*1 just six its decision BIA issued and circuits join our sister therefore turned daughter for weeks before Petitioners’ petition of a pendency hold for petition was able years old and not toll 21 does removal order of of an review parents. for her of status filing adjustment limit for statutory time granted. provisionally petition Zhao That the BIA. reopen with motion Petitioners’ motion Gonzales, granted the BIA had F.3d If Quan v. Chen (or original its it had issued v. if Cir.2007) curiam); reopen Randhawa (2d (per likely (6th Cir.2007); later), would Petitioners decision Gonzales, 474 F.3d is, it As to avoid removal. able Susma, N. Dec. 22 I. & have In re accord review, curiam). for banc) petitions denial of (en our (B.I.A.1999) (per upon automatically, will lift removal stay 05-76564, for review petition In No. to remove in will be free DENIED and and part DISMISSED ineligible Petitioners, then would for who 06-75285, petition In No. part. In the cir- years. reentry for several DENIED. review judge put cumstances, immigration as the whom GRABER, Judge, deserving with extremely it, Circuit “are Petitioners TIMLIN, TASHIMA, Judge, and discre- Circuit exercise favorable people concurring: join,1 Judge, District tion.” As opinion. curiam per in our
I concur law, filing
a matter does extend in this court
review may file an alien which during period
time I the BIA. write with reopen a motion RENTERIA-MORALES, Irma the BIA out that point separately Petitioner, any sponte, sua proceeding, reopen v. 1003.2(a). encourage I 8 C.F.R. time. Attorney MUKASEY, B. Michael case BIA to consider General, Respondent. of that discretionary exercise warrants authority. Alvarado, Rivera de Maria Jesus Petitioner, three of 50s. All their
Petitioners families, children, their children’s their For States. United legally reside Attorney Mukasey, B. Michael have been years, Petitioners than 20 more Respondent. General, have They society: members of productive 04-74742, 06-73283. Nos. with a charged been arrested never welfare; crime; been on they have never Appeals, Court of United States chil- successfully raised three they have Circuit. Ninth jobs full-time dren; held they have 9, 2007. Nov. Argued and Submitted fact, taxes. paid July 2008. Filed judge that immigration agrees deserving peo- extremely “are Petitioners exercise discretion.” for a favorable
ple agree panel though members all Even (2008), interprets the stat 1. L.Ed.2d here, recognize stated with the sentiments depar concerning voluntary utory provisions therefore, and, do not dicta that our views are analysis. ture, the Stone from does not detract opinion. precedential them in include *3 (brief) Marty Guajardo Martin R. R. Martin Law Office of (argued), Robles CA, Francisco, peti- for the Guajardo, San tioner, Irma Renteria-Morales. (brief) Ann Golding Tamor Marshall States (argued), United Varnon Carroll Division, Justice, Civil Department D.C., Mi- respondent, for the Washington, Mukasey. B. chael Francisco, CA, Dvorkin, San Carol Al- de Maria Jesus Rivera petitioner, varado. Schor, Department United States
David Division, Washington, Justice, Civil B. Mu- D.C., respondent, Michael for the kasey. THOMAS, R. SIDNEY
Before: TALLMAN, and SANDRA C. RICHARD IKUTA, Judges. Circuit S. IKUTA; Judge Partial
Opinion by Judge Partial Dissent Concurrence TALLMAN IKUTA, Judge: Circuit consolidat- for review petitions The two question raise the opinion1 ed for failure of 18 in violation U.S.C. in court states, part: pertinent 2. 