Fernando Cordero-Garcia v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO CORDERO-GARCIA, No. 19-72779

AKA Fernando Cordero,

Agency No.

Petitioner, A014-690-577

v.

OPINION

MERRICK B. GARLAND, Attorney

General,

Respondent.

On Remand from the United States Supreme Court

Argued and Submitted May 6, 2024

San Diego, California

Filed June 27, 2024

Before: Andrew D. Hurwitz and Lawrence VanDyke,

Circuit Judges, and Barry Ted Moskowitz, * District Judge.

Opinion by Judge Hurwitz

*

The Honorable Barry Ted Moskowitz, United States District Judge for

the Southern District of California, sitting by designation.

2 CORDERO-GARCIA V. GARLAND

SUMMARY **

Immigration

On remand from the United States Supreme Court, Pugin

v. Garland, 599 U.S. 600 (2023), the panel denied a petition

for review by Fernando Cordero-Garcia and held that a

conviction under Cal. Penal Code § 136.1(b)(1) qualifies as

an aggravated felony—an offense “relating to obstruction of

justice” for which the term of imprisonment is at least one

year under 8 U.S.C. § 1101(a)(43)(S).

An immigration judge found that Cordero-Garcia’s

convictions of two counts of violating § 136.1(b)(1) were for

a crime relating to obstruction of justice, and the Board of

Immigration Appeals (“BIA”) dismissed Cordero-Garcia’s

appeal. This court remanded Cordero-Garcia’s first petition

for review due to intervening law regarding the definition of

“obstruction of justice.” The BIA again held that

§ 136.1(b)(1) constituted obstruction of justice. This court

granted the petition for review in light of Valenzuela

Gallardo v. Barr, 968 F.3d 1053, 1067 (9th Cir. 2020),

which held that obstruction of justice requires a nexus to an

ongoing or pending proceeding. The government then

petitioned for certiorari. Resolving a Circuit split, the

Supreme Court held that obstruction of justice under

§ 1101(a)(43)(S) includes “threatening a witness to prevent

the witness from reporting a crime to the police” and does

not require a pending investigation or proceeding. Pugin v.

Garland, 599 U.S. 600 (2023) (consolidating Cordero-

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CORDERO-GARCIA V. GARLAND 3

Garcia’s appeal with that of Jean Francois Pugin). The

Supreme Court reversed this Court’s opinion and remanded

for reconsideration.

On remand, the panel held that § 136.1(b)(1) qualifies as

an aggravated felony, rejecting Cordero-Garcia’s argument

that the mens rea required for conviction differs materially

from that required under § 1101(a)(43)(S).

COUNSEL

Jason F. Choy (argued), Blue Peak Law Group LLP, Santa

Monica, California; Michael K. Mehr, Mehr & Soto LLP,

Santa Cruz, California; for Petitioner.

Rebecca H. Phillips (argued), Senior Trial Attorney, Office

of Immigration Litigation, Civil Division; Bryan S. Beier,

Senior Litigation Counsel, Office of Immigration Litigation;

John S. Hogan, Assistant Director, Office of Immigration

Litigation; Brian M. Boynton, Acting Assistant Attorney

General, Civil Division; United States Department of

Justice, Washington, D.C.; for Respondent.

4 CORDERO-GARCIA V. GARLAND

OPINION

HURWITZ, Circuit Judge:

Noncitizens convicted of offenses “relating to

obstruction of justice . . . for which the term of

imprisonment is at least one year” are removable. See 8

U.S.C. § 1101(a)(43)(S). This case requires us to determine

whether a conviction under California Penal Code (“CPC”)

§ 136.1(b)(1) is such a crime. We conclude that it is.

I.

This case has a long procedural history. It begins in

April 2009, when Fernando Cordero-Garcia, a lawful

permanent resident, was convicted of two counts of violating

CPC § 136.1(b)(1) 1 and sentenced to concurrent terms of

two years of imprisonment on each count. He was later

charged by the Department of Homeland Security as

removable under 8 U.S.C. § 1101(a)(43)(S). An

immigration judge (“IJ”) found that Cordero-Garcia’s

convictions were for a crime relating to obstruction of

1

CPC § 136.1(b)(1) provides that

[E]very person who attempts to prevent or dissuade

another person who has been the victim of a crime or

who is witness to a crime from doing any of the

following is guilty of a public offense and shall be

punished by imprisonment in a county jail for not more

than one year or in the state prison:

(1) Making any report of that victimization to any

peace officer or state or local law enforcement officer

or probation or parole or correctional officer or

prosecuting agency or to any judge.

