Flores v. Attorney Gen. U.S.
| Decision Date | 08 May 2017 |
| Docket Number | No. 16-1979,16-1979 |
| Citation | 856 F.3d 280 |
| Parties | Patricia Yuisel FLORES, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
Marcia Kasdan [ARGUED], Marcia S. Kasdan & Associates, 127 Main Street, 1st Floor, Hackensack, NJ 07601, Attorney for Petitioner
Jefferson B. Sessions III, United States Attorney General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, Thomas W. Hussey, Andrew B. Insenga [ARGUED], Karen L. Melnick, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, Attorneys for Respondent
Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges
Patricia Flores, a native and citizen of Guatemala, seeks review of a decision by the Board of Immigration Appeals ("BIA") that found her ineligible for withholding of removal because she had been convicted of a "particularly serious crime"—namely, she was convicted of accessory after the fact in South Carolina for witnessing, but failing to report, a murder. Flores now petitions for review, contending that her South Carolina conviction does not constitute a "particularly serious crime" under our decision in Denis v. Attorney General , and that she should therefore be eligible for withholding of removal. We agree. Because Flores's South Carolina accessory-after-the-fact conviction is not an offense "relating to obstruction of justice," it cannot be considered either an "aggravated felony" or a "particularly serious crime" under the Immigration and Nationality Act ("INA"). Accordingly, Flores is eligible for withholding of removal.
Flores, a Guatemalan native, originally entered the United States with her husband to escape her abusive father. Although her husband traveled with a visa, she entered the country illegally. The two had a daughter together, but subsequently divorced, and Flores entered various relationships with other men and women.
According to the record on appeal, Flores traveled to South Carolina to visit family in late 2007. While there, she struck up a relationship with a young man, Fredy Sibrian. Unfortunately, this relationship soon deteriorated as Sibrian became increasingly "violent, jealous and possessive," causing Flores to leave Sibrian.1 She then traveled to North Carolina, where she met, and started dating, another man, Antonio Perez. When Flores subsequently returned to South Carolina with Perez in April 2008, Sibrian confronted them at a gas station, causing a heated exchange that ended when Sibrian shot and killed Perez. According to Flores, she did not immediately report the murder because Sibrian threatened to kill her and her then-three-year-old daughter if she disclosed Sibrian's actions to the police. Fearing Sibrian's retribution, Flores returned to North Carolina, but she was later arrested and sent back to South Carolina, where she was charged with Perez's murder.
Flores eventually pleaded guilty to accessory after the fact under South Carolina law2 and was sentenced to five years' imprisonment. According to Flores's testimony, which the Immigration Judge ("IJ") found credible, she pleaded guilty to accessory after the fact because she failed to report the murder to police. The record does not reflect that Flores covered up the homicide, lied to police or prosecutors, or assisted the shooter in any way.
After serving about two years of her prison term, Flores was removed to Guatemala. A few months later, however, she re-entered the United States illegally. In 2015, following her arrest for prostitution, Flores was detained by Immigration and Customs Enforcement. During an asylum interview, she stated that she feared returning to Guatemala because: (1) her father, who had physically and sexually abused her as a child, wanted to kill her; (2) she had been raped by members of a local gang immediately following her previous removal to Guatemala; and (3) she feared that she would be persecuted because she is a lesbian. The asylum officer determined that Flores had a reasonable fear of persecution.
The case was referred to the Immigration Court where Flores filed an application for withholding of removal and relief under the Convention Against Torture ("CAT"). The IJ made two primary findings with respect to Flores. First, the IJ found that Flores's conviction for accessory after the fact was a "particularly serious crime" under the INA, rendering her ineligible for withholding of removal. Second, the IJ found that Flores failed to adequately establish that she would, more likely than not, be subjected to torture in Guatemala, as required to obtain relief under CAT. Flores then appealed to the BIA.
