Pugin v. Garland

(Slip Opinion) OCTOBER TERM, 2022 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

PUGIN v. GARLAND, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 22–23. Argued April 17, 2023—Decided June 22, 2023*

In two immigration proceedings, noncitizens Fernando Cordero-Garcia

and Jean Francois Pugin were determined removable from the United

States on the ground that they had convictions for aggravated felo-

nies—namely, offenses “relating to obstruction of justice.” See 8

U. S. C. §§1101(a)(43)(S), 1227(a)(2)(A)(iii). On appeal, the Ninth Cir-

cuit concluded that Cordero-Garcia’s state conviction for dissuading a

witness from reporting a crime did not constitute an offense “relating

to obstruction of justice” because the state offense did not require that

an investigation or proceeding be pending. By contrast, the Fourth

Circuit concluded that Pugin’s state conviction for accessory after the

fact constituted an offense “relating to obstruction of justice” even if

the state offense did not require that an investigation or proceeding be

pending.

Held: An offense may “relat[e] to obstruction of justice” under

§1101(a)(43)(S) even if the offense does not require that an investiga-

tion or proceeding be pending. Federal law provides that noncitizens

convicted of a federal or state crime constituting an “aggravated fel-

ony” are removable from the United States. §1227(a)(2)(A)(iii). Con-

gress expanded the definition of “aggravated felony” in 1996 to include

offenses “relating to obstruction of justice.” §1101(a)(43)(S). Diction-

ary definitions, federal laws, state laws, and the Model Penal Code

show that federal or state obstruction offenses “relat[e] to obstruction

of justice” under §1101(a)(43)(S) even if the offense does not require

that an investigation or proceeding be pending. This extensive body of

——————

* Together with No. 22–331, Garland, Attorney General v. Cordero-

Garcia, aka Cordero, on certiorari to the United States Court of Appeals

for the Ninth Circuit.

2 PUGIN v. GARLAND

Syllabus

authority reflects common sense. Individuals can obstruct the process

of justice even when an investigation or proceeding is not pending. In-

deed, obstruction of justice is often “most effective” when it prevents

“an investigation or proceeding from commencing in the first place.”

Brief for Attorney General 15. The Court declines to adopt an inter-

pretation of the statute that would exclude many common obstruction

offenses from the definition of aggravated felony under

§1101(a)(43)(S). Finally, the phrase “relating to” resolves any doubt

about the scope of §1101(a)(43)(S), because it ensures that the statute

covers offenses having a connection with obstruction of justice—which

surely covers common obstruction offenses that can occur when an in-

vestigation or proceeding is not pending.

Pugin’s and Cordero-Garcia’s contrary arguments lack merit. First,

even if a specific prohibition in 18 U. S. C. §1503(a) requires that an

investigation or proceeding be pending, Congress defined offenses un-

der §1101(a)(43)(S) more broadly. Second, the historical record does

not support the claim that obstruction of justice requires that an in-

vestigation or proceeding be pending. Third, reading §1101(a)(43)(S)

to cover offenses that do not require a pending investigation or pro-

ceeding may create some redundancy, but the better overall reading of

a statute sometimes contains some redundancy. Fourth, resort to the

rule of lenity has no place here because the traditional tools of statu-

tory interpretation show that an offense “relating to obstruction of jus-

tice” does not require that an investigation or proceeding be pending.

Pp. 3–10.

No. 22–23, 19 F. 4th 437, affirmed; No. 22–331, 44 F. 4th 1181, reversed

and remanded.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, ALITO, BARRETT, and JACKSON, JJ., joined. JACKSON,

J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion,

in which GORSUCH, J., joined, and in which KAGAN, J., joined as to all but

Part III.

Cite as: 599 U. S. ____ (2023) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

United States Reports. Readers are requested to notify the Reporter of

Decisions, Supreme Court of the United States, Washington, D. C. 20543,

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SUPREME COURT OF THE UNITED STATES

_________________

Nos. 22–23 and 22–331

_________________

JEAN FRANCOIS PUGIN, PETITIONER

22–23 v.

MERRICK B. GARLAND, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

MERRICK B. GARLAND, ATTORNEY GENERAL,

PETITIONER

22–331 v.

FERNANDO CORDERO-GARCIA, AKA FERNANDO

CORDERO

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 22, 2023]

JUSTICE KAVANAUGH delivered the opinion of the Court.

Federal law provides that noncitizens convicted of an

“aggravated felony” are removable from the United States.

The definition of “aggravated felony” includes federal or

state offenses “relating to obstruction of justice.” 8 U. S. C.

§1101(a)(43)(S). The question here is whether an offense

“relat[es] to obstruction of justice” under §1101(a)(43)(S)

even if the offense does not require that an investigation or

proceeding be pending. That question arises because some

obstruction offenses can occur when an investigation or

proceeding is not pending, such as threatening a witness to

prevent the witness from reporting a crime to the police.

2 PUGIN v. GARLAND

Opinion of the Court

We conclude that an offense may “relat[e] to obstruction of

justice” under §1101(a)(43)(S) even if the offense does not

require that an investigation or proceeding be pending.

I

This case stems from two immigration proceedings.

Fernando Cordero-Garcia is a citizen of Mexico. In 2009,

Cordero-Garcia was convicted of several California

offenses, including dissuading a witness from reporting a

crime. Jean Francois Pugin is a citizen of Mauritius. In

2014, Pugin was convicted of the Virginia offense of being

an accessory after the fact to a felony.

As relevant here, the U. S. Department of Homeland

Security charged both Cordero-Garcia and Pugin as

removable from the United States on the ground that they

had convictions for aggravated felonies—namely, offenses

“relating to obstruction of justice.” See 8 U. S. C.

§§1101(a)(43)(S), 1227(a)(2)(A)(iii). In both cases, an

Immigration Judge ruled for the Department, as did the

Board of Immigration Appeals.

Cordero-Garcia and Pugin petitioned for review in the

relevant Courts of Appeals. In Cordero-Garcia’s case, the

Ninth Circuit concluded, in pertinent part, that his state

conviction for dissuading a witness from reporting a crime

did not constitute an offense “relating to obstruction of

justice” because the state offense did not require that an

investigation or proceeding be pending. 44 F. 4th 1181,

1188–1189 (2022). In Pugin’s case, by contrast, the Fourth

Circuit concluded that his state conviction for accessory

after the fact constituted an offense “relating to obstruction

of justice” even if the state offense did not require that an

investigation or proceeding be pending. 19 F. 4th 437, 450

(2021); see also Silva v. Garland, 27 F. 4th 95, 98 (CA1

2022).

This Court granted certiorari to resolve the conflict in the

Courts of Appeals. 598 U. S. ___ (2023).

Cite as: 599 U. S. ____ (2023) 3

Opinion of the Court

II

Under the Immigration and Nationality Act, noncitizens

convicted of an “aggravated felony” are removable from the

United States. 8 U. S. C. §1227(a)(2)(A)(iii). The Act

defines “aggravated felony” to cover a broad range of federal

and state crimes. See §1101(a)(43).

In 1996, Congress passed and President Clinton signed

legislation that expanded the definition of “aggravated

felony” to include offenses “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.”

§1101(a)(43)(S); 110 Stat. 1278; id., at 3009–628.

This Court has generally used the “categorical approach”

to determine whether a prior conviction qualifies as an

“aggravated felony” under §1101(a)(43). Esquivel-

Quintana v. Sessions, 581 U. S. 385, 389 (2017); Moncrieffe

v. Holder, 569 U. S. 184, 190 (2013). Under that approach,

courts look to “the elements of the statute of conviction, not

to the facts of each defendant’s conduct.” Taylor v. United

States, 495 U. S. 575, 601 (1990). The Court’s role here is

not to fashion a separate federal obstruction offense, but

rather to determine which federal or state offenses “relat[e]

to obstruction of justice.”

The question in this case is whether an offense “relat[es]

to obstruction of justice” under §1101(a)(43)(S) even if the

offense does not require that an investigation or proceeding

be pending. Dictionary definitions, federal laws, state laws,

and the Model Penal Code show that the answer is yes: An

offense “relat[es] to obstruction of justice” even if the offense

does not require that an investigation or proceeding be

pending.

To begin, dictionaries from the time of §1101(a)(43)(S)’s

enactment in 1996 demonstrate that obstruction of justice

generally does not require a pending investigation or

proceeding. To take an illustrative formulation, obstruction

of justice covers “the crime or act of willfully interfering

4 PUGIN v. GARLAND

Opinion of the Court

with the process of justice and law,” including “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). The offense “captures every

willful act of corruption, intimidation, or force that tends

somehow to impair the machinery of the civil or criminal

law.” B. Garner, A Dictionary of Modern Legal Usage 611

(2d ed. 1995); see also Black’s Law Dictionary 1077 (6th ed.

1990) (“obstructing the administration of justice in any

way”); cf. Esquivel-Quintana, 581 U. S., at 391–392 (relying

on same dictionaries to interpret a different offense in

§1101(a)(43)).

