VALENZUELA GALLARDO

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Matter of Agustin VALENZUELA GALLARDO, Respondent

Decided September 11, 2018

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An “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), encompasses

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, 25 I&N Dec. 838 (BIA 2012), clarified.

(2) A conviction for accessory to a felony under section 32 of the California Penal Code

that results in a term of imprisonment of at least 1 year is a conviction for an aggravated

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

FOR RESPONDENT: Frank P. Sprouls, Esquire

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy,

Associate Legal Advisor

BEFORE: Board Panel: GUENDELSBERGER, MALPHRUS, LIEBOWITZ, Board

Members.

MALPHRUS, Board Member:

This case is before us on remand from the United States Court of Appeals

for the Ninth Circuit for further consideration of the respondent’s

removability 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. Valenzuela Gallardo v. Lynch, 818 F.3d 808 (9th

Cir. 2016). The respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was admitted to the

United States as a lawful permanent resident on May 23, 2002. On

December 28, 2007, he was convicted of accessory to a felony in violation

of section 32 of the California Penal Code and was sentenced to 16 months

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in prison. 1 Based on this conviction, the respondent was placed in removal

proceedings where an Immigration Judge found him removable under section

237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony

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

Act, 8 U.S.C. § 1101(a)(43)(S) (2012). The respondent contested his

removability before the Immigration Judge, arguing that his conviction was

not an offense relating to obstruction of justice because it did not relate to an

ongoing judicial proceeding, and he filed a motion to terminate his

proceedings. The Immigration Judge found that the definition of an offense

relating to obstruction of justice under the Act is not limited to obstruction

offenses involving an ongoing judicial proceeding. He then denied the

respondent’s motion and ordered him removed to Mexico.

We dismissed the respondent’s appeal from the Immigration Judge’s

decision and denied his motion to reconsider our order in this regard. On

May 17, 2011, the Ninth Circuit issued its decision in Trung Thanh Hoang

v. Holder, 641 F.3d 1157 (9th Cir. 2011). In that case, the court looked to

our two prior precedents interpreting section 101(a)(43)(S) and held that a

crime is an offense relating to obstruction of justice under that provision

when “it interferes with an ongoing proceeding or investigation.” Id. at 1164.

In light of the Ninth Circuit’s decision in Hoang, we sua sponte reopened

the respondent’s appeal for further consideration of his removability.

On June 27, 2012, we issued a published decision, clarifying our prior

precedents interpreting section 101(a)(43)(S) of the Act and holding 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.’” Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012)

(emphasis added) (citation omitted). Because a violator of section 32 of the

California Penal Code must act with the intent to aid a principal in avoiding

arrest, trial, conviction, or punishment, we concluded that the respondent’s

State crime has as an element the affirmative and intentional attempt, with

specific intent, to interfere with the process of justice and is therefore an

offense relating to obstruction of justice. See id. at 841–42.

1

At the time of the respondent’s conviction, section 32 of the California Penal Code

provided:

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.

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The respondent filed a petition for review of our decision, which the

Ninth Circuit granted, concluding that our definition of “an offense relating

to obstruction of justice” is impermissibly “vague” because it does “not

give[] an indication of what it does include in ‘the process of justice,’

or where that process begins and ends.” Valenzuela Gallardo, 818 F.3d

at 819. Based on this conclusion, the court remanded the case to us either

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

[of section 101(a)(43)(S) we] previously announced in” Matter of Espinoza,

22 I&N Dec. 889 (BIA 1999), to which the Ninth Circuit had deferred in

Hoang, 641 F.3d at 1161. Valenzuela Gallardo, 818 F.3d at 812–13.

II. ANALYSIS

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

“an offense relating to obstruction of justice” under section 101(a)(43)(S),

we apply the categorical approach by focusing on whether the elements of

his State statute of conviction 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).

