Cordero-Garcia v. Garland
| Decision Date | 15 August 2022 |
| Docket Number | 19-72779 |
| Citation | 44 F.4th 1181 |
| Parties | Fernando CORDERO-GARCIA, aka Fernando Cordero, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michael K. Mehr (argued), Mehr & Soto LLP, Santa Cruz, California, for Petitioner.
Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Brian Boynton, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Before: Andrew D. Hurwitz and Lawrence VanDyke, Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Opinion by Judge Moskowitz;
This petition for review presents the following question: is dissuading or attempting to dissuade a witness from reporting a crime, in violation of California Penal Code ("CPC") § 136.1(b)(1), "an offense relating to obstruction of justice" under 8 U.S.C. § 1101(a)(43)(S), and thus an "aggravated felony" for purposes of the Immigration and Nationality Act ("INA")? Applying the categorical approach, we conclude that CPC § 136.1(b)(1) is not a categorical match to "an offense relating to obstruction of justice" under § 1101(a)(43)(S), which requires a nexus to an ongoing or pending proceeding or investigation, or to the federal witness tampering statute, 18 U.S.C. § 1512(b)(3), which requires the use of intimidation, threats or corrupt persuasion. Accordingly, we grant the petition for review and remand.
Fernando Cordero-Garcia, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident on July 2, 1965. On April 24, 2009, Cordero-Garcia was convicted of two counts of CPC § 136.1(b)(1) and sentenced to two years of imprisonment. Cordero-Garcia was also convicted of one count of sexual battery without restraint in violation of CPC § 243.4(e)(1), and one count of sexual exploitation by a psychotherapist or drug abuse counselor in violation of California Business and Professions Code ("CBPC") § 729(a).
On November 29, 2011, the Department of Homeland Security ("DHS") served Cordero-Garcia with a Notice to Appear, alleging that he had "been convicted of an aggravated felony as defined in [ § 1101(a)(43)(S) ], 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." On December 21, 2011, DHS served Cordero-Garcia with additional charges of deportability, alleging that he had also "been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct."
Cordero-Garcia moved to terminate his removal proceedings on the ground that he was not removable, or in the alternative, moved for cancellation of removal. On June 27, 2012, the immigration judge ("IJ") sustained the charges of removability against Cordero-Garcia, denied his application for cancellation of removal, and ordered him removed. The IJ held that Cordero-Garcia's CPC § 136.1(b)(1) convictions were offenses relating to obstruction of justice, and that his CPC § 243.4(e)(1) and CPC § 136.1(b)(1) convictions were crimes of moral turpitude. The IJ declined to reach the issue of whether Cordero-Garcia's CBPC § 729(a) conviction was also a crime of moral turpitude. On November 27, 2012, the Board of Immigration Appeals ("BIA") dismissed Cordero-Garcia's appeal. Upholding the IJ's determination that Cordero Garcia's CPC § 136.1(b)(1) convictions were offenses relating to obstruction of justice, the BIA held that "a crime may relate to obstruction of justice within the meaning of [ § 1101(a)(43)(S) ] irrespective of the existence of an ongoing criminal investigation or proceeding."
On March 31, 2016, we decided Valenzuela Gallardo v. Lynch ("Valenzuela Gallardo I "), 818 F.3d 808 (9th Cir. 2016), which considered the BIA's new definition of "an offense relating to obstruction of justice" under § 1101(a)(43)(S) as the "the affirmative and intentional attempt, with specific intent, to interfere with the process of justice." Id. at 811. We held that the BIA's new definition raised "grave constitutional concerns" because it used "an amorphous phrase—‘process of justice’—without telling us what that phrase means." Id. at 822. We remanded to the BIA to either offer a new construction of § 101(a)(43)(S) or apply its prior interpretation from In Re Espinoza-Gonzalez , 22 I. & N. Dec. 889 (BIA 1999).1 Id. at 824.
In light of Valenzuela Gallardo I , and after Cordero-Garcia filed a petition for review with this court, on July 10, 2017, we granted an unopposed motion to remand the case to the BIA. Meanwhile, on September 11, 2018, in Matter of Valenzuela Gallardo , the BIA had modified its definition of "an offense relating to obstruction of justice" to include:
offenses covered by chapter 73 of the Federal criminal code or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another's punishment resulting from a completed proceeding.
