Renteria-Morales v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IRMA RENTERIA-MORALES, 

Petitioner, No. 04-74742

v.

 Agency No.

A92-202-968

MICHAEL B. MUKASEY, Attorney

General,

Respondent.



MARIA JESUS RIVERA DE ALVARADO,  No. 06-73283

Petitioner,

Agency No.

v.

 A17-970-844

MICHAEL B. MUKASEY, Attorney

ORDER AND

General,

OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

November 9, 2007—San Francisco, California

Filed December 12, 2008

Before: Sidney R. Thomas, Richard C. Tallman, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Partial Concurrence and Partial Dissent by Judge Tallman

16311

RENTERIA-MORALES v. MUKASEY 16315

COUNSEL

Irma Renteria-Morales v. Mukasey, 04-74742

Martin R. Guajardo (brief) and Marty Robles (argued), Law

Office of Martin R. Guajardo, San Francisco, California, for

the petitioner.

Marshall Tamor Golding (brief) and Ann Carroll Varnon

(argued), United States Department of Justice, Civil Division,

Washington, D.C., for the respondent.

Maria Jesus Rivera de Alvarado v. Mukasey, 06-73283

16316 RENTERIA-MORALES v. MUKASEY

Carol Dvorkin, San Francisco, California, for the petitioner.

David Schor, United States Department of Justice, Civil Divi-

sion, Washington, D.C., for the respondent.

ORDER

The opinion filed July 10, 2008, and appearing at 532 F.3d

949 is hereby withdrawn. The superseding opinion will be

filed simultaneously with this Order. The parties may file an

additional petition for rehearing or rehearing en banc.

OPINION

IKUTA, Circuit Judge:

The two petitions for review consolidated in this opinion1

present the question whether a conviction for failure to appear

in court in violation of 18 U.S.C. § 31462 meets the definition

of an aggravated felony in 8 U.S.C. § 1101(a)(43)(S)3 or 8

1

These petitions are ordered consolidated for purposes of this disposi-

tion.

2

18 U.S.C. § 3146 states, in pertinent part:

(a) Offense.— Whoever, having been released under this chap-

ter knowingly—

(1) fails to appear before a court as required by the condi-

tions of release; or

(2) fails to surrender for service of sentence pursuant to a

court order;

shall be punished as provided in subsection (b) of this section.

3

Under 8 U.S.C. § 1101(a)(43)(S), the definition of “aggravated felony”

includes “an offense relating to obstruction of justice, perjury or suborna-

tion of perjury, or bribery of a witness, for which the term of imprison-

ment is at least one year.”

RENTERIA-MORALES v. MUKASEY 16317

U.S.C. § 1101(a)(43)(T).4 Applying the categorical approach

prescribed by Taylor v. United States, 495 U.S. 575, 600-02

(1990), we conclude that a violation of § 3146 qualifies as the

generic crime of “obstruction of justice” under

§ 1101(a)(43)(S) but does not qualify as the generic crime of

“failure to appear” under § 1101(a)(43)(T). We also conclude

that a petitioner’s prior conviction qualifies as an aggravated

felony under § 1101(a)(43)(S) only if the petitioner has been

sentenced to a term of imprisonment of “at least one year.”

I

Irma Renteria-Morales (Renteria) and Maria Jesus Rivera

de Alvarado (Rivera), both natives and citizens of Mexico,

petition for review of a decision by the Board of Immigration

Appeals (BIA) affirming a final order of removal.

A

Renteria became a lawful permanent resident of the United

States in 1990. On January 13, 1998, Renteria pleaded guilty

to a violation of 18 U.S.C. § 3146. The judgment entered by

the district court stated: “The defendant is convicted of the

offense(s) of: violating Title 18, United States Code, Sections

3146, Bail Jumping, as charged in the Information filed here-

in.” The information alleged:

That on or about July 20, 1992, at or near Tucson,

in the District of Arizona, IRMA LINDA

RENTERIA-MORALES, after having been released

on or about March 2, 1992, pursuant to Chapter 207

of Title 18 of the United States Code, in connection

with a charge of possession with intent to distribute

4

Under 8 U.S.C. § 1101(a)(43)(T), the definition of “aggravated felony”

includes “an offense relating to a failure to appear before a court pursuant

to a court order to answer to or dispose of a charge of a felony for which

a sentence of 2 years’ imprisonment or more may be imposed.”

16318 RENTERIA-MORALES v. MUKASEY

marijuana, in violation of Title 21 United States

Code § 841(a)(1), an offense punishable by impris-

onment for a term of not more than five (5) years,

and having been directed to appear before the Dis-

trict Court of Arizona at Tucson, Arizona, on July

20, 1992, wilfully did fail to appear as required;

All in violation of Title 18 United States Code

Section 3146.

On March 3, 1998, the government filed a notice to appear

alleging that Renteria was subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii)5 as an aggravated felon due to her viola-

tion of 18 U.S.C. § 3146. The government claimed that a vio-

lation of § 3146 constituted the aggravated felony of “failure

to appear” under 8 U.S.C. § 1101(a)(43)(T). Over Renteria’s

objections, the immigration judge (IJ) agreed with the govern-

ment’s interpretation of § 1101(a)(43)(T) and pretermitted

Renteria’s application for cancellation of removal. See 8

U.S.C. § 1229b(a)(3). Renteria appealed to the BIA, which

affirmed the IJ’s determination without an opinion. Renteria

timely filed a petition for review with this court.

