Agustin Valenzuela Gallardo v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AGUSTIN VALENZUELA GALLARDO, No. 18-72593

Petitioner,

Agency No.

v. A056-010-094

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 4, 2020

San Francisco, California

Filed August 6, 2020

Before: Eugene E. Siler, * Kim McLane Wardlaw,

and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Wardlaw

*

The Honorable Eugene E. Siler, United States Circuit Judge for the

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

2 VALENZUELA GALLARDO V. BARR

SUMMARY **

Immigration

The panel granted Agustin Valenzuela Gallardo’s

petition for review of a decision of the Board of Immigration

Appeals and vacated his order of removal, holding that 8

U.S.C. § 1101(a)(43)(S), which describes an aggravated

felony “offense relating to obstruction of justice,” requires a

nexus to an ongoing or pending proceeding or investigation

and that, therefore, the BIA’s contrary construction of the

statute was inconsistent with the statute’s unambiguous

meaning.

In a prior published opinion, the BIA found Valenzuela

Gallardo removable on the ground that his conviction for

being an accessory to a felony, in violation of California

Penal Code § 32, was an obstruction of justice aggravated

felony under 8 U.S.C. § 1101(a)(43)(S). Switching

directions from its precedent, the BIA concluded that the

existence of an ongoing proceeding was not an essential

element of an offense relating to obstruction of justice.

However, a prior panel of this court vacated the BIA’s

redefinition because it raised serious questions about

whether the statute is unconstitutionally vague. On remand,

the BIA issued a published decision concluding that

obstruction of justice offenses included not only offenses

that interfered with ongoing or pending investigations or

proceedings, but also those that interfered with

investigations or proceedings that were reasonably

**

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

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

VALENZUELA GALLARDO V. BARR 3

foreseeable by the defendant. Valenzuela Gallardo again

petitioned for review.

The panel began at Chevron Step Zero, where the court

determines whether the Chevron framework applies at all.

The panel noted amici’s argument that the BIA’s

interpretation of the term “aggravated felony,” which

includes offenses related to obstruction of justice, is

ineligible for Chevron deference because the term has dual

application in both civil proceedings, including removal

proceedings, and criminal proceedings, including increased

maximum prison terms for illegal reentry. The panel

explained that deferring to the BIA’s construction of statutes

with criminal applications raises serious constitutional

concerns because only Congress has the power to write new

federal criminal laws. However, the panel concluded that it

was bound by the law of the case doctrine because the panel

that decided Valenzuela Gallardo’s prior petition for review

had applied the Chevron framework, and no exceptions to

the doctrine applied.

At Chevron Step One, the panel concluded that 8 U.S.C.

§ 1101(a)(43)(S) is unambiguous in requiring a nexus to an

ongoing or pending proceeding or investigation. The panel

rejected the Government’s assertion that the court had

already held that the statute is ambiguous in this regard.

Next, the panel explained that the ordinary meaning of the

term “obstruction of justice” when the statute was enacted in

1996 required a nexus to an extant investigation or

proceeding. Looking to the term’s relevant statutory context

– which the panel concluded to be Chapter 73 of Title 18,

entitled “Obstruction of Justice” – the panel further

explained that almost all of the substantive provisions in

Chapter 73 that existed in 1996 required a nexus to an

ongoing or pending proceeding or investigation.

4 VALENZUELA GALLARDO V. BARR

Because the panel concluded that § 1101(a)(43)(S) was

unambiguous, it did not proceed to Chevron Step Two. The

panel also noted that it would reach the same conclusion

even if it were not to apply the Chevron framework.

Finally, the panel concluded that the statute under which

Valenzuela Gallardo was convicted, California Penal Code

§ 32, is not a categorical match with obstruction of justice

under § 1101(a)(43)(S) because the text of § 32 and its

practical application demonstrate that it encompasses

interference with proceedings or investigations that are not

pending or ongoing. Accordingly, the panel vacated

Valenzuela Gallardo’s removal order.

COUNSEL

Frank Sprouls (argued) and John E. Ricci, Law Office of

Ricci & Sprouls, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.

Hogan, Assistant Director; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano

& Nightingale LLP, San Francisco, California, for Amici

Curiae American Immigration Lawyers Association, U.C.

Davis School of Law Immigration Law Clinic, and Asian

Americans Advancing Justice—Asian Law Caucus.

VALENZUELA GALLARDO V. BARR 5

OPINION

WARDLAW, Circuit Judge:

“Any alien who is convicted of an aggravated felony at

any time after admission is deportable.” 8 U.S.C.

§ 1227(a)(2)(A)(iii). In 1996, Congress expanded the list of

crimes that the Immigration and Nationality Act (INA)

defines as an “aggravated felony” to include “an offense

relating to obstruction of justice, perjury or subornation of

perjury, or bribery of a witness, for which the term of

imprisonment is at least one year.” Id. § 1101(a)(43)(S)

(emphasis added); see Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, § 440(e)(8),

110 Stat. 1214, 1278; Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Div. C of Pub. L. No.

104-208, § 321(a)(11), 110 Stat. 3009-546, 3009-628. In an

en banc precedential decision issued over two decades ago,

the Board of Immigration Appeals (BIA) held that “an

offense relating to obstruction of justice” is defined by the

federal obstruction of justice offenses listed under that title

in 18 U.S.C. §§ 1501–18, almost all of which require a nexus

to an ongoing criminal proceeding or investigation. Matter

of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892–94 (BIA

1999) (en banc). Our court approved that definition as

applied to a state misdemeanor conviction for rendering

criminal assistance. Hoang v. Holder, 641 F.3d 1157, 1164–

65 (9th Cir. 2011).

Since then, in this very case, the BIA has twice changed

that settled definition, each time expanding it in different

ways to encompass the crime for which Agustin Valenzuela

Gallardo was convicted: accessory to a felony in violation of

California Penal Code § 32. A prior panel of our court

vacated the BIA’s first redefinition because it raised “serious

constitutional concerns about whether the statute is

6 VALENZUELA GALLARDO V. BARR

unconstitutionally vague,” and remanded to the BIA so that

it could “either offer a new construction of

[§ 1101(a)(43)(S)] or, in the alternative, apply Espinoza-

Gonzalez’s interpretation” to this case. Valenzuela Gallardo

v. Lynch, 818 F.3d 808, 811, 824 (9th Cir. 2016) (Valenzuela

Gallardo I). The BIA took our court up on its invitation to

offer a new construction of § 1101(a)(43)(S), which again

deviated from Espinoza-Gonzalez’s requirement of a nexus

to an ongoing criminal proceeding or investigation.