18 U.S.C. consolidated petitions ordered 1. These disposition. purposes of categorically felony as 20, 1992, de- That on or July about at or 1101(a)(43)(S)3 fined Tucson, Arizona, near in the District of 1101(a)(43)(T).4 Applying the IRMA LINDA RENTERIA-MOR- approach prescribed by categorical Taylor ALES, having after released States, 575, 600-02, 495 U.S. United 2, 1992, about March pursuant to Chap- (1990), 109 L.Ed.2d S.Ct. ter 207 of Title 18 of the United violation of 3146 is not conclude Code, in connection with a charge of categorically aggravated felony possession with intent to mar- distribute provision. either Applying the modified ijuana, in violation of Title 21 United approach petitions 841(a)(1), States Code pun- *4 us, before we determine that prior by imprisonment ishable for a term of petitioner qualifies conviction of one as an not years, than five more having and felony and the aggravated prior conviction appear directed to before Dis- petitioner the other of does not. trict Tucson, of Arizona at Court Ari- zona, 20, July on wilfully did fail to I appear required; as (Renteria) Irma Renteria Morales and All in violation of Title 18 United (Rivera), de Maria Jesus Rivera Alvarado States Code Section 3146. Mexico, both natives and citizens of peti- 3, 1998, On government tion for review of the March affirmance filed (BIA) a notice Immigration Appeals appear Board of to alleging of a Renteria final order of removal. was to subject removal under 8 U.S.C. 1227(a)(2)(A)(iii)5 § due to her violation of
A § 18 U.S.C. 3146. The claimed a § Renteria became a violation of permanent lawful 3146 consti- tuted an aggravated resident of the felony United States in 1990. On purposes 13, 1998, January § Renteria 8 U.S.C. pleaded guilty Over Rente- objections, (IJ) violation of 18 ria’s U.S.C. the immigration 3146. The judge judgment agreed entered government’s district with interpreta- 1101(a)(43)(T) stated: “The defendant tion convicted of the pretermitted and offense(s) of: violating Title application United Renteria’s cancellation Code, States Sections Bail Jumping, 1229b(a)(3). removal. See 8 U.S.C. charged as in the Information filed here- appealed BIA, Renteria which af- in.” The information stated: firmed the IJ’s determination without (a) Whoever, having 1101(a)(43)(T), been re- 4. Under 8 U.S.C. Offense.— defini- chapter leased knowingly— under this aggravated felony tion of includes "an offense fails to a court before as re- relating to a failure to before a court quired by release; conditions pursuant to a court order to answer to or (2) fails to surrender for service of sen- charge felony of a aof for which a order; tence to a court years' of 2 sentence or more punished provided
shall be
as
in subsection
imposed.”
(b) of this section.
1101(a)(43)(S),
3.Under
8 U.S.C.
1227(a)(2)(A)(iii)
5. 8
defini-
U.S.C.
"Any
states:
aggravated felony
tion of
includes "an offense
alien
aggravated
who
convicted of an
felony
relating
justice,
perjury
obstruction of
any
time after
deportable.”
admission is
perjury,
subornation of
bribery
of a wit-
ness, for which the term imprisonment
is at
year.”
least one
aggra-
as an
qualified
§ 3146
18 U.S.C.
der
timely filed
Renteria
opinion.
vated
to this court.
review
relating to
1101(a)(43)(S)
“an offense
B
8 U.S.C.
justice.” See
obstruction
1229b(a)(3).
resi-
permanent
lawful
became
Rivera
In
in 1967.
United
dent
challenging
the BIA
appealed to
Rivera
jury for
by grand
indicted
she was
for can-
application
of her
only the denial
heroin, illegal
import
illegally
conspiracy
The
affirmed
BIA
of removal.
cellation
pos-
heroin, conspiracy
importation
agreeing
opinion,
in a reasoned
IJ
with intent
substance
a controlled
sess
of an
convicted
respondent
“that
a controlled
distribute,
possession of
the offense
felony because
Riv-
intent
distribute.
substance
the definition
falls
jumping
within
bail
on
released
guilty
pleaded
era
under sec-
justice crime
obstruction
bail,
the United
fled
she
While
bail.
Immigration
tion
filed
second
States.
timely filed peti-
Nationality Act.” Rivera
violation
Rivera with
charging
indictment
court.
to this
for review
1973.
August
§ 31506
*5
crossing
while
arrested
2004, Rivera was
8
jurisdiction under
have
the United
into
from Mexico
border
1252(a)
legal ques
review the
§
to
U.S.C.
outstanding warrant
on an
based
an
underlying
a conviction
whether
pleaded
Rivera
appear.
failure
for
of relief
the denial
of removal or
order
3146,
§
18 U.S.C.
a violation
guilty
felony.
Li
See
aggravated
an
constitutes
drug
dismissed
and
(9th
892,
Cir.
895
389 F.3d
Ashcroft,
v.
to a
sentenced
Rivera was
charges.
indepen
2004).