CORDERO-GARCIA V. GARLAND 5

justice. The Board of Immigration Appeals (“BIA”)

dismissed Cordero-Garcia’s appeal.

Cordero-Garcia petitioned us for review. Cordero-

Garcia v. Sessions, No. 12-74130, Dkt. 1 (9th Cir. Dec. 18,

2012). While that petition was pending, we held that the

BIA’s operative definition of obstruction of justice—“the

affirmative and intentional attempt, with specific intent, to

interfere with the process of justice”—raised “grave

constitutional doubts” because “the BIA has not given an

indication of what it does include in ‘the process of justice,’

or where that process begins and ends.” Valenzuela

Gallardo v. Lynch, 818 F.3d 808, 811, 813–819 (9th Cir.

2016).

Granting an unopposed motion from the government, we

then remanded Cordero-Garcia’s case to the BIA for further

consideration in light of Valenzuela Gallardo. See Cordero-

Garcia v. Sessions, No. 12-74130, Dkt. 57 (9th Cir. July 10,

2017). The BIA subsequently redefined obstruction of

justice as “(1) an affirmative and intentional attempt (2) that

is motivated by a specific intent (3) to interfere with an

investigation or proceeding that is ongoing, pending, or

reasonably foreseeable by the defendant.” Matter of

Valenzuela Gallardo, 27 I. & N. Dec. 449, 456 (BIA 2018)

(cleaned up). Applying this definition in Cordero-Garcia’s

case, the BIA again held that a conviction under CPC

§ 136.1(b)(1) constituted § 1101(a)(43)(S) obstruction of

justice. Matter of Cordero-Garcia, 27 I. & N. Dec. 652, 663

(BIA 2019).

Cordero-Garcia again petitioned for review. While that

petition was pending, we held that § 1101(a)(43)(S)

obstruction of justice “requires a nexus to an ongoing or

pending proceeding.” Valenzuela Gallardo v. Barr, 968

6 CORDERO-GARCIA V. GARLAND

F.3d 1053, 1067 (9th Cir. 2020). Applying that holding in

Cordero-Garcia’s case, we held that a violation of CPC

§ 136.1(b)(1) was not an offense related to obstruction of

justice because the state statute of conviction did not require

a “nexus to an ongoing or pending proceeding or

investigation.” Cordero-Garcia v. Garland, 44 F.4th 1181,

1185 (9th Cir. 2022).

The government then successfully petitioned for

certiorari. See Garland v. Cordero-Garcia, 143 S. Ct. 644

(2023). Resolving a Circuit split, the Supreme Court held

that § 1101(a)(43)(S) obstruction of justice includes

“threatening a witness to prevent the witness from reporting

a crime to the police” and “does not require that an

investigation or proceeding be pending.” Pugin v. Garland,

599 U.S. 600, 602, 610 (2023). 2 The Court reversed our

opinion and remanded for reconsideration. Id. at 610–11.

II.

A.

Determining whether a conviction under CPC

§ 136.1(b)(1) is a “an offense relating to obstruction of

justice” under 8 U.S.C. § 1101(a)(43)(S) requires that we

once again plumb the murky waters of the “categorical

approach.” See Cordero-Garcia, 44 F.4th at 1187. We must

first identify the elements of the generic federal offense. See

Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir.

2008). We next identify the elements of the crime of

conviction. See id. Then, “we compare the statute of

conviction to the generic federal offense to determine

2

The Court consolidated Cordero-Garcia’s case with Pugin v. Garland,

19 F.4th 437 (4th Cir. 2021), cert. granted, 143 S. Ct. 645 (2023). See

Garland v. Cordero-Garcia, 143 S. Ct. 644 (2023).

