Trung Thanh Hoang v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRUNG THANH HOANG, 

Petitioner, No. 09-72954

v.

 Agency No.

A074-465-074

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 3, 2010—Seattle, Washington

Filed May 17, 2011

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge B. Fletcher;

Dissent by Judge Bybee

6507

6510 HOANG v. HOLDER

COUNSEL

Scott Allen Marks, Law Offices of Scott A. Marks, Seattle,

Washington, and Matthew Weber, Miami, Florida, for the

petitioner.

Allison Frayer and Zoe Jaye Heller, United States Department

of Justice, Office of Immigration Litigation, Washington,

D.C., for the respondent.

OPINION

B. FLETCHER, Circuit Judge:

Petitioner, Trung Thanh Hoang, seeks review of the Board

of Immigration Appeals’s (BIA’s) decision affirming an

Immigration Judge’s (IJ’s) order of removal. This case

requires us to determine whether petitioner’s state misdemea-

nor conviction for rendering criminal assistance is a crime

related to obstruction of justice and thus constitutes an aggra-

vated felony under Immigration and Nationality Act (INA)

§ 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S). We have jurisdic-

tion to determine as a matter of law whether petitioner has

been convicted of an aggravated felony. See 8 U.S.C.

§ 1252(a)(2)(D); Madujano-Real v. Mukasey, 526 F.3d 585,

588 (9th Cir. 2008). Because the BIA conducted an indepen-

dent review, we review the BIA’s decision rather than the

HOANG v. HOLDER 6511

IJ’s. Vasquez v. Holder, 602 F.3d 1003, 1009 (9th Cir. 2010).

We grant the petition.

I.

Hoang is a native and citizen of Vietnam who was admitted

to the United States as a refugee in 1994. He became a lawful

permanent resident in 1997. In 2000, Hoang pleaded guilty to

rendering criminal assistance in the second degree, a misde-

meanor in violation of Washington Revised Code § 9A.76.080.1

Hoang’s plea agreement admits that he “[d]id unlawfully ren-

der criminal assistance to a person who has committed a class

B Felony (Drive by shooting) by providing such person trans-

portation.” Hoang was sentenced to one year imprisonment

and discharged in October 2002.

In 2006, Hoang’s application to become a naturalized U.S.

citizen was denied on account of his 2000 conviction. On

October 9, 2007, the INS charged Hoang with being remov-

able as an aggravated felon who had committed a crime of

obstruction of justice (as defined by 8 U.S.C.

§ 1101(a)(43)(S)). After a hearing, the IJ issued a written

decision sustaining the charge and ordered Hoang removed to

Vietnam. Hoang timely appealed.

On August 31, 2009, in an unpublished, one-member order,

the BIA upheld the IJ’s decision. The BIA reasoned that

because (1) the elements of Washington Revised Code

§ 9A.76.080 are the same as the elements of the federal acces-

sory after the fact statute; and (2) In Re Batista-Hernandez, 21

I. & N. Dec. 955 (1997) (en banc), held that federal accessory

after the fact is a crime related to obstruction of justice; then

(3) rendering criminal assistance in violation of § 9A.76.080

1

Washington Revised Code § 9A.76.080 provides, in relevant part: “A

person is guilty of rendering criminal assistance in the second degree if he

or she renders criminal assistance to a person who has committed or is

being sought for a class B or class C felony.”

6512 HOANG v. HOLDER

is a crime related to obstruction of justice. The BIA rejected

Hoang’s claim that his crime was not a categorical match for

the definition of the generic obstruction of justice crime pro-

vided in In Re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (1999)

(en banc). The BIA stated that in Espinoza-Gonzalez, the BIA

“reaffirmed rather than overruled” Batista-Hernandez. This

petition followed.

II.

The INA defines the term “aggravated felony” to include,

as relevant here, “an offense related to obstruction of justice”

for which the term of imprisonment is at least one year.2 INA

§ 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S). To determine

whether rendering criminal assistance constitutes obstruction

of justice within the meaning of § 1101(a)(43)(S), we first

apply the categorical approach set forth in Taylor v. United

States, 495 U.S. 575 (1990).

