Salazar-Luviano v. Mukasey

• Decision Date: 23 December 2008
• Docket Number: No. 05-70505.,05-70505.
• Citation: 551 F.3d 857
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Norberto SALAZAR-LUVIANO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

551 F.3d 857

Norberto SALAZAR-LUVIANO, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 05-70505.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 19, 2008.

Filed December 23, 2008.

David A. Schlesinger (presented argument) and Andrea Guerrero (authored

briefs), Guerrero, Jacobs & Schlesinger, LLP, San Diego, CA, for the petitioner.

Colette J. Winston (presented argument) and Janice K. Redfern (authored brief), U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A36-165-328.

Before: MYRON H. BRIGHT,^* MICHAEL DALY HAWKINS, and A. WALLACE TASHIMA, Circuit Judges.

OPINION

HAWKINS, Circuit Judge:

Is aiding and abetting an attempted escape from custody an "obstruction of justice" crime, and therefore an aggravated felony, within the meaning of the Immigration and Nationality Act ("INA") § 101(a)(43)(S)? Petitioner Norberto Salazar-Luviano ("Salazar-Luviano") argues that it is not and that he is therefore eligible for cancellation of removal under INA § 240A(a). We agree, grant his petition for review, and remand to the BIA for consideration of his request for cancellation of removal.¹

I. BACKGROUND

Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976. He has lived in the Los Angeles metropolitan area for over thirty years with his wife, also a lawful permanent resident. As of 2005, Salazar-Luviano had four U.S. citizen children and five U.S. citizen grandchildren.

In 1987, Salazar-Luviano pled guilty to Aiding and Abetting an Escape from Custody, in violation of 18 U.S.C. § 751, for attempting to free illegal aliens who had been apprehended by the U.S. Border Patrol. The aliens had been in custody near the border, in a Border Patrol vehicle; no legal proceedings had yet been commenced against them. Salazar-Luviano was sentenced to one year in prison for aiding and abetting the attempted escape but served only seventy-five days.

Fourteen years later, Salazar-Luviano was caught assisting another alien to enter the country illegally and was charged with removability under INA § 237(a)(1)(E)(i), which renders removable "[a]ny alien who ... knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law." 8 U.S.C. § 1227(a)(1)(E)(i). In the removal proceedings giving rise to this appeal, Salazar-Luviano conceded removability and sought cancellation of removal under INA § 240A(a), which permits the Attorney General to "cancel removal" of an "inadmissible or deportable" alien who "has resided in the United States continuously for 7 years after having been admitted in any status." 8 U.S.C. § 1229b(a)(2).

Cancellation of removal is not available, however, to any resident who "has been convicted of any aggravated felony." INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3). A subsequent government investigation revealed that, since 1976, Salazar-Luviano had been convicted of six misdemeanor crimes, including his 1987 conviction for aiding and abetting attempted escape from custody.

The Immigration Judge ("IJ") determined that Salazar-Luviano's 1987 conviction constituted an "aggravated felony" pursuant to INA § 101(a)(43)(S), which renders any "offense relating to obstruction of justice ... for which the term of imprisonment is at least one year" an aggravated felony. 8 U.S.C. § 1101(a)(43)(S). In the IJ's view, "[a]n obstruction of justice occurs where there is an affirmative action knowingly undertaken in order to hinder or prevent apprehension, trial or punishment." Because Salazar-Luviano had "attempt[ed] to prevent an apprehension by the Service ... [and] to hinder the immigration proceedings and removal of the escapees," his conviction qualified as an aggravated felony within the meaning of § 1101(a)(43)(S). The IJ accordingly denied Salazar-Luviano eligibility for cancellation of removal.

On appeal, the BIA affirmed, reasoning that aiding and abetting "is a specific intent crime," and that "aiding and abetting escape from lawful custody is an interference with the proceedings of a tribunal and/or law enforcement." Thus "aiding and abetting escape is an offense relating to obstruction of justice for purposes of § 1101(a)(43)(S) of the Act [and] the respondent is ineligible for cancellation of removal." Salazar-Luviano filed a timely petition for review.