CORDERO-GARCIA V. GARLAND 7

whether the specific crime of conviction meets the definition

of an aggravated felony.” Ho Sang Yim v. Barr, 972 F.3d

1069, 1077 (9th Cir. 2020) (cleaned up).

“[T]o find that a state statute creates a crime outside the

generic definition of a listed crime in a federal statute

requires more than the application of legal imagination to a

state statute’s language.” Gonzales v. Duenas-Alvarez, 549

U.S. 183, 193 (2007). “It requires a realistic probability, not

a theoretical possibility, that the State would apply its statute

to conduct that falls outside the generic definition of a

crime.” Id. This “realistic probability” may be shown in two

ways: “if a state statute expressly defines a crime more

broadly than the generic offense,” or “if the petitioner can

point to at least one case in which the state courts applied the

statute in a situation that does not fit under the generic

definition.” Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147

(9th Cir. 2020) (cleaned up).

B.

After Pugin, Cordero-Garcia no longer claims that the

actus reus prohibited by CPC § 136.1(b)(1)—“conduct

geared toward impeding a person from reporting a crime,”

People v. Navarro, 212 Cal. App. 4th 1336, 1350 (2013)—

is not a categorical match for conduct covered by 8 U.S.C.

§ 1101(a)(43)(S). 3 Rather, he only contends that the mens

3

Cordero-Garcia does not argue that the state statute’s prohibition of

“dissuad[ing]” a witness or victim from reporting a crime renders it

broader than § 1101(a)(43)(S). In any event, such an argument would be

unavailing. One who intends to “dissuade” a witness or victim from

reporting a crime necessarily intends to “prevent” that report. And,

because the “relating to” language in § 1101(a)(43)(S) “indicates that

Congress intended to cover a range of activities beyond just the generic

8 CORDERO-GARCIA V. GARLAND

rea required for conviction under the California statute

differs materially from that required under § 1101(a)(43)(S).

We address this question of statutory construction de novo.

Lopez-Aguilar, 948 F.3d at 1146.

The parties agree that § 1101(a)(43)(S) describes a

specific intent crime. See Valenzuela Gallardo, 27 I. & N.

Dec. at 456 (defining the offenses in § 1101(a)(43)(S) as

requiring specific intent). Because Pugin confirms that

“threatening a witness to prevent the witness from reporting

a crime to the police” can constitute § 1101(a)(43)(S)

obstruction, 599 U.S. at 602, there can be no dispute that the

specific intent covered by § 1101(a)(43)(S) includes the

intent to prevent the report.

The parties also agree that CPC § 136.1(b)(1) is a

specific intent offense. The California case law makes the

scope of that intent clear, stating that the statute requires a

showing of the “inten[t] to prevent a crime from even being

reported by a victim or witness,” People v. Brackins, 37 Cal.

App. 5th 56, 67 (2019), or the “inten[t] to induce a witness

or victim to withhold evidence of a crime from law

enforcement officials,” Navarro, 212 Cal. App. 4th at 1352.

There thus appears to be no facial distinction between the

mens rea required under CPC § 136.1(b)(1) and 8 U.S.C.

§ 1101(a)(43)(S). Any defendant who specifically intends

“that his acts would prevent or dissuade the victim or witness

from making the report,” People v. Cook, 59 Cal. App. 5th

586, 590 (2021), plainly has the specific intent to “prevent

offense” of obstruction of justice, Ho Sang Yim, 972 F.3d at 1078

(cleaned up), a defendant who dissuades a witness or victim of a crime

from reporting it has clearly committed an offense relating to obstruction

of justice.

CORDERO-GARCIA V. GARLAND 9

the witness from reporting a crime.” See Pugin, 599 U.S. at

602.

But Cordero-Garcia nonetheless argues that CPC

§ 136.1(b)(1) can be violated without the intent required

under the federal law. His argument rests on subsections of

CPC § 136.1 that he was not convicted of violating:

§ 136.1(a), which criminalizes “maliciously” dissuading or

preventing a witness from attending a court proceeding or

giving testimony, and § 136.1(c), which provides that certain

violations of subsections (a) and (b) are aggravated offenses

when committed “maliciously.” “Malice,” as used in these

subsections, is defined as “an intent to vex, annoy, harm, or

injure in any way another person, or to thwart or interfere in

any manner with the orderly administration of justice.” CPC

§ 136(1).