We hold that the BIA’s new construction is inconsistent

with the unambiguous meaning of the term “offense relating

to obstruction of justice” in the statute as enacted by

Congress and, therefore, is an unreasonable construction of

the statute. Accordingly, we grant the petition for review

and vacate the order of removal.

I.

A.

Agustin Valenzuela Gallardo, a Mexican citizen, was

admitted to the United States as a lawful permanent resident

in 2002. In 2007, he pleaded guilty to being an accessory to

a felony in violation of California Penal Code § 32, which

reads:

Every person who, after a felony has been

committed, harbors, conceals or aids a

principal in such felony, with the intent that

said principal may avoid or escape from

arrest, trial, conviction or punishment, having

knowledge that said principal has committed

such felony or has been charged with such

felony or convicted thereof, is an accessory

to such felony.

VALENZUELA GALLARDO V. BARR 7

Cal. Penal Code § 32. Although Valenzuela Gallardo was

initially placed on parole, he was later sentenced to sixteen

months in prison after he violated his parole conditions.

B.

The Government subsequently placed Valenzuela

Gallardo in removal proceedings and charged him as an

aggravated felon for having committed an “offense relating

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

Valenzuela Gallardo moved to terminate the proceedings,

arguing that his accessory conviction under California Penal

Code § 32 was not an obstruction of justice offense within

the meaning of the statute.

The Immigration Judge (IJ) denied the motion to

terminate and ordered Valenzuela Gallardo removed. The IJ

relied primarily on the BIA’s decision in Matter of Batista-

Hernandez, 21 I. & N. Dec. 955, 961 (BIA 1997), which held

that the federal accessory after the fact offense, 18 U.S.C.

§ 3, is an obstruction of justice aggravated felony under

§ 1101(a)(43)(S) if a sentence of one year or more is

imposed. The IJ reasoned that there was “no material

difference” between California Penal Code § 32 and

18 U.S.C. § 3, so Valenzuela Gallardo’s state accessory after

the fact conviction also qualified as an aggravated felony

under the INA.

The BIA dismissed Valenzuela Gallardo’s ensuing

appeal, finding that “the elements of 18 U.S.C. § 3 are

substantially the same as the elements of California Penal

Code § 32,” and, thus, his crime constituted an obstruction

of justice offense under Espinoza-Gonzalez and Batista-

Hernandez. The BIA explained that based upon “the crimes

listed in 18 U.S.C. chapter 73, entitled ‘Obstruction of

Justice,’” an “offense relating to obstruction of justice”

8 VALENZUELA GALLARDO V. BARR

includes “active interference with proceedings of a tribunal

or investigation” or “action or threat of action” against

individuals cooperating in these processes. It affirmed the

removal order and later denied a motion for reconsideration.

Valenzuela Gallardo petitioned this court for review.

While his petition for review was pending, we published

our decision in Hoang v. Holder, which construed Espinoza-

Gonzalez and Batista-Hernandez together to determine that

the BIA had concluded that “accessory after the fact is an

obstruction of justice crime when it interferes with an

ongoing proceeding or investigation.” 1 641 F.3d at 1164

(emphasis altered). The BIA then sua sponte ordered

Valenzuela Gallardo’s case reopened for reconsideration in

light of Hoang. Accordingly, we dismissed the petition for

review for lack of jurisdiction. See Lopez-Ruiz v. Ashcroft,

298 F.3d 886, 887 (9th Cir. 2002) (“The BIA’s granting of

[a] motion to reopen means there is no longer a final decision

to review.”).

With Valenzuela Gallardo’s case now back before it, the

BIA switched directions, concluding for the first time in its

consideration of the question that “the existence of [an

ongoing criminal] proceeding[] is not an essential element of

an offense relating to obstruction of justice.” Matter of

Valenzuela Gallardo, 25 I. & N. Dec. 838, 841 (BIA 2012)

(internal quotation marks omitted). Instead, it defined

obstruction of justice to mean an “affirmative and intentional

attempt, motivated by a specific intent, to interfere with the

1

Hoang explicitly declined to defer to the BIA’s conclusion in

Batista-Hernandez that 18 U.S.C. § 3 was a categorical match with

§ 1101(a)(43)(S) because “[w]hile we defer to the BIA’s definitions of

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

conclusion that a particular crime is a removable offense.” 641 F.3d

at 1163.

VALENZUELA GALLARDO V. BARR 9

process of justice.” Id. at 842 (quoting Espinoza-Gonzalez,

22 I. & N. Dec. at 894). Applying this definition, it

concluded that Valenzuela Gallardo’s accessory after the

fact conviction was an aggravated felony under the INA, and

once again dismissed his appeal. Id. at 844. Valenzuela

Gallardo petitioned for a second time.

In our decision on that petition, Valenzuela Gallardo I,

818 F.3d at 816, we applied “the doctrines of constitutional

avoidance and constitutional narrowing” at Chevron Step

One. We held that the BIA’s new construction of

§ 1101(a)(43)(S) “raise[d] grave constitutional concerns

because it use[d] an amorphous phrase—‘process of

justice’—without telling us what that phrase means.” Id.

at 822. We explained that absent some “narrowing context,”

such as a nexus to an ongoing judicial proceeding, the BIA’s

definition of an offense relating to obstruction of justice

raised serious vagueness concerns. Id. (citing the Supreme

Court’s then-recent decision in Johnson v. United States,

135 S. Ct. 2551 (2015), which struck down the residual

clause of the Armed Career Criminal Act as

unconstitutionally vague). Because Congress had not made

clear that § 1101(a)(43)(S) permitted such a

“constitutionally doubtful interpretation,” we did not afford

Chevron deference to the BIA’s construction of the

obstruction of justice provision. Id. at 823 (quoting Williams

v. Babbit, 115 F.3d 657, 663 (9th Cir. 1997)). Accordingly,

we remanded the case to the BIA to provide a definition that

was not “unworkably vague,” or to apply the existing

precedent of Espinoza-Gonzalez. Id. at 822, 824. In dissent,

Judge Seabright noted that he would not apply the doctrine

of constitutional avoidance, and concluded that because the

BIA’s definition of obstruction of justice was not

impermissibly vague, he would “defer to the BIA’s

10 VALENZUELA GALLARDO V. BARR

reasonable, permissible, and plausible interpretation of

§ 1101(a)(43)(S).” Id. at 831 (Seabright, J., dissenting).

On remand, the BIA published its second opinion in this

case, Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449

(BIA 2018), in which it announced its third definition of “an

offense relating to obstruction of justice.” This time it

concluded that obstruction crimes include those “crimes

involving (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.” Id. at 456

(emphasis altered and internal quotation marks omitted).