Notably missing from those dictionary definitions is a

requirement that an investigation or proceeding be

pending. The dictionaries demonstrate that obstruction of

justice includes offenses where an investigation or

proceeding is pending, but is not limited to offenses where

an investigation or proceeding is pending.

In accord with the dictionary definitions, Title 18 of the

U. S. Code has long proscribed various obstruction offenses

that do not require a pending investigation or proceeding.

Entitled “Obstruction of Justice,” Chapter 73 of Title 18

houses many such offenses. For example, the federal

witness tampering statute covers various offenses, such as

killing or threatening a witness with an intent to prevent

the person from testifying at an official proceeding. See 18

U. S. C. §§1512(a)(1)(A), (b)(1). That statute provides that

“an official proceeding need not be pending or about to be

instituted at the time of the offense.” §1512(f )(1). Likewise,

§1519 forbids assorted means of destroying, altering, or

falsifying records with an intent to obstruct certain

investigations or proceedings. That provision covers acts

intended to impede a federal investigation or proceeding,

“including one not even on the verge of commencement.”

Cite as: 599 U. S. ____ (2023) 5

Opinion of the Court

Yates v. United States, 574 U. S. 528, 547 (2015) (plurality

opinion); see also 18 U. S. C. §1518 (proscribing acts to

obstruct the communication of certain information to

criminal investigators). 1

The Solicitor General explains that many state

obstruction offenses as of 1996 similarly did not require

that an investigation or proceeding be pending. See, e.g.,

Fla. Stat. §914.22(3)(a) (1997); N. D. Cent. Code Ann.

§12.1–09–01(3)(c) (1997); State v. O’Neill, 165 Vt. 270, 682

A. 2d 943 (1996); Brief for Attorney General 36–43

(collecting statutes); see also Commonwealth v. Berry, 141

Ky. 477, 481, 133 S. W. 212, 213 (1911); cf. Esquivel-

Quintana, 581 U. S., at 395–397 (looking to state statutes).

Some States did not label the relevant offenses as

“obstruction of justice,” but instead labeled the offenses

with a more precise term for the particular category of

obstruction at issue, such as witness tampering. But

Congress accounted for the variations in labels by crafting

the relevant definition in §1101(a)(43)(S) to cover offenses

“relating to obstruction of justice,” not just offenses labeled

as “obstruction of justice.” In any event, the terminology

that States use to categorize criminal offenses is not

dispositive because our inquiry here does not turn on

“technical definitions and labels under state law.” Taylor,

495 U. S., at 590.

For obstruction offenses, the Model Penal Code also

generally does not require that an investigation or

——————

1 To be sure, one of those offenses—18 U. S. C. §1519—was enacted

after the passage of §1101(a)(43)(S) in its current form in 1996. But

§1519, too, reflects the longstanding ordinary understanding of

obstruction of justice—and no one here suggests that the ordinary

understanding in the years after 1996 somehow differed from the

ordinary understanding in 1996. See Branch v. Smith, 538 U. S. 254,

281 (2003) (plurality opinion of Scalia, J.) (“the most rudimentary rule of

statutory construction” is “that courts do not interpret statutes in

isolation, but in the context of the corpus juris of which they are a part,

including later-enacted statutes”).

6 PUGIN v. GARLAND

Opinion of the Court

proceeding be pending. See generally ALI, Model Penal

Code §240.0(4), p. 3 (1980) (“ ‘official proceeding[s]’ ” include

those which “may be heard”). For witness tampering, for

example, the Model Penal Code focuses on an actor’s intent

to tamper with a witness, not whether an investigation or

proceeding is pending. See id., §241.6, Comment 2, at 166–

167 (“What is important is not that the actor believe that

an official proceeding or investigation will begin within a

certain span of time but rather that he recognize that his

conduct threatens obstruction of justice”).

That extensive body of authority—dictionaries, federal

laws, state laws, and the Model Penal Code—reflects

common sense. Individuals can obstruct the process of

justice even when an investigation or proceeding is not

pending. For example, a murderer may threaten to kill a

witness if the witness reports information to the police.

Such an act is no less obstructive merely because the

government has yet to catch on and begin an investigation.

As the Solicitor General persuasively states, one can

obstruct the wheels of justice even before the wheels have

begun to move; indeed, obstruction of justice is often “most

effective” when it prevents “an investigation or proceeding

from commencing in the first place.” Brief for Attorney

General 15.

Importantly, if an offense “relating to obstruction of

justice” under §1101(a)(43)(S) required that an

investigation or proceeding be pending, then many common

obstruction offenses would not qualify as aggravated

felonies under that provision. We decline to interpret

§1101(a)(43)(S) to exclude numerous heartland obstruction

offenses. “We should not lightly conclude that Congress

enacted a self-defeating statute.” Quarles v. United States,

587 U. S. ___, ___ (2019) (slip op., at 8); see also, e.g.,

Stokeling v. United States, 586 U. S. ___, ___–___ (2019)

(slip op., at 7–8); Esquivel-Quintana, 581 U. S., at 395;

Voisine v. United States, 579 U. S. 686, 695–696 (2016).

Cite as: 599 U. S. ____ (2023) 7

Opinion of the Court

One final point bears emphasis: To the extent any doubt

remains about whether §1101(a)(43)(S) requires that an

investigation or proceeding be pending, the phrase “relating

to obstruction of justice” resolves the doubt. Cf. Mellouli v.

Lynch, 575 U. S. 798, 811–812, n. 11 (2015). The phrase

“relating to” ensures that this statute covers offenses that

have “a connection with” obstruction of justice—which

surely covers common obstruction offenses that can occur

when an investigation or proceeding is not pending.

Coventry Health Care of Mo., Inc. v. Nevils, 581 U. S. 87, 96

(2017) (internal quotation marks omitted). By contrast, in

defining certain other aggravated felonies in this statute,

Congress did not employ the broad phrase “relating to.”

See, e.g., 8 U. S. C. §1101(a)(43)(A) (“murder, rape, or

sexual abuse of a minor”).

For all of those reasons, an offense “relating to

obstruction of justice” under §1101(a)(43)(S) does not

require that an investigation or proceeding be pending. 2

——————

2 As interpreted by this Court, a few obstruction statutes require that

an investigation or proceeding be reasonably foreseeable. See, e.g.,

Marinello v. United States, 584 U. S. ___, ___ (2018) (slip op., at 11).

Those decisions interpreted specific statutory language and did not rule

that obstruction offenses in general have a foreseeability requirement

(which would have been incorrect, in any event). Moreover, the Solicitor

General explains that offenses “relating to obstruction of justice” require

an intent to interfere with the legal process. See Tr. of Oral Arg. 6–8, 18,

116–117; Brief for Attorney General 23. That mens rea requirement

targets the same basic overbreadth concern as a foreseeability

requirement and ensures that §1101(a)(43)(S) will not sweep in offenses

that are not properly understood as offenses “relating to obstruction of

justice.” For example, the Solicitor General concedes that federal

misprision of felony is not an offense “relating to obstruction of justice”

because, in the Government’s view, the crime does not require an intent

to interfere with the legal process. See 18 U. S. C. §4; Reply Brief for

Attorney General 26–27. In short, we see no justification for engrafting

a separate foreseeability requirement onto the broad and general

language of §1101(a)(43)(S).

8 PUGIN v. GARLAND

Opinion of the Court

III

Pugin and Cordero-Garcia offer four main arguments in

response. None is persuasive.

First, Pugin and Cordero-Garcia point to 18 U. S. C.

§1503(a), which among other things prohibits persons from

endeavoring “to influence, obstruct, or impede” the “due

administration of justice.” According to Pugin and Cordero-

Garcia, that specific prohibition requires that an

investigation or proceeding be pending. Cf. Pettibone v.

United States, 148 U. S. 197, 207 (1893). But even if they

are correct about that point, §1503(a) is only one

obstruction offense among the many obstruction offenses in

Title 18. And many federal obstruction offenses—like many

state obstruction offenses—proscribe obstruction when an

investigation or proceeding is not pending. Moreover, if

Congress wanted to define offenses “relating to obstruction

of justice” to have the same coverage as §1503(a), Congress

knew how to do so: Congress could have cross-referenced

§1503(a) in §1101(a)(43)(S) in the same way that Congress

cross-referenced numerous other statutes in §1101(a)(43).

See, e.g., §§1101(a)(43)(B)–(F). But Congress included no

such cross-reference to §1503(a) in §1101(a)(43)(S).

Second, Pugin and Cordero-Garcia cite a few authorities

from the 1700s and 1800s and assert that obstruction of

justice historically required that an investigation or

proceeding be pending. But the historical record cited by

Pugin and Cordero-Garcia does not back up their broad

claim. See, e.g., 4 W. Blackstone, Commentaries on the

Laws of England 126 (1769) (explaining without

qualification that endeavoring “to dissuade a witness from

giving evidence” was an “impedimen[t] of justice”). More to

the point, as we have explained at length, the widespread

and contemporary understanding of obstruction of justice

at the time Congress enacted §1101(a)(43)(S) in 1996 did

not require that an investigation or proceeding be pending.