Under the categorical approach, we compare “the elements

of the statute of conviction with the federal definition of the

crime to determine whether conduct proscribed by the [state]

statute is broader than the generic federal definition.” Fregozo

v. Holder, 576 F.3d 1030, 1035 (9th Cir. 2009) (alteration and

citation omitted). To determine the elements of a federal

generic crime, we must first consider whether Congress pro-

vided any specific guidance. Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1152 (9th Cir. 2008). Though the United

States criminal code includes a chapter entitled “Obstruction

of Justice,” 18 U.S.C. §§ 1501-1521, it does not clearly set

forth the elements of a generic federal obstruction of justice

crime;3 nor does § 1101(a)(43)(S) provide a generic defini-

tion. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9th

2

Hoang does not contest on appeal that he was sentenced to at least one

year of imprisonment.

3

We are aware that the Third Circuit recently held that the phrase “a

crime relating to obstruction of justice” is unambiguous as used in the

INA, and thus did not defer to the BIA’s interpretation of that term. Denis

v. Attorney Gen. of the U.S., 633 F.3d 201, 209 (3d. Cir. 2011) (“Title 18

of the U.S. Code contains a list of crimes entitled ‘obstruction of justice,’

permitting [the courts] to easily determine the types of conduct Congress

intended the phrase to encompass.”)

HOANG v. HOLDER 6513

Cir. 2008). Consequently, we must determine whether the

agency charged with implementing the INA has defined the

term. Id. We defer to the BIA’s reasonable interpretations of

ambiguous terms in the INA. See id. (citing Chevron, U.S.A.

Inc., v. Natural Res. Def. Council, Inc., 476 U.S. 837, 843

(1984)).

A.

[1] In Espinoza-Gonzalez, 22 I. & N. Dec. 889, the BIA

defined the term obstruction of justice for the purposes of the

INA. The issue in Espinoza-Gonzalez was whether the alien’s

conviction for misprision of a felony, in violation of 18

U.S.C. § 4,4 was a crime related to obstruction of justice. 22

I. & N. Dec. at 889-90. The BIA looked to the chapter of the

federal criminal code entitled “Obstruction of Justice” to

guide its interpretation of the term.5 Id. at 891-94. It con-

cluded that “[i]n general, the obstruction of justice offenses

listed in 18 U.S.C. §§ 1501-1518 have as an element interfer-

ence with the proceedings of a tribunal or require an intent to

4

The federal criminal code defines misprision of a felony as follows:

Whoever, having knowledge of the actual commission of a felony

cognizable by a court of the United States, conceals and does not

as soon as possible make known the same to some judge or other

person in civil or military authority under the United States, shall

be fined under this title or imprisoned not more than three years,

or both.

18 U.S.C. § 4.

5

Two years after Espinoza-Gonzalez, the BIA reaffirmed that the term

obstruction of justice is to be defined by reference to the federal criminal

code. It stated:

In [Espinoza-Gonzalez], we discussed how the term “an offense

relating to obstruction of justice” was to be treated for immigra-

tion purposes. We concluded that misprision of a felony was not

an offense relating to obstruction of justice because it lacked the

essential elements that were included in the federal obstruction of

justice crimes enumerated in 18 U.S.C. §§ 1501-1518.

In re Martinez-Recinos, 23 I. & N. Dec. 175, 176-77 (2001).

6514 HOANG v. HOLDER

harm or retaliate against others who cooperate in the process

of justice or might otherwise so cooperate.” Id. at 891. The

BIA emphasized that:

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. It

employed that term in conjunction with other crimes

(e.g., perjury and bribery) that also are clearly asso-

ciated with the affirmative obstruction of a proceed-

ing or investigation. We do not believe that every

offense that, by its nature, would tend to “obstruct

justice” is an offense that should be properly classi-

fied as “obstruction of justice.”

Id. at 893-94 (emphasis added). The BIA noted that the

Supreme Court has interpreted the term “obstruction of jus-

tice” narrowly. Id. at 892-93 (citing United States v. Aguilar,

515 U.S. 593, 598-99 (1995) (holding that making false state-

ments to an FBI agent was not obstruction of justice absent

evidence that the declarant knew the statements would be pro-

vided to a grant jury)). Misprison of a felony, the BIA con-

cluded, was not categorically obstruction of justice because it

“lacks the critical element of an affirmative and intentional

attempt, motivated by specific intent, to interfere with the pro-

cess of justice.” Id. at 894.