Applying this new definition, the BIA once again concluded

that Valenzuela Gallardo’s California conviction was

“categorically one for an aggravated felony offense relating

to obstruction of justice,” and dismissed the appeal. Id.

at 461. Valenzuela Gallardo petitions for review for a third

time.

II.

We have jurisdiction under 8 U.S.C. § 1252(a). “[W]e

review de novo both purely legal questions and mixed

questions of law and fact.” Xochihua-Jaimes v. Barr,

962 F.3d 1175, 1183 (9th Cir. 2020) (quoting Cordoba v.

Holder, 726 F.3d 1106, 1113 (9th Cir. 2013)). Only the

“BIA’s findings of fact [are reviewed] for substantial

evidence.” Padilla-Martinez v. Holder, 770 F.3d 825, 830

(9th Cir. 2014).

III.

This is a case at the interplay of our doctrines on Chevron

deference and the application of the categorical approach.

Valenzuela Gallardo is removable as charged only if his state

VALENZUELA GALLARDO V. BARR 11

conviction under California Penal Code § 32 is a categorical

match with “an offense relating to obstruction of justice”

under § 1101(a)(43)(S). To determine whether that is the

case, we must “focus solely on whether the elements of

[Valenzuela Gallardo’s] crime of conviction sufficiently

match the elements of [a] generic” obstruction of justice

offense under the INA. Mathis v. United States, 136 S. Ct.

2243, 2248 (2016).

Ordinarily, the BIA’s reasonable “construction of

ambiguous statutory terms in precedential decisions is

entitled to deference” under Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).

Thus, to define the elements of a generic “offense relating to

obstruction of justice” under § 1101(a)(43)(S), we must first

determine how, if at all, to apply Chevron deference to the

BIA’s most recent definition of this term that includes, in

addition to interference with ongoing proceedings or

investigations, interference with those proceedings

“reasonably foreseeable by the defendant.” Valenzuela

Gallardo, 27 I. & N. Dec. at 460.

A.

We begin at Chevron Step Zero, where we determine

“whether the Chevron framework applies at all.” Or. Rest.

& Lodging Ass’n v. Perez, 816 F.3d 1080, 1086 n.3 (9th Cir.

2016). We have received briefing from amici 2 contending

that the BIA’s interpretation of the term “aggravated

felony,” which includes offenses related to obstruction of

2

Amici include the American Immigration Lawyers Association,

the U.C. Davis School of Law Immigration Law Clinic, and Asian

Americans Advancing Justice–Asian Law Caucus.

12 VALENZUELA GALLARDO V. BARR

justice, is ineligible for Chevron deference because the term

“aggravated felony” has dual application in both civil

proceedings, including removal under 8 U.S.C.

§§ 1227(a)(2)(A)(iii) and 1229b(a)(3), and criminal

proceedings, including increased maximum prison terms for

illegal reentry under 8 U.S.C. §§ 1326(b)(2) and 1327. See

Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1028 (6th Cir.

2016) (Sutton, J., concurring in part and dissenting in part)

(explaining the criminal and civil implications of the

definition of “aggravated felony” in the INA), rev’d sub

nom. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017).

Amici urge that when interpreting such dual application

provisions in the INA, we should employ traditional tools of

statutory construction, including the rule of lenity.

Deferring to the BIA’s construction of a statute with

criminal applications raises serious constitutional concerns.

Because “[o]nly the people’s elected representatives in

Congress have the power to write new federal criminal

laws,” United States v. Davis, 139 S. Ct. 2319, 2323 (2019),

permitting executive officials to define the scope of criminal

law could offend the doctrine of separation of powers, see

Esquivel-Quintana, 810 F.3d at 1023 (majority opinion).

Furthermore, ensuring that courts, rather than the BIA,

interpret criminal laws precludes the BIA “from altering

criminal laws back and forth over time.” Id. at 1030 (Sutton,

J., concurring in part and dissenting in part) (citing Nat’l

Cable & Telecomm. Ass’n v. Brand X Internet Servs.,

545 U.S. 967, 980–85 (2005)).

Over the past three decades, the Supreme Court has

occasionally addressed the propriety of deferring to an

agency’s construction of a dual application statute. In

United States v. Thompson/Center Arms Co., a plurality of

the Court declined to afford Chevron deference to the

VALENZUELA GALLARDO V. BARR 13

Bureau of Alcohol, Tobacco, and Firearms’ interpretation of

a civil tax law because that law could also carry criminal

sanctions. 504 U.S. 505, 517–18 (1992). However, the

Court followed up Thompson/Center Arms with two

decisions granting Chevron deference to an agency’s

interpretation of a statute with criminal applications. See

United States v. O’Hagan, 521 U.S. 642, 675–76 (1997)

(deferring to the Securities and Exchange Commission’s

regulation in a criminal case); Babbitt v. Sweet Home

Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703–04 &

n.18 (1995) (deferring to the Department of Interior’s

interpretation of a provision of the Endangered Species Act

that carried potential criminal sanctions). But see Whitman

v. United States, 135 S. Ct. 352, 354 (2014) (Scalia, J., joined

by Thomas, J., respecting the denial of certiorari) (“Babbitt’s

drive-by ruling . . . deserves little weight.”).

More recently, the Supreme Court has leaned decidedly

against deferring to agencies’ interpretations of dual

application statutes. In Leocal v. Ashcroft, the Court

considered the BIA’s analysis of whether an immigrant’s

state DUI conviction was categorically an “aggravated

felony.” 543 U.S. 1, 3–4 (2004). As part of that analysis,

the Court considered the BIA’s construction of the term

“crime of violence” under 18 U.S.C. § 16. Id. at 5 n.2.

Although the Court could have reached materially the same

result by applying Chevron deference to the BIA’s then-

precedential interpretation of “crime of violence,” the Court

did not even mention Chevron. Compare id. (observing that

the BIA interpretation would require a mens rea of at least

recklessness, which the state offense of conviction lacked),

with id. at 11, 13 (holding that “crime of violence” could not

be read to include the offense of conviction, but reserving

the possibility than an otherwise identical offense with a

14 VALENZUELA GALLARDO V. BARR

mens rea of at least recklessness would qualify). In a

footnote, the Court further explained:

Although here we deal with § 16 in the

deportation context, § 16 is a criminal statute,

and it has both criminal and noncriminal

applications. Because we must interpret the

statute consistently, whether we encounter its

application in a criminal or noncriminal

context, the rule of lenity applies.

Id. at 11 n.8 (citing Thompson/Center Arms, 504 U.S.

at 517–18). Because the rule of lenity and Chevron

deference are typically mutually exclusive, this footnote

suggests that the Court looked unfavorably upon giving

deference to the BIA’s construction of the statute. 3

3

Statutory ambiguity is a trigger for applying both the rule of lenity

and Chevron deference. However, we apply the rule of lenity when a

criminal statute is ambiguous so that “legislatures, not courts” define the

scope of the statute. Crandon v. United States, 494 U.S. 152, 158 (1990).