Cf. Taylor v. United States, 495 U. S. 575, 593 (1990).

Cite as: 599 U. S. ____ (2023) 9

Opinion of the Court

Third, Pugin and Cordero-Garcia argue that offenses

“relating to obstruction of justice” require a pending

investigation or proceeding; otherwise, they maintain that

those offenses would be redundant with other offenses

covered by §1101(a)(43)(S)—in particular, offenses

“relating to . . . perjury or subornation of perjury, or bribery

of a witness.” But Pugin and Cordero-Garcia fail to explain

how requiring a pending investigation or proceeding for

obstruction offenses would resolve the claimed

redundancies with perjury or bribery offenses. After all,

perjury and bribery offenses often “relat[e] to obstruction of

justice.” In any event, “redundancies are common in

statutory drafting—sometimes in a congressional effort to

be doubly sure, sometimes because of congressional

inadvertence or lack of foresight, or sometimes simply

because of the shortcomings of human communication.”

Barton v. Barr, 590 U. S. ___, ___ (2020) (slip op., at 16). As

a result, “the better overall reading of the statute”

sometimes “contains some redundancy.” Ibid.; Atlantic

Richfield Co. v. Christian, 590 U. S. ___, ___, n. 5 (2020)

(slip op., at 10, n. 5); Rimini Street, Inc. v. Oracle USA, Inc.,

586 U. S. ___, ___ (2019) (slip op., at 11). Section

1101(a)(43) illustrates the point: Congress listed a large

number of offenses that would qualify as aggravated

felonies, likely to avoid unintended gaps. So it is not

surprising to find some overlap. To take one example, the

definition of “aggravated felony” covers “murder, rape, or

sexual abuse of a minor” and separately covers “crime[s] of

violence.” §§1101(a)(43)(A), (F). 3

——————

3 The same point applies to §1101(a)(15)(U)(iii), which lists both

“obstruction of justice” and “witness tampering.” Neither Pugin nor

Cordero-Garcia cites that provision—presumably because the provision

appears in a different part of the statute and contains different language.

Moreover, Congress took the same belt-and-suspenders approach in

§1101(a)(15)(U)(iii) that it did in §1101(a)(43). See §1101(a)(15)(U)(iii)

(covering among other things “being held hostage; peonage; involuntary

10 PUGIN v. GARLAND

Opinion of the Court

Fourth, Pugin and Cordero-Garcia invoke the rule of

lenity. But even assuming that the rule of lenity can be

invoked in this particular civil immigration context, the

rule applies only if “after seizing everything from which aid

can be derived,” there remains “grievous ambiguity.”

Ocasio v. United States, 578 U. S. 282, 295, n. 8 (2016)

(internal quotation marks omitted). Here, applying the

traditional tools of statutory interpretation, we have

concluded that an offense “relating to obstruction of justice”

does not require that an investigation or proceeding be

pending. So we have no basis for resorting to the rule of

lenity. See, e.g., Shaw v. United States, 580 U. S. 63, 71

(2016); Salman v. United States, 580 U. S. 39, 51 (2016);

Abramski v. United States, 573 U. S. 169, 188, n. 10 (2014);

cf. Kawashima v. Holder, 565 U. S. 478, 489 (2012).

* * *

In sum, we conclude that an offense “relating to

obstruction of justice” under §1101(a)(43)(S) does not

require that an investigation or proceeding be pending. We

therefore disagree with the argument raised by Pugin and

Cordero-Garcia for excluding their obstruction offenses

from the broad coverage of §1101(a)(43)(S). We affirm the

judgment of the U. S. Court of Appeals for the Fourth

Circuit. We reverse the judgment of the U. S. Court of

Appeals for the Ninth Circuit and remand the case for

further proceedings consistent with this opinion.

It is so ordered.

——————

servitude; slave trade; kidnapping; abduction; unlawful criminal

restraint; false imprisonment” as well as “any similar activity in

violation of Federal, State, or local criminal law”).

Cite as: 599 U. S. ____ (2023) 1

JACKSON, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 22–23 and 22–331

_________________

JEAN FRANCOIS PUGIN, PETITIONER

22–23 v.

MERRICK B. GARLAND, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

MERRICK B. GARLAND, ATTORNEY GENERAL,

PETITIONER

22–331 v.

FERNANDO CORDERO-GARCIA, AKA FERNANDO

CORDERO

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 22, 2023]

JUSTICE JACKSON, concurring.

I agree with the Court that the Ninth Circuit wrongly em-

braced a pending-proceeding requirement when it assessed

what types of prior offenses qualify as “offense[s] relating

to obstruction of justice” under 8 U. S. C. §1101(a)(43)(S),

for purposes of determining the “aggravated felon[ies]” that

render noncitizens deportable, §1227(a)(2)(A)(iii). This

means, of course, that I also agree with the Court’s conclu-

sion that the Fourth Circuit rightly rejected any such pend-

ing-proceeding requirement.

I write separately to highlight one (possibly sufficient)

reason why a predicate offense need not have a nexus to a

pending or ongoing investigation or judicial proceeding in

order to qualify as “an offense relating to obstruction of jus-

tice” within the meaning of this immigration statute. The

2 PUGIN v. GARLAND

JACKSON, J., concurring

reason is that, when Congress inserted the phrase “offense

relating to obstruction of justice” into §1101(a)(43)(S), it

might well have been referencing a specific and previously

designated category of offenses—the offenses that are

grouped together in Chapter 73 of Title 18 of the U. S. Code,

under the heading “Obstruction of Justice.” 62 Stat. 769,

codified at 18 U. S. C. §1501 et seq. And not all of the of-

fenses that are addressed in Chapter 73 contain a pending-

proceeding requirement.

* * *

What counts as “an offense relating to obstruction of jus-

tice” within the meaning of §1101(a)(43)(S) is nothing more,

or less, than what Congress intended that phrase to mean

when it enacted that statute. The Immigration and Nation-

ality Act (INA) “does not expressly define” the phrase, so we

apply the “normal tools of statutory interpretation” to “ ‘see

what Congress probably meant’ ” by it. Esquivel-Quintana

v. Sessions, 581 U. S. 385, 391 (2017) (quoting Lopez v. Gon-

zales, 549 U. S. 47, 53 (2006)). In my view, our job in this

regard is a limited one: We are called upon to understand

and implement whatever Congress meant by that una-

dorned phrase.

When Congress selected the words “offense relating to ob-

struction of justice” and inserted them into the INA in 1996,

110 Stat. 1277–1278, Congress’s longest standing and most

significant use of the phrase “obstruction of justice” in the

Statutes at Large was its description of Chapter 73 of Title

18 as concerning “obstruction of justice.” 62 Stat. 769; see

also 104 Stat. 4861 (describing Chapter 73 as “relating to

obstruction of justice” when adding an offense to that Chap-

ter in 1990). To me, this is a powerful contextual clue that

Congress may have simply—and solely—been drawing on

its own existing understanding of which particular offenses

are properly characterized as such. Accord, Flores v. Attor-

ney General, 856 F. 3d 280, 287–289 (CA3 2017) (refusing

Cite as: 599 U. S. ____ (2023) 3

JACKSON, J., concurring

to “look beyond Chapter 73” to “determine whether an al-

ien’s prior offense ‘relat[es] to obstruction of justice’ ” be-

cause §1101(a)(43)(S)’s “text . . . indicates Congress’s inten-

tion to reference Chapter 73”). In deciding the cases before

us, I would not want to rule out (even inadvertently) the

possibility that Chapter 73 is Congress’s actual benchmark

with respect to what qualifies as an “offense relating to ob-

struction of justice” for §1101(a)(43)(S) purposes, rather

than just a mere clue to some platonic, judicially divined

meaning of Congress’s chosen words.

I believe that hewing closely to Congress’s will in this re-

gard is especially important where (as here) making the de-

termination of which offenses qualify implicates the “dras-

tic” deportation sanction. Jordan v. De George, 341 U. S.

223, 231 (1951). In our constitutional system, the Legisla-

ture makes legal policy judgments regarding the particular

circumstances that trigger the consequences that are asso-

ciated with criminal convictions. Accord, United States v.

Lanier, 520 U. S. 259, 265, and n. 5 (1997). And it seems at

least plausible that Congress’s description of certain “ag-

gravated felon[ies],” §1227(a)(2)(A)(iii), as “offense[s] relat-

ing to obstruction of justice,” §1101(a)(43)(S), may embody

its judgment to peg that subset of aggravated felonies to

Chapter 73, not an intent to leave the category without form

for future judicial refinement. Of course, if Congress has

already thus decided which obstruction-related convictions

so trigger the INA’s aggravated-felony provision, this Court

need not, and indeed should not, cobble together a “generic”

offense definition from nonstatutory sources (which risks

sweeping in offenses that Congress did not mean to cap-

ture).