“an
BIA
If
conducted
and
sentence
assessment
$100.00
BIA’s deci
...
review the
we
review
dent
day.
and one
months
twelve
the IJ.” Sinotes-Cruz
that of
and not
sion
notice
2005,
filed
In
(9th
1190,
Gonzales,
Cir.
1194
468 F.3d
v.
subject to
Rivera
alleging that
However,
summari
2006).
BIA
where
8
under
grounds:
removal
without
holding of the IJ
ly affirms
1182(a)(2)(A)(i)(I)
being an
for
§
U.S.C.
IJ’s decision as
we review the
opinion,
tur-
of moral
a crime
who committed
alien
See Falcon
determination.
agency
final
and
pitude,
845, 849
F.3d
Ashcroft, 350
Carriche
who
an alien
1182(a)(2)(C),
being
for
§
Cir.2003).
(9th
rea-
or has
Attorney General knows
“the
knowing
or has
...
to believe
son
II
assister,
or col-
abettor,
conspirator,
aider,
we
petition,
Renteria’s
analyzing
In
trafficking
illicit
in the
others
luder with
conviction
whether
8
determine
must
...
substance.”
controlled
any such
of 18
14,
in violation
in court
1182(a)(2)(C)®.
November
On
failure
§
U.S.C.
aggravated
for cancel-
application
§ 3146 constitutes
2005,
filed
Rivera
U.S.C.
1101(a)(43)(T),
§
U.S.C.
felony
of removal.
under 8
lation
felony to include
aggravated
defines
charges
the two
IJ sustained
a failure
relating to
offenses
certain
and denied
removability
pre-termitted
we
petition,
Rivera’s
analyzing
appear.
of removal
cancellation
application
a conviction
determine
un- must
conviction
Rivera’s
ground that
on the
§
(1984).
3146 is
U.S.C.
Stat. 1976
Bail
repealed
§
6. 18 U.S.C.
98-473,
bail-jumping statute.
current
No.
Pub.L.
Act of
Reform
1101(a)(43)(S)
§
violating
§
3146 constitutes an aggravated
(T),
the second step
1101(a)(43)(S),
felony
§
which de-
in the Taylor analysis
identify
is to
felony to
aggravated
fines
include certain
elements of
specific
crime of convic
relating
justice.
offenses
obstruction of
tion, in
this case
3146. We do not defer
If a violation of 3146 meets the definition to the BIA’s
interpretations
state law or
(a)(43)(S)
(T),
set forth
it provisions of the federal criminal code.
aggravated felony
counts as an
for pur- Parrilla, 414
Rather,
F.3d at 1041.
we
poses making
the alien
pur-
removable
review de novo whether the specific crime
1227(a)(2)(A)(iii).
suant to 8 U.S.C.
It
of conviction
meets
INA’s definition of
will also count as an aggravated felony for
Li,
felony.
895;
389 F.3d at
purposes of rendering an alien ineligible
1148, 1151
Randhawa v. Ashcroft, 298 F.3d
for cancellation of
removal
to 8 (9th Cir.2002). If the elements of the spe
1229b(a)(3).
cific crime of
narrower than
To determine whether a convic or the same as
generic
the elements of the
tion under
aggravat
constitutes an
crime, then the specific crime of conviction
(T),
ed
we
categorically counts as an offense listed in
apply
approach set forth in
1101(a)(43).
Fernandez-Ruiz,
See
Taylor,
495 U.S.
110 S.Ct.
F.3d at 1125.
Immigration
(INA).
Nationality
Act
If the elements
specific
crime of
Gonzales,
See Fernandez-Ruiz v.
466 F.3d
conviction are
broader
the elements
(9th
Cir.2006) (en banc).
Using
INA,
crime listed in the
approach,
we determine what Con
may “go beyond the mere fact of convic-
gress
meant
justice”
“obstruction of
*6
tion” and
petitioner
consider whether the
appear”
“failure to
(T)
necessarily
convicted of all the
respectively by
ele-
discerning
generic
generic
ments of the
federal
crime. Taylor,
definition of these
495
crimes. Be
1101(a)(43)
602,
cause
U.S.
110
part
INA,
S.Ct.