By contrast, we apply Chevron deference in construing ambiguity in

other statutes because the lack of textual clarity is a signal that Congress

expected an “agency to be able to speak with the force of law when it

addresses [the textual] ambiguity.” United States v. Mead Corp.,

533 U.S. 218, 229 (2001). In other words, because lenity is a rule we

apply to ensure that the legislature has the final say, and Chevron is a

rule we apply to permit agencies to fill in the details of a statute, we do

not typically apply both principles at the same time. See Whitman, 135 S.

Ct. at 354 (Scalia, J., respecting the denial of certiorari) (“[O]nly the

legislature may define crimes and fix punishments. Congress cannot,

through ambiguity, effectively leave that function . . . to the

administrative bureaucracy.” (emphasis omitted)); see also Transcript of

Oral Argument at 12, Esquivel-Quintana v. Lynch, 137 S. Ct. 1562

(2017) (Chief Justice Roberts stating that the rule of lenity and Chevron

cannot “coexist” because, at least in that case, “[t]hey each point in the

opposite direction based on the same predicate, which is a degree of

VALENZUELA GALLARDO V. BARR 15

Furthermore, even though it has been presented with

several opportunities to defer to the BIA’s construction of a

dual application statute, the Supreme Court has never done

so. See Torres v. Lynch, 136 S. Ct. 1619 (2016) (determining

the generic definition of an aggravated felony described in

the INA without reference to Chevron); Lopez v. Gonzales,

549 U.S. 47 (2006) (same). Compare Br. for Resp. at 11–

13, Esquivel-Quintana, 137 S. Ct. 1562 (No. 16-54) (urging

the Court to defer to the BIA’s construction of “aggravated

felony”), with Esquivel-Quintana, 137 S. Ct. at 1568–73

(interpreting the statute without giving deference). In fact,

in Carachuri-Rosendo v. Holder, the Court struck down the

BIA’s construction of an “aggravated felony” offense

without referencing Chevron. 560 U.S. 563, 581 (2010); see

also Guedes v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 140 S. Ct. 789, 790 (2020) (Gorsuch, J.,

respecting the denial of certiorari) (taking the position that

Chevron does not apply to agency interpretations of criminal

statutes).

Notwithstanding the Supreme Court’s apparent reticence

to defer to the BIA’s interpretation of dual application

statutes, our court has consistently applied the Chevron

framework when considering the BIA’s prior constructions

of the statute at issue here, § 1101(a)(43)(S). See, e.g.,

Hoang, 641 F.3d at 1161; Renteria-Morales v. Mukasey,

551 F.3d 1076, 1086 (9th Cir. 2008); Salazar-Luviano v.

ambiguity in the statutory provision”); William N. Eskridge, Jr. &

Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment

of Agency Statutory Interpretations From Chevron to Hamdan, 96 Geo.

L.J. 1083, 1115 (2008) (regarding “anti-deference” in the context of a

criminal statute). However, some have discussed ways that the two rules

may be harmonized. See Note, William T. Gillis, An Unstable

Equilibrium: Evaluating the “Third Way” Between Chevron Deference

and the Rule of Lenity, 12 N.Y.U. J.L. & Liberty 352 (2019).

16 VALENZUELA GALLARDO V. BARR

Mukasey, 551 F.3d 857, 861–62 (9th Cir. 2008). In addition,

we have deferred to the BIA’s construction of the statutory

term “aggravated felony” in other contexts. See United

States v. Flores, 901 F.3d 1150, 1158 (9th Cir. 2018) (citing

Hoang, 641 F.3d at 1160, in applying the Chevron

framework to interpret a term in § 1101(a)(43)(G)).

However, because Hoang, Renteria-Morales, Salazar-

Luviano, and Flores all appear to have assumed that the

Chevron framework applied, these cases did not explicitly

address whether Chevron deference is constitutionally

permissible in the context of dual application statutes.

The prior panel in Valenzuela Gallardo I implicitly

recognized the tension between our history of applying the

Chevron framework to interpret “aggravated felony,” and

the separation-of-powers concerns that guide interpretation

of criminal statutes. See 818 F.3d at 823 n.9. Relying on

Leocal and Carachuri-Rosendo, the panel expressly

concluded that for such dual-application terms, there is “less

reason to defer” to the BIA. Id.

Nevertheless, the panel squarely answered the Chevron

Step Zero question in the affirmative, stating: “We apply the

Chevron framework where, as here, there is binding agency

precedent on-point in the form of a published BIA opinion.” 4

Id. at 815 (internal quotation marks omitted). Moreover, the

panel applied the Chevron framework to the same issue—

interpretation of “obstruction of justice” in the INA—that we

now confront.

4

The panel reached its non-deferential result only at Chevron Step

One, which addresses “whether Congress has directly spoken to the

precise question at issue,” 467 U.S. at 842. See Valenzuela Gallardo I,

818 F.3d at 823–24.

VALENZUELA GALLARDO V. BARR 17

Accordingly, although amici’s arguments have much to

offer, we are not free to take a fresh look at the Chevron Step

Zero question. “[U]nder ‘law of the case’ doctrine, one

panel of an appellate court will not as a general rule

reconsider questions which another panel has decided on a

prior appeal in the same case.” Thomas v. Bible, 983 F.2d

152, 154 (9th Cir. 1993) (quoting Merritt v. Mackey,

932 F.2d 1317, 1320 (9th Cir. 1991)). Because the panel in

Valenzuela Gallardo I applied the Chevron framework to the

BIA’s construction of the aggravated felony of an offense

relating to obstruction of justice, and we do not believe any

exceptions to the law of the case doctrine apply here, we

must proceed to Chevron Step One. 5

Nonetheless, both a de novo interpretation of the

obstruction of justice provision utilizing traditional tools of

statutory interpretation and a Chevron Step One analysis of

the precise question before us—whether the BIA’s new

“reasonably foreseeable” definition is at odds with the plain

meaning of the statute, which was not before the prior

panel—lead us to the same conclusion: the statute is

unambiguous in requiring an ongoing or pending criminal

proceeding, and the Board’s most recent interpretation is at

odds with that unambiguous meaning.

5

“[T]he law of the case doctrine is subject to three exceptions that

may arise when ‘(1) the decision is clearly erroneous and its enforcement

would work a manifest injustice, (2) intervening controlling authority

makes reconsideration appropriate, or (3) substantially different

evidence was adduced at a subsequent trial.’” Minidoka Irrigation Dist.

v. Dep’t of Interior, 406 F.3d 567, 573 (9th Cir. 2005) (quoting Old

Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)). None of these

exceptions applies here.

