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838

Matter of Agustin VALENZUELA GALLARDO, Respondent

Decided June 27, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A crime “relate[s] to obstruction of justice” within the meaning of section 101(a)(43)(S)

of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2006), if it includes

the critical element of an affirmative and intentional attempt, motivated by a specific

intent, to interfere with the process of justice, irrespective of the existence of an ongoing

criminal investigation or proceeding. Matter of Batista-Hernandez, 21 I&N Dec. 955

(BIA 1997), reaffirmed. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999), 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 under section 101(a)(43)(S) of the Act, because the offense “relate[s]

to obstruction of justice.”

FOR RESPONDENT: Frank P. Sprouls, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Sherry A. Nohara, Senior

Attorney

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

GRANT, Board Member:

In a decision dated August 12, 2010, an Immigration Judge found the

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

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien who has been

convicted of an aggravated felony. The Immigration Judge therefore denied

the respondent’s motion to terminate his removal proceedings and ordered him

removed from the United States. The respondent filed a timely appeal from

the Immigration Judge’s decision, which we dismissed on November 9, 2010.

The respondent subsequently filed a timely motion to reconsider, which

we denied on January 7, 2011. In an interim order dated October 21, 2011,

we sua sponte reopened these removal proceedings for further consideration

of the respondent’s removability in light of Trung Thanh Hoang v. Holder,

641 F.3d 1157 (9th Cir. 2011), and thereby reinstated the respondent’s appeal.

Both parties have submitted briefs setting forth their positions concerning the

respondent’s removability. The appeal will be dismissed.
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1 The respondent does not allege clear error in any of the Immigration Judge’s findings

of fact. Nor does he contest that he was sentenced to more than 1 year of imprisonment

as a result of his felony accessory conviction.

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I. FACTUAL AND PROCEDURAL HISTORY

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

United States as a lawful permanent resident on or about May 23, 2002. He

was convicted of the crime of accessory to a felony in violation of section

32 of the California Penal Code on December 28, 2007, and was sentenced

to 16 months in prison. Based on this conviction, the Department

of Homeland Security (“DHS”) initiated removal proceedings against the

respondent, charging that he is removable as an alien convicted of an

aggravated felony. Specifically, the DHS asserted that the respondent’s

accessory offense is “an offense relating to obstruction of justice” for which

he was sentenced to at least 1 year of imprisonment and that it is therefore

an aggravated felony under section 101(a)(43)(S) of the Act, 8 U.S.C.

§ 1101(a)(43)(S) (2006). In his motion to terminate proceedings, the

respondent countered that his crime does not qualify as “an offense relating

to obstruction of justice” because the statute under which he was convicted

does not require that the offender’s actions relate to any ongoing investigation

or judicial proceedings. In light of prior Board precedent, the Immigration

Judge denied the respondent’s motion and ordered him removed to Mexico.

II. ISSUE

The sole issue before us is whether the respondent’s felony accessory

offense qualifies as “an offense relating to obstruction of justice” within the

meaning of section 101(a)(43)(S) of the Act.1 This is a purely legal question,

which we review de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2012).

III. ANALYSIS

The phrase “an offense relating to obstruction of justice” is not defined

in the Act. See Matter of Espinoza, 22 I&N Dec. 889, 891 (BIA 1999). As the

United States Court of Appeals for the Ninth Circuit has acknowledged, the

phrase is ambiguous. See Trung Thanh Hoang v. Holder, 641 F.3d at 1060-61,

and cases cited therein. Where a statute is silent or ambiguous, an agency’s

interpretation of it should be given deference if it is based on a permissible

construction of the statute. Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984). The Supreme Court has emphasized that the
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2 The Federal accessory after the fact statute provides that “[w]hoever, 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.” 18 U.S.C. § 3 (emphasis added).

840

Chevron principle of deference must be applied to an agency’s interpretation

of ambiguous statutory provisions, even where a court has previously issued

a contrary decision and believes that its construction is the better one, so long

as the agency’s interpretation is reasonable. See Nat’l Cable & Telecomms.

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

For the reasons that follow, we conclude that the crime of accessory

to a felony under section 32 of the California Penal Code is an aggravated

felony under section 101(a)(43)(S) of the Act, because it “relate[s]

to obstruction of justice.” In so holding, we respectfully invoke the authority

in Brand X to clarify our prior precedents on the scope of the phrase “relating

to obstruction of justice.”

In Matter of Batista-Hernandez, 21 I&N Dec. 955, 962 (BIA 1997),

we held that the Federal crime of accessory after the fact under 18 U.S.C.

§ 3 (1994) “clearly relates to obstruction of justice.”2 We observed there

that “the nature of being an accessory after the fact lies essentially

in obstructing justice and preventing the arrest of the offender.” Id. at 961

(citing United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972)).

