In re Gallardo
| Decision Date | 27 June 2012 |
| Docket Number | Interim Decision #3758 |
| Parties | Matter of Agustin VALENZUELA GALLARDO, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
Executive Office for Immigration Review
(1) A crime "relate[s] to obstruction of justice" within the meaning of section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2006), if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), reaffirmed. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999), clarified.
(2) A conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony under section 101(a)(43)(S) of the Act, because the offense "relate[s] to obstruction of justice."
GRANT, Board Member:
In a decision dated August 12, 2010, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien who has been convicted of an aggravated felony. The Immigration Judge therefore denied the respondent's motion to terminate his removal proceedings and ordered him removed from the United States. The respondent filed a timely appeal from the Immigration Judge's decision, which we dismissed on November 9, 2010.
The respondent subsequently filed a timely motion to reconsider, which we denied on January 7, 2011. In an interim order dated October 21, 2011, we sua sponte reopened these removal proceedings for further consideration of the respondent's removability in light of Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011), and thereby reinstated the respondent's appeal. Both parties have submitted briefs setting forth their positions concerning the respondent's removability. The appeal will be dismissed.
The respondent, a native and citizen of Mexico, was admitted to the United States as a lawful permanent resident on or about May 23, 2002. He was convicted of the crime of accessory to a felony in violation of section 32 of the California Penal Code on December 28, 2007, and was sentenced to 16 months in prison. Based on this conviction, the Department of Homeland Security ("DHS") initiated removal proceedings against the respondent, charging that he is removable as an alien convicted of an aggravated felony. Specifically, the DHS asserted that the respondent's accessory offense is "an offense relating to obstruction of justice" for which he was sentenced to at least 1 year of imprisonment and that it is therefore an aggravated felony under section 101(a)(43)(S) of the Act, 8 U.S.C. § 1101(a)(43)(S) (2006). In his motion to terminate proceedings, the respondent countered that his crime does not qualify as "an offense relating to obstruction of justice" because the statute under which he was convicted does not require that the offender's actions relate to any ongoing investigation or judicial proceedings. In light of prior Board precedent, the Immigration Judge denied the respondent's motion and ordered him removed to Mexico.
The sole issue before us is whether the respondent's felony accessory offense qualifies as "an offense relating to obstruction of justice" within the meaning of section 101(a)(43)(S) of the Act.1 This is a purely legal question, which we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2012).
The phrase "an offense relating to obstruction of justice" is not defined in the Act. See Matter of Espinoza, 22 I&N Dec. 889, 891 (BIA 1999). As the United States Court of Appeals for the Ninth Circuit has acknowledged, the phrase is ambiguous. See Trung Thanh Hoang v. Holder, 641 F.3d at 1060-61, and cases cited therein. Where a statute is silent or ambiguous, an agency's interpretation of it should be given deference if it is based on a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). The Supreme Court has emphasized that theChevron principle of deference must be applied to an agency's interpretation of ambiguous statutory provisions, even where a court has previously issued a contrary decision and believes that its construction is the better one, so long as the agency's interpretation is reasonable. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005).
For the reasons that follow, we conclude that the crime of accessory to a felony under section 32 of the California Penal Code is an aggravated felony under section 101(a)(43)(S) of the Act, because it "relate[s] to obstruction of justice." In so holding, we respectfully invoke the authority in Brand X to clarify our prior precedents on the scope of the phrase "relating to obstruction of justice."
In Matter of Batista-Hernandez, 21 I&N Dec. 955, 962 (BIA 1997), we held that the Federal crime of accessory after the fact under 18 U.S.C. § 3 (1994) "clearly relates to obstruction of justice."2 We observed there that "the nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender." Id. at 961 (citing United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972)).
Two years later, we clarified this ruling in Matter of Espinoza, 22 I&N Dec. 889, which involved a conviction for misprision of a felony under 18 U.S.C. § 4 (1994). In that decision, we observed that Congress chose to use the term of art "obstruction of justice" in the aggravated felony definition at section 101(a)(43)(S) of the Act, rather than a generic descriptive phrase such as "obstructing justice." Id. at 893. Consequently, we looked to the offenses included in Title 18 of the United States Code entitled "Obstruction of Justice" to inform our analysis of the contours of the phrase "obstruction of justice" within the meaning of section 101(a)(43)(S). We reasoned that Congress' use of this term of art indicated an intent that the phrase be interpreted consistent with its use in the Federal criminal code.
Within that context, we distinguished the Federal offense of misprision of a felony under 18 U.S.C. § 4 from the Federal offense of accessory after the fact and held that a conviction for misprision is not covered by section 101(a)(43)(S) of the Act. "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 [the principal's] apprehension, trial or punishment.'" Matter of Espinoza, 22 I&N Dec. at 894 (quoting 18 U.S.C. § 3). We determined that the critical difference between the crimes of accessory after the fact in § 3 and misprision of a felony in § 4 was that"nothing in § 4 . . . references the specific purpose for which concealment must be undertaken." Id. Stated another way, accessory after the fact references the specific purposes for the concealment, which are hindering or preventing the "apprehension, trial or punishment" of the principal offender. 18 U.S.C. § 3. This led us to conclude that "the specific purpose of hindering the process of justice brings the federal 'accessory after the fact' crime within the general ambit of offenses that fall under the 'obstruction of justice' designation." Matter of Espinoza, 22 I&N Dec. at 894-95.
Because the phrase "obstruction of justice" is ambiguous, there is no seamless rationale for including some offenses, such as accessory after the fact, and excluding other offenses, such as misprision of a felony. Nevertheless, we supported this distinction by pointing out that "concealment of a crime is qualitatively different from an affirmative action to hinder or prevent another's apprehension, trial or punishment." Id. at 895. We concluded that misprision does not constitute "obstruction of justice" because "it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Id. at 896. This element—the affirmative and intentional attempt, with specific intent, to interfere with the process of justice—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, id. at 892-93, we now clarify that the existence of such proceedings is not an essential element of "an offense relating to obstruction of justice."
Applying this principle to the case before us, we find that the crime in section 32 of the California Penal Code is properly classified as an offense "relating to obstruction of justice."3 The provisions of this statute are closely analogous, if not functionally identical, to those in 18 U.S.C. § 3. Critically, both statutes include the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice. See 18 U.S.C. § 3 () (emphasis added);Cal. Penal Code § 32 (West 2012) (requiring that the offender act "with the intent that [the] principal may avoid or escape from arrest, trial, conviction or punishment") (emphasis added); see also Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1070 (9th Cir. 2007) (...
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