27 I. & N. Dec. 449, 460 (BIA 2018).
On October 18, 2019, on remand, the BIA dismissed Cordero-Garcia's appeal. Matter of Cordero-Garcia , 27 I. & N. Dec. 652, 663 (BIA 2019). The BIA "conclude[d] that dissuading a witness in violation of [CPC § 136.1(b)(1) ] is categorically an aggravated felony offense relating to obstruction of justice under [ § 1101(a)(43)(S) ] pursuant to the criteria that [the BIA] outlined in [ Matter of Valenzuela Gallardo ]." Id. at 654–55. The BIA also determined that it was appropriate to apply its modified definition from Matter of Valenzuela Gallardo retroactively and concluded that Cordero-Garcia was removable and ineligible for cancellation of removal. Id. at 663. On November 1, 2019, Cordero-Garcia timely petitioned for review.
On August 6, 2020, we decided Valenzuela Gallardo v. Barr (" Valenzuela Gallardo II "), "hold[ing] that the BIA's new construction is inconsistent with the unambiguous meaning of the term ‘offense relating to obstruction of justice’ in [ § 1101(a)(43)(S) ] as enacted by Congress and, therefore, is an unreasonable construction of the statute." 968 F.3d 1053, 1056 (9th Cir. 2020). We held that " ‘obstruction of justice’ under § 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings." Id. at 1069.
We have jurisdiction over Cordero-Garcia's petition for review pursuant to 8 U.S.C. § 1252(a)(2)(D). "We review constitutional and other questions of law de novo." Bojnoordi v. Holder , 757 F.3d 1075, 1077 (9th Cir. 2014) (internal quotation marks omitted). "Whether an offense is an aggravated felony for removal purposes is a question of law." Chuen Piu Kwong v. Holder , 671 F.3d 872, 876 (9th Cir. 2011) (brackets omitted). "We do not defer to the BIA's interpretations of state law or provisions of the federal criminal code, and instead must review de novo whether the specific crime of conviction meets the INA's definition of an aggravated felony." Salazar-Luviano v. Mukasey , 551 F.3d 857, 860–61 (9th Cir. 2008) (internal citations and quotation marks omitted).
"Under the INA, any noncitizen who is convicted of an aggravated felony suffers several consequences, such as becoming deportable, inadmissible, and ineligible for cancellation of removal." Cortes-Maldonado v. Barr , 978 F.3d 643, 647 (9th Cir. 2020) (footnotes omitted). Under § 1101(a)(43)(S), an "aggravated felony" includes "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).
"Courts employ the categorical approach to determine whether a state criminal conviction is an aggravated felony for the purposes of the INA." Medina-Rodriguez v. Barr , 979 F.3d 738, 744 (9th Cir. 2020). "The categorical approach prescribes a three-step process for determining whether an offense is an ‘aggravated felony.’ " Ho Sang Yim v. Barr , 972 F.3d 1069, 1077 (9th Cir. 2020). "First, we must identify the elements of the generic federal offense." Id. "Second, we must identify the elements of the specific crime of conviction." Id. "Third, we compare the statute of conviction to the generic federal offense to determine whether the specific crime of conviction meets the ... definition of an aggravated felony." Id. (internal quotation marks omitted). "Under the categorical approach, we ignore the actual facts of the particular prior conviction and instead compare the elements of the state statute of conviction to the federal generic crime to determine whether the conduct proscribed by the state statute is broader than the generic federal definition." Cortes-Maldonado , 978 F.3d at 647 (internal quotation marks omitted). "There is a categorical match only if the statute's elements are the same as, or narrower than, those of the generic offense." Lopez-Aguilar v. Barr , 948 F.3d 1143, 1147 (9th Cir. 2020) (citation and quotation marks omitted).
"A state offense qualifies as a generic offense—and therefore ... an aggravated felony—only if the full range of conduct covered by the state statute falls within the meaning of the generic offense." Id. (brackets omitted). "[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." Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). "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." Id. ...
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