Two years later, we clarified this ruling in Matter of Espinoza, 22 I&N

Dec. 889, which involved a conviction for misprision of a felony under

18 U.S.C. § 4 (1994). In that decision, we observed that Congress chose to use

the term of art “obstruction of justice” in the aggravated felony definition

at section 101(a)(43)(S) of the Act, rather than a generic descriptive phrase

such as “obstructing justice.” Id. at 893. Consequently, we looked to the

offenses included in Title 18 of the United States Code entitled “Obstruction

of Justice” to inform our analysis of the contours of the phrase “obstruction of

justice” within the meaning of section 101(a)(43)(S). We reasoned that

Congress’ use of this term of art indicated an intent that the phrase

be interpreted consistent with its use in the Federal criminal code.

Within that context, we distinguished the Federal offense of misprision

of a felony under 18 U.S.C. § 4 from the Federal offense of accessory after the

fact and held that a conviction for misprision is not covered by section

101(a)(43)(S) of the Act. “The definition of the federal crime of accessory

after the fact in 18 U.S.C. § 3 requires an affirmative action knowingly

undertaken ‘in order to hinder or prevent [the principal’s] apprehension, trial

or punishment.’” Matter of Espinoza, 22 I&N Dec. at 894 (quoting 18 U.S.C.

§ 3). We determined that the critical difference between the crimes

of accessory after the fact in § 3 and misprision of a felony in § 4 was that
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3

Section 32 of the California Penal Code provides as follows:

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.

The California Penal Code uses the term “accessory” to refer exclusively to accessories after

the fact. See United States v. Vidal, 504 F.3d 1072, 1081 (9th Cir. 2007).

841

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

must be undertaken.” Id. Stated another way, accessory after the fact

references the specific purposes for the concealment, which are hindering

or preventing the “apprehension, trial or punishment” of the principal offender.

18 U.S.C. § 3. This led us to conclude that “the specific purpose of hindering

the process of justice brings the federal ‘accessory after the fact’ crime within

the general ambit of offenses that fall under the ‘obstruction of justice’

designation.” Matter of Espinoza, 22 I&N Dec. at 894-95.

Because the phrase “obstruction of justice” is ambiguous, there is no

seamless rationale for including some offenses, such as accessory after

the fact, and excluding other offenses, such as misprision of a felony.

Nevertheless, we supported this distinction by pointing out that “concealment

of a crime is qualitatively different from an affirmative action to hinder

or prevent another’s apprehension, trial or punishment.” Id. at 895.

We concluded that misprision does not constitute “obstruction of justice”

because “it lacks the critical element of an affirmative and intentional attempt,

motivated by a specific intent, to interfere with the process of justice.” Id.

at 896. This element—the affirmative and intentional attempt, with specific

intent, to interfere with the process of justice—demarcates the category

of crimes constituting obstruction of justice. While many crimes fitting this

definition will involve interference with an ongoing criminal investigation

or trial, id. at 892-93, we now clarify that the existence of such proceedings

is not an essential element of “an offense relating to obstruction of justice.”

Applying this principle to the case before us, we find that the crime

in section 32 of the California Penal Code is properly classified as an offense

“relating to obstruction of justice.”3 The provisions of this statute are closely

analogous, if not functionally identical, to those in 18 U.S.C. § 3. Critically,

both statutes include the element of an affirmative and intentional attempt,

motivated by a specific intent, to interfere with the process of justice. See

18 U.S.C. § 3 (requiring that the offender act “in order to hinder or prevent

[the principal’s] apprehension, trial or punishment”) (emphasis added);
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Cal. Penal Code § 32 (West 2012) (requiring that the offender act “with the

intent that [the] principal may avoid or escape from arrest, trial, conviction

or punishment”) (emphasis added); see also Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1070 (9th Cir. 2007) (indicating that a conviction under section

32 of the California Penal Code “requires knowing interference with the

enforcement of the law with the specific intent to help a principal avoid arrest

or trial”), overruled on other grounds, United States v. Aguila-Montes de Oca,

655 F.3d 915 (9th Cir 2011). Consequently, the California accessory offense

of which the respondent was convicted, like the Federal accessory after the

fact crime addressed in Matter of Batista-Hernandez, 21 I&N Dec. at 960,

is an offense “relating to obstruction of justice.”

In Trung Thanh Hoang v. Holder, 541 F.3d at 1164, the Ninth Circuit

concluded that a Washington State conviction for rendering criminal assistance

in the second degree is not for an offense relating to obstruction of justice,

stating that the language in Matter of Espinoza “indicates that the [Board] now

concludes that accessory after the fact is an obstruction of justice crime

when it interferes with an ongoing proceeding or investigation.” Given the

references in Matter of Espinoza to interference with ongoing investigations

or prosecutions, the Ninth Circuit’s reading is understandable. However, our

point was to emphasize that obstruction of justice is not an open-ended term

covering all offenses “that have a tendency to, or by their nature do, obstruct

justice.” Matter of Espinoza, 22 I&N Dec. at 894. However, we did not

go so far as to hold that obstruction offenses must involve interference with

an ongoing investigation or proceeding. Rather, the standard we set forth was

that an obstruction offense must include “the critical element of an affirmative

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

process of justice.” Id.