In
2143.
making
determination,
must defer to the
this
BIA’s
the court
articulation of the
is to “conduct
generic federal definition “if
a
limited
statute is
examination of
documents
silent
ambiguous
or
with respect
to the
record of conviction.” Ferreira v. Ash-
specific issue before the agency and the
croft,
1091,
(9th Cir.2004)
390 F.3d
1095
interpretation
BIA’s
is ‘based
permis
(internal
on a
quotation
omitted).
marks
”
sible construction of the statute.’
Parril Where
pleaded
guilty
Gonzales,
(9th
la v.
1038,
414 F.3d
1041
offense, the examination of the record is
Cir.2005)
(quoting INS v. Aguirre-
“limited to the terms of
charging
docu-
Aguirre,
415, 424,
526
1439,
U.S.
119 S.Ct.
ment, the
plea
terms of a
agreement or
(1999)).
After determining aggravated felony, elements has not generic crimes listed in met its burden of proving that the defen- sentence, certiora- appeal or or vice felony.” aggravated committed dant for— ri conviction after Ferreira, at 1095. F.3d death, (i) punishable an offense framework, consid- we will on this Based imprisonment or imprisonment, life in turn. appeal er each more, a or years term of for a Ill imprison- or under this title fine years, than ten more for not argument ment to Renteria’s turn first We both; failure to or for her conviction constitute does not § 3146 by impris- (ii) punishable an offense under 8 or years five a term of for onment 1101(a)(43)(T). im- title more, this or a fine than five un above, step for not more our first prisonment As noted both; the elements years, is to determine Taylor der case, this federal crime. generic (iii) felony, a fine under any other crime federal the generic the elements for not imprisonment title or this 1101(a)(43)(T) it out in clearly set are both; or years, or than more to” “relating any offense It includes self. misdemeanor, (iv) a fine under a (1) failure to a following elements: not imprisonment title this (2) to a court; before both; and year, than one more to or order; to answer ap- (B) was released person if the felony; charge of witness, fine a material pearance impris years’ of two subject to sentence chapter or found, nor have not or more. We onment or both. year, than one more cited, any precedential has interpreta further includes all providing Although decision BIA crime, crime. we con federal generic of this elements are the elements clude crime of specific turn to the next elements broader the ele- to determine neces example, a For or the narrower than ments *7 in included offense sary element crime, elements as the same (T) must (a)(43) defendant that the § 1101 1101(a)(43)(T). provides, Section § a with in connection appear to have failed part: pertinent years’ a sentence felony for Whoever, re- having been (a) Offense.— imposed. be more could or knowingly— chapter this leased § However, under as a court appear before to fails in connection appear to have failed could release; the conditions required misdemeanor, see a with as a appear 3146(b)(l)(A)(iv), to or failed § for service to surrender fails 3146(b)(1)(B). § witness, see material order; a to court sentence not cate Therefore, a violation in subsec- provided punished as be shall pur felony for gorically (b) this section. tion 1101(a)(43)(T). poses (1) The (b) punishment Punishment. — the modi apply is— must therefore this section if determine to approach fied in con- (A) was released person if the convicted necessarily petitioner of, while charge nection 1101(a)(43)(T). In §of elements all the for ser- sentence, surrender awaiting determination, making this “pursuant review order”), to a court but did judgment the charging document use 3146(a)(1), that term in which raises (the information) contained Renteria’s the inference Congress that intended Shepard, 3146(a)(1) record of conviction. See to broader 1254; U.S. 125 S.Ct. see 3146(a)(2). also Fer reira, 390 F.3d at undisputed 1095. It is Second, Renteria notes that the informa- that only these are the documents does not establish that she con- Renteria’s record that are cognizable for of a appear victed failure to “to answer to purposes analysis. above, of our As noted charge,” of a the third element judgment only states that Renteria §of Renteria argues that pleaded guilty violating “Title Unit she could have been failing convicted for Code, ed States Sections Jump Bail sentence,” “for appear service of as con- ing, charged as in the Information filed templated 3146(a)(2), §in or for failing to herein.” The provides information that appear witness, as a material as contem- Renteria “in was released connection with 3146(b)(1)(B). plated §in charge of possession with intent dis government The that it contends is rea- marijuana,” tribute an offense punishable sonable to infer from the information and years’ imprisonment, five “having the statute of conviction that Renteria appear directed to before the District appear failed to before a court “pursuant Court of Tucson, Arizona, Arizona at order,” to a court appear failed to “to July 20, 1992, wilfully did fail appear as answer to or dispose of charge of a required.” felony.” respect With to the “court order” Renteria, According to the record does element, government asserts only not establish that she was necessarily con- judicial officer authority has to direct victed second element Renteria to appear, judicial and the offi- 1101(a)(43)(T)(i.e., that she ap- failed to cer’s direction would be a court order. pear before a “pursuant