[2] We have twice afforded Chevron deference to

Espinoza-Gonzales. In Renteria-Morales v. Mukasey, 551

F.3d 1076, 1086 (9th Cir. 2008), we held that Espinoza-

Gonzalez “articulated both an actus reus and mens rea ele-

ment of the generic definition of [obstruction of justice]

crimes for purposes of § 1101(a)(43)(S).” We described the

actus reus as “either active interference with proceedings of

a tribunal or investigation, or action or threat of action against

those who would cooperate with the process of justice;” and

the mens rea as “specific intent to interfere with the process

HOANG v. HOLDER 6515

of justice.” Id. at 1086 (quoting Espinoza-Gonzalez, 22 I. &

N. Dec. at 892-93).6 We concluded that Espinoza-Gonzalez

represented a reasonable construction of § 1101(a)(43)(S)

because it “deriv[ed] 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.” Id.; see also Salazar-Luviano v. Mukasey, 551 F.3d

857, 861-62 (9th Cir. 2008) (deferring to Espinoza-Gonzalez

and analyzing whether petitioner’s offense was related to any

of the provisions in the federal criminal code chapter entitled

“Obstruction of Justice”). In light of our precedent, we look

to Espinoza-Gonzalez to supply the definition of the generic

federal obstruction of justice offense.

B.

“After determining the elements of the generic crime listed

in § 1101(a)(43)(S), we next identify the elements of the spe-

cific crime of conviction.” Salazar-Luviano, 551 F.3d at 860.

“We do not defer to the BIA’s interpretations of state law or

provisions of the federal criminal code, and instead must

review de novo whether the specific crime of conviction

meets the INA’s definition of an aggravated felony.” Id. at

860-61 (internal quotation marks and citation omitted). “If the

statute of conviction criminalizes conduct that would not sat-

isfy the federal definition of the crime at issue, then the con-

viction does not qualify as a predicate offense under the

categorical approach.” Fregozo, 576 F.3d at 1035 (quoting

Quintero-Salazar v. Keisler, 506 F.3d 688, 692 (9th Cir.

2007)) (alteration omitted).

6

We disagree with the dissent’s conclusion that this opinion newly inter-

prets Espinoza-Gonzalez. See Dissent at 6527 (“[The majority] applies its

own interpretation of the standard articulated by the BIA in Espinoza-

Gonzalez.”). Our discussion of the actus reus and mens rea elements of the

generic obstruction of justice crime is taken directly from the BIA’s dis-

cussion in Espinoza-Gonzalez and our binding, precedential decisions in

Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9th Cir. 2008), and

Salazar-Luviano v. Mukasey, 551 F.3d 857, 860 (9th Cir. 2008).

6516 HOANG v. HOLDER

Washington Revised Code § 9A.76.050 defines rendering

criminal assistance for the purposes of § 9A.76.080. It states

that a person renders criminal assistance if:

[W]ith intent to prevent, hinder, or delay the appre-

hension or prosecution of another person he knows

has committed a crime or juvenile offense or is being

sought by law enforcement officials for the commis-

sion of a crime or juvenile offense he:

(1) Harbors or conceals such person; or

(2) Warns such person of impending dis-

covery or apprehension; or

(3) Provides such person with money,

transportation, disguise, or other means of

avoiding discovery or apprehension; or

(4) Prevents or obstructs, by use of force,

deception, or threat, anyone from perform-

ing an act that might aid in the discovery or

apprehension of such person; or

(5) Conceals, alters, or destroys any physi-

cal evidence that might aid in the discovery

or apprehension of such person; or

(6) Provides such person with a weapon.

WASH. REV. CODE § 9A.76.050.

[3] By the statute’s plain language, rendering criminal

assistance in violation of Washington law has three elements.

Defendant must (1) have the “intent to prevent, hinder or

delay the apprehension or prosecution of another person”; (2)

“know the person has committed a crime or juvenile offense

or is being sought by law enforcement officials for the com-

HOANG v. HOLDER 6517

mission of a crime or juvenile offense”; and (3) commit one

of the statutorily enumerated acts, including, as relevant here,

providing transportation to the offender.