Interference with the “process of justice” does not require the existence

of an ongoing investigation or proceeding. In that regard, while our discussion

in Matter of Espinoza focused on the fact that the Supreme Court has

narrowly construed the more open-ended or catchall offenses in the Federal

“Obstruction of Justice” chapter, specifically 18 U.S.C. §§ 1503 and 1510

(1994 & Supp. II 1996), we point out that this chapter also includes offenses

that are substantially more inchoate than those involving an intent to hinder

or prevent another’s arrest, trial, conviction, or punishment.

For example, 18 U.S.C. § 1512 (2006) covers a series of offenses

involving actions performed with an intent to “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.” See Fowler v. United States, 131 S. Ct. 2045 (2011). Such offenses

are classified in chapter 73 of the Federal criminal code as within the category

of offenses described as “Obstruction of Justice” and clearly involve conduct
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4

In determining whether a specific statute of conviction is one “relating to obstruction

of justice” for purposes of section 101(a)(43)(S) of the Act, the Ninth Circuit has deferred

to our definition. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086-87 (9th Cir. 2008)

(“In determining whether [a] specific crime of conviction is an obstruction-of-justice

offense for purposes of [section 101(a)(43)(S)], we rely on the [Board’s] definition.”);

Salazar-Luviano v. Mukasey, 551 F.3d 857, 860 (9th Cir. 2008) (stating that “Congress itself

did not define the phrase ‘offense relation to obstruction of justice’ in the [Act]”); see also

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837. Nevertheless,

in Trung Thanh Hoang v. Holder, 541 F.3d at 1163, the Ninth Circuit determined that our

decision in Matter of Batista-Hernandez was “cursory” and thus declined to afford

it deference in applying the Board’s definition to a specific offense. This decision provides

additional analysis in support of our interpretation.

843

that significantly precedes the onset of any official proceeding, even of an

investigative nature. When we consider the additional factor that the

aggravated felony provision is described, not in such terms, but rather in the

broader terms of one “relating to” obstruction of justice, we find ample reason

to conclude that accessory after the fact offenses, under both 18 U.S.C. § 3 and

section 32 of the California Penal Code, are categorical aggravated felonies

within the meaning of section 101(a)(43)(S) of the Act.4See, e.g.,

Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir. 2011) (“When

interpreting the [Act], we ‘construe[] the “relating to” language broadly.’”

(quoting Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. 2000))).

We observe that no circuit court of appeals other than the Ninth Circuit has

disagreed with our conclusion in Matter of Batista-Hernandez that accessory

after the fact offenses necessarily relate to obstruction of justice within the

meaning of section 101(a)(43)(S) of the Act. However, the Third Circuit,

unlike the Ninth Circuit, has declined to accord deference to our interpretation

of the phrase “relating to obstruction of justice,” because the court has

concluded that the phrase is unambiguous. See Denis v. Att’y Gen. of U.S.,

633 F.3d 201, 209 (3d Cir. 2011). Analyzing the phrase under a de novo

standard of review, the Third Circuit found our definition of the phrase

unnecessarily restrictive and adopted a much broader definition. Id. at 211-13.

Under the Third Circuit’s broad reading, a conviction for accessory after the

fact would necessarily qualify as an obstruction offense for purposes of section

101(a)(43)(S) of the Act. See, e.g., Higgins v. Holder, 677 F.3d 97, 104 (2d

Cir. 2012) (observing that “any crime qualifying as an ‘offense relating

to obstruction of justice’ under the [Board’s] definition will necessarily

constitute an ‘offense relating to obstruction of justice’ under the Third

Circuit’s reasoning as well”).

The Second Circuit recentlyconsidered the meaning of an “offense relating

to obstruction of justice” within the context of the aggravated felony

definition. Id. The court declined to reach the question whether deference
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is owed to our interpretation of the term, because the offense under

consideration was found to “relat[e] to obstruction of justice” even under our

“more restrictive definition” of the phrase, such that it would necessarily

be found to “relat[e] to obstruction of justice” under the Third Circuit’s more

expansive definition. Id. at 104.

In view of the foregoing, we conclude that our holding that accessory after

the fact offenses necessarily relate to obstruction of justice within the meaning

of section 101(a)(43)(S) of the Act should apply uniformly nationwide.

See generally Matter of U. Singh, 25 I&N Dec. 670, 672 (BIA 2012)

(“An important purpose of Board precedent is the establishment of a uniform

interpretation of law in cases before the Immigration Judges and the Board.”).

We therefore respectfullyreaffirm our decision in Matter of Batista-Hernandez

and clarify our holding in Matter of Espinoza. See Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967.

In sum, the respondent’s offense is one “relating to obstruction of justice.”

Since the respondent was sentenced to more than 1 year of imprisonment, his

conviction is for an aggravated felony under section 101(a)(43)(S) of the Act.

We therefore agree with the Immigration Judge’s determination that the

respondent is removable as charged under section 237(a)(2)(A)(iii) of the Act.

Accordingly, the respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.