CORDERO-GARCIA

Cite as 27 I&N Dec. 652 (BIA 2019) Interim Decision #3964

Matter of Fernando CORDERO-GARCIA, Respondent

Decided October 18, 2019

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The crime of dissuading a witness in violation of section 136.1(b)(1) of the California

Penal Code is categorically an aggravated felony offense relating to obstruction of justice

under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(S) (2012). Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018),

followed.

(2) The holding in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018), may be

applied retroactively.

FOR RESPONDENT: Michael K. Mehr, Esquire, Santa Cruz, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant

Chief Counsel

BEFORE: Board Panel: WENDTLAND, GREER, and O’CONNOR, Board Members.

WENDTLAND, Board Member:

In a decision dated June 27, 2012, an Immigration Judge found the

respondent removable under section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted

of an aggravated felony, denied his application for cancellation of removal

under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and ordered

him removed from the United States. 1 We dismissed the respondent’s appeal

on November 27, 2012, affirming the Immigration Judge’s conclusion that

the respondent was convicted of an aggravated felony because dissuading a

1

The Immigration Judge also found that the respondent was removable under section

237(a)(2)(A)(ii) of the Act, as an alien convicted of more than one crime involving moral

turpitude. In light of our conclusion that the respondent is removable under section

237(a)(2)(A)(iii) based on our retroactive application of Matter of Valenzuela Gallardo,

27 I&N Dec. 449 (BIA 2018), we need not address the other charge of removability. See

INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are

not required to make findings on issues the decision of which is unnecessary to the

results they reach.”). However, for purposes of our retroactivity analysis, we will assume

that the respondent is not deportable under section 237(a)(2)(A)(ii) of the Act and that his

removability turns solely on whether he is convicted of an aggravated felony.

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witness in violation of section 136.1(b)(1) of the California Penal Code is an

offense relating to obstruction of justice under section 101(a)(43)(S) of the

Act, 8 U.S.C. § 1101(a)(43)(S) (2012). 2 In addition, we agreed with the

Immigration Judge that the respondent did not meet his burden of showing

that he merits a grant of cancellation of removal in the exercise of discretion.

We subsequently denied a motion filed by the Department of Homeland

Security (“DHS”) to reopen these removal proceedings.

Pursuant to a motion by the Government, the United States Court of

Appeals for the Ninth Circuit has remanded this case for us to address

whether the crime of dissuading a witness in violation of section 136.1(b)(1)

of the California Penal Code is an aggravated felony offense relating to

obstruction of justice in light of its decision in Valenzuela Gallardo v. Lynch,

818 F.3d 808 (9th Cir. 2016). This question will determine the respondent’s

removability under section 237(a)(2)(A)(iii) of the Act and his eligibility for

cancellation of removal under section 240A(a)(3). The respondent’s appeal

will again be dismissed.

I. AGGRAVATED FELONY

Section 101(a)(43)(S) of the Act defines an aggravated felony as “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.” To establish whether the respondent’s conviction is for such an

offense, we apply the categorical approach by focusing on whether the

elements of section 136.1(b)(1) of the California Penal Code proscribe

conduct that categorically falls within the Federal generic definition of an

offense relating to obstruction of justice. See Mathis v. United States, 136

S. Ct. 2243, 2248 (2016).

We outlined the generic definition of an offense relating to obstruction of

justice in Matter of Valenzuela Gallardo (“Valenzuela Gallardo I”), 25 I&N

2

At all relevant times, section 136.1(b)(1) of the California Penal Code has provided in

pertinent part:

Except as provided in subdivision (c), every person who attempts to prevent or

dissuade another person who has been the victim of a crime or who is witness to a

crime from doing any of the following is guilty of a public offense and shall be

punished by imprisonment in a county jail for not more than one year or in the state

prison:

(1) Making any report of that victimization to any peace officer or state or local

law enforcement officer or probation or parole or correctional officer or prosecuting

agency or to any judge.

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Dec. 838 (BIA 2012). The Ninth Circuit declined to defer to our definition,

concluding that it was impermissibly vague. Valenzuela Gallardo, 818 F.3d

at 812–13, 823–24. While this appeal was pending, we clarified the generic

definition of an aggravated felony under section 101(a)(43)(S) of the Act,

stating that an offense relating to obstruction of justice

consists of offenses covered by chapter 73 of the Federal criminal code[, 18 U.S.C.