The Ninth Circuit found the “phrase . . . ‘process of justice’” in the

generic definition of an offense relating to obstruction of justice we

articulated in Matter of Valenzuela Gallardo to be “amorphous.” Valenzuela

Gallardo, 818 F.3d at 822. The court stated, “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.” Id. at 820. 2 We respectfully take the opportunity to clarify

our prior precedents regarding the contours of the generic definition of an

aggravated felony offense relating to obstruction of justice under section

101(a)(43)(S) of the Act. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

2

In the wake of the Ninth Circuit’s determination that the phrase “process of justice” in

our definition of an offense relating to obstruction of justice is impermissibly vague, the

Fifth and Seventh Circuits have declined to defer to our decision in Matter of Valenzuela

Gallardo. See Victoria-Faustino v. Sessions, 865 F.3d 869, 876 (7th Cir. 2017) (applying

the definition outlined in Matter of Espinoza); Cruz v. Sessions, 689 F. App’x 328, 329

(5th Cir. 2017) (per curiam) (remanding an alien’s petition for review to us for further

proceedings because we had relied on “the now-vacated Valenzuela Gallardo decision”

but reserving judgment “as to whether the Ninth Circuit’s ruling was correctly decided or

whether Valenzuela Gallardo provided an appropriate standard”).

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Inc., 467 U.S. 837, 866 (1984); see also Nat’l Cable & Telecomms. Ass’n

v. Brand X Internet Servs., 545 U.S. 967 (2005).

The Ninth Circuit has recognized that the language of section

101(a)(43)(S) is ambiguous because it does not clearly answer whether an

offense relating to obstruction of justice must involve interference in an

ongoing investigation or proceeding. See Valenzuela Gallardo, 818 F.3d

at 815–19, 824; 3 see also Matter of Valenzuela Gallardo, 25 I&N Dec. at

839 (citing Hoang, 641 F.3d at 1060–61). Because that language is

susceptible to varying interpretations in this regard, it is our duty to resolve

any “ambiguities in [that] statute[]” and “to fill the statutory gap in

reasonable fashion.” Negusie v. Holder, 555 U.S. 511, 523 (2009) (citation

omitted) (internal quotation mark omitted); see also, e.g., Matter of

Richmond, 26 I&N Dec. 779, 788 (BIA 2016).

The Act does not define the phrase “obstruction of justice.” We therefore

find it appropriate to adopt a generic definition “based on the ‘generic,

contemporary meaning’ of [that phrase] at the time the statute was enacted.”

Matter of Sanchez-Lopez, 27 I&N Dec. 256, 260–61 (BIA 2018) (citation

omitted); see also Taylor v. United States, 495 U.S. 575, 598 (1990). To do

so, we survey Federal and State law, 4 Federal sentencing guidelines, the

3

The court found that our interpretation of section 101(a)(43)(S) was impermissibly

vague after applying the canon of constitutional avoidance. See Valenzuela Gallardo, 818

F.3d at 815–19. This canon only applies to ambiguous statutes, “susceptible [to] more than

one plausible construction.” Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018) (citation

omitted) (internal quotation mark omitted). The Third Circuit is the only court that has

concluded that the phrase “an offense relating to obstruction of justice” under section

101(a)(43)(S) is unambiguous, and, for this reason, it does not defer to our interpretation

of that phrase. See, e.g., Flores v. Att’y Gen. U.S., 856 F.3d 280, 287 n.23 (3d Cir. 2017).

4

State law is of limited benefit to our analysis because there is no discernible pattern in

how the States treated the concept of obstruction of justice in their criminal statutes in 1996,

and thus we will primarily look to Federal law for guidance. When section 101(a)(43)(S)

was enacted, only 17 States used phrases like “obstruction of justice” and “obstructing

justice” to define certain crimes. See Colo. Rev. Stat. §§ 18-8-101–116 (1996); Fla. Stat.

§§ 843.01–.19 (1996); Haw. Rev. Stat. § 710-1072.5 (1996); 720 Ill. Comp. Stat. 5/31-4

(1996); Ind. Code § 35-44-3-4 (1996); Iowa Code §§ 719.1–.8 (1996); La. Rev. Stat. Ann.

§ 14:130.1 (1996); Miss. Code. Ann. § 97-9-55 (1996); Mont. Code Ann. § 45-7-303

(1996); N.C. Gen. Stat. §§ 14-221–227 (1996); Ohio Rev. Code Ann. § 2921.32 (1996);

R.I. Gen. Laws §§ 11-32-1–7 (1996); Tenn. Code Ann. §§ 39-16-601–609 (1996); Utah

Code Ann. § 76-8-306 (1996); Vt. Stat. Ann. tit. 13, § 3015 (1996); Va. Code Ann.

§ 18.2-460 (1996); Wis. Stat. § 946.65 (1996). Of these jurisdictions, three States limited

the concept of obstruction of justice to offenses involving interference in a pending or

ongoing investigation or judicial proceeding. See Haw. Rev. Stat. § 710-1072.5; Ind. Code

§ 35-44-3-4; Wis. Stat. § 946.65. The remaining jurisdictions extended this concept to

offenses involving interference with a criminal investigation or a reasonably foreseeable

proceeding. See Colo. Rev. Stat. § 18-8-105 (proscribing accessory to a crime); Fla. Stat.