Here, the Court correctly emphasizes Chapter 73’s im-

portance in the course of analyzing whether a possible pred-

icate offense must have a nexus to a pending proceeding in

order to qualify as an aggravated felony. Ante, at 4. But

these parties have not fully ventilated the arguments for

4 PUGIN v. GARLAND

JACKSON, J., concurring

and against the possibility that Chapter 73 might define (in

substance) the universe of offenses that “relat[e] to obstruc-

tion of justice,” §1101(a)(43)(S), as Congress meant that

phrase to be interpreted. Nor would running that issue to

ground here change the outcome.* As the Court notes, mul-

tiple Chapter 73 offenses require no pending proceeding.

§1512(f ); see also 102 Stat. 4397–4398 (1988 Congress de-

scribing an amendment to §1512 as an “obstruction of jus-

tice amendmen[t]” (boldface deleted)). That suffices to re-

solve the question before us even under a Chapter 73-

focused approach. The issue of whether such an approach

best tracks Congress’s intent can be reserved for future con-

sideration in a case where the parties joust in earnest on

the question.

——————

*Before this Court, Pugin did not root his arguments in the Chapter

73-focused paradigm that I sketch here. I agree with the Court that the

arguments he did make do not require reversing the Fourth Circuit.

Cite as: 599 U. S. ____ (2023) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 22–23 and 22–331

_________________

JEAN FRANCOIS PUGIN, PETITIONER

22–23 v.

MERRICK B. GARLAND, ATTORNEY GENERAL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

MERRICK B. GARLAND, ATTORNEY GENERAL,

PETITIONER

22–331 v.

FERNANDO CORDERO-GARCIA, AKA FERNANDO

CORDERO

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 22, 2023]

JUSTICE SOTOMAYOR, with whom JUSTICE GORSUCH

joins, and with whom JUSTICE KAGAN joins as to all but

Part III, dissenting.

From early American laws, to dictionaries, to modern fed-

eral and state obstruction statutes, interference with an on-

going investigation or proceeding is at the core of what it

means to be “an offense relating to obstruction of justice,” 8

U. S. C. §1101(a)(43)(S). The Court circumvents this ample

evidence only by casting a wide net and then throwing back

all but the bycatch. That approach “turns the categorical

approach on its head,” Esquivel-Quintana v. Sessions, 581

U. S. 385, 393 (2017), and subverts the commonly under-

stood meaning of “obstruction of justice” when Congress en-

acted §1101(a)(43)(S) in 1996. I respectfully dissent.

2 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

I

The Immigration and Nationality Act (INA) defines “ag-

gravated felony” by enumerating a long list of offenses.

§1101(a)(43). Some are federal criminal offenses, but oth-

ers are undefined generic offenses, such as “burglary,”

§1101(a)(43)(G), and “obstruction of justice,” §1101(a)

(43)(S), which is relevant here.

To assess whether someone’s conviction is covered by a

generic offense, our precedents dictate that courts use the

“categorical approach.” Esquivel-Quintana, 581 U. S., at

389. That approach disregards facts about the conviction

and instead “compare[s] the elements of the statute forming

the basis of the defendant’s conviction with the elements of

the ‘generic’ crime—i.e., the offense as commonly under-

stood.” Descamps v. United States, 570 U. S. 254, 257

(2013). If the elements of the underlying crime of conviction

are narrower than or the same as the elements of the ge-

neric offense, then there is a “categorical match,” Moncrieffe

v. Holder, 569 U. S. 184, 190 (2013), and the underlying of-

fense is an aggravated felony. If there is no categorical

match, then the conviction is not an aggravated felony, no

matter the underlying facts.

Before a court can engage in this categorical comparison,

however, it must discern the “basic elements” of the rele-

vant “generic” offense. Taylor v. United States, 495 U. S.

575, 599 (1990). Courts accomplish this task by looking for

“evidence about the generic meaning” of the offense at the

time of the statute’s enactment. Esquivel-Quintana, 581

U. S., at 395. This means looking for the “generally ac-

cepted contemporary meaning” of the generic offense, while

setting aside more unusual “nongeneric” variants that are

“defin[ed] . . . more broadly.” Taylor, 495 U. S., at 596, 599.

In Taylor, for example, this Court concluded, after survey-

ing various sources of meaning, that for purposes of 18

U. S. C. §924(e), “generic burglary” encompasses any crime

Cite as: 599 U. S. ____ (2023) 3

SOTOMAYOR, J., dissenting

“having the basic elements of unlawful or unprivileged en-

try into, or remaining in, a building or structure, with in-

tent to commit a crime.” 495 U. S., at 599. In reaching that

conclusion, the Court purposefully excluded burglary con-

victions in a handful of States that “defin[ed] burglary more

broadly” by “eliminating the requirement that the entry be

unlawful, or by including places, such as automobiles and

vending machines, other than buildings.” Ibid. Expanding

the definition to include those statutes would have strayed

too far from “the generic definition of bribery . . . intended

by Congress.” Id., at 595 (internal quotation marks omit-

ted).

The question presented in these cases—whether “an of-

fense relating to obstruction of justice,” 8 U. S. C. §1101(a)

(43)(S), necessarily involves a pending investigation or pro-

ceeding—is a question about the “basic elements” of “ge-

neric” obstruction of justice. Taylor, 495 U. S., at 599. That

is, it is a question about how obstruction of justice was

“commonly understood,” Descamps, 570 U. S., at 257, in

1996 when Congress enacted §1101(a)(43)(S). Answering

that question requires focusing on the core, “generally ac-

cepted contemporary meaning,” Taylor, 495 U. S., at 596, of

obstruction of justice, rather than on more unusual “nonge-

neric” variants that are “define[d] . . . more broadly,” id., at

599.

The Court loses sight of this fundamental point. Instead

of focusing on whether a pending investigation or proceed-

ing is part of the heartland of obstruction of justice, it wan-

ders off into an array of obstruction-adjacent federal and

state laws that do not require a pending investigation or

proceeding. The Court then announces that those offenses

are core obstruction of justice, even though the evidence it

relies on, taken as a whole, reveals they are not. The result

is predictable. By defining offenses that do not require a

pending investigation or proceeding as core obstruction of

justice, the majority forces through the conclusion that a

4 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

pending investigation or proceeding is not required to qual-

ify as generic obstruction of justice.

A reexamination of the sources relied upon by the major-

ity, with the appropriate focus on discerning the trunk of

obstruction of justice, rather than its various branches or

offshoots, leads to the opposite result: To qualify as “an of-

fense relating to obstruction of justice” under §1101(a)

(43)(S), a predicate offense must require a pending investi-

gation or proceeding.

A

As an initial matter, the majority glosses over the critical

fact that “obstruction of justice” was an established term of

art at the time of §1101(a)(43)(S)’s enactment in 1996. This

is a major first misstep because “[w]here Congress employs

a term of art obviously transplanted from another legal

source, it brings the old soil with it.” George v. McDonough,

596 U. S. ___, ___ (2022) (slip op., at 5) (internal quotation

marks omitted).

From the “old soil” until today, “obstruction of justice” has

required a pending investigation or proceeding. In 1831,

Congress forbade efforts “to influence, intimidate, or im-

pede any juror, witness, or officer, in any court of the United

States, in the discharge of his duty” or “to obstruct or im-

pede, the due administration of justice therein.” Act of Mar.

2, 1831, ch. 99, 4 Stat. 488 (emphasis added). This provi-

sion, which became §5399 of the Revised Statutes, see Rev.

Stat., Title 70, ch. 4, §5399 (1875), laid “the foundation for

the modern statutory incarnation of the offense of obstruc-

tion of justice.” E. Murphy, Manufacturing Crime: Process,

Pretext, and Criminal Justice, 97 Geo. L. J. 1435, 1473

(2009).

In Pettibone v. United States, 148 U. S. 197 (1893), this

Court confirmed that §5399 required a pending proceeding.

After describing the law as criminalizing “obstruction of the

due administration of justice in any court of the United

Cite as: 599 U. S. ____ (2023) 5

SOTOMAYOR, J., dissenting

States,” the Court explained that “such obstruction can only

arise when justice is being administered.” Id., at 207. “Un-

less that fact exists, the statutory offense cannot be com-

mitted.” Ibid. The Court thus tied obstruction of justice

under §5399 to “the pendency of proceedings in the United

States court, or the progress of the administration of justice

therein.” Id., at 205.

Section 5399 is the predecessor of the modern omnibus or

catchall obstruction of justice clause, which is codified at 18

U. S. C. §1503, and which prohibits endeavoring “to influ-

ence, obstruct, or impede, the due administration of jus-

tice.” In recognition of this through line, this Court held,

just a year before the enactment of §1101(a)(43)(S), that “a

person lacking knowledge of a pending proceeding” cannot

be convicted under §1503. United States v. Aguilar, 515

U. S. 593, 599 (1995) (citing Pettibone, 148 U. S., at 207).

Underscoring this point in his partial concurrence, Justice

Scalia explained that “an endeavor to obstruct proceedings

that did not exist would not violate the statute” because “ob-

struction can only arise when justice is being adminis-

tered.” 515 U. S., at 610, n. 1 (alteration and internal quo-

tation marks omitted).