II. DISCUSSION

A. Standard of Review & Analytical Framework

To determine whether attempted escape from custody constitutes an aggravated felony under § 1101(a)(43)(S), we first apply the "categorical approach" set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Renteria-Morales v. Mukasey, 551 F.3d 1076, ___ - ___, 2008 WL 5192056, at *3-*4 (9th Cir. Dec. 12, 2008) (applying the Taylor categorical approach to determine whether a conviction for failure to appear in court constitutes an aggravated felony under § 1101(a)(43)(S)) (citing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th Cir.2006) (en banc)).

According to the categorical approach, our task is to determine what Congress meant by "an offense relating to obstruction of justice" by reference to the generic federal definition of the crime. Renteria-Morales, 551 F.3d at ___, 2008 WL 5192056, at *3. Because Congress itself did not define the phrase "offense relating to obstruction of justice" in the INA, we defer to the BIA's "interpret[ation of] the elements of a generic obstruction of justice offense under § 1101(a)(43)(S)[as set forth in] In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999)." Id. at ___ _ ___, 2008 WL 5192056 at *7-*8 (according Chevron deference to Espinoza-Gonzalez with respect to interpretation of § 1101(a)(43)(S)).

After determining the elements of the generic crime listed in § 1101(a)(43)(S), we next identify the elements of the specific crime of conviction, in this case 18 U.S.C. § 751.² We do "not defer to the BIA's interpretations of state law or provisions of the federal criminal code," id. at ___, 2008 WL 5192056 at *3 (citing Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir.2005)), and instead must "review de novo whether the specific crime of conviction meets the INA's definition of an aggravated felony," id. (citing Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir.2004); Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.2002)). If the elements of the specific crime of conviction are narrower than or the same as the elements of the generic crime, then the specific crime of conviction categorically counts as an offense under § 1101(a)(43)(S). Id. (citing Fernandez-Ruiz, 466 F.3d at 1125).

If, however, the elements of attempted escape from custody are broader than the elements of obstruction of justice as defined in the INA, we must "go beyond the mere fact of conviction" and consider, de novo, whether Salazar-Luviano was necessarily convicted of all the elements of the generic crime. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. "In making this determination, we ... `conduct a limited examination of documents in the record of conviction.'" Renteria-Morales, ___ F.3d at ___, 2008 WL 5192056, at *3 (quoting Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.2004)). Because Salazar-Luviano pled guilty to the offense, the examination of the record is "limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). "`If the record of conviction does not establish that the offense the petitioner committed qualifies as an aggravated felony, the government has not met its burden of proving that the defendant committed an aggravated felony.'" Renteria-Morales, ___ F.3d at ___, 2008 WL 5192056, at *3 (quoting Ferreira, 390 F.3d at 1095).

B. Taylor Categorical Approach

Following this framework, we first examine whether attempted escape from custody categorically constitutes an aggravated felony under § 1101(a)(43)(S) as an offense relating to obstruction of justice.

"[T]he BIA has interpreted the elements of a generic obstruction of justice offense under § 1101(a)(43)(S) in a precedential decision" to which we defer. Renteria-Morales, ___ F.3d at ___, 2008 WL 5192056, at *7 (citing In re Espinoza-Gonzalez, 22 I. & N. Dec. 889). In Espinoza-Gonzalez, the BIA explained with respect to § 1101(a)(43)(S) that "[w]e 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.'" 22 I. & N. Dec. at 893-94. This is so because "Congress did not adopt a generic descriptive phrase such as `obstructing justice' or `obstruct justice,' but chose instead a term of art utilized in the United States Code to designate a specific list of crimes." Id. at 893. Thus, the question whether a specific offense of conviction counts as an aggravated felony under § 1101(a)(43)(S) depends exclusively on whether "the elements of the offense ... constitute the crime of obstruction of justice as that term is defined" in the federal criminal law, U.S. Code Title 18, Chapter 73 (18 U.S.C. §§ 1501-1521).³ Id. at 892. See also Renteria-Morales, ___ F.3d at ___, 2008 WL 5192056, at *8 ("[T]he BIA acted reasonably in deriving the definition of `obstruction of justice' for purposes of § 1101(a)(43)(S) from the body of federal statutes imposing criminal penalties on obstruction of justice offenses.").

Here, the parties agree that escape from custody does not match any of the specifically enumerated obstruction offenses and...