§§ 1501–1521 (2012),] or any other Federal or State offense that involves (1) an

affirmative and intentional attempt (2) that is motivated by a specific intent (3) to

interfere either in an investigation or proceeding that is ongoing, pending, or

reasonably foreseeable by the defendant, or in another’s punishment resulting from

a completed proceeding.

Matter of Valenzuela Gallardo (“Valenzuela Gallardo II”), 27 I&N Dec.

449, 460 (BIA 2018).

We further held that the crime of accessory to a felony under section 32 of

the California Penal Code is an aggravated felony offense relating to

obstruction of justice. Id. at 461. The California accessory statute required

“a violator to aid the principal, with knowledge that the principal has

committed a crime, and with the specific intent to interfere in the principal’s

arrest, trial, conviction, or punishment.” Id. (citing People v. Nuckles, 298

P.3d 867, 870 (Cal. 2013)).

To obtain a conviction under section 136.1(b)(1) of the California Penal

Code, the State must prove that “(1) the defendant has attempted to prevent

or dissuade a person (2) who is a victim or witness to a crime (3) from making

[a] report . . . to any peace officer or other designated officials.” People

v. Navarro, 152 Cal. Rptr. 3d 109, 117–18 (Cal. Ct. App. 2013) (alteration

in original) (quoting People v. Upsher, 66 Cal. Rptr. 3d 481, 488 (Cal. Ct.

App. 2007)). “The prosecution must also establish that ‘the defendant’s acts

or statements [were] intended to affect or influence a potential witness’s or

victim’s testimony or acts.’” Id. at 118 (alteration in original) (quoting

People v. McDaniel, 27 Cal. Rptr. 2d 306, 309 (Cal. Ct. App. 1994)).

According to this California case law, section 136.1(b)(1) requires a

specific intent to interfere in an investigation or proceeding. Where an

individual attempts to prevent or dissuade a victim or witness from making

a report of a crime to a peace officer or other designated official, an

investigation or proceeding would necessarily be either ongoing, pending, or

reasonably foreseeable. In other words, there would be little reason for a

person to try to prevent or dissuade a victim or witness from reporting the

crime to appropriate authorities unless there was an investigation in progress

or one was reasonably foreseeable. We therefore conclude that dissuading a

witness in violation of section 136.1(b)(1) of the California Penal Code is

categorically an aggravated felony offense relating to obstruction of justice

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under section 101(a)(43)(S) of the Act pursuant to the criteria that we

outlined in Matter of Valenzuela Gallardo II, 27 I&N Dec. at 460. 3

II. RETROACTIVITY

The respondent argues that the standard for obstruction of justice we set

forth in Valenzuela Gallardo II may not be applied retroactively to his

conviction, which occurred before our decisions in Valenzuela Gallardo I

and II were issued. Therefore, we must also determine whether the standard

for obstruction of justice we set forth in Matter of Valenzuela Gallardo II can

be retroactively applied to the respondent’s conviction. In this regard, we

recognize the well-established principle that agencies may adjudicate new

rules and apply them retroactively.

[T]he choice made between proceeding by general rule or by individual, ad hoc

litigation is one that lies primarily in the informed discretion of the administrative

agency.

. . . That [an agency] action might have a retroactive effect [i]s not necessarily fatal

to its validity. Every case of first impression has a retroactive effect, whether the

new principle is announced by a court or by an administrative agency. But such

retroactivity must be balanced against the mischief of producing a result which is

contrary to a statutory design or to legal and equitable principles. If that mischief is

greater than the ill effect of the retroactive application of a new standard, it is not the

type of retroactivity which is condemned by law.

SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) (citation omitted).

We acknowledge, however, that “[a]s a general rule, ‘[r]etroactivity is not

favored in the law.’” Velasquez-Garcia v. Holder, 760 F.3d 571, 579 (7th

Cir. 2014) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988)). In this regard, at least one circuit has indicated that agency “rules

. . . should be presumed prospective in operation unless Congress has clearly

authorized retroactive application.” De Niz Robles v. Lynch, 803 F.3d 1165,

1172 (10th Cir. 2015) (emphasis added); see also Betansos v. Barr, 928 F.3d

1133, 1143–46 (9th Cir. 2019) (noting that a retroactivity analysis “should be

conducted with ‘the presumption of prospectivity’” where the court has given

deference to our decision pursuant to National Cable & Telecommunications

Association v. Brand X Internet Services, 545 U.S. 967 (2005), but deciding

3

The Immigration Judge found that a violation of section 136.1(b)(1) of the California

Penal Code was not a categorical aggravated felony offense relating to obstruction of

justice, but he applied the modified categorical approach to determine that the respondent’s

conviction was for an aggravated felony. In light of our holding that dissuading a witness

under California law is categorically an aggravated felony, we will not address the

Immigration Judge’s finding in this regard.

