Gallardo v. Barr

Citation968 F.3d 1053
Decision Date06 August 2020
Docket NumberNo. 18-72593,18-72593
Parties Agustin VALENZUELA GALLARDO, Petitioner, v. William P. BARR, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Frank Sprouls (argued) and John E. Ricci, Law Office of Ricci & Sprouls, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California, for Amici Curiae American Immigration Lawyers Association, U.C. Davis School of Law Immigration Law Clinic, and Asian Americans Advancing Justice—Asian Law Caucus.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-094

Before: Eugene E. Siler,* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.

WARDLAW, Circuit Judge:

"Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). In 1996, Congress expanded the list of crimes that the Immigration and Nationality Act (INA) defines as an "aggravated felony" to include "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." Id. § 1101(a)(43)(S) (emphasis added); see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(e)(8), 110 Stat. 1214, 1278; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208, § 321(a)(11), 110 Stat. 3009-546, 3009-628. In an en banc precedential decision issued over two decades ago, the Board of Immigration Appeals (BIA) held that "an offense relating to obstruction of justice" is defined by the federal obstruction of justice offenses listed under that title in 18 U.S.C. §§ 1501 – 18, almost all of which require a nexus to an ongoing criminal proceeding or investigation. Matter of Espinoza-Gonzalez , 22 I. & N. Dec. 889, 892–94 (BIA 1999) (en banc). Our court approved that definition as applied to a state misdemeanor conviction for rendering criminal assistance. Hoang v. Holder , 641 F.3d 1157, 1164–65 (9th Cir. 2011).

Since then, in this very case, the BIA has twice changed that settled definition, each time expanding it in different ways to encompass the crime for which Agustin Valenzuela Gallardo was convicted: accessory to a felony in violation of California Penal Code § 32. A prior panel of our court vacated the BIA's first redefinition because it raised "serious constitutional concerns about whether the statute is unconstitutionally vague," and remanded to the BIA so that it could "either offer a new construction of [ § 1101(a)(43)(S) ] or, in the alternative, apply Espinoza-Gonzalez ’s interpretation" to this case. Valenzuela Gallardo v. Lynch , 818 F.3d 808, 811, 824 (9th Cir. 2016) ( Valenzuela Gallardo I ). The BIA took our court up on its invitation to offer a new construction of § 1101(a)(43)(S), which again deviated from Espinoza-Gonzalez ’s requirement of a nexus to an ongoing criminal proceeding or investigation.

We hold that the BIA's new construction is inconsistent with the unambiguous meaning of the term "offense relating to obstruction of justice" in the statute as enacted by Congress and, therefore, is an unreasonable construction of the statute.

Accordingly, we grant the petition for review and vacate the order of removal.

I.
A.

Agustin Valenzuela Gallardo, a Mexican citizen, was admitted to the United States as a lawful permanent resident in 2002. In 2007, he pleaded guilty to being an accessory to a felony in violation of California Penal Code § 32, which reads:

Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.

Cal. Penal Code § 32. Although Valenzuela Gallardo was initially placed on parole, he was later sentenced to sixteen months in prison after he violated his parole conditions.

B.

The Government subsequently placed Valenzuela Gallardo in removal proceedings and charged him as an aggravated felon for having committed an "offense relating to obstruction of justice" under § 1101(a)(43)(S). Valenzuela Gallardo moved to terminate the proceedings, arguing that his accessory conviction under California Penal Code § 32 was not an obstruction of justice offense within the meaning of the statute.

The Immigration Judge (IJ) denied the motion to terminate and ordered Valenzuela Gallardo removed. The IJ relied primarily on the BIA's decision in Matter of Batista-Hernandez , 21 I. & N. Dec. 955, 961 (BIA 1997), which held that the federal accessory after the fact offense, 18 U.S.C. § 3, is an obstruction of justice aggravated felony under § 1101(a)(43)(S) if a sentence of one year or more is imposed. The IJ reasoned that there was "no material difference" between California Penal Code § 32 and 18 U.S.C. § 3, so Valenzuela Gallardo's state accessory after the fact conviction also qualified as an aggravated felony under the INA.