B

Rivera became a lawful permanent resident of the United

States in 1967. In 1973, she was indicted by a grand jury for

conspiracy to illegally import heroin, illegal importation of

heroin, conspiracy to possess a controlled substance with

intent to distribute, and possession of a controlled substance

with intent to distribute. Rivera pleaded not guilty and was

released on bail. While on bail, she fled the United States. The

government filed a second indictment charging Rivera with

violation of 18 U.S.C. § 31466 in August 1973. In 2004,

5

8 U.S.C. § 1227(a)(2)(A)(iii) states: “Any alien who is convicted of an

aggravated felony at any time after admission is deportable.”

6

Although the indictment charged Rivera with a violation of 18 U.S.C.

§ 3150, this statute was repealed by the Bail Reform Act of 1984, Pub. L.

RENTERIA-MORALES v. MUKASEY 16319

Rivera was arrested while crossing the border from Mexico

into the United States based on an outstanding warrant for

failure to appear. Rivera pleaded guilty to a violation of 18

U.S.C. § 3146, and the government dismissed the drug

charges. Rivera was sentenced to a $100.00 assessment and a

term of imprisonment of twelve months and one day.

In 2005, the government filed a notice to appear alleging

that Rivera was subject to removal on two grounds: (1) under

8 U.S.C. § 1182(a)(2)(A)(i)(I), for being an alien who com-

mitted a crime of moral turpitude; and (2) under 8 U.S.C.

§ 1182(a)(2)(C), for being an alien who “the Attorney General

knows or has reason to believe . . . is or has been a knowing

aider, abettor, assister, conspirator, or colluder with others in

the illicit trafficking in any such controlled . . . substance.” 8

U.S.C. § 1182(a)(2)(C)(i). On November 14, 2005, Rivera

filed an application for cancellation of removal.

The IJ sustained the two charges of removability and pre-

termitted and denied Rivera’s application for cancellation of

removal on the ground that her conviction under 18 U.S.C.

§ 3146 qualified as an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(S) as “an offense relating to obstruction of jus-

tice.” See 8 U.S.C. § 1229b(a)(3).

Rivera appealed to the BIA, challenging only the denial of

her application for cancellation of removal. The BIA affirmed

the IJ in a reasoned opinion, agreeing “that the respondent

was convicted of an aggravated felony because the offense of

bail jumping falls within the definition of an obstruction of

justice crime under section 101(a)(43)(S) of the Immigration

and Nationality Act.” Rivera timely filed a petition for review

with this court.

No. 98-473, 98 Stat. 1976 (1984), and replaced with a substantially identi-

cal statute, 18 U.S.C. § 3146. To avoid confusion, we refer to the statute

of conviction as 18 U.S.C. § 3146 throughout this opinion.

16320 RENTERIA-MORALES v. MUKASEY

II

We have jurisdiction under 8 U.S.C. § 1252(a) to review

the legal question whether a conviction underlying an order of

removal, or the denial of relief from an order of removal, con-

stitutes an aggravated felony. See Li v. Ashcroft, 389 F.3d

892, 895 (9th Cir. 2004). If the BIA conducted “an indepen-

dent review . . . we review the BIA’s decision and not that of

the IJ.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th

Cir. 2006). However, where the BIA summarily affirms the

holding of the IJ without opinion, we review the IJ’s decision

as the final agency determination. See Falcon Carriche v.

Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).

[1] In analyzing Renteria’s petition, we must determine

whether a conviction for failure to appear in court in violation

of 18 U.S.C. § 3146 constitutes an aggravated felony under 8

U.S.C. § 1101(a)(43)(T). In order to meet the definition of

“aggravated felony” under this subsection, the offense of con-

viction must be “an offense relating to a failure to appear

before a court pursuant to a court order to answer to or dis-

pose of a charge of a felony for which a sentence of 2 years’

imprisonment or more may be imposed.” 8 U.S.C.

§ 1101(a)(43)(T).

In analyzing Rivera’s petition, we must determine whether

a conviction for failure to appear in court in violation of

§ 3146 constitutes an aggravated felony under 8 U.S.C.

§ 1101(a)(43)(S). In order to meet the definition of “aggra-

vated felony” in this subsection, the offense of conviction

must be (1) “an offense relating to obstruction of justice, per-

jury or subornation of perjury, or bribery of a witness,” 8

U.S.C. § 1101(a)(43)(S); and (2) an offense “for which the

term of imprisonment is at least one year.” Id.

If a violation of § 3146 meets the definition set forth in

§ 1101(a)(43)(S) or (T), it qualifies as an aggravated felony

and makes the alien removable under 8 U.S.C.

RENTERIA-MORALES v. MUKASEY 16321

§ 1227(a)(2)(A)(iii). It also renders the alien ineligible for

cancellation of removal pursuant to 8 U.S.C. § 1229b(a)(3).

Our analysis requires two different considerations. First,

we must determine whether the crime of conviction contains

all the elements of the generic federal offense. To make this

determination, we apply the categorical approach set forth in

Taylor, 495 U.S. 575, to the Immigration and Nationality Act

(INA). See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125

(9th Cir. 2006) (en banc). Using the categorical approach, we

determine the generic federal definition of “obstruction of jus-

tice” and “failure to appear” in § 1101(a)(43)(S) and (T),

respectively. Because § 1101(a)(43) is part of the INA, we

must defer to the BIA’s articulation of the generic federal def-

inition “if the statute is silent or ambiguous with respect to the

specific issue before the agency and the BIA’s interpretation

is ‘based on a permissible construction of the statute.’ ” Par-

rilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005) (quot-

ing INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). We

accord Chevron deference where there is “binding agency

precedent on-point (either in the form of a regulation or a

published BIA case).” Kharana v. Gonzales, 487 F.3d 1280,

1283 n.4 (9th Cir. 2007); see Chevron U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842-44 (1984).