18 VALENZUELA GALLARDO V. BARR

B.

At Chevron Step One, we ask “whether Congress has

directly spoken to the precise question at issue.” Chevron,

467 U.S. at 842 (emphasis added). The precise question at

issue in this case is whether an offense relating to obstruction

of justice under § 1101(a)(43)(S) requires a nexus to an

ongoing or pending proceeding or investigation. We

conclude that Congress has clearly answered this question in

the affirmative.

1.

As an initial matter, the Government asserts that we

should proceed to Chevron Step Two because we have

already held that § 1101(a)(43)(S) is ambiguous as to

whether it requires a connection with an ongoing proceeding

or investigation. Not so. We did not previously have

occasion to opine on this point because, prior to its first

precedential opinion below, see Valenzuela Gallardo, 25 I.

& N. Dec. 838, the BIA consistently construed obstruction

of justice offenses as requiring a nexus to an ongoing

proceeding. Hoang, 641 F.3d at 1164. And, our prior

opinion, Valenzuela Gallardo I, expressly declined to

address to whether § 1101(a)(43)(S) has a “temporal nexus

requirement.” 6 818 F.3d at 822.

6

Even under the BIA’s prior construction of obstruction of justice

in Espinoza-Gonzalez, the Third Circuit declined to defer to the agency’s

construction of the aggravated felony described in § 1101(a)(43)(S)

because it concluded that the meaning of the statute is unambiguous.

Denis v. Att’y Gen., 633 F.3d 201, 209 (3d Cir. 2011); see also Higgins

v. Holder, 677 F.3d 97, 103–04 (2d Cir. 2012) (per curiam) (discussing

the split between our court and the Fifth Circuit, on the one hand, and

the Third Circuit, on the other, as to whether to defer to Espinoza-

VALENZUELA GALLARDO V. BARR 19

Because § 1101(a)(43)(S) does not expressly define “an

offense relating to obstruction of justice,” to determine

whether the term is ambiguous, we must interpret the phrase

using the normal tools of statutory construction. See

Esquivel-Quintana, 137 S. Ct. at 1569. We determine how

this term was understood “[a]t th[e] time” the Antiterrorism

and Effective Death Penalty Act of 1996 was passed into

law. 7 Id.

We start with the term’s ordinary meaning. Id. When

the statute was enacted in 1996, the ordinary meaning of

“obstruction of justice” included “the crime or act of

willfully interfering with the process of justice and law

esp[ecially] by influencing, threatening, harming, or

impeding a witness, potential witness, juror, or judicial or

legal officer or by furnishing false information in or

otherwise impeding an investigation or legal process.”

Merriam-Webster’s Dictionary of Law 337 (1996)

Gonzalez); Armenta-Lagunas v. Holder, 724 F.3d 1019, 1022 (8th Cir.

2013) (same). After our decision in Valenzuela Gallardo I, the Seventh

Circuit declined to defer to the definition of § 1101(a)(43)(S) that the

BIA announced in Valenzuela Gallardo, 25 I. & N. Dec. 838, and instead

deferred to the BIA’s decision in Espinoza-Gonzalez. Victoria-Faustino

v. Sessions, 865 F.3d 869, 876 (7th Cir. 2017); see also Cruz v. Sessions,

689 F. App’x 328, 329 (5th Cir. 2017) (per curiam) (declining to defer

to the BIA’s 2012 definition of § 1101(a)(43)(S) on the basis that it was

“vacated” by Valenzuela Gallardo I).

7

The Antiterrorism and Effective Death Penalty Act of 1996

amended the INA by adding that “an offense relating to obstruction of

justice” constituted an aggravated felony if “a sentence of 5 years’

imprisonment or more may be imposed.” § 440(e)(8), 110 Stat. at 1278.

This provision was amended a few months later with the passage of the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

so that an obstruction of justice offense “for which the term of

imprisonment is at least one year” constitutes an aggravated felony.

§ 321(a)(11), 110 Stat. at 3009-628.

20 VALENZUELA GALLARDO V. BARR

(emphasis added); see also Esquivel-Quintana, 137 S. Ct.

at 1569 (using Merriam-Webster’s Dictionary of Law to

determine the “ordinary meaning” of a different term,

“sexual abuse,” in § 1101). Because in 1996 the

contemporaneous understanding of “obstruction of justice”

required a nexus to an extant investigation or proceeding, it

is unlikely that Congress intended to stretch the term

“obstruction of justice” under § 1101(a)(43)(S), as the BIA

has now stretched it, to include interference with

proceedings or investigations that were merely “reasonably

foreseeable to the defendant.”

In addition to examining the ordinary understanding of

“an offense relating to obstruction of justice,” we look to the

term’s relevant statutory context to define its meaning. See

Torres, 136 S. Ct. at 1626 (“[W]e must, as usual, ‘interpret

the relevant words not in a vacuum, but with reference to the

statutory context.’” (quoting Abramski v. United States,

134 S. Ct. 2259, 2267 (2014)).

We conclude that Chapter 73 of Title 18, entitled

“Obstruction of Justice,” provides the relevant statutory

context here. See United States v. Calvert, 511 F.3d 1237,

1243 (9th Cir. 2008) (“The placement of certain prohibited

acts in [Chapter 73] strongly indicates that the intent to

commit such an act amounts to an intent to obstruct

justice.”); see also Flores v. Att’y Gen., 856 F.3d 280, 288–

89 (3d Cir. 2017) (concluding that Chapter 73 provides the

relevant statutory context for interpreting the term

“obstruction of justice”); Denis, 633 F.3d at 209 (concluding

that § 1101(a)(43)(S) is unambiguous in part because the

phrase “obstruction of justice” is wholly defined by

Title 18). Section 1101(a)(43)(S) refers to three offenses:

“obstruction of justice,” “perjury or subornation of perjury,”

and “bribery of a witness.” Both “perjury or subornation of

VALENZUELA GALLARDO V. BARR 21

perjury” and “bribery of a witness” correspond to the titles

of specific chapters in Title 18. See 18 U.S.C. ch. 11

(“Bribery, Graft, and Conflicts of Interest”); 18 U.S.C.

ch. 79 (“Perjury”). So, too, does “obstruction of justice”: it

corresponds to the title of Chapter 73 (“Obstruction of

Justice”). We “do not believe Congress engaged in such

tortuous drafting,” Flores, 856 F.3d at 289, as to deviate

from the pattern of linking the statutory term to the crimes

identified in the same title.

