BIA: Obstruction of justice aggravated felony requires intentional attempt to interfere with investigation

The BIA held the obstruction of justice type of aggravated felony requires that the noncitizen have made an affirmative, intentional attempt to specifically interfere with an ongoing criminal investigation or trial. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012) (Grant, Malphrus, and Mullane, Board members). Board Member Grant wrote the panel’s decision.

This case involved an LPR who was convicted of accessory to a felony, Cal. Penal Code § 32, and sentenced to 16 months imprisonment. DHS alleged that this conviction fell within the “obstruction of justice…for which the term of imprisonment is at least one year” category of aggravated felony. INA § 101(a)(43)(S). The IJ agreed.

Though the BIA had previously issued decisions interpreting this aggravated felony category, it took this occasion to clarify its earlier holdings because of a 2011 Ninth Circuit decision that interpreted the BIA’s position more narrowly than the BIA liked. In Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011), the Ninth Circuit concluded that the BIA requires actual interference with an ongoing criminal proceeding or investigation for a crime to constitute
obstruction of justice.

The BIA disagreed. “[W]e did not go so far as to hold that obstruction offenses must involve interference with an ongoing investigation or proceeding,” the Board wrote. “[O]ur point was to emphasize that obstruction of justice is not an open-ended term covering all offenses ‘that have a tendency to, or by their nature do, obstruct justice.’” Matter of Valenzuela Gallardo, 25 I&N Dec. at 842 (quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999)).

What the “obstruction of justice” aggravated felony category does require, the Board went on to hold, is “the affirmative and intentional attempt, with specific intent, to interfere with the process of justice.” Matter of Valenzuela Gallardo, 25 I&N Dec. at 841. This may involve interfering with an ongoing criminal investigation or trial, but that is not required. As the Board explained, “the existence of such proceedings is not an essential element of ‘an offense relating to
obstruction of justice.’” Matter of Valenzuela Gallardo, 25 I&N Dec. at 841.

Applying this framework to the California accessory to a felony offense, the Board concluded that this crime is obstruction of justice because it “include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.” Matter of Valenzuela Gallardo, 25 I&N Dec. at 841. In particular, the California offense “require[es] that the offender act ‘with the intent that [the] principal may avoid or escape from arrest, trial, conviction, or punishment’.” Matter of Valenzuela Gallardo, 25 I&N Dec. at 842 (quoting Cal. Penal Code § 32).

To be clear, the BIA took the liberty of interpreting the obstruction of justice provision despite the Ninth Circuit’s more restrictive approach pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. at 840 (discussing Nat’l Cable & Telecomms. Ass’n v. BrandX Servs., 545 U.S. 967 (2005)). Now we’ll just have to see whether the Ninth Circuit thinks this is a reasonable interpretation.