After determining the elements of the generic crimes listed

in § 1101(a)(43) (S) and (T), the next step in the Taylor analy-

sis is to identify the elements of the specific crime of

conviction—in this case, 18 U.S.C. § 3146. We do not defer

to the BIA’s interpretations of state law or provisions of the

federal criminal code. Parrilla, 414 F.3d at 1041. Rather, we

review de novo whether the specific crime of conviction

meets the INA’s definition of an aggravated felony. Li, 389

F.3d at 895; 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

16322 RENTERIA-MORALES v. MUKASEY

qualifies as an aggravated felony under § 1101(a)(43). See

Fernandez-Ruiz, 466 F.3d at 1125.

If the elements of the specific crime of conviction are

broader than the elements of the generic crime listed in

§ 1101(a)(43), we may “go beyond the mere fact of convic-

tion” and consider whether the petitioner was necessarily con-

victed of all the elements of the generic crime. Taylor, 495

U.S. at 602. In making this determination, we are permitted

to “conduct a limited examination of documents in the record

of conviction.” Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th

Cir. 2004) (internal quotation marks omitted). Where the

defendant pleaded 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 (2005); see also United States v. Snellenber-

ger, ___ F.3d ___, 2008 WL 4717190, at *2 (9th Cir. Oct. 28,

2008) (en banc) (holding clerk’s minute order, prepared by

neutral officer of the court and subject to examination and

challenge by defendant, sufficiently reliable under Shepard to

consider in modified categorical analysis). “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 commit-

ted an aggravated felony.” Ferreira, 390 F.3d at 1095.

Second, if we determine that the specific offense of convic-

tion is categorically a generic offense specified in

§ 1101(a)(43) (or if the petitioner necessarily was convicted

of all elements of the generic offense), we then consider any

statutory requirements of the aggravated felony defined in

§ 1101(a)(43) that are not elements of the generic federal

offense. The categorical and modified categorical approaches

are applicable only to elements of the criminal offense. See

Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1067-68 (9th Cir.

RENTERIA-MORALES v. MUKASEY 16323

2007) (en banc) (“The categorical approach requires us to

make a categorical comparison of the elements of the statute

of conviction to the generic definition of the crime, and

decide whether the conduct proscribed by the statute [of con-

viction] is broader than, and so does not categorically fall

within, this generic definition.” (alterations and internal quo-

tation marks omitted)); Shepard, 544 U.S. at 17 (explaining

that the modified categorical approach ensures that “a jury . . .

was actually required to find all the elements of the generic

offense” (internal quotation marks omitted)).

The second component of § 1101(a)(43)(S), that the

offense be one “for which the term of imprisonment is at least

one year,” is such a statutory requirement, rather than an ele-

ment of the generic federal offense.7 A sentence is not an ele-

ment of a criminal offense. See, e.g., Jones v. United States,

526 U.S. 227, 232 (1999) (“[E]lements [of an offense] must

be charged in the indictment, submitted to a jury, and proven

by the Government beyond a reasonable doubt.”). Addition-

ally, neither the factors that influence a criminal sentence, nor

the sentence itself, need be submitted to a jury. See Harris v.

United States, 536 U.S. 545, 549 (2002) (“After the accused

is convicted, the judge may impose a sentence within a range

provided by statute, basing it on various facts relating to the

defendant and the manner in which the offense was commit-

ted. Though these facts may have a substantial impact on the

sentence, they are not elements, and are thus not subject to the

Constitution’s indictment, jury, and proof requirements.”);

Apprendi v. New Jersey, 530 U.S. 466, 481, 490 (2000) (hold-

ing that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted

7

Unlike § 1101(a)(43)(S), § 1101(a)(43)(T) does not include statutory

requirements that are not part of the generic offense. Although

§ 1101(a)(43)(T) requires the underlying felony for which the petitioner

failed to appear to be one “for which a sentence of 2 years’ imprisonment

or more may be imposed,” it does not require that the petitioner be sen-

tenced for a specified term of imprisonment, or that the offense of convic-

tion authorize a sentence of a specified term.

16324 RENTERIA-MORALES v. MUKASEY

to a jury, and proved beyond a reasonable doubt,” but clarify-

ing that judges may “exercise discretion—taking into consid-

eration various factors relating both to offense and offender—

in imposing a judgment within the range prescribed by stat-

ute.”).

Because a sentence authorized by or subsequently imposed

for a criminal offense is not an element of that offense, we do

not use the categorical and modified categorical approach to

determine whether a petitioner has met any sentencing

requirement specified in § 1101(a)(43). Instead, we use tools

of statutory construction to evaluate whether the petitioner’s

prior crime of conviction meets any statutory requirements in

§ 1101(a)(43) that are not elements of a generic federal crime.

Based on this framework, we consider each appeal in turn.

III

We first address Renteria’s argument that her conviction

for failure to appear under 18 U.S.C. § 3146 does not consti-

tute an aggravated felony under 8 U.S.C. § 1101(a)(43)(T).

[2] We apply the Taylor analysis to determine whether the

crime of conviction also contains all the elements of the

generic federal offense. The first step under Taylor is to deter-

mine the elements of the generic federal crime. In this case,

the elements of the generic federal crime are clearly set out

in § 1101(a)(43)(T) itself. The subsection includes any

offense “relating to” the following elements: (1) a failure to

appear before a court; (2) pursuant to a court order; (3) to

answer to or dispose of a charge of a felony; (4) where the fel-

ony was one for which a sentence of two years’ imprisonment

or more may be imposed. We have not found, nor has the

government cited, any precedential BIA decision providing

further interpretation of this generic federal crime.

We next turn to the specific crime of conviction to deter-

mine whether the elements of § 3146 are narrower than or the

RENTERIA-MORALES v. MUKASEY 16325

same as the elements of the generic crime, § 1101(a)(43)(T).