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to apply the decision retroactively (quoting Gutierrez-Brizuela v. Lynch, 834

F.3d 1142, 1144 (10th Cir. 2016))).

However, Congress has “indicate[d] unambiguously its intention to apply

[the aggravated felony provisions] retroactively.” INS v. St. Cyr, 533 U.S.

289, 318–19 & n.43 (2001) (stating that the aggravated felony definition

itself clearly provides that it applies retroactively). In enacting section

101(a)(43) of the Act, Congress expressly stated its intent that “the term

[aggravated felony] applies regardless of whether the conviction was entered

before, on, or after the date of enactment.” Accordingly, in our informed

discretion, we conclude that we may apply our decisions retroactively after

proper consideration of the relevant factors, consistent with SEC v. Chenery

Corp., 332 U.S. at 209 (upholding the agency’s determination, despite its

retroactive effect, and recognizing it as “the product of administrative

experience, appreciation of the complexities of the problem, realization of

the statutory policies, and responsible treatment of the uncontested facts”).

A. Change in Law

Before we decide whether to apply Matter of Valenzuela Gallardo II

retroactively, we must consider whether our holding in that case is a change

in law, which the Ninth Circuit has stated is required before a retroactivity

analysis is necessary. See Olivas-Motta v. Whitaker, 910 F.3d 1271, 1276

(9th Cir. 2018). A “retroactivity analysis is only applicable when ‘an agency

consciously overrules or otherwise alters its own rule or regulation,’ or

‘expressly considers and openly departs from a circuit court decision.’” Id.

at 1277 (quoting Garfias-Rodriguez v. Holder, 702 F.3d 504, 518–19 (9th

Cir. 2012) (en banc)). The Ninth Circuit remanded Valenzuela Gallardo I

for “consideration of a new construction or application of the interpretation”

of obstruction of justice that we had outlined in Matter of Espinoza, 22 I&N

Dec. 889 (BIA 1999), to which the court previously deferred in Trung Thanh

Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). Valenzuela Gallardo, 818

F.3d at 812–13 (emphasis added).

Not all Board precedents clarifying prior decisions are necessarily

changes in the law. The Ninth Circuit has rejected as “contrary to settled

law” the assertion that “the mere existence of a new published decision on

an issue would always trigger retroactivity analysis.” Olivas-Motta, 910 F.3d

at 1276. Moreover, a new Board precedent that resolves prior, potentially

inconsistent unpublished decisions is not a change in the law, because

“[u]npublished decisions are not precedential and ‘do not bind future

parties.’” Id. at 1278 (quoting Marmolejo-Campos v. Holder, 558 F.3d 903,

909 (9th Cir. 2009) (en banc)).

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As we will discuss in greater detail below, our decision in Valenzuela

Gallardo II openly departed from the generic definition that the Ninth Circuit

previously approved. Our decision also clarified Valenzuela Gallardo I, but

the standard in Valenzuela Gallardo II differs in some respects from our prior

definition. We therefore conclude that a retroactivity analysis is appropriate

in this case.

B. Test for Retroactivity

Next, we must determine the appropriate test for ascertaining whether

Matter of Valenzuela Gallardo II may be applied retroactively. The Ninth

Circuit applies the factors outlined in Montgomery Ward & Co. v. FTC

(“Montgomery Ward”), 691 F.2d 1322 (9th Cir. 1982). Garfias-Rodriguez,

702 F.3d at 514–23 (applying these factors in favor of retroactive

applicability). This test was first set forth in Retail, Wholesale & Dep’t Store

Union v. NLRB (“Retail Union”), 466 F.2d 380, 390 (D.C. Cir. 1972)

(involving a labor dispute before the National Labor Relations Board

(“NLRB”) between a company and union workers).