The BIA dismissed Valenzuela Gallardo's ensuing appeal, finding that "the elements of 18 U.S.C. § 3 are substantially the same as the elements of California Penal Code § 32," and, thus, his crime constituted an obstruction of justice offense under Espinoza-Gonzalez and Batista-Hernandez . The BIA explained that based upon "the crimes listed in 18 U.S.C. chapter 73, entitled ‘Obstruction of Justice,’ " an "offense relating to obstruction of justice" includes "active interference with proceedings of a tribunal or investigation" or "action or threat of action" against individuals cooperating in these processes. It affirmed the removal order and later denied a motion for reconsideration. Valenzuela Gallardo petitioned this court for review.

While his petition for review was pending, we published our decision in Hoang v. Holder , which construed Espinoza-Gonzalez and Batista-Hernandez together to determine that the BIA had concluded that "accessory after the fact is an obstruction of justice crime when it interferes with an ongoing proceeding or investigation."1 641 F.3d at 1164 (emphasis altered). The BIA then sua sponte ordered Valenzuela Gallardo's case reopened for reconsideration in light of Hoang . Accordingly, we dismissed the petition for review for lack of jurisdiction. See Lopez-Ruiz v. Ashcroft , 298 F.3d 886, 887 (9th Cir. 2002) ("The BIA's granting of [a] motion to reopen means there is no longer a final decision to review.").

With Valenzuela Gallardo's case now back before it, the BIA switched directions, concluding for the first time in its consideration of the question that "the existence of [an ongoing criminal] proceeding[ ] is not an essential element of an offense relating to obstruction of justice." Matter of Valenzuela Gallardo , 25 I. & N. Dec. 838, 841 (BIA 2012) (internal quotation marks omitted). Instead, it defined obstruction of justice to mean an "affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Id. at 842 (quoting Espinoza-Gonzalez , 22 I. & N. Dec. at 894 ). Applying this definition, it concluded that Valenzuela Gallardo's accessory after the fact conviction was an aggravated felony under the INA, and once again dismissed his appeal. Id. at 844. Valenzuela Gallardo petitioned for a second time.

In our decision on that petition, Valenzuela Gallardo I , 818 F.3d at 816, we applied "the doctrines of constitutional avoidance and constitutional narrowing" at Chevron Step One. We held that the BIA's new construction of § 1101(a)(43)(S) "raise[d] grave constitutional concerns because it use[d] an amorphous phrase—‘process of justice’—without telling us what that phrase means." Id. at 822. We explained that absent some "narrowing context," such as a nexus to an ongoing judicial proceeding, the BIA's definition of an offense relating to obstruction of justice raised serious vagueness concerns. Id. (citing the Supreme Court's then-recent decision in Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down the residual clause of the Armed Career Criminal Act as unconstitutionally vague). Because Congress had not made clear that § 1101(a)(43)(S) permitted such a "constitutionally doubtful interpretation," we did not afford Chevron deference to the BIA's construction of the obstruction of justice provision. Id. at 823 (quoting Williams v. Babbitt , 115 F.3d 657, 663 (9th Cir. 1997) ). Accordingly, we remanded the case to the BIA to provide a definition that was not "unworkably vague," or to apply the existing precedent of Espinoza-Gonzalez . Id. at 822, 824. In dissent, Judge Seabright noted that he would not apply the doctrine of constitutional avoidance, and concluded that because the BIA's definition of obstruction of justice was not impermissibly vague, he would "defer to the BIA's reasonable, permissible, and plausible interpretation of § 1101(a)(43)(S)." Id. at 831 (Seabright, J., dissenting).

On remand, the BIA published its second opinion in this case, Matter of Valenzuela Gallardo , 27 I. & N. Dec. 449 (BIA 2018), in which it announced its third definition of "an offense relating to obstruction of justice." This time it concluded that obstruction crimes include those "crimes involving (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant...

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