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Model Penal Code, and scholarly commentary to determine the common

meaning of the phrase “obstruction of justice” in 1996, when section

101(a)(43)(S) was enacted. 5 See Matter of Alvarado, 26 I&N Dec. 895, 897

(BIA 2016); see also Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,

1570–72 (2017) (employing a similar analysis to discern the definition for

“sexual abuse of a minor” under section 101(a)(43)(A) of the Act).

A. Interference in an Investigation or Proceeding

We have previously looked to chapter 73 of the Federal criminal code,

see 18 U.S.C. §§ 1501–1520 (2006), which lists a number of offenses under

the heading “Obstruction of Justice,” for guidance regarding the contours of

section 101(a)(43)(S). See Matter of Valenzuela Gallardo, 26 I&N Dec.

at 842–43; see also Matter of Espinoza, 22 I&N Dec. at 892–94 & n.4. Many

of the provisions listed under chapter 73 require interference in an ongoing

investigation or proceeding. See Matter of Espinoza, 22 I&N Dec. at 892.

“The intent of the two broadest provisions, § 1503 (prohibiting persons from

§§ 843.01, .02, .08 (criminalizing obstructing or impersonating a police officer

investigating a crime); Iowa Code §§ 719.1–.2 (resisting arrest and failing or refusing to

assist an officer in making an arrest); La. Rev. Stat. Ann. § 14:130.1 (“The crime of

obstruction of justice is . . . committed with the knowledge that such act has, reasonably

may, or will affect an actual or potential present, past, or future criminal proceeding . . . .”

(emphases added)); Mont. Code Ann. § 45-7-303(2)(a)–(b) (criminalizing, inter alia,

harboring, concealing, or warning an offender of “impending discovery or apprehension”

(emphasis added)); N.C. Gen. Stat. § 14-223, 225 (resisting arrest and false reporting to a

police officer); Ohio Rev. Code Ann. § 2921.32(A)(1), (3) (same); R.I. Gen. Laws

§§ 11-32-1, -2 (obstructing an officer in the execution of his or her duties and false

reporting of a crime); Tenn. Code Ann. § 39-16-603 (evading arrest); Utah Code Ann.

§ 76-8-306(b), (e) (harboring, concealing, or warning an offender of impending discovery

or apprehension); People v. Jenkins, 964 N.E.2d 1231, 1240–41 (Ill. App. Ct. 2012)

(indicating that an individual may be convicted of obstruction of justice for furnishing false

information to a police officer immediately after a crime has been committed but before it

has been discovered); Wilbourn v. State, 164 So. 2d 424, 425–26 (Miss. 1964) (suggesting

that obstructing justice extends to interference with a police investigation before a judicial

proceeding is instituted as long as that interference is accompanied by “threats, force or

abuse”); State v. O’Neill, 682 A.2d 943, 946 (Vt. 1996) (holding that “advocating the

making of false statements and destroying material evidence” qualifies as obstruction of

justice because the Vermont statute at issue “makes no reference to a ‘pending proceeding’

requirement, and such a requirement is not necessary to reasonably limit the law to a proper

scope”); Turner v. Commonwealth, 460 S.E.2d 605, 607 (Va. Ct. App. 1995) (indicating

that obstructing law enforcement officers in the lawful discharge of their duties does not

require proof of interference in an ongoing or pending proceeding).

5

Section 101(a)(43)(S) was added to the Act by section 440(e)(8) of the Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1276–78.

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influencing or injuring an officer or juror generally) and § 1510 (prohibiting

obstruction of criminal investigations), is to protect individuals assisting in a

federal investigation or judicial proceeding and to prevent a miscarriage of

justice in any case pending in a federal court.” Id. 6

However, several crimes proscribed under chapter 73 do not contain this

limitation. See 18 U.S.C. §§ 1512, 1519 (2012). In fact, prior to the

enactment of section 101(a)(43)(S), chapter 73 proscribed, among other

things, the knowing use of intimidation, physical force, threats, corrupt

persuasion, or misleading conduct

toward another person, with the intent to—

(1) influence, delay, or prevent the testimony of any person in an official

proceeding;

(2) cause or induce a person to—

....