The Second, Third, Fourth, Sixth, Seventh, and Tenth Circuits also apply

this test. See Microcomputer Tech. Inst. v. Riley, 139 F.3d 1044, 1050 n.4

(5th Cir. 1998) (collecting cases); see also De Niz Robles, 803 F.3d 1177–80

(following the “balancing” test the Tenth Circuit set forth in Stewart Capital

Corp. v. Andrus, 701 F.2d 846, 848 (10th Cir. 1983)). The Eighth Circuit

applies a similar test. Ryan Heating Co. v. NLRB, 942 F2d 1287, 1289 (8th

Cir. 1991). By contrast, the Fifth Circuit weighs “the disadvantages of

retroactivity—frustration of parties’ expectations—against the detrimental

effect of prospectivity—partial frustration of what we have now determined

is the proper statutory interpretation.” Microcomputer Tech. Inst., 139 F.3d

at 1051.

In light of the courts’ overwhelming adoption of the test outlined in

Retail Union (known as the Montgomery Ward test in the Ninth Circuit), we

will employ that test, not only in cases arising in the Ninth Circuit, where we

are bound to use it, but throughout the country. See Matter of J-H-J-, 26 I&N

Dec. 563, 564 (BIA 2015) (acceding to the majority view of the circuits). 4

In addition to considering the desirability of applying the immigration

laws with nationwide uniformity, we must also recognize that the circuit

courts use this test in reviewing decisions from numerous other agencies.

In our opinion, it would therefore be incongruous for us to employ a

different test.

4

To the extent that a court of appeals applies a different test, however, Immigration

Judges and the Board should follow the law of that circuit. See Matter of Anselmo, 20 I&N

Dec. 25, 31 (BIA 1989).

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C. Application

The test for retroactivity requires us to consider the following factors:

(1) whether the particular case is one of first impression, (2) whether the new rule

represents an abrupt departure from well established practice or merely attempts to

fill a void in an unsettled area of law, (3) the extent to which the party against whom

the new rule is applied relied on the former rule, (4) the degree of the burden which

a retroactive order imposes on a party, and (5) the statutory interest in applying a

new rule despite the reliance of a party on the old standard.

Montgomery Ward, 691 F.2d at 1333 (quoting Retail Union, 466 F.2d at

390).

The Ninth Circuit has recognized that the first factor may not be well

suited to the context of proceedings to remove an alien because Retail Union

involved litigation between private parties in labor disputes before the

NLRB. See Garfias-Rodriguez, 702 F.3d at 520–21 (noting that the first

factor often does not favor either side in removal proceedings, where the

Government is always a party); Miguel-Miguel v. Gonzales, 500 F.3d 941,

951 (9th Cir. 2007) (“[T]he first factor is directed towards maintaining an

incentive for litigants to raise novel claims by allowing a litigant who

successfully argues for a new rule to get the benefit of that rule.”). However,

the court has recognized that this factor favors the alien where the agency has

“confronted the problem before, ha[s] established an explicit standard of

conduct, and now attempts to punish conformity to that standard under a new

standard subsequently adopted.” Miguel-Miguel, 500 F.3d at 951 (alteration

in original) (emphasis added) (quoting Retail Union, 466 F.2d at 391).

Those circumstances were not present in Valenzuela Gallardo II, which

was issued after decades of rulings by the Board and the Ninth Circuit

interpreting the aggravated felony ground of removal relating to obstruction

of justice. Moreover, the Ninth Circuit has noted in regard to the first

factor that “any question of unfairness in applying a new rule . . . , such as

surprise or detrimental reliance, is fully captured in the second and third

Montgomery Ward factors.” Garfias-Rodriguez, 702 F.3d at 521. Based on

the circumstances of this case, we agree.

As the Ninth Circuit has stated regarding the question of unsettled law,

The second and the third factors are closely intertwined. If a new rule “represents

an abrupt departure from well established practice,” a party’s reliance on the prior

rule is likely to be reasonable, whereas if the rule “merely attempts to fill a void in

an unsettled area of law,” reliance is less likely to be reasonable. . . . [T]hese two

factors will favor retroactivity if a party could reasonably have anticipated the change

in the law such that the new “requirement would not be a complete surprise.”

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Id. (citations omitted).