Section 3146 provides, in pertinent part:

(a) Offense.—Whoever, having been released under

this chapter knowingly—

(1) fails to appear before a court as required

by the conditions of release; or

(2) fails to surrender for service of sentence

pursuant to a court order;

shall be punished as provided in subsection (b) of

this section.

(b) Punishment.—(1) The punishment for an offense

under this section is—

(A) if the person was released in connection

with a charge of, or while awaiting sen-

tence, surrender for service of sentence, or

appeal or certiorari after conviction for—

(i) an offense punishable by death, life

imprisonment, or imprisonment for a

term of 15 years or more, a fine under

this title or imprisonment for not more

than ten years, or both;

(ii) an offense punishable by imprison-

ment for a term of five years or more, a

fine under this title or imprisonment for

not more than five years, or both;

(iii) any other felony, a fine under this

title or imprisonment for not more than

two years, or both; or

16326 RENTERIA-MORALES v. MUKASEY

(iv) a misdemeanor, a fine under this title

or imprisonment for not more than one

year, or both; and

(B) if the person was released for appear-

ance as a material witness, a fine under this

chapter or imprisonment for not more than

one year, or both.

[3] Although § 3146 includes all the elements of the

generic crime, we conclude that the elements of § 3146 are

broader than the elements of § 1101(a)(43)(T). For example,

a necessary element of an offense included in

§ 1101(a)(43)(T) is that the defendant must have failed to

appear in connection with a felony, where the felony was one

for which a sentence of two years’ imprisonment or more

could be imposed. However, under § 3146, the defendant

could have failed to appear in connection with a misdemea-

nor, 18 U.S.C. § 3146(b)(1)(A)(iv), or could have failed to

appear as a material witness. Id. § 3146(b)(1)(B). Addition-

ally, a failure to appear as a material witness would not be a

failure “to answer to or dispose of” a particular charge, as

required by § 1101(a)(43)(T). Finally, a defendant could have

failed to appear as required by his or her conditions of release,

in violation of § 3146(a)(1), but not have failed to appear pur-

suant to any particular court order, as required by

§ 1101(a)(43)(T). Accordingly, a violation of § 3146 is not

categorically an aggravated felony for purposes of

§ 1101(a)(43)(T).

[4] We must therefore apply the modified categorical

approach to determine if the petitioner was necessarily con-

victed of all the elements of § 1101(a)(43)(T). In making this

determination, we may review the judgment and the charging

document (the information) contained in Renteria’s record of

conviction. See Shepard, 544 U.S. at 26; see also Ferreira,

390 F.3d at 1095. It is undisputed that these are the only docu-

ments in Renteria’s record that are cognizable for purposes of

RENTERIA-MORALES v. MUKASEY 16327

our analysis.8 As noted above, the judgment states only that

Renteria pleaded guilty to violating “Title 18, United States

Code, Sections 3146, Bail Jumping, as charged in the Infor-

mation filed herein.” The information provides that Renteria

was released “in connection with a charge of possession with

intent to distribute marijuana,” an offense punishable by five

years’ imprisonment, and “having been directed to appear

before the District Court of Arizona at Tucson, Arizona, on

July 20, 1992, wilfully did fail to appear as required.”

According to Renteria, the record does not establish that

she was necessarily convicted of the second element of

§ 1101(a)(43)(T) (i.e., that she failed to appear before a court

“pursuant to a court order”) or the third element (i.e., that she

failed to appear “to answer to or dispose of a charge of a felo-

ny”).9 First, Renteria notes that the information charges her

with failure to appear as “directed,” and does not mention a

court order. Renteria argues that § 3146(a)(1) (prohibiting

failure to appear “as required by the conditions of release”)

allows the government to obtain a conviction for violation of

§ 3146 without proving that the offender had violated a court

order. To support this interpretation, Renteria notes that Con-

gress chose to use the term “court order” in § 3146(a)(2) (pro-

hibiting the failure to surrender for service of sentence

“pursuant to a court order”), but did not use that term in

§ 3146(a)(1), which raises the inference that Congress

intended § 3146(a)(1) to be broader than § 3146(a)(2).

8

The record also contains two documents labeled “Criminal Minutes”

and “Magistrate Judge’s Minutes.” We need not determine whether these

are judicial records on which we may properly rely in applying the modi-

fied categorical approach, see Snellenberger, 2008 WL 4717190, at *2,

because the documents provide no details regarding Renteria’s prior crime

of conviction, but merely state that she was convicted of violating 18

U.S.C. § 3146.

9

The record does establish that Renteria was necessarily convicted of

the first and fourth elements of § 1101(a)(43)(T) (i.e., she failed to appear

before a court, and the underlying offense was a felony punishable by a

sentence of two years’ imprisonment or more). Renteria does not dispute

this conclusion.

16328 RENTERIA-MORALES v. MUKASEY

Second, Renteria notes that the information does not estab-

lish that she was convicted of a failure to appear “to answer

to or dispose of a charge,” the third element of

§ 1101(a)(43)(T). Renteria argues that she could have been

convicted for failing to appear “for service of sentence,” as

contemplated in § 3146(a)(2), or for failing to appear as a

material witness, as contemplated in § 3146(b)(1)(B).

The government contends that it is reasonable to infer from

the information and the statute of conviction that Renteria

failed to appear before a court “pursuant to a court order,” and

failed to appear “to answer to or dispose of a charge of a felo-

ny.” With respect to the “court order” element, the govern-

ment asserts that only a judicial officer has authority to direct

Renteria to appear, and the judicial officer’s direction would

be a court order. With respect to the second element, the gov-

ernment notes that the information did not expressly allege

that Renteria’s conviction was for failing to appear for service

of a sentence or as a material witness. From this silence, the

government argues, we can reasonably infer that Renteria’s

conviction under § 3146 was to answer to or dispose of a

charge. The government concludes, therefore, that the record

does establish that Renteria was convicted of the second and

fourth elements of § 1101(a)(43)(T).