(B) alter, destroy, mutilate, or conceal an object with intent to impair the

object’s integrity or availability for use in an official proceeding; [or]

....

(3) hinder, delay, or prevent the communication to a law enforcement officer or

judge of the United States of information relating to the commission or possible

commission of a Federal offense or a violation of conditions of probation, parole,

or release pending judicial proceedings . . . .

18 U.S.C. § 1512(b) (1994) (emphases added).

It also proscribed intentionally harassing another and thereby hindering,

delaying, preventing, or dissuading another person from

6

Interpreting § 1503, which proscribes, inter alia, “obstruct[ing], or imped[ing] the due

administration of justice,” the Supreme Court held that a violator of that provision must

take action “with an intent to influence judicial or grand jury proceedings.” United States

v. Aguilar, 515 U.S. 593, 598–99 (1995). Likewise, the Supreme Court recently concluded

that the phrase “obstruct or imped[e] the due administration of [the Internal Revenue

Code]” in 26 U.S.C. § 7212(a) (2012) “refers to specific interference with targeted

governmental tax-related proceedings, such as a particular investigation or audit.”

Marinello v. United States, 138 S. Ct. 1101, 1104 (2018) (first alteration in original).

However, the Court in Marinello ultimately held that such a proceeding need not be

“pending at the time the defendant engaged in the obstructive conduct [as long as it] was

then reasonably foreseeable by the defendant.” Id. at 1110 (emphasis added).

Significantly, the decisions in Aguilar and Marinello were based on the fact that the object

of the word “obstruct” in §§ 1503 and 7212(a) was “the due administration of” justice or a

particular title of the United States Code, respectively. Id. at 1106. By contrast, the object

of “obstruction” in section 101(a)(43)(S) is simply the word “justice,” suggesting that

Congress intended section 101(a)(43)(S) of the Act to apply more broadly than the

provisions at issue in Aguilar and Marinello.

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(2) reporting to a law enforcement officer or judge of the United States the

commission or possible commission of a Federal offense or a violation of

conditions of probation, parole, or release pending judicial proceedings;

(3) arresting or seeking the arrest of another person in connection with a Federal

offense; . . .

....

or attempt[ing] to do so . . . .

18 U.S.C. § 1512(c) (emphasis added).

For purposes of these crimes, “an official proceeding need not be pending

or about to be instituted at the time of th[e] offense.” 18 U.S.C. § 1512(e)(1)

(emphasis added); 7 see also, e.g., United States v. Scaife, 749 F.2d 338, 348

(6th Cir. 1984). Moreover, prior to the enactment of section 101(a)(43)(S),

it was well settled that interference in an ongoing or pending proceeding was

not a necessary element of the crimes listed in § 1512—rather, the

Government needed only to establish that an individual acted with the intent

to frustrate an investigation or proceeding that he or she believed might be

instituted. See, e.g., United States v. Stansfield, 101 F.3d 909, 918 (3d Cir.

1996) (collecting cases), abrogation recognized by United States v. Tyler,

732 F.3d 241, 251–52 (3d Cir. 2013).

Following the enactment of section 101(a)(43)(S), courts continued to

hold that interference in an ongoing or pending investigation or proceeding

was not a necessary element of § 1512, finding that interference in a

reasonably foreseeable investigation or proceeding may be sufficient. See

Arthur Andersen LLP v. United States, 544 U.S. 696, 707–08 (2005)

(requiring the Government to prove that a proceeding was “foreseen” to

convict a defendant of persuading others to shred documents under § 1512);

United States v. Veal, 153 F.3d 1233, 1250 (11th Cir. 1998) (providing that

§ 1512 “does not depend on the existence or imminency of a federal case or

investigation but rather on the possible existence of a federal crime and a

defendant’s intention to thwart an inquiry into that crime”), abrogation

recognized by United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir. 2015).

Recently, the Supreme Court in Marinello v. United States, 138 S. Ct. 1101,

1110 (2018), synthesized the Court’s prior precedents interpreting offenses

under chapter 73 and concluded that the Government must show that the

proceeding was, at least, “reasonably foreseeable by the defendant” at the

time of the obstructive conduct. (Emphasis added.)