The Ninth Circuit has acknowledged that Congress did not clearly define

the generic elements of an aggravated felony offense relating to obstruction

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

2008). Since 1997, both the Ninth Circuit and the Board have issued

decisions defining the outer limits of offenses relating to obstruction of

justice. See, e.g., Valenzuela Gallardo, 818 F.3d 808; Trung Thanh Hoang,

641 F.3d 1157; Matter of Espinoza, 22 I&N Dec. 889; Matter of

Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997). Recently, the Ninth

Circuit emphasized that “an ongoing conversation or a back-and-forth

between this Court and the [Board] about the proper interpretation” is an

important consideration in a retroactivity analysis. Betansos, 928 F.3d at

1144. A brief review of these decisions reflects that the discussion between

the Board and the Ninth Circuit regarding this aggravated felony ground has

been ongoing, and the process of defining it has been unsettled, for several

decades.

In Matter of Batista-Hernandez, 21 I&N Dec. at 961, we concluded that

the offense of accessory after the fact in violation of 18 U.S.C. § 3 (Supp.

V 1993) “clearly relates to obstruction of justice,” notwithstanding the fact

that the statute lacked an element of an ongoing investigation or proceeding.

Two years later, in Matter of Espinoza, we held that misprision of felony

in violation of 18 U.S.C. § 4 (1994) was not an offense relating to

obstruction of justice. The Ninth Circuit has repeatedly deferred to a generic

definition that it drew from Matter of Espinoza, which, according to the

court, required interference with an ongoing proceeding or investigation,

although the decision did not itself articulate such a requirement and

Batista-Hernandez clearly did not apply one. 5 See Trung Thanh Hoang, 641

F.3d at 1164; Renteria-Morales, 551 F.3d at 1086–87; Salazar-Luviano

v. Mukasey, 551 F.3d 857, 861–63 (9th Cir. 2008). 6 However, one judge in

5

We did note the absence of an ongoing criminal investigation or trial in Matter of

Espinoza. However, we made the more general observation that misprision of felony does

not constitute “obstruction of justice” because “it lacks the critical element of an

affirmative and intentional attempt, motivated by a specific intent, to interfere with the

process of justice.” Matter of Espinoza, 22 I&N Dec. at 896. In identifying the critical

element of specific intent, we did not state that an ongoing criminal investigation or trial

was always required, but we subsequently clarified the matter in Valenzuela Gallardo I,

25 I&N Dec. at 841–42.

6

If we were to assess the generic definition of an aggravated felony offense relating to

obstruction of justice when the respondent entered his guilty plea in 2009, we would still

conclude that the law was unsettled at that time. The Ninth Circuit precedent had not yet

analyzed our 1997 decision in Matter of Batista-Hernandez, so a respondent who

potentially faced this aggravated felony charge in 2009 would have had to address Matter

of Batista-Hernandez and could not merely rely on Renteria-Morales and Salazar-Luviano.

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Trung Thanh Hoang dissented from the majority’s use of that definition,

contending that the court was not limited to applying the definition that it had

derived from Matter of Espinoza and should, instead, have followed Matter

of Bastista-Hernandez. Trung Thanh Hoang, 641 F.3d at 1165–68 (Bybee,

J., dissenting).

We subsequently clarified our prior precedents interpreting section

101(a)(43)(S) of the Act and held that an offense relating to obstruction of

justice must have as an element “the affirmative and intentional attempt, with

specific intent, to interfere with the process of justice . . . . [T]he existence of

[an ongoing criminal investigation or trial] is not an essential element of ‘an

offense relating to obstruction of justice.’” Valenzuela Gallardo I, 25 I&N

Dec. at 841 (emphasis added). Concerned that this definition might be

impermissibly vague, a divided panel of the Ninth Circuit applied the

doctrine of constitutional avoidance and remanded for us to consider a new

construction of section 101(a)(43)(S) of the Act or to apply our previous

interpretation in Matter of Espinoza. See Valenzuela Gallardo, 818 F.3d at

811, 813–24. We clarified our definition again in Valenzuela Gallardo II.