The Government muddies otherwise clear waters by

suggesting that 18 U.S.C. § 3, the federal accessory-after-

the-fact statute codified outside Chapter 73, provides

relevant statutory context as well. However, that Congress

placed § 3 outside of Chapter 73 is strong evidence that it

did not consider § 3 to provide relevant statutory context for

defining “obstruction of justice.” 8 See Flores, 856 F.3d

8

The BIA cites Virgin Islands v. Aquino, 378 F.2d 540, 553 (3d Cir.

1967), to suggest that federal and state law have long recognized that

being an accessory after the fact is an obstruction of justice offense.

However, Aquino is not a case about whether a person who is an

accessory after the fact obstructs justice. Rather, it is a case about

whether a defendant who is charged as a principal to a crime can be

convicted on a theory of liability of being an accessory after the fact. Id.

at 553–54. Aquino’s dicta that an accessory “obstructs justice by giving

comfort or assistance to the offender” cannot support the BIA’s broad

proposition that it was well established in 1996 that being an accessory

to a crime was an obstruction of justice offense. In fact, none of the

federal cases the BIA cites in its published opinion squarely held that an

accessory crime constitutes an obstruction of justice offense. Rather, all

of them address this issue only tangentially in dicta. See United States

v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994) (distinguishing between a

principal to a crime and an accessory after the fact); United States v.

Huppert, 917 F.2d 507, 510 (11th Cir. 1990) (same); United States v.

Willis, 559 F.2d 443, 444 (5th Cir. 1977) (per curiam) (same); United

States v. Barlow, 470 F.2d 1245, 1252–53 (D.C. Cir. 1972) (same); see

also United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979)

22 VALENZUELA GALLARDO V. BARR

at 289 & n.38 (explaining that where Congress chose to

codify § 3 is particularly relevant “because Title 18 was

enacted as positive law and accordingly approved by

Congress.”); see also Tobias A. Dorsey, Some Reflections on

Not Reading the Statutes, 10 Green Bag 2d 283, 286–87

(2007) (describing the relevance of the Statutes at Large

versus the United States Code, and the historical

development of enacting the latter into positive law). Thus,

it is Chapter 73—and only that chapter—that provides the

relevant statutory context for assessing the meaning of

obstruction of justice in 1996.

Of the substantive provisions in Chapter 73 that existed

when § 1101(a)(43)(S) was enacted, almost all of them

required a nexus to an ongoing or pending proceeding or

investigation. 9 See Espinoza-Gonzalez, 22 I. & N. Dec.

(discussing 18 U.S.C. § 3 within the context of determining when a crime

ends so that a defendant may be convicted of being an accessory after

the fact).

9

We previously explained that “[a]ll of Congress’s express

examples of obstruction of justice contemplate ongoing proceedings or

investigations or are otherwise sufficiently specific to provide notice of

what conduct is prohibited.” Valenzuela Gallardo I, 818 F.3d at 823.

As examples of provisions that fall into the latter category, we cited

subsections of 18 U.S.C. § 1512, which we discuss in the paragraphs to

follow, and 18 U.S.C. § 1519, which postdates the passage of

§ 1101(a)(43)(S) and is therefore not relevant to our analysis here. Id.

at 821.

At the time § 1101(a)(43)(S) was enacted into law in April 1996,

Chapter 73 consisted of some version of today’s 18 U.S.C. §§ 1501–14

and §§ 1515–17. Several provisions of Chapter 73 defined substantive

offenses that required a nexus to an ongoing or pending proceeding or

investigation. See 18 U.S.C § 1501 (assault on a process server); § 1502

(resistance to an extradition agent); § 1504 (influencing a juror by

writing); § 1505 (obstruction of proceedings before departments,

VALENZUELA GALLARDO V. BARR 23

at 892 (“In general, the obstruction of justice offenses listed

in [Chapter 73] have as an element interference with the

proceedings of a tribunal or require an intent to harm or

retaliate against others who cooperate in the process of

justice or might otherwise so cooperate.”). Therefore, the

norm in Chapter 73 is that an offense relating to obstruction

agencies, and committees); § 1506 (theft or alteration of record or

process; false bail); § 1507 (prohibiting picketing or parading “with the

intent of influencing any judge, juror, witness, or court officer, in the

discharge of his duty”); § 1508 (recording, listening to, or observing

proceedings of grand or petit juries while deliberating or voting); § 1509

(obstruction of court orders); § 1510 (obstruction of existing criminal

investigations); § 1516 (obstruction of a federal auditor “in the

performance of official duties”); § 1517 (obstruction of the examination

of a financial institution); see also 18 U.S.C. § 1513 (prohibiting

retaliation against a witness, and contemplating that a proceeding or

investigation is either ongoing or has already been completed).

18 U.S.C. § 1511, which prohibits the corruption of state officials in

connection with a conspiracy to prevent the enforcement of anti-

gambling laws, contains language that is similar to § 1503, the so-called

catchall provision of Chapter 73. Prosecutors used § 1511 to pursue

efforts by organized crime organizations to bribe local officials to

investigate gambling operations run by their competitors, see United

States v. Riehl, 460 F.2d 454, 459 (3d Cir. 1972), or to prevent the

investigation of their own operations, see United States v. Crockett,

514 F.2d 64, 73 (5th Cir. 1975). In light of the way in which this

provision was used, and because, as we discuss below, in 1996,

Chapter 73’s catchall provision was understood to require a nexus to

ongoing or pending investigations or proceedings, Congress likely

understood § 1511 as contemplating a nexus to ongoing or pending

investigations or proceedings. Finally, 18 U.S.C. §§ 1514 and 1515 are

either definitional or otherwise do not describe substantive offenses.

Thus, with the exception of § 1512, which we discuss below, all the

substantive provisions of Chapter 73 define obstruction of justice to

require a nexus to an ongoing or pending investigation or proceeding.

24 VALENZUELA GALLARDO V. BARR

of justice requires a nexus to an ongoing or pending

proceeding or investigation.

2.

Two provisions of Chapter 73 merit further discussion.

First, 18 U.S.C. § 1512, Chapter 73’s witness intimidation

provision, states that “an official proceeding need not be

pending or about to be instituted at the time of the offense.” 10

(emphasis added). The BIA relies on this provision to

conclude that obstruction of justice, as defined in

Chapter 73, does not necessarily require a nexus to an

ongoing or pending proceeding. However, Congress’s

explicit instruction that § 1512 reach proceedings that are

not pending at the time of commission of the act only

underscores that the common understanding at the time

§ 1101(a)(43)(S) was enacted into law was that an

obstruction offense referred only to offenses committed

while proceedings were ongoing or pending. If that were not

the case, it would not have been necessary for Congress to

make clear that § 1512 operates differently than the other

provisions in Chapter 73. Thus, contrary to the BIA’s

conclusion, § 1512 is the exception that proves the rule: “an

offense relating to obstruction of justice” requires a nexus to

an ongoing or pending proceeding.