7

This language was originally added to the statute by section 4(a) of the Victim and

Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, 1249–50 (codified at

18 U.S.C. § 1512(d)(1) (1982)). It was redesignated as § 1512(e)(1) and later as

§ 1512(f)(1). See Corporate Fraud Accountability Act of 2002, Pub. L. No. 107-204,

§ 1102, 116 Stat. 745, 807; Criminal Law and Procedures Technical Amendment 1986,

Pub. L. No. 99-646, § 61, 100 Stat. 3592, 3614.

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Finally, the relevant legislative history indicates that Congress intended

§ 1512 to reach obstruction offenses committed prior to the commencement

of any investigation by law enforcement. S. Rep. No. 97-532, at 19 (1982),

as reprinted in 1982 U.S.C.C.A.N. 2515, 2525 (stating that this provision is

intended to “specifically reach[] intimidation offenses committed before

a crime is reported to the appropriate authorities” (emphasis added)). It is

reasonable to presume that Congress was aware of the legislative history of

§ 1512 and long-standing judicial interpretations of that provision when it

enacted section 101(a)(43)(S) of the Act.

Based on the foregoing analysis of chapter 73, we conclude that Congress

did not intend interference in an ongoing or pending investigation or

proceeding to be a necessary element of an “offense relating to obstruction

of justice” under the Act. 8 Rather, it intended an offense relating to

obstruction of justice to cover 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.” Marinello, 138 S. Ct. at 1110; Aguilar, 515

U.S. at 599 (“[I]f the defendant lacks knowledge that his actions are likely

to affect the judicial proceeding, he lacks the requisite intent to obstruct.”

(emphasis added)). 9 If we were to conclude otherwise, a conviction for either

witness tampering under § 1512 or obstruction of a Federal investigation

under § 1519 would never be a predicate for removal under section

101(a)(43)(S). See Descamps v. United States, 570 U.S. 254, 276 (2013)

(holding that where a statute of conviction is missing an element of the

generic offense, “a person convicted under that statute is never convicted of

the generic crime”). It is highly unlikely that Congress intended this result. 10

8

In 2002, Congress expanded chapter 73 by adding § 1519, which proscribes obstructing,

among other things, “the investigation or proper administration of any matter within the

jurisdiction of any department or agency of the United States.” See Corporate and Criminal

Fraud Accountability Act of 2002, Pub. L. No. 107-204, § 802(a), 116 Stat. 745, 800. This

“section covers conduct intended to impede any federal investigation or proceeding,

including one not even on the verge of commencement.” Yates v. United States, 135 S. Ct.

1074, 1087 (2015) (emphases added). The addition of § 1519 further indicates that

Congress did not intend interference in an ongoing or pending investigation or proceeding

to be a necessary element of “obstruction of justice” when it enacted section 101(a)(43)(S).

9

Accordingly, when we stated that an offense relating to obstruction of justice under the

Act must “interfere with the process of justice’” in Matter of Valenzuela Gallardo, 25 I&N

Dec. at 841 (quoting Matter of Espinoza, 22 I&N Dec. at 896), we should have said that

section 101(a)(43)(S) reaches crimes that interfere with an investigation or proceeding that

is ongoing, pending, or reasonably foreseeable by the defendant.

10

Because Congress did not intend an ongoing or pending investigation or proceeding to

be a necessary element of obstruction of justice offenses in section 101(a)(43)(S), the fact

that the phrase “obstruction of justice” in that provision appears alongside “perjury” and

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B. Accessory After the Fact

Chapter 73 provides important guidance for discerning the common

understanding of the phrase “obstruction of justice” when Congress enacted

section 101(a)(43)(S), and we agree with the Ninth Circuit that there must be

limits on what offenses this phrase covers. However, it is not reasonable to

conclude that Congress intended chapter 73 to be our sole reference under

Federal law. We believe that 18 U.S.C. § 3 (1994), which proscribes

accessory after the fact but is not part of chapter 73, is also important for

discerning the commonly understood meaning of the phrase “obstruction of

justice” in the Act. In fact, the nature and elements of this crime are critical

to understanding the full contours of the phrase “obstruction of justice”

outside of chapter 73.

According to § 3, “Whoever, knowing that an offense against the United

States has been committed, receives, relieves, comforts or assists the offender

in order to hinder or prevent his apprehension, trial or punishment, is an

accessory after the fact.” 11 An individual may be convicted of accessory

after the fact under § 3 if he acts with the specific intent to interfere in an

ongoing, pending, or reasonably foreseeable investigation or proceeding.