Congress was aware of this settled interpretation of

§1503 when it added “obstruction of justice” to the INA’s list

of aggravated felonies. See Guerrero-Lasprilla v. Barr, 589

U. S. ___, ___ (2020) (slip op., at 10) (“We normally assume

that Congress is aware of relevant judicial precedent when

it enacts a new statute” (internal quotation marks omit-

ted)). In fact, by 1996 Congress had already demonstrated

that “relating to obstruction of justice” was understood to

capture §1503. Enacted in 1970, the Racketeer Influenced

and Corrupt Organizations Act (RICO) specifically lists as

a predicate offense “section 1503 (relating to obstruction of

justice).” 18 U. S. C. §1961(1). Moreover, this language,

just like the language at §1101(a)(43)(S), serves the purpose

of identifying one of a long list of underlying offenses to

6 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

which an overarching statute applies. Thus, by 1996, Con-

gress had used the same phrase for the same purpose to re-

fer to §1503. In fact, the INA’s list of aggravated felonies

explicitly cross-references RICO, suggesting Congress was

well aware of the parallel. See §1101(a)(43)(J) (INA listing

RICO violation as an aggravated felony). 1

In short, in searching for the heartland of obstruction of

justice, the omnibus clause of §1503 and the history from

which it is derived are invaluable touchstones. Neither

countenances an obstruction of justice offense separate

from a pending investigation or proceeding. 2

B

Even setting this crucial historical evidence aside, and

——————

1 The majority argues that if Congress had wanted offenses “relating

to obstruction of justice” to “have the same coverage as §1503(a),” then

Congress could have just “cross-referenced §1503(a) in §1101(a)(43)(S).”

Ante., at 8. This argument misses the point entirely. If Congress had

done that, then only persons convicted under §1503 would qualify. Con-

gress’s use of the generic “obstruction of justice,” however, clearly signals

that Congress wanted other state and federal offenses sharing the same

basic elements to be included as well. Section 1503 is a strong indicator

of the generic meaning of “obstruction of justice” in §1101(a)(43)(S), not

its equivalent.

2 Although the Court quotes Blackstone’s statement that “ ‘dis-

suad[ing] a witness from giving evidence’ ” was an “ ‘impedimen[t] of jus-

tice’ ” in support of its position, ante, at 8, Blackstone actually supports

this dissent. The Court ignores that in historical usage “giving evidence”

meant “testifying” at a proceeding. See, e.g., 3 W. Blackstone, Commen-

taries on the Laws of England 305 (1768) (“[E]very defence, which cannot

be thus specially pleaded, may be given in evidence, upon the general

issue at the trial”); 2 M. Hale, History of the Pleas of the Crown 280

(1736) (“If a reward be promised to a person for giving his evidence before

he gives it, this, if proved, disables his testimony”). The majority also

ignores that the Blackstone passage is discussing “[c]ontempts against

the king’s . . . courts of justice.” 4 Blackstone, Commentaries, at 124

(1769). This context confirms Blackstone is referring to impeding a wit-

ness from testifying at a proceeding, because otherwise it would not be a

contempt against the king’s courts.

Cite as: 599 U. S. ____ (2023) 7

SOTOMAYOR, J., dissenting

proceeding as the Court does, by looking to dictionary defi-

nitions, chapter 73 of the Federal Criminal Code, state stat-

utes, and the Model Penal Code, the same result emerges:

Core obstruction of justice requires a pending investigation

or proceeding.

1

Begin with the central dictionary definition upon which

the Court relies. It defines obstruction of justice as “the

crime or act of willfully interfering with the process of justice

and law esp. by influencing, threatening, harming, or im-

peding a witness, potential witness, juror, or judicial or le-

gal officer or by furnishing false information in or otherwise

impeding an investigation or legal process.” Merriam-Web-

ster’s Dictionary of Law 337 (1996) (emphasis added).

While the Court claims that this definition omits any re-

quirement of a pending investigation or proceeding, ante, at

4, the two italicized phrases say otherwise. “[I]nterference”

means the “act of meddling in or hampering an activity or

process,” Webster’s Third New International Dictionary

1178 (1993), while “impede” means “to interfere with or get

in the way of the progress of ” something or someone, id., at

1132. The definition is clear that the process that is med-

dled in, or interfered with, is the “process of justice and law”

or “an investigation or legal process.” 3

For the same reason, the majority is too hasty when it

asserts that the definition encompasses acts separate from

a pending investigation or proceeding. That definition ends

with the phrase “in . . . an investigation or legal process.”

——————

3 While it is possible to talk about interfering with or impeding a pro-

cess before it has even begun, those phrases more naturally connote an

effect on a process that is ongoing. For example, talk of interfering in a

hiring process strongly suggests that hiring-related activities are already

underway. Certainly where an upcoming hiring is not even foreseeable,

it would be unusual to talk of such inference. Yet, the majority does not

require even a foreseeable investigation or proceeding in order for there

to be obstruction of justice. See ante, at 7, n. 2.

8 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

Under the series-qualifier canon, that phrase is best read

to modify all listed verbs, especially because the definition

lists each action as an example of “the crime or act of will-

fully interfering with the process of justice and law.” See

Facebook, Inc. v. Duguid, 592 U. S. ___, ___ (2021) (slip op.,

at 5) (“[W]hen there is a straightforward, parallel construc-

tion that involves all nouns or verbs in a series, a modifier

at the end of the list normally applies to the entire series”

(internal quotation marks omitted)). Thus, far from favor-

ing the majority’s view, the definition most naturally sup-

ports the conclusion that interference with a pending inves-

tigation or proceeding is an element of generic obstruction

of justice.

The other dictionary definitions upon which the Court re-

lies similarly indicate the need for a pending investigation

or proceeding. The majority notes that Black’s Law Diction-

ary defines obstruction of justice to cover “ ‘obstructing the

administration of justice in any way,’ ” ante, at 4, but over-

looks the fact that “administration of justice,” both histori-

cally and currently, refers to court proceedings. See, e.g., 1

J. Kent, Commentaries on American Law *290 (“[T]he judi-

ciary power is intrusted with the administration of justice”);

Black’s Law Dictionary 53 (10th ed. 2014) (defining “due

administration of justice” as “[t]he proper functioning and

integrity of a court or other tribunal and the proceedings

before it”). Similarly, the full definition from A Dictionary

of Modern Legal Usage mentions “interference with the or-

derly administration of law.” B. Garner, p. 611 (2d ed.

1995). The cited definitions thus all weigh against the ma-

jority’s sweeping view, and in favor of the view that obstruc-

tion of justice “can only arise when justice is being admin-

istered.” Pettibone, 148 U. S., at 207.

2

The federal offenses listed in chapter 73 of Title 18, which

is entitled “Obstruction of Justice,” provide further support

Cite as: 599 U. S. ____ (2023) 9

SOTOMAYOR, J., dissenting

for the conclusion that core obstruction of justice requires

the administration of justice.

When Congress codified chapter 73 in 1948, the chapter

contained six provisions, each of which requires a connec-

tion to a pending proceeding or investigation. See Act of

June 25, 1948, §§1501–1506, 62 Stat. 769–770. The central

provision is §1503, with its omnibus or catchall prohibition

against endeavoring “to influence, obstruct, or impede, the

due administration of justice.” As already explained, supra,

at 5, it is undisputed that §1503’s omnibus clause requires

a pending proceeding. The same is true for the other five

provisions, all of which either refer to ongoing legal pro-

cesses or cover conduct that can arise only during legal pro-

ceedings. 4

By the time Congress passed 8 U. S. C. §1101(a)(43)(S) in

1996, Congress had added nine narrower, more specific of-

fenses to the six original offenses (§§1501–1506) in chapter

73. See 18 U. S. C. §§1507–1513, 1516–1517. 5 While it is

less clear that those specialized provisions fall within the

heartland of obstruction of justice, even the vast majority of

them require a connection to a proceeding or investigation. 6

——————

4 The five other original chapter 73 offenses are §1501 (“Assault on pro-

cess server”); §1502 (“Resistance to extradition agent”); §1504 (“Influenc-

ing juror by writing”); §1505 (“Influencing or injuring witness before

agencies and committees”); and §1506 (“Theft or alteration of record or

process; false bail”). These provisions remain in chapter 73 to this day,

with only modest revisions that do not change the need for a pending

investigation or proceeding.

5 §31(a), 64 Stat. 1018 (adding §1507 in 1950); §1, 70 Stat. 935 (adding

§1508 in 1956); §101, 74 Stat. 86 (adding §1509 in 1960); Pub. L. 90–123,

§1(a), 81 Stat. 362 (adding §1510 in 1967); §802(a), 84 Stat. 936 (adding

§1511 in 1970); §4(a), 96 Stat. 1249 (adding §1512 in 1982); id., at 1250

(adding §1513 in 1982); §7078(a), 102 Stat. 4406 (adding §1516 in 1988);

§2503(a), 104 Stat. 4861 (adding §1517 in 1990).