[4] Washington Revised Code § 9A.76.080 criminalizes

conduct falling outside the bounds of the generic federal

obstruction of justice crime as defined by Espinoza-Gonzalez

because it does not require that defendant commit an act

involving “either active interference with proceedings of a tri-

bunal or investigation, or action or threat of action against

those who would cooperate with the process of justice.” 22 I.

& N. Dec. at 893 (emphasis added). In Salazar-Luviano, we

held that an individual cannot actively interfere with the pro-

ceedings of a tribunal or investigation unless, at the time of

defendant’s act, such a proceeding was pending. 551 F.3d at

862-63; see also Aguilar, 515 U.S. at 597-98. Salazar-

Luviano considered whether escape from custody, as crimi-

nalized by 18 U.S.C. § 751, was an offense relating to

obstruction of justice. We concluded that:

Because a violation of 18 U.S.C. § 751 does not

require the existence of a pending judicial proceed-

ing, much less knowledge of or specific intent to

obstruct such a proceeding, one could violate § 751

while serving a sentence in federal prison after the

conclusion of all judicial proceedings, for example,

or (as here) while in detention before the commence-

ment of any judicial proceedings.

551 F.3d at 862-63. We acknowledged that the Government

was “probably correct” that an escape from custody “impedes

the prospective judicial or tribunal process,” but held that was

insufficient, under the BIA’s narrow interpretation of the term

obstruction of justice, to bring petitioner’s crime within the

meaning of § 1101(a)(43)(S). 551 F.3d at 863 (emphasis

added).

[5] This case is analogous to Salazar-Luviano. A defendant

could be convicted of rendering criminal assistance in viola-

6518 HOANG v. HOLDER

tion of Washington law if he provided transportation to an

individual he knows is subject to a pending investigation or

proceeding—but he could also be convicted if he provides

transportation to an individual he knows has committed a

crime, before any investigation or judicial proceeding has

begun. The state statute of conviction is divisible, and a con-

viction for misdemeanor rendering criminal assistance does

not necessarily require the defendant to have provided trans-

portation to an individual who had committed and was being

sought for a crime. Providing transportation to an individual

who has committed a crime may “impede[ ] the prospective

judicial process,” Salazar-Luviano, 551 F.3d at 863, and it is

certainly criminal. But that is insufficient to make it obstruc-

tion of justice. Espinoza-Gonzalez, 22 I. & N. Dec. at 893-94.

Because Washington Revised Code § 9A.76.080 does not

require the necessary actus reus, a violation of that statute is

not categorically obstruction of justice.

C.

The BIA’s decision in Batista-Hernandez, 21 I. & N. Dec.

955, does not compel a different conclusion. Batista-

Hernandez (decided two years before Espinoza-Gonzalez)

considered whether an immigrant who was convicted as an

accessory after the fact pursuant to 18 U.S.C. § 3 was remov-

able because he had committed a crime relating to obstruction

of justice.7 21 I. & N. Dec. at 961.

Batista-Hernandez’s discussion of 18 U.S.C. § 3 and

obstruction of justice is cursory. It states, in its entirety:

18 U.S.C. § 3 clearly relates to obstruction of justice.

In so finding, we note that the wording of 18 U.S.C.

7

18 U.S.C. § 3 provides that “[w]hoever, knowing that an offense

against the United States has been committed, receives, relieves, comforts

or assists the offender in order to hinder or prevent his apprehension, trial

or punishment” is subject to imprisonment.

HOANG v. HOLDER 6519

§ 3 itself indicates its relation to obstruction of jus-

tice, for the statute criminalizes actions knowingly

taken to “hinder or prevent (another’s) apprehension,

trial or punishment.” Moreover, as the D.C. Circuit

stated in United States v. Barlow, [470 F.2d 1245,

1253-54 (D.C. Cir. 1972)], the nature of being an

accessory after the fact lies essentially in obstructing

justice and preventing the arrest of the offender.[8]

This case law lends further support to our conclusion

that the respondent’s crime meets the definition of an

obstruction of justice offense.”