court ato respect With element, to the second order”) (i.e., or the third element that she government notes that the information did appear failed to “to answer to or dispose of not expressly allege that Renteria’s convic- a charge felony”).7 First, Renteria tion was for failing for service of notes that the information charges Rente- a sentence or as a material witness. From ria with failure “directed,” silence, argues, we and does not mention a court order. can reasonably infer that Renteria’s con- argues 3146(a)(1) Renteria (prohib- viction under 3146 was to answer to or iting the failure to appear required by “as dispose of a charge. con- release”) the conditions of would allow the *8 cludes, therefore, that the record does es- government to obtain a conviction vio- tablish that Renteria was convicted of the § lation of 3146 without proving that the second fourth elements of offender had violated a court order. To 1101(a)(43)(T). § support interpretation, Renteria notes Congress that chose to use the term “court Although the sug inferences 3146(a)(2) §in order” (prohibiting gested the fail- government the may be reason ure to surrender for service of able, sentence government the has not established 7. The record does establish that Renteria was punishable by offense was a sentence of two necessarily convicted of the first and fourth years’ more). imprisonment or Renteria does 1101(a)(43)(T) (i.e., element of failed she dispute not this conclusion. court, appear before a and the underlying
957 record, say with cannot we present the necessary. On are inferences such that of all convicted was Renteria certainty that docu noticeable face, judicially the their 1101(a)(43)(T). “If the §of elements the was that Renteria not establish do ments that not establish does conviction of or was record that she court order under quali committed petitioner the the to or to answer appear dered govern felony, aggravated as an not estab has fies government The charge. proving its burden not direct has met “having been ment phrase that lished aggravat committed necessari the defendant that the information appear” toed Ferreira, at 1095. F.3d felony.” an order. issued had ed a court that means ly of the interpretation that government’s established Nor has inadequate are in connection and information ... judgment “released phrase that establishing crime nec burden carry its a substantive charge” awith the elements of all directed person was convicted Renteria that essarily means crime, described rath crime generic that charged was grant therefore that witness material being er for review. Renteria’s crime. that under out points The dissent IV au have officers judicial 18 U.S.C. argu Rivera’s consider Next pretrial release
thority to order ap failure her conviction that ment conditions. to certain detainees, subject not does under pear Renteria that reasons The dissent “obstruction a conviction order, constitute a court subject to such probably 1101(a)(43)(S)as under U.S.C. justice” her to likely order which would A conviction government. by the charged time. appropriate at the before reasonable, but constitutes inferences Again, such relat 1101(a)(43)(S) “an offense if it is not does record necessary. The are not ... for which justice to obstruction ing de pretrial awas that Renteria establish one at least term nor §to tainee released year.” to make court order that she appearance. approach categorical Following the deter must first Taylor, we prescribed ap categorical modified Under obstruction definition generic mine establish must
proach, 598-99, at 495 U.S. Taylor, justice. See necessarily in conviction prior that 1101(a)(43)(T), 2143. Unlike 110 S.Ct. neces documents allowable volved, and the forth clearly set does established, equating facts sarily crime. federal generic elements at U.S. Shepard, See crime. not define does the INA Because 1254; also Sandoval-Lua see 24, 125 S.Ct. to obstruction relating (9th phrase “offense Cir. Gonzales, F.3d there determine must justice,” we holdings 2007) (“[T]he Court’s Supreme on-point” precedent agency “binding any ... both stress Shepard Taylor Kharana, phrase. does define generic which aas qualifies predicate Parrilla, 4; also see n. F.3d ap modified crime *9 by acknowledged As 1041. at 414 F.3d of the record only if proach has inter Rivera, BIA all of ‘necessarily’ found jury shows obstruc generic of a elements preted ‘neces elements, generic offense justice of elements generic all of sarily’ admitted decision, 1101(a)(43)(S) precedential in a Therefore, omitted)). (citations plea.” in a 958 Espinoza-Gonzalez, In re 22 I. & N. mining Dec. specific whether the crime of con- (BIA 1999). 889 on its Based review of viction is an justice obstruction of the crimes listed in chapter 73 purposes of title 18 of of 1101(a)(43)(S), rely we U.S.Code, entitled “Obstruction of the BIA’s Jus definition.8 tice,” and on guidance provided by the now turn We specific Rivera’s crime Supreme Court in United v. Agui of case, conviction. In this question lar, 593, 515 U.S. 2357, 115 S.Ct. 132 whether all the § 3146, elements of name L.Ed.2d 520 (analyzing the elements ly, being released and knowingly failing to of 18 1503), U.S.C. the BIA articulated appear before a court as required by the both an actus reus and mens rea element conditions of release or failing to surren generic definition of such crimes for der for service of sentence pursuant to a
purposes
1101(a)(43)(S).