6 The two exceptions are §§1511 and 1512. Section 1511 is a special-

ized provision, enacted as part of the Organized Crime Control Act of

1970, §802, 84 Stat. 936, which prohibits “conspir[ing] to obstruct the

10 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

See §1507 (“picket[ing] or parad[ing]” with the intent to in-

terfere with “the administration of justice”); §1508 (listen-

ing to or recording jury “deliberat[ions] or voting”); §1510

(interference with reports of information “to a criminal in-

vestigator”); §1516 (interfering with a “Federal auditor in

the performance of official duties”); §1509 (interfering with

“due exercise of rights” under a court order); §1513 (retali-

ating against a witness for participating in “an official pro-

ceeding”).

The primary outlier amongst the more recent additions

to chapter 73 is §1512, which criminalizes tampering with

a witness, victim, or informant. As the majority notes, that

provision provides that “[f]or purposes of this section . . . an

official proceeding need not be pending or about to be insti-

tuted at the time of the offense.” §1512(f )(1). Instead of

favoring the majority’s conclusion, however, §1512 is the ex-

ception that proves the rule. There would be no need to

clarify that the provision applies absent a pending proceed-

ing unless there were an established background under-

standing that obstruction of justice requires such a proceed-

ing. 7 Because the question at hand concerns the meaning

of heartland obstruction of justice, excluding “nongeneric”

variants “defin[ed] . . . more broadly,” Taylor, 495 U. S., at

599, what matters here is the general rule, not a singular

exception to it. To use a lighthearted example, it is clear

that the “generic” meaning of “mammal” includes giving

——————

enforcement of the criminal laws of a State . . . with the intent to facili-

tate an illegal gambling business.” 18 U. S. C. §1511(a). Given that

§1511 is a specialized conspiracy provision intended to “discourage orga-

nized crime’s corruption of state and local officials for the purpose of fa-

cilitating gambling enterprises,” Iannelli v. United States, 420 U. S. 770,

788 (1975), it has no bearing on core obstruction of justice. Section 1512

is discussed infra, at 10–11.

7 In a testament to the gravitational force of the weighty background

rule that a pending proceeding is generally required, this Court has in-

terpreted §1512 to at least require a foreseeable proceeding. See Arthur

Andersen LLP v. United States, 544 U. S. 696, 707–708 (2005).

Cite as: 599 U. S. ____ (2023) 11

SOTOMAYOR, J., dissenting

birth to live young, even though the platypus is an excep-

tion to that rule. Section 1512 thus proves the opposite of

what the majority takes it to prove. 8

The Court instead reasons that because §1512 does not

require a pending investigation or proceeding, the answer

to the question “Does generic obstruction of justice require

a pending investigation or proceeding?” must be “No.” That

line of thinking, however, simply assumes that §1512 falls

within generic obstruction (it assumes the platypus is

heartland mammalia). In so assuming, the Court loses

sight of the task at hand, which is, again, to answer a ques-

tion about the trunk of obstruction of justice, not more

broadly defined offshoots. See Descamps, 570 U. S., at 257.

All signs point toward treating §1512 as just such an off-

shoot, at least insofar as it explicitly chooses to dispose with

the requirement that a proceeding “be pending or about to

be instituted at the time of the offense.” §1512(f )(1).

3

The text of the INA itself confirms that Congress did not

understand obstruction of justice to encompass all witness

——————

8 The majority also mentions §1518 (Obstruction of criminal investiga-

tions of health care offenses) and §1519 (Destruction, alteration, or falsi-

fication of records in federal investigations and bankruptcy), which were

enacted after Congress passed §1101(a)(43)(S). See §245(a), 110 Stat.

2017 (adding §1518 in 1996); §802(a), 116 Stat. 800 (adding §1519 in

2002). Both are highly “specialized” provisions concerned with “corpo-

rate fraud and financial audits.” Yates v. United States, 574 U. S. 528,

541 (2015) (plurality opinion). Given that these later enacted offenses

are specialized extensions of obstruction of justice, they are irrelevant to

determining what Congress in 1996 understood as the generic meaning

of “obstruction of justice” in §1101(a)(43)(S). While the concurrence sug-

gests that “obstruction of justice” is coextensive with chapter 73, ante, at

2–3 (opinion of JACKSON, J.), the concurrence (like the majority) does not

engage with these issues regarding §§1518 and 1519, nor with the prob-

lems noted above about §§1511 and 1512, see supra, at 9–11, even though

all of these issues have been thoroughly ventilated in these cases. See

Brief for Petitioner in No. 22–23, pp. 23–29; Brief for Respondent in No.

22–331, pp. 15–21; Brief for Attorney General 24–31.

12 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

tampering. In the very same subsection of the INA at issue

here, Congress expressly used the term “witness tamper-

ing” separately from “obstruction of justice.” 8 U. S. C.

§1101(a)(15)(U)(iii). Specifically, in a set of provisions de-

fining “U” nonimmigrant status, 9 Congress again enumer-

ated a list of offenses, many of which overlap with the ag-

gravated felonies in §1101(a)(43). See §1101(a)(15)(U)(iii);

cf. §§1101(a)(43). Just as it did for aggravated felonies,

Congress included “obstruction of justice” in the list. This

time, however, Congress added witness tampering in addi-

tion to obstruction of justice by listing “witness tampering;

obstruction of justice; [or] perjury” as distinct offenses.

§1101(a)(15)(U)(iii); cf. §1101(a)(43)(S) (“obstruction of jus-

tice, perjury or subornation of perjury, or bribery of a wit-

ness”).

The Court’s broad interpretation of “obstruction of jus-

tice,” which swallows up all witness tampering, cannot be

reconciled with this statutory text. If, on the one hand, the

Court applies the same broad meaning to “obstruction of

justice” in §1101(a)(15)(U)(iii), then “witness tampering”

becomes redundant, in violation of the canon that statutes

should be read “so as to avoid rendering superfluous any

parts thereof.” Astoria Fed. Sav. & Loan Assn. v. Solimino,

501 U. S. 104, 112 (1991). If, on the other hand, the Court

attempts to avoid this problem by interpreting “obstruction

of justice” differently across the two provisions, then it vio-

lates “the established canon of construction that similar

language contained within the same section of a statute

must be accorded a consistent meaning.” National Credit

Union Admin. v. First Nat. Bank & Trust Co., 522 U. S. 479,

501 (1998). Either way, the Court’s interpretation fails.

Although §1101(a)(43)(S) refers to “an offense relating to

——————

9 Persons eligible for “U” nonimmigrant status are victims of certain

qualifying criminal activity who are helpful to officials investigating or

prosecuting such activity. See 8 U. S. C. §1101(a)(15)(U)(i).

Cite as: 599 U. S. ____ (2023) 13

SOTOMAYOR, J., dissenting

obstruction of justice,” while §1101(a)(15)(U)(iii) refers to

“criminal activity . . . involving . . . obstruction of justice”

“or any similar activity,” these textual differences only re-

inforce that Congress understood “obstruction of justice”

and “witness tampering” to have quite different ordinary

meanings. Given that §1101(a)(15)(U)(iii) covers not just

“obstruction of justice” but “any similar activity,” one must

infer that Congress took witness tampering to be not only

distinct from obstruction of justice, but distinct enough to

need separate mention from “obstruction of justice” “or any

similar activity.”

Nor does it matter that §1101(a)(15)(U) was added to the

INA in 2000 as part of the Victims of Trafficking and Vio-

lence Protection Act. 114 Stat. 1534. On the contrary, the

fact that Congress understood “obstruction of justice” to be

distinct from “witness tampering” just four years after en-

acting §1101(a)(43)(S) is good evidence Congress under-

stood the same to be true in 1996, when it deemed “obstruc-

tion of justice” an aggravated felony under the INA. After

all, “no one here suggests that the ordinary understanding

in the years after 1996 somehow differed from the ordinary

understanding in 1996.” Ante, at 5, n. 1.

4

State law points to the same result as the other indicia of

meaning examined thus far. State law is relevant because,

in discerning the generic meaning of terms with common-

law roots, the Court will often survey state statutes in effect

at the time the federal statute in question was enacted. See

Taylor, 495 U. S., at 598–599 (considering how “burglary”

was understood “in the criminal codes of most States”).

Here, when §1101(a)(43)(S) was enacted in 1996, 13 States

and the District of Columbia had a crime deemed “obstruc-

tion of ” or “obstructing” “justice.” The majority of those

state statutes (eight in total) required a connection to an

investigation or proceeding that was pending, or at least

14 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

reasonably foreseeable, while the remainder were ambigu-

ous on the matter. 10 Thus, when §1101(a)(43)(S) was added

to the INA in 1996, obstruction of justice “ ‘generally’ ” or

“ ‘typically’ ” required such a connection. Id., at 598.