21 I. & N. Dec. at 961.

While we defer to the BIA’s definitions of ambiguous

terms in the INA, we do not defer to the BIA’s every conclu-

sion that a particular crime is a removable offense. See, e.g.,

Renteria-Morales, 551 F.3d at 1081 (“We view de novo

whether the specific crime of conviction meets the INA’s def-

inition of an aggravated felony.”); Mandujano-Real, 526 F.3d

at 588-89 (“The answer to [the] question [of whether petition-

er’s conviction is an aggravated felony] lies in interpretation

8

United States v. Barlow, 470 F.2d 1245, 1253-54 (D.C. Cir. 1972)

noted:

The gist of being an accessory after the fact lies essentially in

obstructing justice by rendering assistance to hinder or prevent

the arrest of the offender after he has committed the crime. Evi-

dence of this offense is most frequently found in acts which har-

bor, protect and conceal the individual criminal such as by

driving him away after he commits a murder. The very definition

of the crime also requires that the felony not be in progress when

the assistance is rendered because then he who renders assistance

would aid in the commission of the offense and be guilty as a

principal. That is precisely the situation we have here.

470 F.2d at 1253-54. When the quoted language from Barlow is read in

context, it establishes nothing more than the fact that one cannot be con-

victed as an accessory after the fact for assistance rendered during the

commission of a crime.

6520 HOANG v. HOLDER

of an Oregon criminal statute: this is a matter that is not com-

mitted to the BIA’s expertise. Accordingly, we owe no defer-

ence to the BIA’s resolution of this question on appeal.”). To

determine whether a state or federal conviction constitutes a

removable offense, the BIA undertakes a two-part inquiry.

First, the BIA must determine the elements of the state or fed-

eral conviction. Fregozo, 576 F.3d at 1034 (citing Marmolejo-

Campos v. Holder, 558 F.3d 903, 907 (9th Cir. 2009) (en

banc)). As the BIA has no statutory expertise in such matters,

“we review de novo its determination of the elements of the

offense for which the petitioner was convicted.” Fregozo, 576

F.3d at 1034. Second, the BIA must “construe the INA by

defining a particular removable offense and applying that def-

inition to a petitioner’s state conviction.” Id. We defer to the

BIA’s determinations on the second question to the extent that

the BIA’s interpretation is reasonable and precedential. Id. at

1034-35.

Thus, Batista-Hernandez is relevant to the categorical anal-

ysis in this case only to the extent it defines obstruction of jus-

tice and applies that definition to the identified elements of 18

U.S.C. § 3. Batista-Hernandez does neither. It merely con-

cludes that violation of 18 U.S.C. § 3 is obstruction of justice

without defining the ambiguous term, identifying the elements

of the statute of conviction, or applying a definition of

obstruction of justice to the statute. See 21 I. & N. Dec. at

961. Accordingly, we do not defer to Batista-Hernandez.

In this case, the BIA was correct that Espinoza-Gonzalez,

which defined the generic obstruction of justice crime, did not

overrule Batista-Hernandez.9 Espinoza-Gonzalez distin-

guished misprison of a felony from accessory after the fact on

the grounds that the latter both “references the specific pur-

pose for which” the act is done, 22 I. & N. Dec. at 894, and

9

The fact that Espinoza-Gonzalez did not overrule Batista-Hernandez

does not, as the dissent suggests, lead to the inevitable conclusion that

Batista-Hernandez is entitled to deference. Dissent at 6526-27.

HOANG v. HOLDER 6521

requires “as an element either active interference with pro-

ceedings of a tribunal or investigation, or action or threat of

action against those who would cooperate in the process of

justice.” Id. at 895. The BIA stated that “concealment of a

crime is qualitatively different from an affirmative action to

hinder or prevent another’s apprehension, trial, or punish-

ment. It is a lesser offense to conceal a crime where there is

no investigation or proceeding, or even an intent to hinder the

process of justice . . . .” Id. at 895 (emphasis added). Taken

as a whole, Espinoza-Gonzalez does not suggest that the BIA

considered accessory after the fact to be an offense relating to

obstruction of justice even though it does not require the

defendant to interfere with an ongoing proceeding or investi-

gation. The language used indicates that the BIA now con-

cludes that accessory after the fact is an obstruction of justice

crime when it interferes with an ongoing proceeding or inves-

tigation. Thus, we disagree with the dissent’s apparent conclu-

sion that in Espinoza-Gonzalez, the BIA recognized that

Batista-Hernandez provided a supplemental definition of

obstruction of justice not requiring interference with an ongo-

ing proceeding or investigation. Dissent at 6524. The defini-

tion provided in Espinoza-Gonzalez—the actus reus and mens

rea necessary for a crime to categorically match generic

obstruction of justice—controls.