See United States v. Lopez, 482 F.3d 1067, 1076 (9th Cir. 2007) (interpreting

§ 3 as requiring the “specific intent to frustrate law enforcement” (emphasis

added)); see also 2 Wayne R. LaFave, Substantive Criminal Law § 13.6(a)

(3d ed. Oct. 2017) (same). The plain language of this provision also

encompasses knowingly assisting an individual convicted of a crime with the

specific intent to interfere in his punishment resulting from a completed

proceeding. See Matter of Batista-Hernandez, 21 I&N Dec. 955, 962 (BIA

1997); see also United States v. Hobson, 519 F.2d 765, 769 (9th Cir. 1975)

(concluding that individuals who assisted a convict following his escape

from prison were guilty of accessory after the fact).

For more than half a century, the crime of accessory after the fact under

Federal and State law has been regarded as a form of obstruction of justice.

See Virgin Islands v. Aquino, 378 F.2d 540, 553 (3d Cir. 1967); LaFave,

supra, § 13.1 (“[T]he accessory after the fact is . . . one who has obstructed

justice . . . .” (citing State v. Rundle, 500 N.W.2d 916 (Wis. 1993)));

4 Wharton’s Criminal Law, § 570 (15th ed. Sept. 2017) (“This kind of

accessory is coming to be recognized for what he is: an ‘obstructer’ of

justice . . . .” (citing, inter alia, State v. Lynch, 399 A.2d 629 (N.J. 1979))).

“bribery” (criminal offenses “tied to proceedings”) does not persuasively inform our

understanding of Congress’ intent for that phrase. Valenzuela Gallardo, 818 F.3d at 821.

11

This provision has remained unchanged since it was added to the United States Code

by section 3 of Crimes and Criminal Procedure, ch. 645, 62 Stat. 683, 684 (1948).

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In fact, when section 101(a)(43)(S) was enacted, there was a consensus

among the Federal courts, and the drafters of the Federal Sentencing

Guidelines and the Model Penal Code, that accessory after the fact under

§ 3 was a form of obstruction of justice. For instance, it was well settled in

most Federal circuit courts in 1996 that “[t]he gist of being an accessory after

the fact” under § 3 “lies essentially in obstructing justice by rendering

assistance to hinder or prevent the arrest of the offender after he [or she] has

committed the crime.” United States v. Brown, 33 F.3d 1002, 1004 (8th Cir.

1994) (emphasis added) (citation omitted); see also United States v. Huppert,

917 F.2d 507, 510 (11th Cir. 1990) (same), superseded by statute as

recognized by United States v. McQueen, 86 F.3d 180, 183 (11th Cir. 1996);

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

abrogated on other grounds by Richardson v. United States, 468 U.S. 317,

325-26 (1984); 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); 12 Aquino, 378 F.2d at 553 (interpreting the Virgin

Islands accessory statute and concluding that “[a]n accessory after the fact is

one who, knowing that a crime has been committed, obstructs justice by

giving comfort or assistance to the offender in order to hinder or prevent his

apprehension or punishment” (emphasis added) (citation omitted)). 13

12

We previously cited Barlow for the proposition that an offense under § 3 is an

aggravated felony under section 101(a)(43)(S) of the Act, observing that a conviction under

this section “clearly relates to obstruction of justice” since “the statute criminalizes actions

knowingly taken to ‘hinder or prevent [another’s] apprehension, trial or punishment.’”

Matter of Batista-Hernandez, 21 I&N Dec. at 962 (alteration in original) (citation omitted).

13

Of the 17 States that used “obstruction of justice” or “obstructing justice” in their

statutes to define certain crimes in 1996, only 4 explicitly proscribed conduct punishable

as accessory after the fact under § 3. See Colo. Rev. Stat. § 18-8-105; Mont. Code Ann.

§ 45-7-303(a)–(b); Ohio Rev. Code Ann. § 2921.32(A)(1), (3); Utah Code Ann.

§ 76-8-306(b), (e). However, a survey of relevant State case law reflects that, prior to the

enactment of section 101(a)(43)(S), another 10 States viewed conduct punishable under

§ 3 as a form of obstruction of justice. See Staten v. State, 519 So. 2d 622, 626 (Fla. 1988)

(“The accessory after the fact is no longer treated as a party to the crime but has come to

be recognized as the actor in a separate and independent crime, obstruction of justice.”