The majority avoids this conclusion only by, once again,

adopting a circular approach. In analyzing state law, the

majority looks exclusively to state witness tampering stat-

utes, which it simply assumes are “state obstruction of-

fenses.” Ante, at 5. It then concludes that because many of

those statutes do not require a pending investigation or pro-

ceeding, neither does obstruction of justice under the INA.

Ibid. As should be clear by now, that method gets the cate-

gorical approach backward; if the overarching federal cate-

gory is assumed to include the state offenses in question,

there will always be a categorical match. One cannot prove

that all state witness tampering laws fall within the INA’s

“relating to obstruction of justice” simply by assuming that

they do. 11

——————

10 See Haw. Rev. Stat. §710–1072.5 (1996) (connection required); La.

Rev. Stat. Ann. §14:130.1 (West 1996) (same); Md. Ann. Code, Art. 27,

§26 (1996) (same); Miss. Code Ann. §97–9–55 (1996) (same); Va. Code

Ann. §18.2–460 (1996) (same); Vt. Stat. Ann., Tit. 13, §3015 (1996)

(same); W. Va. Code Ann. §61–5–27 (1996) (same); Wis. Stat. §946.65

(1996) (same); Ind. Code Ann. §35–44–3–4 (ambiguous); Ohio Rev. Code

Ann. §2921.32 (1996) (same); Utah Code Ann. §76–8–306 (1996) (same);

D. C. Code §22–722 (1996) (same); Ill. Comp. Stat., ch. 720, §5/31–4

(1996) (same); Mont. Code Ann. §45–7–303 (1996) (same).

11 Moreover, even assuming state witness tampering statutes are rele-

vant, it is noteworthy that in 1996 the vast majority of States (39 in total)

categorized their witness tampering statutes as something other than

“obstruction of justice.” See, e.g., Ala. Code §13A–10–124 (1996) (catego-

rized under “Offenses Against Public Administration”); Colo. Rev. Stat.

§18–8–707 (1996) (categorized under “Offenses—Governmental Opera-

tions”); Idaho Code Ann. §18–2604 (1996) (categorized under “Evidence

Falsified or Concealed and Witnesses Intimidated or Bribed”); see also

Brief for Respondent in No. 22–331, pp. 26–28 (collecting statutes). Of

the remaining 11 States that located their witness tampering statutes in

the part of the Criminal Code prohibiting “obstructing” or “obstruction”

of “justice,” at least 7 required a connection to a pending investigation or

Cite as: 599 U. S. ____ (2023) 15

SOTOMAYOR, J., dissenting

The majority also relies on the Model Penal Code (MPC).

Ante, at 5–6. Although the MPC sometimes can provide

supplemental evidence of generic meaning, see Taylor, 495

U. S., at 598, n. 8, it is critical to bear in mind that the MPC

is fundamentally a “reform movemen[t].” United States v.

Bailey, 444 U. S. 394, 403 (1980). Where that reform in-

volves a definitive break from the state of the law at the

time in question, the MPC is of limited value in discerning

generic meaning. Such is the case here. The MPC eschews

any talk of “obstruction of justice,” and instead sets out a

series of articles under the heading “Offenses Against Pub-

lic Administration.” ALI, MPC §§240–243 (1980). Those

articles cover many offenses, such as escape from prison

(§242.6), perjury (§241.1), and bribery (§240.1) that are

clearly not generic obstruction of justice (indeed, perjury

and bribery are listed separately from obstruction of justice

in §1101(a)(43)(S)). Even in the article that most closely

parallels traditional obstruction of justice (§242.1 “Ob-

structing Administration of Law or Other Governmental

Function”), the MPC gave the word “ ‘obstructs’ ” an “expan-

sive meaning,” §242.1, Comment 2, at 203, and “intended”

for the offense described to “reach all legitimate activities

of government,” not just “the administration of justice,” id.,

at 203–204. Because of these departures, which have not

been widely adopted, the MPC carries little weight for pur-

poses of discerning the core that forms generic obstruction

of justice.

Despite these issues, the majority focuses, again without

justification, on the MPC’s description of witness tampering

——————

proceeding. See Ind. Code Ann. §35–44–3–4(a)(1); Md. Ann. Code, Art.

27, §26; Miss. Code Ann. §97–9–55; Nev. Rev. Stat. Ann. §199.230 (1996);

N. C. Gen. Stat. Ann. §14–266 (1996); Vt. Stat. Ann., Tit. 13, §3015; W.

Va. Code Ann. §61–5–27. State law on the whole thus favors a pending

investigation or proceeding requirement for generic obstruction of jus-

tice.

16 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

(§241.6). See ante, at 6. Even setting aside the now-famil-

iar circularity of this reasoning, this definition does not help

the majority either. In describing witness tampering, the

MPC reformers chose to depart from “laws requiring that a

proceeding or investigation actually be pending,” §241.6,

Comment 2, at 166, by requiring only a “belie[f] that an of-

ficial proceeding or investigation is pending or about to be

instituted,” §241.6(1) (emphasis added). That intentional

departure is reason alone to treat this MPC description

with caution when articulating generic obstruction of jus-

tice. Yet, the majority goes much further than the MPC

reformers by dismissing the notion that at least a foreseea-

ble investigation or proceeding should be required. See

ante, at 7, n. 2. That statement by the Court reflects just

how far afield it has wandered from the heartland of ob-

struction of justice.

Perhaps sensing the weakness of its evidence, the Court

falls back on the Government’s “commonsense point,” Reply

Brief 4, that “one can obstruct the wheels of justice even

before the wheels have begun to move,” ante, at 6. Yet the

intuitive idea that “obstruction can only arise when justice

is being administered,” Pettibone, 148 U. S., at 207, finds

support in common sense to at least the same degree. But

while both formulations find some support in common

sense, the same cannot be said regarding other clues about

generic meaning. Considered together, the relevant his-

tory, dictionaries, and federal and state laws provide pow-

erful evidence that obstruction of justice “as commonly un-

derstood,” Descamps, 570 U. S., at 257, when Congress

enacted 8 U. S. C. §1101(a)(43)(S) in 1996, requires a pend-

ing investigation or proceeding.

II

In a feeble attempt to shore up its argument, the Court

resorts to a seemingly limitless construction of “relating to

obstruction of justice,” §1101(a)(43)(S), according to which

Cite as: 599 U. S. ____ (2023) 17

SOTOMAYOR, J., dissenting

the phrase “relating to” covers all offenses “that have ‘a con-

nection with’ obstruction of justice,” ante, at 7. That read-

ing is a direct result of the Court’s failure to consider stat-

utory text and context when interpreting “relating to.”

After all, “in isolation” that phrase is endlessly expansive

because, absent a statute-specific “limiting principle,” rela-

tions “stop nowhere.” Maracich v. Spears, 570 U. S. 48, 59–

60 (2013) (internal quotation marks omitted). Here, one

look at statutory text and context confirms that “relating

to” must have a narrower meaning.

The text of the INA “makes [non-U. S. citizens] remova-

ble based on the nature of their convictions, not based on

their actual conduct.” Esquivel-Quintana, 581 U. S., at 389.

This explains why, when applying §1101(a)(43)(S), courts

use the categorical approach, which compares the elements

of the statute of conviction to the generic offense. Without

a delineated generic offense, however, this comparison fal-

ters. The Court’s nebulous reading of “relating to obstruc-

tion of justice, perjury or subornation of perjury, or bribery

of a witness,” §1101(a)(43)(S) (emphasis added), fails to

grapple with this reality. Rather than ask whether a con-

viction is a categorical match for, say, generic “perjury,” the

majority seems to suggest courts should ask if the convic-

tion has “a connection with” generic perjury. If that is what

the majority intends, it is not clear what that question

means or how courts should go about answering it.

In contrast, no such problem arises if “an offense relating

to . . . perjury” or “an offense relating to obstruction of jus-

tice” is understood narrowly to mean simply “an offense

qualifying as generic perjury” or “an offense qualifying as

generic obstruction of justice.” The broader statutory con-

text confirms this reading. Again and again, §1101(a)(43)

uses the phrase “relating to” in descriptive parentheticals

to introduce an ordinary language description of other ag-

gravated felonies. For example, to identify the money laun-

dering offenses in 18 U. S. C. §1956, the INA refers to “an

18 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

offense described in section 1956 of title 18 (relating to laun-

dering of money instruments).” §1101(a)(43)(D) (emphasis

added). This structure, which the INA repeats well over a

dozen times, see §§1101(a)(43)(D)–(E),(H)–(N), confirms

that the phrase “relating to” is used in the INA simply to

introduce (not expand upon) a general description of the in-

tended crime category.

The Court’s seemingly expansive reading of “in relation

to” is also refuted by its consequences for the statutory text.

