Gallardo v. Lynch

Citation818 F.3d 808
Decision Date31 March 2016
Docket NumberNo. 12–72326.,12–72326.
Parties Augustin VALENZUELA GALLARDO, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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

Rebecca Hoffberg Phillips (argued) and Imran Raza Zaidi, Trial Attorneys, and Ada Elsie Bosque, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A056–010–094.

Before: SIDNEY R. THOMAS, Chief Judge, MORGAN CHRISTEN, Circuit Judge, and J. MICHAEL SEABRIGHT,* District Judge.

Opinion by Judge CHRISTEN

; Dissent by Judge SEABRIGHT.

OPINION

CHRISTEN, Circuit Judge:

Augustin Valenzuela Gallardo, a citizen of Mexico, pleaded guilty to violating California Penal Code § 32, accessory to a felony. An immigration judge (IJ) ordered him removed to Mexico, concluding that his conviction constituted an "offense relating to obstruction of justice" and therefore an aggravated felony under the Immigration and Nationality Act (INA) § 101(a)(43)(S). The Board of Immigration Appeals (BIA) dismissed Valenzuela Gallardo's appeal. In its decision, it announced a new interpretation of "obstruction of justice" that requires only "the affirmative and intentional attempt, with specific intent, to interfere with the process of justice." Contrary to the prior construction, this interpretation of INA § 101(a)(43)(S) requires no nexus to an ongoing investigation or proceeding. Valenzuela Gallardo petitions for review, arguing that the agency's revised interpretation of the statute raises serious constitutional concerns about whether the statute is unconstitutionally vague. We agree and remand to the Board for application of the previous interpretation or formulation of a construction that does not raise grave constitutional doubts.

BACKGROUND
I. Facts

Augustin Valenzuela Gallardo was admitted to the United States as a lawful permanent resident in 2002. In November 2007, police discovered him in a stolen vehicle with possession of methamphetamine, ecstacy, and a loaded firearm. Valenzuela Gallardo was arrested and charged with two counts of possession of a controlled substance (methamphetamine) in violation of California Health and Safety Code § 11378, one count of possessing methamphetamine while armed in violation of California Health and Safety Code § 11370.1, and one count of failing to comply with the terms of his probation in violation of California Penal Code § 1203. He agreed to plead guilty to an amended count of accessory to a felony in violation of California Penal Code § 32. All remaining charges were dismissed. Initially, Valenzuela Gallardo was placed on probation, but he subsequently violated the terms of his probation and was sentenced to sixteen months' imprisonment.

II. Proceedings

In June 2010, the Government placed Valenzuela Gallardo in removal proceedings. The Government argued that a conviction under California Penal Code § 32constitutes an "offense relating to obstruction of justice," and therefore an aggravated felony under INA § 101(a)(43)(S).

Valenzuela Gallardo filed a motion to terminate removal proceedings in July 2010. He appeared before an immigration judge and contested removability on the grounds that his conviction was not an offense "relating to obstruction of justice" because "the federal ‘Obstruction of Justice’ grounds must relate to an extant judicial proceeding."

The IJ denied Valenzuela Gallardo's motion to terminate removal proceedings. The IJ reasoned that the BIA had previously held that the federal crime of accessory after the fact, 18 U.S.C. § 3, is an aggravated felony, that there was "no material difference" between § 3 and California Penal Code § 32, and that the BIA has not "limit[ed] the scope of the obstruction of justice aggravated felony to cases in which there is a pending judicial proceeding." The IJ thus concluded that a conviction under California Penal Code § 32 is an "offense relating to obstruction of justice," and ordered Valenzuela Gallardo removed to Mexico.

Valenzuela Gallardo filed an appeal but the BIA dismissed it. After the BIA denied Valenzuela Gallardo's motion to reconsider, he petitioned for review and requested a stay of removal. Our court dismissed that petition for lack of jurisdiction.

In May 2011, we issued an opinion in Trung Thanh Hoang v. Holder, a case that looked to two prior BIA decisions and held, under the agency's interpretation, that a crime constitutes an obstruction of justice crime "when it interferes with an ongoing proceeding or investigation. " 641 F.3d 1157, 1164 (9th Cir.2011) (some emphasis added).

In light of our opinion in Hoang, the BIA sua sponte reopened Valenzuela Gallardo's proceedings for further consideration of his removability. In the opinion that followed, In re Valenzuela Gallardo, a three-judge panel of the BIA sought "to clarify [the BIA's] prior precedents on the scope of the phrase ‘relating to obstruction of justice,’ " and rejected Hoang 's holding. 25 I. & N. Dec. 838, 840, 842 (B.I.A.2012). The three-judge panel announced that "obstruction of justice" requires only:

the affirmative and intentional attempt, with specific intent, to interfere with the process of justice—[this] demarcates the category of crimes constituting obstruction of justice. While many crimes fitting this definition will involve interference with an ongoing criminal investigation or trial, we now clarify that the existence of such proceedings is not an essential element of "an offense relating to obstruction of justice. "

Id. at 841 (emphasis added) (citation omitted). In light of this interpretation, the BIA concluded that Valenzuela Gallardo's conviction was an offense "relating to obstruction of justice." Id. at 844. Because Valenzuela Gallardo was ultimately sentenced to more than one year of imprisonment for his offense, the BIA concluded that his conviction was for an aggravated felony. Id. It therefore dismissed Valenzuela Gallardo's reopened appeal. Id.