(emphasis added) (citation omitted)), superseded by statute as stated in Bowen v. State,

791 So.2d 44, 51 (Fla. Dist. Ct. App. 2001); Moore v. State, 240 S.E.2d 68, 69–70

(Ga. 1977) (same), overruled on other grounds by Jarrett v. State, 453 S.E.2d 461

(Ga. 1995); People v. Jones, 407 N.E.2d 1121, 1124 (Ill. App. Ct. 1980) (same); State

v. Chism, 436 So. 2d 464, 467 n.2 (La. 1983) (same); Osborne v. State, 499 A.2d 170, 173

(Md. 1985) (same), abrogated on other grounds by State v. Hawkins, 604 A.2d 489

(Md. 1992); State v. Brown, 543 S.W.3d 647, 649–50 & n.8 (Mo. Ct. App. 2018) (noting

that, in 1979, the Missouri Legislature enacted a statute proscribing harboring, concealing,

or warning an offender of impending discovery or apprehension, which based liability on

a theory of “obstruction of justice”), reh’g denied (Feb. 13, 2018); Lynch, 399 A.2d

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Looking to the United States Sentencing Guidelines Manual that was in

effect at the time Congress enacted section 101(a)(43)(S), the commentary

to section 2J1.2 of those guidelines, titled “Obstruction of Justice,” further

illustrates that accessory after the fact was regarded as a form of obstruction

of justice in 1996. Specifically, the drafters of section 2J1.2 cross-referenced

the guideline for “Accessory After the Fact” in that section because “the

conduct covered by [this section] is frequently part of an effort to avoid

punishment for an offense that the defendant has committed or to assist

another person to escape punishment for an offense.” U.S. Sentencing

Guidelines Manual § 2J1.2 cmt. background (U.S. Sentencing Comm’n

1995) (emphasis added).

The Model Penal Code also supports our conclusion that an accessory

after the fact was commonly understood to have obstructed justice in 1996.

Notably, when section 101(a)(43)(S) was added to the Act, the Model Penal

Code listed “Hindering Apprehension or Prosecution”—a crime proscribing

conduct identical to accessory after the fact under § 3 in all relevant

respects—under Article 242, which is titled “Obstructing Governmental

Operations; Escapes.” Model Penal Code § 242.3 (1985). The Model Penal

Code additionally stated that one who hinders the apprehension or

prosecution of another is not treated as a principal to the underlying crime,

“but is convicted . . . for an independent offense of obstruction of justice.”

Model Penal Code art. 242 (emphasis added).

Under these circumstances, it is highly unlikely that Congress intended

to exclude the crime of accessory after the fact under § 3 from the phrase

“obstruction of justice” in section 101(a)(43)(S) when it enacted that

provision. Limiting our analysis to chapter 73 in discerning the common

understanding of that phrase would therefore be unreasonably restrictive. 14

While we recognize that chapter 73 is titled “Obstruction of Justice,” that fact

alone does not conclusively settle what “obstruction of justice” offenses

Congress had in mind when it enacted section 101(a)(43)(S). See Trainmen

v. Baltimore & O. R. Co., 331 U.S. 519, 528 (1947) (explaining that, while a

heading within a statute may be instructive, it does not conclusively settle

that statute’s meaning); see also Matter of Alvarado, 26 I&N Dec. at 897

(holding that 18 U.S.C. § 1621 (2012), which is titled “Perjury generally,”

at 634–35 (viewing an accessory after the fact as an obstructer of justice); State v. Sliger,

No. 24, 1991 WL 102672, at *6–7 (Tenn. June 17, 1991) (same); State v. Petry, 273 S.E.2d

346, 349 (W. Va. 1980) (same); Rundle, 500 N.W.2d at 925 (same).

14

We note that the Ninth Circuit has concluded that failure to appear under 18 U.S.C.

§ 3146 (2006) is an offense relating to obstruction of justice under section 101(a)(43)(S),

even though it is not explicitly listed in chapter 73. See Renteria-Morales v. Mukasey, 551

F.3d 1076, 1087 (9th Cir. 2008); see also Alwan v. Ashcroft, 388 F.3d 507, 514

(5th Cir. 2004) (holding that contempt of court under of 18 U.S.C. § 401(3) (2000) is an

aggravated felony offense relating to obstruction of justice).

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does not provide the sole reference for discerning the common understanding

of the term “perjury” in 1996 for purposes of section 101(a)(43)(S)).