If all that is required is a “connection with” something that

“obstruct[s] the wheels of justice,” ante, at 6–7, then the

Government has open season to argue that all sorts of

crimes that hinder law enforcement (e.g., failing to report a

crime) or make detection of a crime more difficult (e.g.,

money laundering) qualify as offenses “relating to obstruc-

tion of justice.” On this approach, certain other aggravated

felonies listed in the INA (e.g., §1101(a)(43)(D) (money

laundering)) will collapse into “obstruction of justice,” lead-

ing to substantial superfluity in the statute. Indeed, the

separate categories of perjury and bribery of a witness

listed in the very same subparagraph, §1101(a)(43)(S), will

themselves be part of that collapse.

More importantly, an expansive reading of “in relation to”

opens the door for the Government to argue that many low-

level offenses that fall outside of core obstruction of justice

are “aggravated” felonies, even though the INA reserves

that label for “especially egregious felonies.” Esquivel-

Quintana, 581 U. S., at 394. For example, misdemeanor

convictions for failing to report a crime, presenting false

identification to an officer, refusing to aid a police officer,

leaving the scene of a crime, or purchasing a fake ID could

be taken to count as “relating to obstruction of justice.” See

Brief for National Immigrant Justice Center et al. as Amici

Cite as: 599 U. S. ____ (2023) 19

SOTOMAYOR, J., dissenting

Curiae 10–25 (collecting offenses). 12

This significant potential for “redundancy,” “unfairness,”

and “arbitrary” enforcement should have led the Court to

“exercise interpretive restraint,” Marinello v. United

States, 584 U. S. ___, ___, ___ (2018) (slip op., at 7, 9) (inter-

nal quotation marks omitted), when construing “relating

to.” Indeed, the many problems with an expansive reading

of “relating to” raise the question whether the Court even

really intends to adopt such a reading, especially because

the relevant discussion occupies a single paragraph. Per-

haps instead the Court simply offers up “connection with”

as a synonym for “relating to,” leaving it for lower courts to

settle what that phrase actually means.

III

While the evidence assembled here is far stronger than

any offered by the majority, the sheer complexity of the task

at hand leaves lingering ambiguity, even if the Court claims

it does not see it. Cf. ante, at 10. To the extent doubts re-

main, however, they are resolved in favor of a narrower un-

derstanding of §1101(a)(43)(S) by the “longstanding princi-

ple of construing any lingering ambiguities in deportation

statutes in favor of the [non-U. S. citizen].” INS v. Cardoza-

Fonseca, 480 U. S. 421, 449 (1987).

This Court resolves doubts in favor of the non-U. S. citi-

zen in keeping with the general rule that ambiguities in pe-

nal statutes should be construed against the government.

——————

12 Of course, many of the convictions the Government seeks to shoe-

horn into “obstruction of justice” are serious offenses, even if they are not

a categorical match for obstruction of justice. Such convictions, however,

may render non-U. S. citizens removable for other reasons (e.g., if they

qualify as crimes involving moral turpitude). Moreover, when nonciti-

zens are removable, any discretionary immigration relief for which they

may be eligible will “depen[d] upon the discretion of the Attorney Gen-

eral.” Carachuri-Rosendo v. Holder, 560 U. S. 563, 581 (2010). Thus,

any difference between the majority and the dissent in terms of “practical

effect on policing our Nation’s borders . . . is a limited one.” Ibid.

20 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

After all, deportation is not only a kind of “penalty,” but a

“drastic measure” often “the equivalent of banishment [or]

exile.” Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948). No-

where is that truer than here. Aggravated felonies under

the INA are “a category of crimes singled out for the harsh-

est deportation consequences.” Carachuri-Rosendo v.

Holder, 560 U. S. 563, 566 (2010). If a non-U. S. citizen is

convicted of an aggravated felony, even if she has a green

card and has lived in this country for years, she is subject

to removal and is also ineligible for readmission and many

forms of immigration relief. See 8 U. S. C. §§1158(b)(2),

1182(a)(9)(A), 1182(h), 1227(a)(2)(A)(iii), 1229b(a)(3),

1229c(a)(1). “Accordingly, removal is a virtually certainty

for [a non-U. S. citizen] found to have an aggravated felony

conviction, no matter how long he has previously resided

here.” Sessions v. Dimaya, 584 U. S. ___, ___–___ (2018)

(slip op., at 1–2). Moreover, a person convicted of an “ag-

gravated felony” faces heighted criminal sanctions for diso-

beying orders of removal, §1253(a)(1), or reentering the

United States without permission, §1326(b)(2). For exam-

ple, the penalty for illegal reentry skyrockets from 2 years

to 20. See §§1326(a), (b)(2).

This Court has been clear that, in the face of such stakes,

it “will not assume that Congress meant to trench on [a non-

U. S. citizen’s] freedom beyond that which is required by

the narrowest of several possible meanings of the words

used.” Fong Haw Tan, 333 U. S., at 10. While it may be

true that certain broader readings of “obstruction of justice”

are “at least plausible,” ante, at 3 (JACKSON, J., concurring),

that is not good enough because it is, at the very minimum,

at least equally plausible that “obstruction of justice” re-

quires a pending investigation or proceeding. The Court

should have “err[ed] on the side of underinclusiveness”

when interpreting §1101(a)(43). Moncrieffe, 569 U. S., at

205.

Cite as: 599 U. S. ____ (2023) 21

SOTOMAYOR, J., dissenting

IV

By rejecting a central feature of core obstruction of justice

and adopting a seemingly expansive reading of “relating

to,” the Court leaves generic obstruction of justice without

any discernible shape. The Court thus injects further chaos

into the already fraught question of how to understand

§1101(a)(43)(S) and opens the door for the Government to

try to use that provision as a catchall for all sorts of criminal

activity, whether aggravated or not.

The Court could perhaps have reined in some of that

chaos by giving “obstruction of justice” affirmative shape

and boundaries in other ways, but it makes no effort to do

so. Instead, the Court simply rejects the legal proposition

that a pending investigation or proceeding is required for a

predicate offense to qualify under §1101(a)(43)(S). At bot-

tom, its reasoning in support of that conclusion boils down

to a simple syllogism, which it clothes in various guises: (1)

Dissuading a witness from reporting a crime to the police

qualifies as obstruction of justice; (2) the offense of dissuad-

ing a witness from reporting a crime does not require a

pending investigation or proceeding; thus (3) some offense

qualifying as obstruction of justice does not require a pend-

ing investigation or proceeding.

The flaw in this syllogism is, of course, premise (1). By

assuming, up front and without reason, that dissuading a

witness from reporting a crime qualifies as obstruction of

justice, the Court oversteps. Congress could, if it wanted,

add witness tampering to the INA’s lengthy list of aggra-

vated felonies, just as it did with the list of offenses at

§1101(a)(15)(U)(iii), but it has not done so. The Court’s de-

cision today makes that judgment call for Congress. “Our

license to interpret statutes does not include the power to

engage in such freewheeling judicial policymaking.”

Pereida v. Wilkinson, 592 U. S. ___, ___ (2021) (slip op., at

16).

22 PUGIN v. GARLAND

SOTOMAYOR, J., dissenting

The syllogism’s conclusion is also noteworthy for its nar-

rowness. In the end, all the Court really holds is that ge-

neric obstruction of justice includes one offense (dissuading

a witness from reporting a crime) that does not require a

pending investigation or proceeding. Lower courts faced

with difficult questions about what offenses qualify as cat-

egorical matches for §1101(a)(43)(S) would do well to bear

in mind the limited nature of that holding. Many open

questions remain regarding whether offenses other than

dissuading a witness from reporting a crime are categorical

matches for §1101(a)(43)(S), what affirmative understand-

ing of §1101(a)(43)(S) should guide that categorical analy-

sis, and whether other offenses that also lack a connection

to a pending investigation or proceeding can qualify under

that analysis. 13 I do not take the majority to be addressing

any of these questions, and great care is warranted in an-

swering them in the future.

* * *

By eliminating a central constraint on what qualifies as

“an offense relating to obstruction of justice” under

§1101(a)(43)(S), while providing zero affirmative guidance

as to what sorts of offenses are a match for that category,

the majority leaves lower courts and the Board of Immigra-

tion Appeals without direction and invites the Government

to advance far-ranging constructions of §1101(a)(43)(S) that

bear little resemblance to core obstruction of justice. I

——————

13 On this list of open questions is whether state accessory-after-the-

fact convictions like petitioner Pugin’s are a categorical match for

§1101(a)(43)(S). The majority affirms the Fourth Circuit’s legal holding

that a pending investigation or proceeding is unnecessary for an offense

to qualify under §1101(a)(43)(S). The majority is conspicuously silent,

however, regarding the underlying offense itself and whether it is ob-

struction of justice under §1101(a)(43)(S). And for good reason, because

accessory offenses have their own distinct pedigree and purpose with his-

torical roots far afield from that of obstruction of justice. Cf. R Perkins,

Parties to Crime, 89 U. Pa. L. Rev. 581, 581–582, 605–607 (1941).

Cite as: 599 U. S. ____ (2023) 23

SOTOMAYOR, J., dissenting

would leave it to Congress, not the Judiciary, to decide

which additional crimes should be listed as aggravated fel-

onies under the INA. I respectfully dissent.