Valenzuela Gallardo petitions for review, challenging the BIA's most recent interpretation of INA § 101(a)(43)(S). We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and we hold that the BIA's new construction of "obstruction of justice" raises grave doubts about whether the statute, so construed, is unconstitutionally vague. Because we see no clear indication that Congress intended to delegate authority to the agency to push the constitutional boundary, we remand to the agency, as the agency requested, for consideration of a new construction or application of the interpretation it previously announced in In re Espinoza–Gonzalez, 22 I. & N. Dec. 889 (B.I.A.1999) (en banc), and to which we deferred in Hoang, 641 F.3d at 1161.

STANDARD OF REVIEW

We review legal questions de novo. Perez–Enriquez v. Gonzales, 463 F.3d 1007, 1009 (9th Cir.2006). Where, as here, the BIA reviews an IJ's decision de novo, our review is limited to the BIA's decision. Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000).

DISCUSSION
I. The BIA's most recent interpretation departs from its prior interpretations.

"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). The INA does not separately define "aggravated felony." Instead, it refers to a list of qualifying criminal offenses, which includes offenses "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." INA § 101(a)(43)(S).

In 1997, a twelve-member en banc panel of the BIA ruled in In re Batista–Hernandez that the federal crime of accessory after the fact, 18 U.S.C. § 3, "clearly relates to obstruction of justice" and constitutes an aggravated felony under INA § 101(a)(43)(S). 21 I. & N. Dec. 955, 961 (B.I.A.1997). The Board explained:

[T]he wording of 18 U.S.C. § 3 itself indicates its relation to obstruction of justice, for the statute criminalizes actions knowingly taken to "hinder or prevent (another's) apprehension, trial or punishment." ... [T]he nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender.

Id.

Two years later, a sixteen-member en banc panel of the BIA issued Espinoza–Gonzalez and concluded that misprision of felony, 18 U.S.C. § 4, does not constitute obstruction of justice and is not an aggravated felony under INA § 101(a)(43)(S). 22 I. & N. Dec. 889, 897 (B.I.A.1999). The BIA reasoned:

We do not believe that every offense that, by its nature, would tend to "obstruct justice" is an offense that should properly be classified as "obstruction of justice." The United States Code delineates a circumscribed set of offenses that constitute "obstruction of justice," and although misprision of felony bears some resemblance to these offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.... [W]here the obstruction of justice offenses are broadly stated, courts have interpreted them narrowly. To include all offenses that have a tendency to, or by their nature do, obstruct justice would cast the net too widely.

Id. at 893–94 (citation omitted). Espinoza–Gonzalez distinguished misprision of felony from accessory after the fact, which had been at issue in Batista–Hernandez:

The definition of the federal crime of accessory after the fact in 18 U.S.C. § 3 requires an affirmative action knowingly undertaken "in order to hinder or prevent (another's) apprehension, trial or punishment." Although misprision of a felony has as an element the affirmative concealment of the felony, there is, unlike § 3, nothing in § 4 that references the specific purpose for which the
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3 books & journal articles
  • OBSTRUCTION OF JUSTICE
    • United States
    • American Criminal Law Review No. 58-3, July 2021
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    ...construed [the] broad language [of § 1503’s catchall provision] to require an ongoing proceeding.” Valenzuela Gallardo v. Lynch, 818 F.3d 808, 823 (9th Cir. 2016). Indeed, both the Eighth and Eleventh Circuits have at times acknowledged the need for some sort of judicial proceeding. See Vag......
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    • American Criminal Law Review No. 60-3, July 2023
    • July 1, 2023
    ...construed [the] broad language [of § 1503’s catchall provision] to require an ongoing proceeding.” Valenzuela Gallardo v. Lynch, 818 F.3d 808, 823 (9th Cir. 2016). Indeed, both the Eighth and Eleventh Circuits have at times acknowledged the need for some sort of judicial proceeding. See Vag......
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    • July 1, 2022
    ...construed [the] broad language [of § 1503’s catchall provision] to require an ongoing proceeding.” Valenzuela Gallardo v. Lynch, 818 F.3d 808, 823 (9th Cir. 2016). Indeed, both the Eighth and Eleventh Circuits have at times acknowledged the need for some sort of judicial proceeding. See Vag......

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