[5] Although the inferences suggested by the government

may be reasonable, the government has not established that

such inferences are necessary. On their face, the judicially

noticeable documents do not establish that Renteria was under

a “court order” or that she was ordered to appear “to answer

to or dispose of” a charge. The government has not estab-

lished that the phrase “having been directed to appear” in the

information necessarily means that a court had issued an

order. Nor has the government established that the phrase “re-

leased . . . in connection with a charge” of a substantive crime

necessarily means that the person directed to appear was

charged with that crime, rather than being a material witness

to that crime.

RENTERIA-MORALES v. MUKASEY 16329

[6] The dissent points out that under 18 U.S.C. § 3142,

judicial officers have authority to order the release of pretrial

detainees, subject to certain conditions. The dissent reasons

that Renteria was probably subject to such a court order,

which would likely have ordered her to appear before the

court at the appropriate time. Again, such inferences are rea-

sonable, but they are not necessary. The record does not

establish that Renteria was a pretrial detainee released pursu-

ant to § 3142, or that she was under a court order to make an

appearance.

[7] Under the modified categorical approach, the govern-

ment must establish that the prior conviction necessarily

involved, and the allowable documents necessarily estab-

lished, facts equating to the generic crime. See Shepard, 544

U.S. at 24; see also Sandoval-Lua v. Gonzales, 499 F.3d

1121, 1131 (9th Cir. 2007) (“[T]he Supreme Court’s holdings

in Taylor and Shepard . . . both stress that a predicate convic-

tion qualifies as a generic crime under the modified categori-

cal approach only if the record of conviction shows the jury

‘necessarily’ found all of the generic elements, or the defen-

dant ‘necessarily’ admitted all of the generic elements in a

plea.” (citations omitted)). On the present record, we cannot

say with certainty that Renteria was convicted of all the ele-

ments of § 1101(a)(43)(T). “If the record of conviction does

not establish that the offense the petitioner committed quali-

fies as an aggravated felony, the government has not met its

burden of proving that the defendant committed an aggravated

felony.” Ferreira, 390 F.3d at 1095. The government’s inter-

pretation of the judgment and information are inadequate to

carry its burden of establishing that Renteria was convicted of

all the elements of the generic crime described in

§ 1101(a)(43)(T). We therefore grant Renteria’s petition for

review.

IV

[8] We next consider Rivera’s argument that her conviction

for “failure to appear” under 18 U.S.C. § 3146 does not meet

16330 RENTERIA-MORALES v. MUKASEY

the definition of the generic crime of “obstruction of justice”

in 8 U.S.C. § 1101(a)(43)(S).

[9] We apply the Taylor analysis to determine whether the

elements of “failure to appear” under § 3146 necessarily

include the elements of “obstruction of justice.” Following the

categorical approach prescribed by Taylor, we first determine

the generic definition of obstruction of justice. See Taylor,

495 U.S. at 598-99. Unlike § 1101(a)(43)(T),

§ 1101(a)(43)(S) does not clearly set forth the elements of the

generic federal crime. Because the INA does not define the

phrase “offense relating to obstruction of justice,” we must

determine whether there is any “binding agency precedent on-

point” which does define that phrase. Kharana, 487 F.3d at

1283 n.4; see also Parrilla, 414 F.3d at 1041 (internal quota-

tion marks omitted). As acknowledged by the government and

Rivera, the BIA has interpreted the elements of a generic

obstruction-of-justice offense under § 1101(a)(43)(S) in a pre-

cedential decision, Matter of Espinoza-Gonzalez, 22 I. & N.

Dec. 889 (BIA 1999). Based on its review of the crimes listed

in chapter 73 of title 18 of the U.S. Code, entitled “Obstruc-

tion of Justice,” and on the guidance provided by the Supreme

Court in United States v. Aguilar, 515 U.S. 593 (1995) (ana-

lyzing the elements of 18 U.S.C. § 1503), the BIA articulated

both an actus reus and mens rea element of the generic defini-

tion of such crimes for purposes of § 1101(a)(43)(S).

Espinoza-Gonzalez, 22 I. & N. Dec. at 892-93. First, the BIA

held that obstruction of justice crimes include “either active

interference with proceedings of a tribunal or investigation, or

action or threat of action against those who would cooperate

in the process of justice.” Id. at 893. Second, the BIA held

that such crimes include an intent element, defined as a “spe-

cific intent to interfere with the process of justice.” Id.

In considering the BIA’s construction of § 1101(a)(43)(S),

a statute it administers, we must comply with the principles

of deference articulated in Chevron and uphold the BIA’s def-

inition of “obstruction of justice” offenses if it “ ‘is based on

RENTERIA-MORALES v. MUKASEY 16331

a permissible construction of the statute.’ ” Aguirre-Aguirre,

526 U.S. at 424 (quoting Chevron, 467 U.S. at 843). Here the

BIA acted reasonably in deriving the definition of “obstruc-

tion of justice” for purposes of § 1101(a)(43)(S) from the

body of federal statutes imposing criminal penalties on

obstruction-of-justice offenses. See Parrilla, 414 F.3d at

1041. Accordingly, in determining whether the specific crime

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

of § 1101(a)(43)(S), we rely on the BIA’s definition.10

We now turn to Rivera’s specific crime of conviction: In

this case, the question is whether all elements of

§ 3146—namely, being released and knowingly failing to

appear before a court as required by the conditions of release,

or failing to surrender for service of sentence pursuant to a

court order—are included in and narrower than the elements

of obstruction of justice under § 1101(a)(43)(S). See Taylor,

495 U.S. at 599.

[10] Section 3146 clearly includes the requisite actus reus:

an “active interference with proceedings of a tribunal or

investigation, or action or threat of action against those who

would cooperate in the process of justice.” Espinoza-

Gonzalez, 22 I. & N. Dec. at 893. Failure to appear before a

court as required by the conditions of release, and failure to

obey a court order to surrender for service, both constitute

active interference with the proceedings of a tribunal. Because

there is no meaningful distinction between personally failing

to appear for court proceedings and hindering a third party

from appearing for such proceedings, see 18 U.S.C. § 1512

10

Rivera argues that another critical element of a generic obstruction of

justice crime is that it must involve violation of a court order, citing Alwan

v. Ashcroft, 388 F.3d 507, 514-515 (5th Cir. 2004). We reject this argu-

ment. Although the specific crime in Alwan, “criminal contempt,”

involved disobedience of a court order, Alwan did not hold that violation

of a court order was a necessary element of obstruction of justice. Rivera

also cites to Barnaby v. Reno, 142 F. Supp. 2d 277 (D. Conn. 2001),

which is irrelevant because it analyzed § 1101(a)(43)(T), not (S).

16332 RENTERIA-MORALES v. MUKASEY

(“[t]ampering with a witness, victim, or an informant,” a

chapter 73 “Obstruction of Justice” offense), we reject Rive-

ra’s attempt to distinguish a personal failure to appear as con-

stituting only “passive” interference.

[11] Section 3146 also includes the requisite mens rea: the

“specific intent to interfere with the process of justice.”

Espinoza-Gonzalez, 22 I. & N. Dec. at 893.11 By its terms,

§ 3146 prohibits a defendant from knowingly failing to show

up for a judicial proceeding after having been ordered or

directed to do so. Under these circumstances, a defendant nec-

essarily knows that failure to appear will “affect the judicial

proceeding.” Aguilar, 515 U.S. at 599. We have gone further

and construed § 3146 as requiring a willful violation of a

requirement to appear for a judicial proceeding. See, e.g.,

Weaver v. United States, 37 F.3d 1411, 1412-13 (9th Cir.

1994) (“To establish a violation of 18 U.S.C. § 3146, the gov-

ernment ordinarily must prove that the defendant (1) was

released pursuant to that statute, (2) was required to appear in

court, (3) knew that he was required to appear, (4) failed to

appear as required, and (5) was willful in his failure to

11

In the context of federal obstruction of justice crimes, courts have

defined the specific intent element broadly. See Pettibone v. United States,

148 U.S. 197, 207 (1893) (indicating that the intent to take a wrongful act

that will have the “natural and probable consequence” of obstructing jus-

tice is an “evil intent” to obstruct justice); see also United States v. Hop-

per, 177 F.3d 824, 830-31 (9th Cir. 1999) (indicating that the elements of

an obstruction-of-justice offense under 18 U.S.C. § 1505 are satisfied

where the defendants had acted to prevent collection of their tax debt, and

knew that “the natural and probable effect” of their actions would be to

interfere with IRS proceedings (internal quotations omitted)); United

States v. Gallimore, 491 F.3d 871, 876 (8th Cir. 2007) (holding that the

only intent necessary to convict a defendant under 18 U.S.C. § 1513(b) for

retaliating against a witness, victim, or informant “was an intent to retali-

ate” (internal quotations omitted)). Because we have interpreted § 3146

as requiring the government to prove that the defendant willfully failed to

appear, see infra p. 16332, we need not consider whether these interpreta-

tions of the mens rea element of specific federal obstruction of justice

crimes are part of the generic federal crime of “obstruction of justice.”

RENTERIA-MORALES v. MUKASEY 16333

appear.”); see also United States v. Smeaton, 762 F.2d 796,

797-98 (9th Cir. 1985) (recognizing willful failure to appear

as an essential element of the bail-jumping offense). In this

context, “[w]illfulness requires a specific intent to do some-

thing the law forbids; a general intent to commit the pro-

scribed act is not enough.” United States v. Wilson, 631 F.2d

118, 119 (9th Cir. 1980). A defendant cannot be convicted of

§ 3146 “if it is committed as a result of inadvertence or mis-

take.” Id.; see also § 3146(c) (stating that it can be an affirma-

tive defense to a conviction under § 3146 that a defendant was

prevented from appearing in court due to uncontrollable cir-

cumstances). Thus a violation of § 3146 necessarily includes

the intentional failure to appear in court, knowing that one’s

presence is required either for trial or execution of sentence.

Our conclusion that the conduct prohibited by § 3146 con-

stitutes an intentional interference with judicial proceedings is

consistent with our decision in United States v. Draper, 996

F.2d 982, 984-86 (9th Cir. 1983). There, we held that a dis-

trict court did not err in enhancing the sentence of a defendant

who fled prior to sentencing under U.S.S.G. § 3C1.1, the rele-

vant version of which provided that, “[i]f the defendant will-

fully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice during the investigation,

prosecution, or sentencing of the instant offense, [then]

increase the offense level by 2 levels.” Id. at 984 (alterations

in original) (internal quotation marks omitted). We agreed

with the district court “that defendant obstructed justice

because he violated the conditions of his release from the

community corrections center by failing to report to the cor-

rections center, thereby impeding the administration of jus-

tice.” Id. (internal quotation marks omitted). We noted that

the defendant attempted “to escape justice” after having sub-

mitted to judicial process, making his offense distinguishable

from fleeing arrest, which did not constitute obstruction of

justice. Id. at 985-86 (internal quotation marks omitted).