Second, 18 U.S.C § 1503, Chapter 73’s so-called

catchall provision, covers anyone who “influences,

obstructs, or impedes, or endeavors to influence, obstruct, or

impede, the due administration of justice.” Though this

language is broad, by 1996 the Supreme Court had made

10

Although this language is currently codified at 18 U.S.C.

§ 1512(f)(1), in 1996 it was codified at § 1512(e)(1). See 18 U.S.C.

§ 1512 (1994).

VALENZUELA GALLARDO V. BARR 25

clear for over a century that the catchall provision referred

only to interference with ongoing or pending proceedings.

In Pettibone v. United States, 148 U.S. 197, 203–04 (1893),

the Supreme Court considered whether criminal defendants

could be convicted under a predecessor to Chapter 73’s

catchall provision if they lacked knowledge of, and therefore

the intent to interfere with, district or circuit court

proceedings. The Court ruled that the crime of obstruction

of justice required a nexus to an ongoing judicial proceeding

of which the defendant was aware. The Court reasoned:

The obstruction of the due administration of

justice in any court of the United States,

corruptly or by threats or force, is indeed

made criminal, but such obstruction can only

arise when justice is being administered.

Unless that fact exists, the statutory offense

cannot be committed, and while, with

knowledge or notice of that fact, the intent to

offend accompanies obstructive action,

without such knowledge or notice the evil

intent is lacking.

Id. at 207 (emphasis added). That obstruction of justice

requires a nexus with an ongoing proceeding was reinforced

by our survey of circuit court rulings addressing this issue

roughly 90 years later, where we found that “[n]o case

interpreting [Chapter 73’s catchall provision] has extended

it to conduct which was not aimed at interfering with a

pending judicial proceeding.” United States v. Brown,

688 F.2d 596, 598 (9th Cir. 1982) (emphasis added).

The year before § 1101(a)(43)(S) was enacted, the

Supreme Court again confirmed this longstanding

interpretation of Chapter 73’s catchall provision in United

26 VALENZUELA GALLARDO V. BARR

States v. Aguilar, 515 U.S. 593 (1995). The Court explained

that Pettibone stood for the proposition that “a person

lacking knowledge of a pending proceeding necessarily

lacked the evil intent to obstruct.” Id. at 599 (emphasis

added). After citing the above-quoted passage from Brown

approvingly, the Court added, “as in Pettibone, if the

defendant lacks knowledge that his actions are likely to

affect the judicial proceeding, he lacks the requisite intent to

obstruct.” Id. Given its construction of Pettibone and its

approving citation of our decision in Brown, Aguilar stands

for the proposition that Chapter 73’s catchall provision

requires a nexus to an ongoing or pending proceeding. Thus,

at the time of enactment, “an offense relating to obstruction

of justice” in § 1101(a)(43)(S) had a nexus requirement.

Both the BIA and the Government point to two more-

recent Supreme Court decisions to argue that we should

interpret the catchall provision, § 1503, to cover interference

with reasonably foreseeable proceedings. However, neither

case is apposite.

In Arthur Andersen LLP v. United States, 544 U.S. 696,

707 (2005), the Supreme Court considered the reach of

18 U.S.C. § 1512, Chapter 73’s witness tampering

provision, which, as discussed above, provides that a

proceeding “need not be pending or about to be instituted at

the time of the offense.” The Court explained that although

“it is . . . one thing to say a proceeding need not be pending

or about to be instituted at the time of the offense, [it is] quite

another to say a proceeding need not even be foreseen.” Id.

at 707–08 (internal quotation marks omitted). The

Government reads this language to suggest that a reasonably

foreseeable proceeding could satisfy the nexus requirement

for all of the offenses in Chapter 73. However, because

18 U.S.C. § 1512 is an exception to Chapter 73’s general rule

VALENZUELA GALLARDO V. BARR 27

that obstruction requires a nexus to an ongoing or pending

proceeding, Arthur Andersen’s interpretation of this

provision is inapplicable to this case. Furthermore, that the

Court read any nexus requirement at all into § 1512, even

though the text of the statute suggests none is necessary,

supports the notion that obstruction of justice offenses

require a tight nexus to a proceeding. Cf. Aguilar, 515 U.S.

at 600 (counseling that we should “exercise[] restraint” and

interpret obstruction of justice offenses narrowly). Thus,

Arthur Andersen confirms our view that an offense relating

to obstruction of justice under § 1101(a)(43)(S), which does

not contain the limiting language of § 1512, requires a nexus

to an ongoing or pending proceeding.

More recently, in Marinello v. United States, 138 S. Ct.

1101, 1104 (2018), the Court interpreted 26 U.S.C. § 7212,

which prohibits obstructing “the due administration of the

[Internal Revenue Code].” The Court explained that to

establish obstruction under this statute, “the Government

must show that the proceeding was pending at the time the

defendant engaged in the obstructive conduct or, at the least,

was then reasonably foreseeable by the defendant.” Id.

at 1110 (emphasis added) (citing Arthur Andersen, 544 U.S.

at 703, 707–08). The BIA suggests that because the text of

§ 7212 is similar to the text of Chapter 73’s catchall

provision, Marinello shows that a nexus to a reasonably

foreseeable proceeding is sufficient under § 1101(a)(43)(S).

We agree that Marinello settles any concern that defining

obstruction of justice to include interference with a

“reasonably foreseeable” proceeding is unconstitutionally

vague. However, Marinello does not alter our analysis here.

Although the Court noted the similarities in language

between § 7212 and the catchall provision of Chapter 73, it

emphasized that the “the language and history of [§ 7212]

28 VALENZUELA GALLARDO V. BARR

differ[ed]” from the obstruction of justice provisions it had

interpreted in cases like Aguilar, which concerned § 1503.

Id. at 1109. Furthermore, in arriving at the conclusion that a

nexus to a “reasonably foreseeable” proceeding was

sufficient under § 7212, the Court relied not on any of its

precedents about Chapter 73’s catchall provision, but rather

on Arthur Andersen, a case about Chapter 73’s unusual

witness tampering provision, § 1512. Id. at 1110. Marinello

therefore sheds little light on the meaning of § 1503.

But even if Arthur Andersen and Marinello were on

point, they would not be helpful here. To determine whether

Congress has clearly spoken to the question presented in this

case, we are confined to the meaning of the words of the

catchall provision “[a]t th[e] time” § 1101(a)(43)(S) was

passed into law. Esquivel-Quintana, 137 S. Ct. at 1569.