The unsettled nature of defining the term “relating to obstruction of

justice” in section 101(a)(43)(S) of the Act is evidenced by the continuing

discussion in these administrative and judicial decisions for more than

20 years. That the question has been unsettled becomes more apparent

in light of the reasoning underpinning the Ninth Circuit’s opinion in

Valenzuela Gallardo, where the court had serious constitutional doubts about

the vagueness of the definition we set forth in Valenzuela Gallardo I. As the

court noted, “Absent some indication of the contours of ‘process of justice,’

an unpredictable variety of specific intent crimes could fall within it, leaving

us unable to determine what crimes make a criminal defendant deportable

under [section 101(a)(43)(S)] and what crimes do not.” Valenzuela

Gallardo, 818 F.3d at 820. It would be questionable to conclude that an area

of law is settled when a court has expressed such concerns about the

vagueness of an agency’s interpretation of the relevant statute.

Moreover, a construction that requires interference with an ongoing

proceeding or investigation brings its own uncertainty. Some of the

obstruction of justice crimes that Congress placed in Chapter 73 of the

Federal criminal code do not require interference with an ongoing tribunal or

investigation. See Valenzuela Gallardo, 818 F.3d at 821 (citing 18 U.S.C.

§ 1512(b)(3) (2012) (“prohibition on tampering with a witness with the intent

to hinder or prevent ‘communication to a law enforcement officer’ regarding

a Federal offense”); § 1512(d)(2) (“prohibition on harassing someone with

the intent to prevent that person from ‘reporting [a federal crime] to a law

enforcement officer or judge’”); and § 1519 (2012) (“prohibition on

falsifying or destroying a record ‘with the intent to impede, obstruct, or

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influence the investigation or proper administration of any matter’ within the

jurisdiction of the United States”)). An Immigration Judge, practicing

attorney, or alien could reasonably question whether these offenses—placed

by Congress in a chapter expressly dedicated to obstruction of justice—

would qualify as an aggravated felony offense relating to obstruction of

justice under the definition previously applied by the Ninth Circuit.

Although case-by-case adjudication would likely resolve this issue over time,

it is further evidence of unsettled law.

We also look beyond the interplay between Board precedent and Ninth

Circuit decisions to determine whether the definition of the term “relating to

obstruction of justice” is unsettled. The Ninth Circuit’s inquiry has been

whether and to what extent it would defer to the Board’s definition under

step two of the analysis in Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (stating that deference

to an agency’s decision depends on whether its statutory interpretation is

“based on a permissible construction of the statute”). A court can only reach

this second step if the statute is “silent or ambiguous.” Id. at 843. Finding

that the Act did not define the phrase “offense relating to obstruction of

justice,” the Ninth Circuit has thus addressed this statutory term in the

context of Chevron’s step two. 7 See Renteria-Morales, 551 F.3d at 1086.

By contrast, the Third Circuit has concluded that the phrase “relating to

obstruction of justice” is unambiguous. See Denis v. Att’y Gen. of U.S., 633

F.3d 201, 209 (3d Cir. 2011). Applying de novo review, the Third Circuit

found our definition of the phrase in Espinoza to be unnecessarily restrictive,

and it adopted a broader definition. Id. at 211–13; see also Matter of

Valenzuela Gallardo I, 25 I&N Dec. at 843. Judicial disagreement over

whether a phrase is plain or ambiguous further demonstrates how unsettled

the issue of defining “relating to obstruction of justice” has been.

Additionally, we consider significant the contrast between the circuit

courts’ assessment of our decisions defining an offense relating to

obstruction of justice and those addressing the circumstances under

which a theft offense is a crime involving moral turpitude. In Matter of

Diaz-Lizarraga, 26 I&N Dec. 847 (BIA 2016), we revisited the standard by

which we assessed whether a theft offense is turpitudinous. Previously, from

our “earliest days,” we had held that “a theft categorically involves moral

turpitude if—and only if—it is committed with the intent to permanently

deprive an owner of property.” Id. at 849. Finding it appropriate to “update

our existing jurisprudence,” we determined that “a theft offense is a crime

involving moral turpitude if it involves an intent to deprive the owner of his

7

In Valenzuela Gallardo, 818 F.3d at 815–18, the Ninth Circuit applied the constitutional

avoidance doctrine at Chevron’s step one. However, the court also noted that section

101(a)(43)(S) was an “ambiguous statute.” Id. at 824.