§ Espinoza-
order,
court
included
Gonzalez, 22 I. & N. Dec. at 892-93.
1101(a)(43)(S).
Taylor,
See
495
at
U.S.
First,
the BIA held that obstruction of 599,
959 circumstances). a Thus uncontrollable to defendant a prohibits terms, § 3146 its the necessarily includes §of 3146 a violation up for failing show to knowingly from court, in appear to failure or intentional having after proceeding judicial required presence one’s knowing that these Under do to so. or directed dered sentence. of necessarily or trial execution either circumstances, defendant a “affect will appear to failure that knows prohib- the conduct that Our conclusion 515 Aguilar, proceeding.” judicial the an intentional constitutes by 3146 ited gone haveWe 599, 115 2357. S.Ct. at U.S. proceedings judicial with interference requiring as 3146 construed and further in United our decision with consistent ap to requirement aof violation a willful (9th 982, 984-86 F.2d 996 Draper, v. States See, e.g., proceeding. judicial a pear a district that Cir.1993). we held There 1411, States, F.3d v. United Weaver the sentence enhancing in not err did court (“To Cir.1994) a vio (9th establish 1412-13 sentencing to prior fled a defendant who of the of 18 U.S.C. lation ver- 3C1.1, the relevant U.S.S.G. defendant the that prove ordinarily must that, the defen- provided “[i]f of sion which statute, to that (1) released was or impeded, or obstructed willfully dant (3) court, to required was ad- the impede, attempted to obstruct appear, to required that he knew the investi- justice during ministration (5) was and required, as failed sentencing of prosecution, gation, see also to appear.”); failure in his willful the offense offense, increase [then] instant Smeaton, F.2d v. States United (alterations at 984 Id. levels.” level Cir.1985) willful (recognizing (9th 797-98 omit- (internal marks quotation original) element an essential as to appear failure court ted). with district agreed We context, offense). In this bail-jumping justice because obstructed defendant “that intent specific a “[wjillfulness requires release of his conditions he violated forbids; general the law something do center community corrections from act is proscribed to commit intent center, corrections report failing to Wilson, 631 v. States enough.” United administration thereby impeding Cir.1980). (9th A defendant 118, 119 F.2d marks (internal quotation Id. justice.” “if it is § 3146 be convicted cannot the defendant omitted). that noted of inadvertence aas result committed having after justice” escape “to attempted 3146(c) (stating Id.; also see mistake.” his making process, judicial submitted defense affirmative can be it that arrest, fleeing from distinguishable a defendant that § 3146 jus- obstruction not constitute did due which appearing from prevented Cir.2007) (hold (8th more, F.3d (1893) (indicating that intent L.Ed. necessary to convict only intent ing that "natu have that will wrongful act take 1513(b) re defendant obstructing consequence” probable ral victim, witness, or infor taliating against justice); to obstruct “evil intent” justice is an (internal to retaliate” intent "was an mant F.3d Hopper, 177 also United see omitted)). have we Because marks quotation ele Cir.1999) (indicating (9th 830-31 govern requiring § 3146 interpreted un obstruction-of-justice offense of an ments willfully prove ment to where are satisfied 958-60, der need appear, see failed to infra prevent collection interpretations had acted defendants these not consider debt, ob “the natural specific federal knew that tax element their rea mens part of be to justice crimes would their actions struction probable effect” jus "obstruction (internal crime of quo generic federal proceedings IRS interfere tice.” omitted)); v. Galli United States marks tation *11 (internal tice. Id. at 985-86 quotation However, 1101(a)(43)(S) § also requires omitted). marks that the “term imprisonment” offense “is at year.” least one attempts Rivera Because distinguish her con § may punished violating alone, § viction of a fíne from other ob § 3146(b)(1)(A), see justice struction of we proceed offenses several must still grounds. argues She that to a the offense of further analysis of Rivera’s prior con- failing is equivalent fleeing viction under the modified ap- arrest Draper which deemed not to con proach. stitute obstruction justice, or is Turning to the modified cat (or than) analogous less serious mispri egorical approach, we judg review the felony,
