioner‘s state conviction constitutes an aggravated felony—specifically in this case “an offense relating to obstruction of justice“—we must apply the categorical approach the U.S. Supreme Court established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). Under the Taylor categorical approach, we compare the elements of the state statute of conviction with the “basic elements” of the generic definition of an offense relating to obstruction of justice. See id. at 186. The categorical approach is not limited to analyzing the language of the statute alone:
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute‘s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Id. at 193 (emphasis added). Therefore, before applying the categorical
A. Definition of “Relating to Obstruction of Justice” and Circuit Split
The generic definition of “an offense relating to obstruction of justice” is a question of first impression for the Eighth Circuit. The BIA defined “relating to obstruction of justice” in Espinoza-Gonzalez, a widely-cited opinion. 22 I. & N. Dec. 889 (BIA 1999) (en banc). In Espinoza-Gonzalez, the BIA noted that the “United States Code does not define the term ‘obstruction of justice’ or ‘obstructing justice.’ Instead, chapter 73 of title 18 lists a series of offenses collectively entitled ‘Obstruction of Justice.‘” Id. at 891 (citing
Analyzing these offenses, the BIA determined that “every offense that, by its nature, would tend to ‘obstruct justice’ is [not] an offense that should properly be classified as ‘obstruction of justice.‘” Id. at 893-94. Instead, the offenses entitled “Obstruction of Justice” all required “the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.” Id. at 894. “In other words ... 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.‘” Higgins v. Holder, 677 F.3d 97, 102 (2d Cir.2012) (quoting Espinoza-Gonzalez, 22 I. & N. Dec. at 893).
The parties argue or assume that this Court should adopt the BIA‘s definition. Currently, there is a circuit split regarding whether to grant Chevron deference to the BIA‘s definition. See Higgins, 677 F.3d at 103-04 (describing the circuit split). The Ninth Circuit determined Chevron deference applies and followed the BIA‘s definition of “obstruction of justice” from Espinoza-Gonzalez. See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086-87 (9th Cir.2008). Alternatively, the Third Circuit has refused to apply the BIA‘s definition, finding Chevron deference inappropriate because the phrase “obstruction of justice” is not ambiguous. Denis v. Att‘y Gen. of United States, 633 F.3d 201, 207-09 (3d Cir.2011). In doing so, the Third Circuit interpreted “relating to obstruction of justice” more broadly than the BIA. See id. at 212.
We find it unnecessary to decide this issue. Neither party has argued for the Third Circuit‘s broader definition. As we discuss below, because we find the Nebraska statute falls within the BIA‘s narrower definition of “obstruction of justice,” we leave this issue for another day. See Higgins, 677 F.3d at 104 (finding it unnecessary to reach the issue of Chevron deference because the state witness-tampering statute met the requirements of the narrower BIA definition of “obstruction of justice“).
B. Applying the Categorical Analysis with the Espinoza-Gonzalez Definition
Using the BIA‘s definition for the purposes of this opinion, we must apply the Taylor categorical approach to determine whether the Nebraska statute includes the required actus reus and mens rea. Petitioner argues that the Nebraska statute does not meet the generic definition because (1) the statutory language is overly
1. Actus Reus
The Nebraska witness-tampering statute contains the actus reus requirement from Espinoza-Gonzalez.
(1) A person commits the offense of tampering with a witness or informant if, believing that an official proceeding or investigation of a criminal or civil matter is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to:
...
(c) Elude legal process summoning him or her to testify or supply evidence; or
(d) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned.
The plain language of the Nebraska statute undoubtedly requires 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,” thus meeting the actus reus requirement. See Espinoza-Gonzalez, 22 I. & N. Dec. at 893.
Further, the Nebraska witness-tampering statute corresponds with the federal witness-tampering statute,
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades 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[.]
The Nebraska statute criminalizes an offender‘s “attempt[] to induce or otherwise cause a witness or informant to ... [e]lude legal process summoning him or her to testify or supply evidence.”
Petitioner argues that because the Nebraska statute does not include the language “intimidation, threats, corrupt persuasion, or misleading conduct” used in
2. Mens Rea
The Nebraska witness-tampering statute also meets the mens rea requirement under Espinoza-Gonzalez because it requires a “specific intent to interfere with the process of justice.” Although the Nebraska statute does not explicitly state intent as an element of
Regardless, Petitioner‘s claims that his conviction is not an aggravated felony because (1) the Nebraska statute does not explicitly require “specific intent to interfere with the process of justice” and (2) the “otherwise cause” language will capture unintended acts are without merit. In the current case, there is no realistic probability that a Nebraska state court would apply the statute outside of the generic definition, more specifically without requiring that the offender act with the intent to interfere with the process of justice. See Duenas-Alvarez, 549 U.S. at 192-93, 127 S.Ct. 815 (rejecting a claim that a state statute lacked an intent requirement, and therefore did not constitute an aggravated felony, because case law from the state showed intent was an element of the offense). Petitioner presents hypothetical situations in which the state could convict an offender under the Nebraska statute when the offender did not intend the act, including where “a defendant posts on Facebook that he wishes a proceeding would just go away and a witness reads the post and decides to absent himself.” However, Petitioner‘s hypotheticals only rise to the level of “theoretical possibility” and are insufficient to establish that the Nebraska statute is “a crime outside the generic definition.” See id. Petitioner does not claim that his conviction is an example of a Nebraska state conviction where no specific intent existed. Further, Petitioner has failed to provide examples where Nebraska state courts have convicted an offender for witness tampering even though the offender lacked intent to interfere with the process of justice, nor has this Court found any such examples. See id. (“[Petitioner] must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.“) Therefore, the Nebraska state statute on witness
III. Conclusion
For the foregoing reasons, we deny the petition for review of the BIA‘s order.
MELLOY
Circuit Judge