Silva v. Garland

Decision Date28 February 2022
Docket NumberNo. 20-1593,20-1593
Citation27 F.4th 95
Parties Carlos Monteiro SILVA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — First Circuit

Kerry E. Doyle, with whom Graves and Doyle was on brief, for petitioner.

Evan P. Schultz, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Howard, Chief Judge, Lynch and Barron, Circuit Judges.

LYNCH, Circuit Judge.

Petitioner Carlos Monteiro Silva seeks review of a final order of removal issued by the Board of Immigration Appeals ("BIA") in May 2020. The BIA dismissed Silva's appeal of a decision by the immigration judge ("IJ") holding that Silva was removeable under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an "aggravated felony" as defined under 8 U.S.C. § 1101(a)(43). The IJ determined and the BIA affirmed that Silva's Massachusetts state conviction for accessory after the fact to the crime of murder was categorically an aggravated felony for purposes of the INA because it met the definition of "an offense relating to obstruction of justice." Id. § 1101(a)(43)(S). The IJ and BIA held that Silva was ineligible for withholding of removal because he had committed a particularly serious crime and had not met his burden to establish that he was eligible for asylum or relief under the Convention Against Torture ("CAT").

Silva argues that the IJ and the BIA erred by applying the categorical approach to determine that his state conviction for accessory after the fact was "an offense relating to obstruction of justice." Id. He argues that the BIA's interpretation of "an offense relating to obstruction of justice" as including offenses where an investigation or proceeding is only "reasonably foreseeable" is an unreasonable interpretation of § 1101(a)(43)(S) and that the INA unambiguously requires that an obstruction of justice offense have some nexus to a pending or ongoing investigation or judicial proceeding, which the Massachusetts accessory-after-the-fact statute does not require. For this and other reasons, Silva argues that deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), does not apply to the BIA's interpretation and that Silva's conviction for accessory after the fact is not categorically an obstruction of justice offense triggering the INA's aggravated felony grounds for removal.1

We make two holdings, each of which provides a basis for denying the petition. First, we follow the mode of analysis employed by the Supreme Court in Esquivel-Quintana v. Sessions, ––– U.S. ––––, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017), and so apply "the normal tools of statutory interpretation," id. at 1569. We hold the generic federal definition of "an offense relating to obstruction of justice" unambiguously does not require a nexus to a pending or ongoing investigation or judicial proceeding. Alternatively, we also hold, employing Chevron analysis, that the BIA's interpretation must be sustained. Consonant with these holdings, we conclude that the IJ and BIA properly concluded that Silva's Massachusetts conviction for accessory after the fact is categorically an offense relating to obstruction of justice and so rendered him removable as an aggravated felon. We deny Silva's petition using each mode of analysis.

I.
A. Massachusetts State Conviction

Silva is a native and citizen of Cape Verde who was admitted to the United States in 1989 as a lawful permanent resident.

In September 2017, Silva pleaded guilty in Massachusetts to accessory after the fact in violation of Mass. Gen. Laws ch. 274, § 4. That statute provides that,

[w]hoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory before the fact, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact.

Id. The offense to which Silva pleaded guilty occurred in 2003. The September 2003 indictment that described the offense stated that three men, not including Silva, "on April 28, 2003, did assault and beat [the victim] with intent to murder him and by such assault did kill and murder [the victim]." As to Silva, the indictment charged that he, "well knowing ... the [three men] to have committed the felony ... [,] did harbor, conceal, maintain, assist or give any other aid to the said [three men], with intent that the said [three men] should avoid and escape detention, arrest, trial and punishment" by driving those three men away from the scene of the murder.2 Silva was sentenced to between four and five years in Massachusetts state prison.

B. Removal Proceedings and BIA Decision

In January 2018, the U.S. Department of Homeland Security ("DHS") initiated removal proceedings against Silva.3 In March 2019, DHS amended the charges of removal against Silva. Those amended charges stated that Silva was removable for, among other things, having been convicted of an aggravated felony in the form of "an offense relating to obstruction of justice ... for which the term of imprisonment was at least one year." See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(S).4 Silva objected to those amended charges of removal.

In a written decision in May 2019, the IJ held that Silva's Massachusetts accessory-after-the-fact conviction was categorically an offense relating to obstruction of justice under the INA and so was a proper ground for removal as an aggravated felony.5 The IJ relied on the BIA's decision in Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449, 452-60 (B.I.A. 2018), underlying removal order vacated in Valenzuela-Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020).6

Silva then filed applications for asylum, withholding of removal, and protection under the CAT. In a written decision in December 2019, the IJ denied all three forms of relief from removal. The IJ concluded that Silva's aggravated felony conviction for accessory after the fact rendered him statutorily ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i), and that the conviction was a "particularly serious crime" which barred his application for withholding of removal, see id. § 1231(b)(3)(B)(ii). The IJ also concluded that Silva did not provide sufficient evidence to support his application for CAT protection.

Silva appealed to the BIA. In May 2020, the BIA denied that appeal. The BIA, referencing Matter of Valenzuela Gallardo, adopted and affirmed the IJ's decision, holding that Silva's Massachusetts accessory-after-the-fact conviction was categorically an aggravated felony relating to obstruction of justice. The BIA also held that the IJ did not clearly err in finding that Silva's Massachusetts accessory-after-the-fact conviction was a particularly serious crime for purposes of withholding of removal, and affirmed the denial of all forms of relief.

This timely petition for review followed.

II.

Silva first argues that the Court should give no deference to the BIA's interpretation in Matter of Valenzuela Gallardo of "an offense relating to obstruction of justice" for various reasons. He also argues that, even if his Massachusetts accessory-after-the-fact conviction is an aggravated felony relating to obstruction of justice, the BIA erred in determining that the conviction is a "particularly serious crime" for purposes of barring him from withholding of removal.7

Where, as here, "the BIA adopts and affirms an IJ's decision, we review the IJ's decision ‘to the extent of the adoption, and the BIA's decision as to [any] additional ground.’ "

Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (alteration in original) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir. 2006) ). We review de novo the BIA's legal conclusions, including its determination that Silva's Massachusetts accessory-after-the-fact conviction is an aggravated felony. See Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 2013). We review the BIA's factual findings under a deferential standard, upholding them "as long as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Sanabria Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020) (quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014) ).

A. Applying the Tools of Statutory Interpretation as Applied by the Supreme Court in Esquivel-Quintana, the Conviction for Accessory After the Fact Is an Aggravated Felony "Relating to Obstruction of Justice" Under the INA

We turn first to Silva's argument that his Massachusetts accessory-after-the-fact conviction is not categorically "an offense relating to obstruction of justice" because, he alleges, it does not require a nexus to a pending or ongoing investigation or judicial proceeding. In Esquivel-Quintana, the Supreme Court addressed a similar issue of whether the petitioner's state conviction for unlawful sexual intercourse with a minor was categorically an offense for "sexual abuse of a minor" under 8 U.S.C. § 1101(a)(43)(A). 137 S. Ct. at 1567. Applying "the normal tools of statutory interpretation," id. at 1569, the Court held that "in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16," id. at 1568. It held that "[b]ecause the California statute at issue in this case does not categorically fall within that definition, a conviction pursuant to it is not an aggravated felony under § 1101(a)(43)(A)." Id. 8 The Court determined the meaning of the statutory definition based...

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