sion of a which Espinoza-Gonza ment, which states that Rivera was sen lez deemed not to be an obstruction of tenced to a term of imprisonment justice. See Draper, 985-86; 996 F.2d at twelve months and day. one Because the Espinoza-Gonzalez, 22 I. & N. Dec. at judgment confirms that 892. We Rivera was con disagree. As previously we noted, victed anof justice obstruction of intentional failure to court when “for which presence one’s has term of been re is at quired interferes with the proceedings year,” least one we conclude that the BIA tribunal, such as generic meets the did not err in affirming the IJ’s holding federal definition of justice. obstruction of that Rivera’s bail-jumping quali violation Although misprision of felony or fleeing fied an aggravated as felony under arrest justice obstruct in a general 1101(a)(43)(S). § Therefore, we must sense, neither act judicial interferes with deny her for review. process and thus both offenses are differ ent in kind generic obstruction of V justice offenses. Draper, 996 F.2d at Cf. Based on our application Taylor, we (“[T]he defendant must have been conclude that a § violation of 3146 meets submitted, willfully otherwise, the definition of generic crime of due “ob- process of law before the obstruction justice” struction of adjustment obtain.”). purposes of can Further, § Espinoza-Gonzalez 1101(a)(43)(S), notes, but does not in- misprision of felony clude does not require element “proof being that offense “for motive, acted with a the term of imprisonment even is at least knowledge, of the existence of year.” one work We also conclude that the of- of an investigation or tribunal.” 22 I. & fense described in 3146 is broader than N. Dec. at 893.10 offense described in 8 U.S.C.
Because Accordingly, § 3146 fulfills convic- the first elements of generic under offense, is not categorically conclude that a felony under §§ 3146 is “an offense relating (T). jus obstruction In the particulars ease, of this tice” for purposes § 1101(a)(43)(S). however, applying the modified categorical 10. Rivera also argues addition, 3146 does not fense. argument her final constitute a justice obstruction of of- her conviction does not aggra- constitute an fense because she was not convicted of the vated 1101(a)(43)(T) is irrele- crime for which vant, she was released on bail. because the BIA determined that her This fact light sheds question no on the bail-jumping offense was an obstruction of whether the crime of which justice she convict- 1101(a)(43)(S), crime ed constitutes an justice obstruction of (a)(43)(T). of- *12 the under of release terms various ject to IJ that the determined have approach, to by a judge ordered statute, and she convic- prior Renteria’s incorrectly deemed or answer under in court to felony aggravated to be to do willfully failed cor- BIA charge, and but she IJ 1101(a)(43)(T), the that but ineligible to her renders prior That conduct Rivera’s so. deemed rectly under felony deportation. aggravated relief from for 1101(a)(43)(S). informa- of the interpretation Renteria’s Granted; is for Review Petition Renteria’s is unrea- majority, the tion, accepted is Denied. for Review Petition Rivera’s being contends first She sonable. concurring TALLMAN, Judge, not is judge Circuit appear by to” “directed part: dissenting in ap- to” part “ordered being with synonymous Sections ignores argument Her majori- pear. the from dissent respectfully I Chapter within the contained that, under conclusion erroneous ty’s “order” the term Irma use Title approach, 207 of modified 3141(a) example, Section (“Renteria”) conviction For throughout. Renteria-Morales’s ele- officer judicial the trial. —A states, “Pending not meet does jumping bail for forth felony person as set of a arrest the to order of an authorized ments the 1101(a)(43)(T). Because before this title in U.S.C. section a fundamental on brought shall is based holding person court’s an arrested whom pro- federal criminal misunderstanding of de- or released person be that such order conditions mandatory regarding cedure judicial proceedings, tained, pending be- custody, and from added). release on imposed Section (Emphasis chapter.” this the bail language charging the cause part, in relevant provides, opposite the compels information jumping appearance Upon (a) general. In deny her conclusion, I would person aof officer judicial before parts in all other concur I review. offi- offense, judicial charged with opinion. majority’s ... order issue an shall cer charging information criminal The or recognizance (b) personal on Release rele- jumping states bail Renteria with judi- bond. appearance unsecured part, vant re- pretrial shall order officer cial hav- Renteria-Morales, after [tjhat ... ... person of the lease March about on or released ing been If conditions. (c) Release 207 of Title Chapter re- determines officer judicial Code, connection States United (b) this in subsection lease described intent possession charge awith reasonably assure not will section pun- an offense marijuana, to distribute required as person appearance a term ishable any other safety of endanger will having years, five more judicial community, such person Dis- before directed release pretrial order shall officer Arizona District Court trict person.... fail willfully did Arizona, ... Tucson, added); Fed.R.Crim.P. See (Emphasis appear. or release (“The detain must 5(d)(3) judge only one susceptible language This by statute provided the defendant Renteria interpretation: reasonable rules.”). these possession charged with case, United when distribute, she intent with the marijuana Renteria “directed” judge magistrate sub- was released appear, he was necessarily exercising his not say that. It says simply that she was authority under Section 3142 and “order- ... “released in connection with” that felo- ing” appear. Renteria to There is no oth- ny. If Renteria had been convicted of the possibility. er That the information hap- felony charged and failed to show up for pens to use the words “directed to appear” sentencing, the information would say so. instead of to appear” “ordered is immateri- *13 Second, even if Renteria al. is correct that may information be fairly read mean Renteria also argues that, based on the that she did not up show for sentencing, a language of the information, someone else person who fails to show up for sentencing could have been charged possession has failed “dispose of a charge of a with the intent marijuana, distribute felony,” within the meaning 8 U.S.C. and that may Renteria have been ordered § 1101(a)(43)(T). A “charge of a felony” to appear as a material witness in that not “disposed case, of’ until the but failed to do so. That too is an sentenced judgment unreasonable reading of the conviction is documents we may consider entered. Barnaby See Taylor’s Reno, modified cat- egorical approach. F.Supp.2d 277, (D.Conn.2001) (con information ex- plicitly states that struing Renteria defendant’s released failure to appear at “in connection with a charge possession sentencing as a failure to “dispose of’ the with the intent to distribute marijuana.” charge within the meaning of 8 U.S.C. words, In other she was arrested on suspi- § 1101(a)(43)(T)); see, e.g., Fed. R.App. P. cion of committing that felony, then 4(b) re- (noting that the final decision in a leased. There is simply no reason be- criminal case for purposes of appeal is the lieve that someone else was charged with entry of the judgment conviction). that felony, that Renteria awas material Thus, even under Renteria’s and the ma thereto, witness and that she failed to jority’s own reading of the information, she show up to testify. If Renteria really had failed to “dispose of a charge of a felony.” failed to testify against someone else case, drug Under the modified categorical the information approach would have charged applied her to a plain failure to appear reading of response documents ato subpoena or agreement may consider, to testify. It Renteria’s conviction for did not. bail jumping necessarily meets all of the elements of felony as set Finally, Renteria argues, major- and the forth in ity I erroneously agrees, would that, based on the deny her language of review. the information, Renteria have simply failed to show up for sentenc-
ing, as opposed to failing to up show “to
answer of a charge a felony.”
There are problems with Renteria’s
argument.
First, the information cannot reasonably
be read to mean that Renteria failed to
show up for sentencing. If Renteria had
really failed to show up for sentencing,
then it follows that she would have already
been found guilty of the crime described
the information. But the information does