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property either permanently or under circumstances where the owner’s

property rights are substantially eroded.” Id. at 853. Recently, the Fifth

Circuit joined the Second, Ninth, and Tenth Circuits in declining to apply our

decision retroactively, concluding that our new definition “drastically

chang[ed] the landscape.” Monteon-Camargo v. Barr, 918 F.3d 423, 431

(5th Cir. 2019); see also Garcia-Martinez v. Sessions, 886 F.3d 1291, 1296

(9th Cir. 2018); Obeya v. Sessions, 884 F.3d 442, 449 (2d Cir. 2018);

Lucio-Rayos v. Sessions, 875 F.3d 573, 578 (10th Cir. 2017). We discern no

comparable “departure from well established practice” in the context of

interpreting the ambiguous phrase “relating to obstruction of justice” in

section 101(a)(43)(S) of the Act. Montgomery Ward, 691 F.2d at 1333

(citation omitted).

The Immigration Courts and the Board routinely encounter a diverse

range of criminal statutes containing distinct elements that might relate to

obstruction of justice. We must therefore determine whether these State and

Federal offenses categorically relate to obstruction of justice. Our prior

determinations, such as our holding in Matter of Espinoza that misprision of

felony under 18 U.S.C. § 4 does not relate to obstruction of justice, are

relevant but not dispositive when examining these other statutes. It was in

this context that we made our conclusions in Valenzuela Gallardo I and II

that accessory to a felony in violation of section 32 of the California Penal

Code is categorically an obstruction of justice offense under section

10l(a)(43)(S) of the Act.

Applying the second factor of the Montgomery Ward test, we conclude

that these decisions were merely attempts to fill a void in an unsettled area

of law and do not represent an abrupt departure from well-established

practice. See, e.g., Valenzuela Gallardo I, 25 I&N Dec. at 842 (noting that

our prior precedent had not gone “so far as to hold that obstruction offenses

must involve interference with an ongoing investigation or proceeding”);

Matter of Batista-Hernandez, 21 I&N Dec. 955 (holding that “accessory after

the fact” under 18 U.S.C. § 3 qualifies as an offense relating to obstruction

of justice, without requiring a pending or ongoing proceeding). Likewise,

we cannot discern a settled “former rule” on which the respondent may

reasonably have relied under the third factor of the Montgomery Ward test.

We will assume that Montgomery Ward’s fourth factor “strongly favors”

the respondent. Garfias-Rodriguez, 702 F.3d at 523. Removal of an alien

from the United States is a “substantial burden that weighs against retroactive

application of an agency adjudication.” Id. (citation omitted). We do not

diminish this factor or the hardship that might result from an alien’s removal.

“The fifth factor—the statutory interest in applying a new rule—points in

favor of the government because non-retroactivity impairs the uniformity of

a statutory scheme, and the importance of uniformity in immigration law is

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Cite as 27 I&N Dec. 652 (BIA 2019) Interim Decision #3964

well established.” Id. “[T]he Federal immigration laws are intended to have

uniform nationwide application and to implement a unitary Federal policy.”

Matter of Velazquez-Herrera, 24 I&N Dec. 503, 508 (BIA 2008) (citing

Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994)). As noted, Congress

expressly indicated its intention that the aggravated felony definitions in

section 101(a)(43) of the Act should apply retroactively. See St. Cyr, 533

U.S. at 318–19. This congressional action further cuts in favor of retroactive

application here, although it is not dispositive.

Having weighed the factors in the Montgomery Ward test in their totality,

we conclude that Valenzuela Gallardo II may be applied retroactively. Our

decision has filled a void in what was an unsettled area of law, and while

we acknowledge the hardship that retroactive application might cause to

the respondent, the national uniformity of our immigration laws is a

strong countervailing interest. We reach this conclusion based on the

circumstances of this case and the provision of the Act at issue. We do not

decide whether or how to apply decisions retroactively in other contexts,

including those involving other grounds for removal and discretionary or

mandatory relief.

III. CONCLUSION

In sum, the respondent was convicted of dissuading a witness in violation

of section 136.1(b)(1) of the California Penal Code, an offense that is

categorically an aggravated felony offense relating to the obstruction of

justice. We reject his argument that the standard we set forth for defining

obstruction of justice in Valenzuela Gallardo II may not be applied

retroactively to his conviction, and we conclude that he is removable under

section 237(a)(2)(A)(iii) of the Act. Consequently, he is also ineligible for

cancellation of removal under section 240A(a)(3) of the Act. 8 Accordingly,

the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

8

The respondent summarily argues that both we and the Immigration Judge erred by

denying his application for cancellation of removal. This claim, which addresses no new

arguments on remand, does not merit any further consideration.

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