16334 RENTERIA-MORALES v. MUKASEY

[12] Rivera attempts to distinguish her conviction of violat-

ing § 3146 from other obstruction-of-justice offenses on sev-

eral grounds. She argues that the offense of failing to appear

is equivalent to fleeing arrest, which Draper deemed not to

constitute an obstruction of justice, or is analogous to (or less

serious than) misprision of a felony, which Espinoza-

Gonzalez deemed not to be an obstruction of justice. See Dra-

per, 996 F.2d at 985-86; Espinoza-Gonzalez, 22 I. & N. Dec.

at 892. We disagree. As we previously noted, the intentional

failure to appear in court when one’s presence has been

required interferes with the proceedings of a tribunal, and as

such meets the generic federal definition of obstruction of jus-

tice. Although misprision of felony or fleeing arrest may

obstruct justice in a general sense, neither act interferes with

judicial process and thus both offenses are different in kind

than generic obstruction-of-justice offenses. Cf. Draper, 996

F.2d at 986 (“[T]he defendant must have been submitted,

willfully or otherwise, to the due process of law before the

obstruction adjustment can obtain.”). Further, as Espinoza-

Gonzalez notes, misprision of felony does not require “proof

that the defendant acted with a motive, or even knowledge, of

the existence of the work of an investigation or tribunal.” 22

I. & N. Dec. at 893.12 Because § 3146 fulfills the elements of

the generic offense of “obstruction of justice,” we conclude

that a conviction under § 3146 is categorically “an offense

relating to obstruction of justice” under § 1101(a)(43)(S).

We next consider the sentencing component of

§ 1101(a)(43)(S), which requires Rivera’s crime of conviction

12

Rivera also argues that her violation of § 3146 does not constitute a

generic obstruction-of-justice offense because she was not convicted of

the crime for which she was released on bail. This fact sheds no light on

the question whether the crime of which she was convicted constitutes an

obstruction-of-justice offense. In addition, her final argument, that her

conviction does not constitute an aggravated felony under

§ 1101(a)(43)(T), is irrelevant, because the BIA determined that her bail-

jumping offense was an obstruction of justice crime under

§ 1101(a)(43)(S), not § 1101(a)(43)(T).

RENTERIA-MORALES v. MUKASEY 16335

to be one “for which the term of imprisonment is at least one

year.” 8 U.S.C. § 1101(a)(43)(S). When we previously inter-

preted language in § 1101(a)(43) requiring that a crime of

conviction be one “for which the term of imprisonment is at

least one year,” we held that this phrase refers to the actual

sentence imposed by the judge on the defendant convicted of

the predicate offense, rather than the “potential sentence that

the judge could have imposed.” Alberto-Gonzalez v. INS, 215

F.3d 906, 909 (9th Cir. 2000). Noting 8 U.S.C.

§ 1101(a)(48)(B)’s definition that “[a]ny reference to a term

of imprisonment . . . is deemed to include the period of incar-

ceration or confinement ordered by a court of law,”13 we rea-

soned that this language indicated Congress’s intent to use the

phrase “a term of imprisonment” to refer to “the actual sen-

tence imposed by the judge.” Alberto-Gonzalez, 215 F.3d at

909. By contrast, we noted that other aggravated felonies

defined in § 1101(a)(43) turn on the length of the sentence

that “may be imposed.” Id. at 909; see, e.g., § 1101(a)(43)(J)

(“an offense described in section 1962 of Title 18 (relating to

racketeer influenced corrupt organizations), or an offense

described in section 1084 (if it is a second or subsequent

offense) or [section] 1955 of that title (relating to gambling

offenses), for which a sentence of one year imprisonment or

more may be imposed” (emphasis added)). We concluded that

the requirement that a specified sentence “may be imposed”

referred to the maximum penalty authorized for the predicate

crime. See Alberto-Gonzalez, 215 F.3d at 909. Because Con-

gress used the different phrases to define different aggravated

felonies in § 1101(a)(43), we inferred that Congress “was

aware of the difference between the statutory maximum pen-

alty and the sentence actually imposed,” and used “term of

13

8 U.S.C. § 1101(a)(48)(B) states:

Any reference to a term of imprisonment or a sentence with

respect to an offense is deemed to include the period of incarcera-

tion or confinement ordered by a court of law regardless of any

suspension of the imposition or execution of that imprisonment

or sentence in whole or in part.

16336 RENTERIA-MORALES v. MUKASEY

imprisonment” to refer to the latter. Id. at 909-10; see also

United States v. Corona-Sanchez, 234 F.3d 449, 455 (9th Cir.

2000). This approach follows the approach adopted by the

Third Circuit. United States v. Graham, 169 F.3d 787, 791

(3rd Cir. 1999).

[13] Accordingly, in order to determine whether Rivera

meets the definition of “aggravated felony” listed in

§ 1101(a)(43)(S), we must determine whether “the actual sen-

tence imposed [on her] by the trial judge,” Alberto-Gonzalez,

215 F.3d at 910, for the crime of conviction equals or exceeds

the term of imprisonment identified in § 1101(a)(43)(S),

which is at least one year. Here, Rivera was sentenced to a

term of imprisonment of twelve months and one day, and

therefore meets the statutory sentencing requirement in

§ 1101(a)(43)(S).

[14] Because Rivera’s prior conviction under § 3146 con-

stitutes the generic offense of “obstruction of justice” under

the categorical approach, and because Rivera was actually

sentenced to a term of imprisonment of at least one year, the

requirements of § 1101(a)(43)(S) have been met. The BIA did

not err in affirming the IJ’s holding that Rivera’s bail-jumping

violation qualified as an aggravated felony under

§ 1101(a)(43)(S). We therefore deny her petition for review.

V

We conclude that the IJ and BIA correctly deemed Rivera’s

prior conviction to be an aggravated felony under

§ 1101(a)(43)(S), but the IJ incorrectly deemed Renteria’s

prior conviction to be an aggravated felony under

§ 1101(a)(43)(T). Renteria’s Petition for Review is Granted;

Rivera’s Petition for Review is Denied.