Because these cases were decided after 1996, they do not

shed much light on the settled meaning at the time of

enactment of “obstruction of justice,” and therefore have

limited value in answering the question before us. See id.

at 1571–72 (relying on state statutes as they existed in 1996

to interpret another aggravated felony provision); see also

Neder v. United States, 527 U.S. 1, 22–23 (1999) (regarding

the presumption that when Congress uses a phrase with a

“well-settled” meaning, it adopts that definition of the

phrase). That the catchall provision required a nexus to

ongoing or pending proceedings at that time confirms our

conclusion that an “offense relating to obstruction of justice”

in § 1101(a)(43)(S) also requires such a nexus.

3.

Finally, the Government suggests that even if the

statutory context cabins “obstruction of justice” to

interference with pending or ongoing proceedings, we

should read § 1101(a)(43)(S) more broadly because it refers

VALENZUELA GALLARDO V. BARR 29

to “an offense relating to obstruction of justice.” (emphasis

added). Recently, the Supreme Court considered the BIA’s

interpretation of another provision in the INA that used the

phrase “relating to.” In Mellouli v. Lynch, the Court

explained that although the phrase “relating to” may be

broad, the context of the statute “may ‘tug . . . in favor of a

narrower reading’” of the phrase. 135 S. Ct. 1980, 1990

(2015) (alteration in original and brackets omitted) (quoting

Yates v. United States, 135 S. Ct. 1074, 1083 (2015)).

“Context does so here,” too, id., because the common

understanding from the time of enactment, statutory context,

and judicial precedent pre-1996 all point to one conclusion:

“obstruction of justice” requires a nexus to an ongoing

proceeding, see id. (noting that Congress’s long-established

understanding of a particular term counsels in favor of a

narrower reading of “relating to”). 11

Because § 1101(a)(43)(S) unambiguously does not

extend to cover intentional interference with “reasonably

foreseeable” proceedings or investigations, we conclude our

analysis here and do not proceed to Chevron Step Two to

determine whether the agency’s interpretation “is a

reasonable choice within a gap left open by Congress,”

467 U.S at 866.

11

Relying on our prior decision in Valenzuela Gallardo I to explain

the dangers of an overbroad reading of “an offense relating to obstruction

of justice,” the Third Circuit recently explained that the phrase “relating

to” does not remove the requirement that an offense under

§ 1101(a)(43)(S) have a nexus to a pending judicial proceeding. Flores,

856 F.3d at 290–91; see also id. at 293 n.63 (characterizing any language

to the contrary in the Third Circuit’s prior opinion in Denis as dicta).

30 VALENZUELA GALLARDO V. BARR

4.

In light of this statutory interpretation analysis, the BIA’s

proffered reasonably foreseeable standard cannot stand. We

would reach the same conclusion even if we were not

applying the Chevron framework: In 1996, when Congress

enacted § 1101(a)(43)(S) into law, an offense relating to

obstruction of justice unambiguously required a nexus to an

ongoing or pending proceeding or investigation.

C.

“[Having] determine[ed] the elements of the generic

crime listed in § 1101(a)(43)(S), we next identify the

elements of [Valenzuela Gallardo’s] specific crime of

conviction.” Hoang, 641 F.3d at 1161 (quoting Salazar-

Luviano, 551 F.3d at 860). “We do not defer to the BIA’s

interpretations of state law . . . and instead must review de

novo whether the specific crime of conviction meets the

INA’s definition of an aggravated felony.” Id. (quoting

Salazar-Luviano, 551 F.3d at 860–61). “If the statute of

conviction criminalizes conduct that would not satisfy the

federal definition of the crime at issue, then the conviction

does not qualify as a predicate offense under the categorical

approach.” Id. (quoting Fregozo v. Holder, 576 F.3d 1030,

1035 (9th Cir. 2009)).

The text of California Penal Code § 32 is not a

categorical match with obstruction of justice under

§ 1101(a)(43)(S) because California’s statute encompasses

interference with proceedings or investigations that are not

pending or ongoing. Under California’s accessory-after-the-

fact statute, a defendant can be found guilty for helping a

principal to a felony to escape “arrest, trial, conviction or

punishment, having knowledge that said principal has

committed such felony,” regardless of whether a proceeding

VALENZUELA GALLARDO V. BARR 31

or investigation has in fact been initiated and regardless of

whether the defendant knows such a proceeding has been

instituted. Cal. Penal Code § 32.

This broad language sweeps in many acts that fall

outside the scope of § 1101(a)(43)(S). For example, in

People v. Riley, 20 Cal. App. 4th 1808, 1815 (1993), the

defendant was convicted under California Penal Code § 32

for “attempting to dispose of the gun” that had been used in

a murder. Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183,

191–92 (2007) (surveying state judicial decisions to interpret

the scope of a state statute). At the time the defendant in

Riley disposed of the gun, he might have imagined that the

police would one day want to investigate the murder. But

there was no evidence that he was aware that there were

proceedings or investigations ongoing or pending at the time

of his criminal act. 12 Riley, 20 Cal. App. 4th at 1815.

Both the text of California Penal Code § 32 and its

practical application, as shown in Riley, demonstrate that

Valenzuela Gallardo’s state statute of conviction covers

offenses that fall well outside the definition of an “offense

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

They are therefore not a categorical match.

12

The BIA suggests that Valenzuela Gallardo’s state conviction is a

categorical match with the federal offense because 18 U.S.C. § 3 is a

crime obstructing justice and California Penal Code § 32 is a categorical

match with 18 U.S.C. § 3. However, “[u]nder 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.” Hoang,

641 F.3d at 1159–60 (emphasis added, brackets omitted, and citation and

internal quotation marks omitted). Thus, the correct comparison is

between California Penal Code § 32 and the language of

§ 1101(a)(43)(S).

32 VALENZUELA GALLARDO V. BARR

IV.

Because “obstruction of justice” under § 1101(a)(43)(S)

unambiguously requires a nexus to ongoing or pending

proceedings, and California Penal Code § 32 does not,

Valenzuela Gallardo’s state criminal conviction is not a

categorical match with the aggravated felony offense

charged in his Notice to Appear. 13 Accordingly, we grant

the petition for review and vacate the removal order.

PETITION GRANTED; VACATED.

13

Because “a statute is divisible only when it ‘list[s] elements in the

alternative, and thereby define[s] multiple crimes,’” United States v.

Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc)

(emphases added) (quoting Mathis, 136 S. Ct. at 2249), and California

Penal Code § 32 does not itself list elements in the alternative, the

modified categorical approach is not applicable in this case.