Cordero-Garcia argues that because a conviction under

CPC § 136.1(b)(1) does not require proof of “malice,” see

Cook, 59 Cal. App. 5th at 687, the mens rea required for

conviction under that subsection is not as narrow as that

required under the federal statute. He posits that a defendant

might violate § 136.1(b)(1) if he merely intends to prevent a

report of a crime but has no specific intent to interfere with

the ultimate disposition of a matter. For example, Cordero-

Garcia suggests a defendant might merely intend to protect

a witness or victim from prejudicial publicity or retaliation

by the perpetrator, not to interfere with the process of justice.

We reject that argument. As an initial matter, CPC

§§ 136.1(a) and (c) are not at issue in this case. We therefore

need not parse the difference between the mens rea required

to violate those subsections and that required to violate

10 CORDERO-GARCIA V. GARLAND

subsection (b)(1). 4 Rather, we need only determine whether

the mens rea required for conviction under CPC

§ 136.1(b)(1) is broader than that required to establish a

violation of § 1101(a)(43)(S). California case law, which

confirms that the state statute requires a specific intent to “to

induce a witness or victim to withhold evidence of a crime

from law enforcement officials,” see Navarro, 212 Cal. App.

4th at 1352, squarely answers that question.

Moreover, Cordero-Garcia has identified no California

case holding that a defendant who specifically intends to

prevent a witness or victim from reporting a crime to the

police does not violate § 136.1(b)(1) simply because he does

not otherwise intend to interfere in the administration of

justice. Absent identification of “cases in which the state

courts in fact did apply the statute in the special (nongeneric)

manner” asserted, we are not free to imagine such

circumstances. Duenas-Alvarez, 549 U.S. at 193.

In any event, we reject Cordero-Garcia’s assumption that

a defendant with the motivation he describes would not have

committed a crime covered by § 1101(a)(43)(S). The

“relating to” language in § 1101(a)(43)(S) “indicates that

Congress intended to cover a range of activities beyond just

the generic offense” of obstruction of justice. Ho Sang Yim,

972 F.3d at 1078 (cleaned up); see also Morales v. Trans

World Airlines, Inc., 504 U.S. 374, 383 (1992) (“The

ordinary meaning of these words is a broad one—‘to stand

in some relation; to have bearing or concern; to pertain;

4

See People v. Lopez, No. F083388, 2023 WL 2963166, at *14 (Cal. Ct.

App. Apr. 17, 2023) (stating that the specific intent required to violate

CPC § 136.1(b)(1), an intent to prevent or dissuade the report of a crime,

does not necessarily equate to the “malice” required to violate

§ 136.1(c)(1)).

CORDERO-GARCIA V. GARLAND 11

refer; to bring into association with or connection with[.]’”

(citing Black’s Law Dictionary 1158 (5th ed. 1979))). A

defendant who specifically intends to engage in the actus

reus prohibited by CPC § 136.1(b)(1)—“any conduct geared

toward impeding a person from reporting a crime,” Navarro,

212 Cal. App. 4th at 1350—has exactly the specific intent

“to prevent the witness from reporting a crime to the police”

that § 1101(a)(43)(S) includes, regardless of whether his

ultimate goal is to entirely thwart investigation of the crime,

Pugin, 599 U.S. at 602. Because both the California statute

and the offenses encompassed in § 1101(a)(43)(S)

criminalize the same conduct—preventing or attempting to

prevent a witness from reporting a crime to the police—

anyone who specifically intends to prevent the report

necessarily commits an offense relating to obstruction of

justice. 5

III.

We deny the petition for review.

5

We reject Cordero-Garcia’s retroactivity argument. Our holding is

based on Pugin, which in turn relied on the plain language of

§ 1101(a)(43)(S), and thus raises no retroactivity concerns as applied to

our direct review of the BIA decision. See Harper v. Virginia Dep’t of

Tax’n, 509 U.S. 86, 97 (1993).