The BIA dismissed the appeal and affirmed the IJ's decision on both grounds. First, relying on its own decisions and our holding in Denis ,3 the BIA concluded that Flores's accessory-after-the-fact conviction "relat[es] to obstruction of justice," and therefore constitutes a "particularly serious crime."4 The BIA also concluded that Flores had not meaningfully challenged the denial of her CAT claim because she failed to produce any purported new evidence in support of her position.
Flores now petitions for review of two BIA determinations: (1) that her accessory-after-the-fact conviction is a "particularly serious crime" rendering her ineligible for withholding of removal,6 and (2) that she did not meaningfully challenge the denial of her CAT claim.7 We address each in turn.
The INA provides that the Attorney General "may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country."8 However, such withholding of removal is unavailable if the alien committed a "particularly serious crime" because, in such a case, the alien is considered a "danger to the community of the United States."9 A "particularly serious crime," under the INA, includes crimes that are considered "aggravated felon[ies]" for which the alien received a prison sentence of at least five years.10 The INA's list of aggravated felonies, in turn, includes 21 descriptions of various offenses, including, as relevant here, "offense[s] relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness" (the "Obstruction Provision").11 Because Flores was sentenced to five years for her accessory-after-the-fact conviction, the question before us is straightforward: is accessory after the fact "relat[ed] to obstruction of justice"? We now answer that question in the negative.
Our inquiry starts, as it must, with our decision in Denis . There, we examined whether an alien's prior New York conviction for tampering with evidence was an "offense relating to obstruction of justice." 12
In doing so, we first explained that we apply the categorical approach of statutory interpretation in determining whether a state conviction constitutes an aggravated felony (and thus a "particularly serious crime") under the INA.13 This approach involves a comparison between the statute of the alien's prior conviction and the relevant federal crime listed as an aggravated felony, without regard to the underlying facts of the petitioner's offense.14 If the elements of the alien's statute of conviction are broader than the elements of the aggravated felony crime, then the crime of conviction does not qualify as an aggravated felony.15 If, however, the elements of the statute of conviction are the same or narrower than the elements of the aggravated felony crime, then the crime of conviction qualifies as an aggravated felony.16
Importantly, unlike other contexts, Denis makes clear that, when applying the categorical approach, we do not strictly compare the elements of the statute of conviction to the elements of the Obstruction Provision's referenced offenses.17 Instead, we apply a looser categorical approach in light of the Obstruction Provision's statutory text, which states that aggravated felonies include any offense "relating to obstruction of justice."18 Thus, "rather than ascertaining whether the elements of a [prior] crime of conviction match the elements of a generic federal offense with precision, we must only decide that the [prior] conviction 'relates to' the offense criminalized by [the Obstruction Provision], namely, obstruction of justice."19 In other words, we "survey the interrelationship between the [crime committed and the relevant obstruction statute], and apply the phrase 'relating to' broadly, seeking a logical or causal connection."20 As the "prime example" of this "causal connection," we remarked that "Section 510(b), which criminalizes the knowing exchange of stolen or forged Treasury instruments," is "related to" forgery, even though it lacks the "essential element" of an intent to defraud or deceive.21 Similarly, we noted that a conviction for trafficking in counterfeit items constitutes an aggravated felony "relating to" counterfeiting in light of the connection between these two offenses.22
With those principles in mind, we then turned to Denis's prior New York conviction for tampering with evidence. In reviewing the Obstruction Provision, we explained that "Title 18 of the U.S. Code contains a listing of crimes entitled 'obstruction of justice,' permitting us to easily determine the types of conduct Congress intended the phrase to encompass."23 Looking at that obstruction-of-justice section of the U.S. Code—Chapter 73, to be precise—we noted that § 1503 and § 1512(c)(1) were most relevant to Denis's conduct.24 Section 1503 prohibits a person from "corruptly or by threats or force ... influenc[ing], obstruct[ing], or imped[ing], or endeavor [ing] to influence, obstruct or impede, the due administration of justice."25 We explained that "Denis's conviction for tampering bears a close resemblance to the federal...
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