# Pugin v. Garland/Opinion of Justice Jackson

SUPREME COURT OF THE UNITED STATES
Nos. 22–23 and 22–331
JEAN FRANCOIS PUGIN, PETITIONER 22–23v.22–23 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 22–331v.22–331 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 embraced 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 conclusion that the Fourth Circuit rightly rejected any such pending-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 justice” within the meaning of this immigration statute. The ​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 offenses that are addressed in Chapter 73 contain a pending-proceeding requirement. *** What counts as “an offense relating to obstruction of justice” 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 Nationality 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. Gonzales, 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 unadorned phrase.
When Congress selected the words “offense relating to obstruction 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 Chapter 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. Attorney General, 856 F. 3d 280, 287–289 (CA3 2017) (refusing ​to “look beyond Chapter 73” to “determine whether an alien’s prior offense ‘relat[es] to obstruction of justice’ ” because §1101(a)(43)(S)’s “text … indicates Congress’s intention 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 obstruction 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 regard is especially important where (as here) making the determination of which offenses qualify implicates the “drastic” deportation sanction. Jordan v. De George, 341 U. S. 223, 231 (1951). In our constitutional system, the Legislature makes legal policy judgments regarding the particular circumstances that trigger the consequences that are associated 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 “aggravated felon[ies],” §1227(a)(2)(A)(iii), as “offense[s] relating 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 capture).
Here, the Court correctly emphasizes Chapter 73’s importance in the course of analyzing whether a possible predicate 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 ​and against the possibility that Chapter 73 might define (in substance) the universe of offenses that “relat[e] to obstruction 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, multiple Chapter 73 offenses require no pending proceeding. §1512(f); see also 102 Stat. 4397–4398 (1988 Congress describing an amendment to §1512 as an “obstruction of justice amendmen[t]” (boldface deleted)). That suffices to resolve 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 consideration in a case where the parties joust in earnest on the question.