Pugin v. Garland, 20-1363

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtRICHARDSON, CIRCUIT JUDGE
PartiesJEAN FRANCOIS PUGIN, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
Decision Date30 November 2021
Docket Number20-1363

JEAN FRANCOIS PUGIN, Petitioner,
v.

MERRICK B. GARLAND, Attorney General, Respondent.

No. 20-1363

United States Court of Appeals, Fourth Circuit

November 30, 2021


Argued: March 9, 2021

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Martha Hutton, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner.

Margot Pyne Kniffin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Brian D. Doyle, Julio Pereyra, O'MELVENY & MYERS LLP, Washington, D.C., for Petitioner.

Jeffrey Bossert Clark, Acting Assistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, Chief Judge, AGEE, and RICHARDSON, Circuit Judges.

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RICHARDSON, CIRCUIT JUDGE

Jean Francois Pugin is a lawful permanent resident facing deportation. The government decided to deport Pugin after he was found guilty of being an accessory after the fact under Virginia law. That conviction, the government contends, permits Pugin to be deported under the Immigration and Nationality Act for having committed an "aggravated felony," namely one "relating to . . . the obstruction of justice." 8 U.S.C. § 1101(a)(43)(S). Pugin disagrees, claiming that an accessory-after-the-fact conviction under Virginia law does not categorically qualify under the Act as one "relating to obstruction of justice." We agree with the government that it does.

We first find that the Board of Immigration Appeals' definition of "obstruction of justice" under the Act is due Chevron deference. Finding Chevron deference must be given, we then find that the Virginia offense of accessory after the fact categorically matches the Board's definition. So we affirm the Board's finding that Pugin may be deported under the Act.

I. Background

Jean Francois Pugin, a native and citizen of Mauritius, was admitted to the United States in 1985 as a lawful permanent resident. In 2014, Pugin pleaded guilty in Virginia to being an accessory after the fact to a felony. He was sentenced to twelve months imprisonment with nine months suspended. Pugin was then issued a notice to appear charging him with removability because he was convicted of an aggravated felony: "an offense relating to obstruction of justice, perjury, or subornation of perjury." 8 U.S.C. §§

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1101(a)(43)(S), 1227(a)(2)(A)(iii).[1] Pugin moved to terminate proceedings before the immigration judge, asserting that he was not removable because his conviction was not an aggravated felony.

The immigration judge explained that the categorical approach is the proper form of analysis to determine whether Virginia accessory after the fact qualifies as obstruction of justice. Employing that approach, the immigration judge noted that the Board had previously decided that a federal conviction for accessory after the fact under Section 3 of Title 18[2] is a crime relating to obstruction of justice. See In re Batista-Hernandez, 21 I. & N. Dec. 955, 961 (B.I.A. 1997). Turning to whether Virginia's version of that offense also qualified, the immigration judge determined first that under Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 894-95 (B.I.A. 1999), a state conviction falls under the obstruction-of-justice designation if it requires a defendant to act with the "purpose of hindering the process of justice." A.R. 73-74. The immigration judge then held that Virginia accessory after the fact is an offense relating to obstruction of justice because, like its federal counterpart, the offense requires the defendant "act with the 'specific purpose of hindering the process of justice.'" A.R. 74. Because the elements categorically matched and Pugin

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did not raise a reasonable possibility that Virginia would prosecute someone who lacked specific intent, the immigration judge held that the Virginia law qualified as an aggravated felony. A.R. 73-74. Pugin appealed, and the Board affirmed, largely adopting the immigration judge's analysis and relying on the generic definition of obstruction of justice laid out in In re Valenzuela Gallardo II, 27 I. & N. Dec. 449 (B.I.A. 2018). The Board ordered Pugin removed. A.R. 9-11.

Pugin timely appealed, and we have jurisdiction to review the legal decisions of the Board. 8 U.S.C. §§ 1101(a)(47)(B)(i), 1252(a)(2)(D), 1252(b)(1).