Furthermore, if Congress intended to limit the phrase “obstruction

of justice” to the crimes listed in chapter 73, it could have done so by listing

the relevant sections of the United States Code in section 101(a)(43)(S) of

the Act, as it did in other parts of section 101(a)(43) of the Act. See sections

101(a)(43)(B)–(F), (H)–(P) of the Act; Keene Corp. v. United States, 508

U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one

section of a statute but omits it in another . . . , it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion

or exclusion.” (citation omitted)). Significantly, the Supreme Court recently

declined to use 18 U.S.C. § 2243 (2012), which criminalizes “[s]exual abuse

of a minor or ward,” as “the complete or exclusive definition” of “sexual

abuse of a minor” under section 101(a)(43)(A) because that provision of the

Act “does not cross-reference § 2243(a), whereas many other aggravated

felonies in the [Act] are defined by cross-reference to other provisions of the

United States Code.” Esquivel-Quintana, 137 S. Ct. at 1571.

C. Application

In light of the foregoing, we respectfully clarify our definition

of “an offense relating to obstruction of justice” in Matter of Valenzuela

Gallardo. See Chevron, 467 U.S. 837; see also Brand X, 545 U.S. 967. This

definition consists of offenses covered by chapter 73 of the Federal criminal

code 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.

This definition is consistent with our prior holdings regarding the limited

contours of the phrase “obstruction of justice.” For example, it does not

cover “every offense that, by its nature, would tend to ‘obstruct justice.’”

Matter of Espinoza, 22 I&N Dec. at 894; see also Matter of

Batista-Hernandez, 21 I&N Dec. at 962. 15 Rather, it is limited to crimes

involving the generic definition articulated above. Consistent with our

holding in Espinoza, misprision of a felony under 18 U.S.C. § 4 (2012),

which proscribes concealing a known felony from authorities, would not

qualify as an aggravated felony under this definition because, although that

crime “has as an element the affirmative concealment of the felony, . . .

15

To the extent that Espinoza and Batista-Hernandez contain language suggesting

otherwise, that language is dicta.

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nothing in § 4 . . . references the specific purpose for which the concealment

must be undertaken,” and thus it lacks the requisite specific intent. Matter of

Espinoza, 22 I&N Dec. at 894. 16

By contrast, the respondent’s offense of accessory to a felony under

section 32 of the California Penal Code is clearly an offense relating

to obstruction of justice under this definition. Like accessory after the fact

under § 3, which we held in Batista-Hernandez qualifies as an offense

relating to obstruction of justice under the Act, 17 the respondent’s State

statute of conviction requires 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. 18 See

People v. Nuckles, 298 P.3d 867, 870 (Cal. 2013) (outlining the elements

of accessory to a felony under section 32). In other words, a violator must

have the specific intent to interfere either in an ongoing, pending,

or reasonably foreseeable investigation or proceeding, or in another’s

punishment resulting from a completed proceeding. 19

The respondent does not dispute that his State crime is one “for which the

term of imprisonment is at least one year” as required by section

101(a)(43)(S) of the Act. See Matter of Valenzuela Gallardo, 25 I&N Dec.

at 839 n.1. We therefore conclude that his conviction is categorically one for

an aggravated felony offense relating to obstruction of justice that renders

him removable under section 237(a)(2)(A)(iii) of the Act. Accordingly, the

respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.

16

Unlike § 4, contempt of court under 18 U.S.C. § 401(3) and failure to appear under

18 U.S.C. § 3146 satisfy the elements of our clarified definition because they require that

one act with the specific intent to interfere in an ongoing proceeding. See Renteria-Morales,

551 F.3d at 1087; Alwan, 388 F.3d at 514.

17

Because § 3 satisfies the elements of our clarified definition, we reaffirm our holding in

Batista-Hernandez that it is an aggravated felony under 101(a)(43)(S).

18

In fact, the respondent’s State statute of conviction proscribes a narrower range of

conduct than § 3 because the former only reaches those who aid a felon, while the latter

reaches aiding a principal who has committed “any offense” against the United States,

including a misdemeanor. United States v. Chapman, 3 F. Supp. 900, 903 (S.D. Ala. 1931)

(analyzing the predecessor to § 3).

19

In Nuckles, 298 P.3d at 869, the California Supreme Court concluded that “a person

who intentionally aids a parolee in absconding from parole supervision qualifies as an

accessory” under section 32. Therefore, § 3 and section 32 reach offenses involving

interference in another’s punishment resulting from a completed proceeding. See Matter

of Batista-Hernandez, 21 I&N Dec. at 962; see also Hobson, 519 F.2d at 769.

461