III. Modified Categorical Analysis

[6] Even though § 9A.76.080 criminalizes a broader range

of conduct than the generic obstruction of justice crime as

defined in Espinoza-Gonzalez, Hoang’s conviction may still

qualify as a crime related to obstruction of justice under the

modified categorical approach.10 Under the modified categori-

10

Because the BIA concluded that § 9A.76.080 was categorically a

crime related to obstruction of justice, it did not engage in a modified cate-

gorical analysis. The Government does not suggest that we should remand

pursuant to INS v. Ventura, 537 U.S. 12, 17-18 (2002), and instead con-

tents itself to rely upon the record as it now stands. Further, in the ordinary

case reversing the BIA’s conclusion that petitioner’s conviction is a cate-

gorically a removable offense, we need not remand to allow the BIA to

apply the modified categorical approach in the first instance. Fernandez-

Ruiz v. Gonzales, 466 F.3d 1121, 1132-33 (9th Cir. 2006) (en banc).

6522 HOANG v. HOLDER

cal approach, we “conduct a limited examination of docu-

ments in the record of conviction” to determine whether

petitioner was necessarily convicted of all of the elements of

the generic crime. Renteria-Morales, 551 F.3d at 1082 (quot-

ing Ferreria v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.

2004)). If the petitioner pleaded guilty, the examination of the

record is “limited to the terms of the charging document, the

terms of a plea agreement or transcript of [the plea] colloquy

. . . or to some comparable judicial record” in which the peti-

tioner confirmed the factual basis for the plea. Shepard v.

United States, 544 U.S. 13, 26 (2005); see also United States

v. Snellenberger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en

banc) (per curiam).

[7] Nothing in the record of conviction establishes that

there was an ongoing investigation or tribunal at the time

Hoang provided transportation to an individual he knew had

committed a crime. Hoang pleaded guilty only to providing

transportation to a person he knew had committed a class B

felony—the plea agreement does not state whether, at the time

Hoang provided transportation, the offender was subject to an

ongoing investigation or pending judicial proceeding. There-

fore, we hold that Hoang’s conviction does not qualify as

obstruction of justice under the modified categorical

approach.

IV. Conclusion

In sum, Hoang’s conviction for a misdemeanor by render-

ing criminal assistance in violation of Washington Revised

Code § 9A.76.080 lacks the necessary actus reus and is not

categorically obstruction of justice according to the definition

provided in Espinoza-Gonzalez. Batista-Hernandez does not

control this case. Nothing in the record of Hoang’s conviction

establishes that he provided assistance to an individual who

was subject to a pending judicial proceeding or ongoing

police investigation, and so his conviction does not qualify as

obstruction of justice under the modified categorical

HOANG v. HOLDER 6523

approach. We GRANT the petition for review and

REMAND for further proceedings consistent with this opin-

ion.

BYBEE, Circuit Judge, dissenting:

The majority misidentifies the question before us, fails to

give the BIA the deference it is due, and contradicts our previ-

ous decisions. I respectfully dissent.

I

We are asked to determine whether a conviction under

Washington’s criminal assistance statute, WASH. REV. CODE

§ 9A.76.080, qualifies as “an offense relating to obstruction of

justice,” and therefore an aggravated felony, under 8 U.S.C.

§ 1101(a)(43)(S). The majority begins on the right track, cor-

rectly establishing that in these circumstances, we apply the

categorical and modified categorical approaches laid out in

Taylor v. United States, 495 U.S. 575 (1990) and Shepard v.

United States, 544 U.S. 13 (2005). Under the categorical

approach, we examine the generic federal definition of an

obstruction-of-justice crime and compare it to the state statute

of conviction. See Taylor, 495 U.S. at 599.

It is here that the majority errs. Citing the BIA’s decision

in Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892-93

(BIA 1999) (en banc), the majority argues the generic federal

definition of an obstruction-of-justice crime requires “active

interference with proceedings of a tribunal,” or “intent to

harm or retaliate against others who cooperate in the process

of justice or might otherwise so cooperate.” See Maj. Op. at

6513-14 (quoting Espinoza-Gonzalez, 22 I. & N. Dec. at 891).