RENTERIA-MORALES v. MUKASEY 16337

TALLMAN, Circuit Judge, concurring in part and dissenting

in part:

I respectfully dissent from the majority’s erroneous conclu-

sion that, under the modified categorical approach, Irma

Renteria-Morales’s (“Renteria”) conviction for bail jumping

does not meet the elements of an aggravated felony as set

forth in 8 U.S.C. § 1101(a)(43)(T). Because the court’s hold-

ing is based on a fundamental misunderstanding of federal

criminal procedure regarding mandatory conditions imposed

on release from custody, and because the charging language

of the bail jumping information compels the opposite conclu-

sion, I would deny her petition for review. I concur in all

other parts of the majority’s opinion.

The criminal information charging Renteria with bail jump-

ing states in relevant part,

[t]hat . . . Renteria-Morales, after having been

released on or about March 2, 1992 pursuant to

Chapter 207 of Title 18 of the United States Code,

in connection with a charge of possession with intent

to distribute marijuana, an offense punishable by

imprisonment for a term of not more than five (5)

years, and having been directed to appear before the

District Court for the District of Arizona at Tucson,

Arizona, . . . wilfully did fail to appear.

This language is susceptible to only one reasonable inter-

pretation: Renteria was charged with the felony of possession

of marijuana with the intent to distribute, she was released

under 18 U.S.C. § 3142 subject to various terms of release

under the statute, and she was ordered by a judge to appear

in court to answer or dispose of that charge, but she willfully

failed to do so. That conduct renders her ineligible for relief

from deportation.

Renteria’s interpretation of the information, accepted by the

majority, is unreasonable. She first contends that being “di-

16338 RENTERIA-MORALES v. MUKASEY

rected to” appear by a judge is not synonymous with being

“ordered to” appear. Her argument ignores Sections 3141 and

3142, contained within Chapter 207 of Title 18, which use the

term “order” throughout. For example, Section 3141(a) states,

“Pending trial. — A judicial officer authorized to order the

arrest of a person under section 3041 of this title before whom

an arrested person is brought shall order that such person be

released or detained, pending judicial proceedings, under this

chapter.” (Emphasis added). Section 3142 provides, in rele-

vant part,

(a) In general. Upon the appearance before a judicial

officer of a person charged with an offense, the judi-

cial officer shall issue an order . . .

(b) Release on personal recognizance or unsecured

appearance bond. The judicial officer shall order the

pretrial release of the person . . .

(c) Release on conditions. (1) If the judicial officer

determines that the release described in subsection

(b) of this section will not reasonably assure the

appearance of the person as required or will endan-

ger the safety of any other person or the community,

such judicial officer shall order the pretrial release

of the person . . . .

(Emphasis added); See Fed. R. Crim. P. 5(d)(3) (“The judge

must detain or release the defendant as provided by statute or

these rules.”).

In this case, when the United States magistrate judge “di-

rected” Renteria to appear, he was necessarily exercising his

authority under Section 3142 and “ordering” Renteria to

appear. There is no other possibility. That the information

happens to use the words “directed to appear” instead of “or-

dered to appear” is immaterial.

RENTERIA-MORALES v. MUKASEY 16339

Renteria also argues that, based on the language of the

information, someone else could have been charged with pos-

session with the intent to distribute marijuana, and that Ren-

teria may have been ordered to appear as a material witness

in that case, but failed to do so. That too is an unreasonable

reading of the documents we may consider under Taylor’s

modified categorical approach. The information explicitly

states that Renteria was released “in connection with a charge

of possession with the intent to distribute marijuana.” In other

words, she was arrested on suspicion of committing that fel-

ony, then released. There is simply no reason to believe that

someone else was charged with that felony, that Renteria was

a material witness thereto, and that she failed to show up to

testify. If Renteria had really failed to testify against someone

else in a drug case, the information would have charged her

failure to appear in response to a subpoena or agreement to

testify. It did not.

Finally, Renteria argues, and the majority erroneously

agrees, that, based on the language of the information, Ren-

teria may have simply failed to show up for sentencing, as

opposed to failing to show up “to answer or dispose of a

charge of a felony.” There are two problems with Renteria’s

argument.

First, the information cannot reasonably be read to mean

that Renteria failed to show up for sentencing. If Renteria had

really failed to show up for sentencing, then it follows that she

would have already been found guilty of the crime described

in the information. But the information does not say that. It

simply says that she was “released . . . in connection with”

that felony. If Renteria had been convicted of the felony

charged and failed to show up for sentencing, the information

would say so.

Second, even if Renteria is correct that the information may

be fairly read to mean that she did not show up for sentencing,

a person who fails to show up for sentencing has failed to

16340 RENTERIA-MORALES v. MUKASEY

“dispose of a charge of a felony,” within the meaning of 8

U.S.C. § 1101(a)(43)(T). A “charge of a felony” is not “dis-

posed of” until the defendant is sentenced and judgment of

conviction is entered. See Barnaby v. Reno, 142 F. Supp. 2d

277, 279 (D. Conn. 2001) (construing the defendant’s failure

to appear at sentencing as a failure to “dispose of” the charge

within the meaning of 8 U.S.C. § 1101(a)(43)(T)); see, e.g.,

Fed. R. App. P. 4(b) (noting that the final decision in a crimi-

nal case for purposes of appeal is the entry of the judgment

of conviction). Thus, even under Renteria’s and the majority’s

own reading of the information, she failed to “dispose of a

charge of a felony.”

Under the modified categorical approach applied to a plain

reading of the documents we may consider, Renteria’s con-

viction for bail jumping necessarily meets all of the elements

of an aggravated felony as set forth in 8 U.S.C.

§ 1101(a)(43)(T). I would deny her petition for review.