II. Analysis

An alien is removable if he has been convicted of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). An aggravated felony includes, among other things, "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) (emphasis added). In In re Valenzuela Gallardo II, 27 I. & N. Dec. 449, 460 (B.I.A. 2018), the Board defined "offenses relating to obstruction of justice" as requiring "(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."

Pugin challenges the Board's interpretation of "obstruction of justice" for several reasons all based on his position that obstruction of justice requires an ongoing proceeding. First, he contends that the phrase is a term of art that is not ambiguous and that requires a connection to an ongoing or pending proceeding or investigation. As a result, he argues,

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Chevron does not apply. And he argues that even if the phrase is ambiguous, the Board's interpretation is not reasonable. He also asserts that the rule of lenity should apply rather than Chevron because the definition of obstruction of justice is used in criminal actions. For the reasons below, we reject each of these challenges. And finding Chevron applies, the phrase ambiguous, and the Board's interpretation reasonable, we then must decide whether Virginia accessory after the fact categorically matches the Board's definition. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). Virginia uses the common-law definition of accessory after the fact. Commonwealth v. Dalton, 259 Va. 249, 253 (2000). At the very least, the parties agree that this requires: (1) a completed felony; (2) that the person giving aid knows the felon is guilty; and (3) that the accused receives, relieves, comforts, or assists the felon. Id. The parties disagree over whether Virginia law requires the accused to act "with the view of enabling his principal to elude punishment," Wren v. Commonwealth, 26 Gratt. 952, 67 Va. 952, 957 (Va. 1875), or said another way, to act with specific intent. We find that Virginia case law shows that specific intent is required to obtain an accessory-after-the-fact conviction, creating a categorical match with the Board's definition. As a result, we find Pugin removable and affirm the Board.

A. The Board's interpretation is due deference under Chevron

We give deference to an agency's reasonable interpretation of an ambiguous statute it administers because of its expertise and because of what is viewed as an implicit congressional delegation of authority to interpret that ambiguity. Chevron, 467 U.S. at 865. Chevron applies with particular force in the immigration context as "judicial deference to the Executive Branch is especially appropriate . . . where officials 'exercise

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especially sensitive political functions that implicate questions of foreign relations.'" I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (quoting I.N.S. v. Abudu, 485 U.S. 94, 110 (1988)). That is certainly true of the Immigration and Nationality Act, which "provides that '[t]he Attorney General shall be charged with the administration and enforcement' of the statute and that the 'determination and ruling by the Attorney General with respect to all questions of law shall be controlling.'" Id. (quoting 8 U.S.C. § 1103(a)(1)). So we generally afford deference to an interpretation of that Act by a three-person panel of the Board. Nunez-Vasquez v. Barr, 965 F.3d 272, 279 (4th Cir. 2020).

Pugin argues that Chevron cannot apply to the Board's decision in In re Valenzuela Gallardo II, 27 I. & N. Dec. 449, 460 (B.I.A. 2018), because the definition of "obstruction of justice" has effect in criminal proceedings. See, e.g., Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1059-62 (9th Cir. 2020) (acknowledging the issue in this context but applying Chevron because circuit precedent has given deference in similar situations). So we begin at "Step Zero" by asking whether Chevron applies at all. See Cass R. Sunstein, Chevron Step Zero, 92 Va.L.Rev. 187, 209-10 (2006).

1. Step Zero: Chevron applies

There is a thoughtful and ongoing debate about whether Chevron can apply to interpretations of criminal law, which implicates serious questions about expertise, delegation, flexibility, notice, due process, separation of powers, and more.[3] But we need

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not resolve that question here because the Immigration and Nationality Act is a civil statute, and any collateral criminal consequences are too attenuated to change our analysis.

Pugin argues that Chevron deference cannot be given to the interpretation of an immigration statute when the interpretation might impact a future criminal prosecution. The Immigration and Nationality Act subjects aliens to removal if they commit certain aggravated felonies, such as obstruction of justice. 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3). And if a removed alien later illegally reenters the United States and if that alien is convicted of illegal reentry, then an increased criminal punishment applies. Id. § 1326(b)(2); see also id. § 1327. It is because of this potential, indirect effect of the Act's aggravated-felon provision on a future criminal...

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