But we have previously noted that unlike other aggravated

felonies listed in § 1101(a)(43), the obstruction of justice pro-

vision “does not clearly set forth the elements of the generic

6524 HOANG v. HOLDER

federal crime.” Renteria-Morales v. Mukasey, 551 F.3d 1076,

1086 (9th Cir. 2008); see also Salazar-Luviano v. Mukasey,

551 F.3d 857, 860 (9th Cir. 2008) (“Congress itself did not

define the phrase ‘offense relating to obstruction of justice’ in

the INA.”). Because of this lack of definition, we looked first

to see “whether there is any binding agency precedent on-

point which does define that phrase.” Renteria-Morales, 551

F.3d at 1086 (internal quotation marks omitted). In no uncer-

tain terms, we held that “in determining whether [a] specific

crime of conviction is an obstruction-of-justice offense for

purposes of § 1101(a)(43)(S), we rely on the BIA’s defini-

tion.” Id. at 1086-87. Here, the BIA has indeed crafted such

a definition, and it contradicts the one asserted by the major-

ity.

In Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA

1997) (en banc), the Board concluded that a conviction under

the federal accessory-after-the-fact statute, 18 U.S.C. § 3,1

qualified as “an offense relating to obstruction of justice”

under § 1101(a)(43)(S). Subsequently, in Espinoza-Gonzalez,

22 I. & N. Dec. at 897, the Board held that the federal mispri-

sion of a felony statute, 18 U.S.C. § 4, was not “an offense

relating to obstruction of justice.” The latter opinion sug-

gested that § 1101(a)(43)(S) covers crimes which “have as an

element interference with the proceedings of a tribunal or

require an intent to harm or retaliate against others who coop-

erate in the process of justice or might otherwise so cooper-

ate.” 22 I. & N. Dec. at 892. However, despite a single board

member’s insistence that this decision was inconsistent with

the reasoning of Batista-Hernandez, see Espinoza-Gonzalez,

22 I. & N. Dec. at 905 (Rosenberg, Board Member, concur-

ring in part and dissenting in part), the Board did not overrule

its earlier opinion, see id. at 891 (discussing Batista-

Hernandez); id. at 894 (distinguishing Batista-Hernandez).

1

18 U.S.C. § 3 provides, in relevant part, that “[w]hoever, knowing that

an offense against the United States has been committed, receives,

relieves, comforts or assists the offender in order to hinder or prevent his

apprehension, trial or punishment, is an accessory after the fact.”

HOANG v. HOLDER 6525

Moreover, in its decision below, the BIA clarified any

apparent tension between these two earlier decisions. It speci-

fied that “in Espinoza-Gonzalez, we . . . reaffirmed rather than

overruled our holding in [Batista-Hernandez].” As a result,

because Washington’s criminal assistance statute contains

“substantially the same” elements as 18 U.S.C. § 3, the Board

concluded that it qualified as an obstruction-of-justice crime

for purposes of the aggravated felony provision. In other

words, the BIA’s decisions in Batista-Hernandez and

Espinoza-Gonzalez both establish its understanding of

§ 1101(a)(43)(S).

II

Because § 1101(a)(43)(S) is part of an immigration statute

that the BIA has been entrusted to administer, we must defer

to its interpretation of “an offense relating to the obstruction

of justice” unless it is unreasonable. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999) (citing Chevron U.S.A. Inc.

v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984)). The

majority does not argue that the BIA’s interpretation of

§ 1101(a)(43)(S) in Batista-Hernandez conflicts with unam-

biguous congressional intent, nor does it claim that its inter-

pretation is unreasonable. Instead, it declines to defer to

Batista-Hernandez because the opinion did not “define[ ]

obstruction of justice and appl[y] that definition to identified

elements of 18 U.S.C. § 3,” and “merely concludes that viola-

tion of 18 U.S.C. § 3 is obstruction of justice without defining

the ambiguous term, identifying the elements of the statute of

conviction, or applying a definition of obstruction of justice

to the statute.” Maj. Op. at 6520.

A

The majority’s refusal to defer to the BIA without conclud-

ing that its interpretation is either contrary to congressional

intent or unreasonable is inexplicable. The BIA is entitled to

Chevron deference when it interprets a immigration statute in

6526 HOANG v. HOLDER

a precedential opinion. See, e.g., Fregozo v. Holder, 576 F.3d

1030, 1034-35 (“If . . . the BIA has interpreted an ambiguous

INA statutory term, and rendered its interpretation in a prece-

dential decision intended to carry the force of law, we defer

under [Chevron] to the BIA’s definition so long as it is rea-

sonable.”) (9th Cir. 2009); Marmolejo-Campos v. Holder, 558

F.3d 903 (9th Cir. 2009) (en banc) (“[T]he Board’s preceden-

tial orders, which bind third parties, qualify for Chevron def-

erence because they are made with a ‘lawmaking

pretense.’ ”). In Batista-Hernandez, the BIA concluded that

“18 U.S.C. § 3 clearly relates to obstruction of justice.” 21 I.

& N. Dec. at 961. It cites “the wording of 18 U.S.C. § 3” and

the D.C. Circuit’s reasoning that “the nature of being an

accessory after the fact lies essentially in obstructing justice

and preventing the arrest of the offender.” Id. at 961. And

there is no dispute that the elements of Washington Revised

Code § 9A.76.080 categorically match the elements of 18

U.S.C. § 3. In other words, if Batista-Hernandez remains

binding, then Hoang’s conviction counts as an aggravating

felony. While I agree that Batista-Hernandez’s discussion of

18 U.S.C. § 3 was brief, it cannot be ignored simply because

the majority would have preferred that it be lengthier. If the

majority is dissatisfied with the analytical rigor with which

the BIA reached its conclusion in Batista-Hernandez, it can

only express that dissatisfaction by demonstrating that the

decision is unreasonable or contrary to unambiguous congres-

sional intent. But the majority cannot simply ignore an opin-

ion because it feels that the BIA’s analysis is too brief.

B

Instead of following Batista-Hernandez, the majority

applies the categorical approach by using Espinoza-

Gonzalez’s definition of an obstruction-of-justice crime. Maj.

Op. at 6515-18. In doing so, the majority not only overlooks

our conclusion in Renteria-Morales that the “generic federal

definition” of an obstruction-of-justice crime under

§ 1101(a)(43)(S) is determined by the BIA, 551 F.3d at 1086,

HOANG v. HOLDER 6527

but it also, remarkably, applies its own interpretation of the

standard articulated by the BIA in Espinoza-Gonzalez. The

weakness in the majority’s position is further highlighted by

its acknowledgment that “the BIA was correct that Espinoza-

Gonzalez . . . did not overrule Batista-Hernandez.” Maj. Op.

at 6520. Nonetheless, it maintains that “the BIA now con-

cludes that accessory after the fact is an obstruction of justice

crime when it interferes with an ongoing proceeding or inves-

tigation.” Maj. Op. at 6521. In other words, not only has the

majority conceded that Espinoza-Gonzalez did not overrule

Batista-Hernandez, but it has also fashioned a definition that,

to its own satisfaction, fuses the two together. Although the

coexistence of Espinoza-Gonzalez and Batista-Hernandez

might be inelegant or overly complicated, the two decisions

are compatible and both remain entitled to deference unless

it is shown that one of them fails one or both of Chevron’s

two steps.

There is no congressionally articulated federal definition of

an obstruction-of-justice crime; we observed as much in

Renteria-Morales. See 557 F.3d at 1086. In order to reach its

result, the majority has, in effect, examined two reasonable

(and non-contradictory) definitions of the term offered by the

BIA and has, by judicial fiat, given legal effect to one and

invalidated the other, even though the BIA has explicitly

endorsed both. It thereby fails to give adequate deference to

the BIA.

III

I would give deference to the BIA’s decision in Batista-

Hernandez, conclude that 18 U.S.C. § 3 is an “offense relating

to the obstruction of justice,” and hold that Hoang’s convic-

tion under a substantially similar Washington statute therefore

constituted a conviction for an aggravated felony under

§ 1101(a)(43)(S). The majority fails to give appropriate defer-

ence to the BIA’s decisions and is in tension with our previ-

ous holdings. I respectfully dissent.