United States Court of Appeals

For the First Circuit

No. 20-1593

CARLOS MONTEIRO SILVA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge,

Lynch and Barron, Circuit Judges.

Kerry E. Doyle, with whom Graves and Doyle was on brief, for 

petitioner.

Evan P. Schultz, Trial Attorney, Office of Immigration 

Litigation, Civil Division, with whom Brian Boynton, Acting 

Assistant Attorney General, Civil Division, and Stephen J. Flynn, 

Assistant Director, Office of Immigration Litigation, were on 

brief, for respondent.

February 28, 2022
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LYNCH, Circuit Judge. Petitioner Carlos Monteiro Silva

seeks review of a final order of removal issued by the Board of 

Immigration Appeals ("BIA") in May 2020. The BIA dismissed Silva's 

appeal of a decision by the immigration judge ("IJ") holding that 

Silva was removeable under the Immigration and Nationality Act 

("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an 

"aggravated felony" as defined under 8 U.S.C. § 1101(a)(43). The 

IJ determined and the BIA affirmed that Silva's Massachusetts state 

conviction for accessory after the fact to the crime of murder was

categorically an aggravated felony for purposes of the INA because 

it met the definition of "an offense relating to obstruction of 

justice." Id. § 1101(a)(43)(S). The IJ and BIA held that Silva 

was ineligible for withholding of removal because he had committed 

a particularly serious crime and had not met his burden to 

establish that he was eligible for asylum or relief under the 

Convention Against Torture ("CAT").

Silva argues that the IJ and the BIA erred by applying 

the categorical approach to determine that his state conviction 

for accessory after the fact was "an offense relating to 

obstruction of justice." Id. He argues that the BIA's 

interpretation of "an offense relating to obstruction of justice"

as including offenses where an investigation or proceeding is only 

"reasonably foreseeable" is an unreasonable interpretation of 

§ 1101(a)(43)(S) and that the INA unambiguously requires that an 
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obstruction of justice offense have some nexus to a pending or

ongoing investigation or judicial proceeding, which the 

Massachusetts accessory-after-the-fact statute does not require. 

For this and other reasons, Silva argues that deference under 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984), does not apply to the BIA's interpretation 

and that Silva's conviction for accessory after the fact is not 

categorically an obstruction of justice offense triggering the 

INA's aggravated felony grounds for removal.1

We make two holdings, each of which provides a basis for 

denying the petition. First, we follow the mode of analysis 

employed by the Supreme Court in Esquivel-Quintana v. Sessions, 

137 S. Ct. 1562 (2017), and so apply "the normal tools of statutory 

interpretation," id. at 1569. We hold the generic federal 

definition of "an offense relating to obstruction of justice"

unambiguously does not require a nexus to a pending or ongoing 

investigation or judicial proceeding. Alternatively, we also 

hold, employing Chevron analysis, that the BIA's interpretation 

must be sustained. Consonant with these holdings, we conclude

that the IJ and BIA properly concluded that Silva's Massachusetts

conviction for accessory after the fact is categorically an offense 

relating to obstruction of justice and so rendered him removable 

1 We acknowledge and thank amici curiae for their brief in 

support of the petitioner.
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as an aggravated felon. We deny Silva's petition using each mode 

of analysis.

I.

A. Massachusetts State Conviction

Silva is a native and citizen of Cape Verde who was 

admitted to the United States in 1989 as a lawful permanent 

resident.

In September 2017, Silva pleaded guilty in Massachusetts 

to accessory after the fact in violation of Mass. Gen. Laws ch. 

274, § 4. That statute provides that,

[w]hoever, after the commission of a felony, 

harbors, conceals, maintains or assists the 

principal felon or accessory before the fact, 

or gives such offender any other aid, knowing 

that he has committed a felony or has been 

accessory thereto before the fact, with intent 

that he shall avoid or escape detention, 

arrest, trial or punishment, shall be an 

accessory after the fact.

Id. The offense to which Silva pleaded guilty occurred in 2003. 

The September 2003 indictment that described the offense stated 

that three men, not including Silva, "on April 28, 2003, did 

assault and beat [the victim] with intent to murder him and by 

such assault did kill and murder [the victim]." As to Silva, the 

indictment charged that he, "well knowing . . . the [three men] 

to have committed the felony . . . [,] did harbor, conceal, 

maintain, assist or give any other aid to the said [three men], 

with intent that the said [three men] should avoid and escape 
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detention, arrest, trial and punishment" by driving those three 

men away from the scene of the murder.2 Silva was sentenced to 

between four and five years in Massachusetts state prison.

B. Removal Proceedings and BIA Decision

In January 2018, the U.S. Department of Homeland 

Security ("DHS") initiated removal proceedings against Silva.3 In 

March 2019, DHS amended the charges of removal against Silva. 

Those amended charges stated that Silva was removable for, among 

other things, having been convicted of an aggravated felony in the 

form of "an offense relating to obstruction of justice . . . for 

which the term of imprisonment was at least one year." See 8 

U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(S).4 Silva objected to 

those amended charges of removal.

2 Silva's plea leaves no doubt that he intended to obstruct 

a reasonably foreseeable investigation. To the extent our 

dissenting colleague argues to the contrary, the state court 

conviction precludes such a holding.

3 This case has a long procedural history involving an 

initial termination of removal proceedings against Silva and a 

reinstatement of proceedings against him on different charges of 

removal. We describe only those later proceedings which led to 

this appeal.

4 The amended charges also stated that Silva was 

removeable for having been convicted of two or more crimes 

involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). That 

charge of removal was based on Silva's Massachusetts accessoryafter-the-fact conviction and an earlier Massachusetts state 

conviction for receiving stolen property in violation of Mass. 

Gen. Laws ch. 266, § 60. The IJ and the BIA ultimately did not 

rely on this alternative ground for removal because of updated 

criminal documents filed with the IJ by Silva reflecting that a 

Massachusetts state court had allowed his motion to vacate his 
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In a written decision in May 2019, the IJ held that 

Silva's Massachusetts accessory-after-the-fact conviction was 

categorically an offense relating to obstruction of justice under 

the INA and so was a proper ground for removal as an aggravated 

felony.5 The IJ relied on the BIA's decision in Matter of 

Valenzuela Gallardo, 27 I. & N. Dec. 449, 452-60 (B.I.A. 2018), 

underlying removal order vacated in Valenzuela-Gallardo v. Barr,

968 F.3d 1053 (9th Cir. 2020).6

plea for several prior convictions, including his conviction for 

receiving stolen property. They declined to decide what effect, 

if any, that state court decision would have on Silva's removal 

proceedings. The only issue for our review is the IJ's and the 

BIA's determination about the aggravated felony charge for 

removal.

5 "[T]o determine whether an alien's conviction qualifies 

as an aggravated felony under th[e INA], [courts and the agency] 

'employ a categorical approach by looking to the statute . . . of 

conviction, rather than to the specific facts underlying the 

crime.'" Esquivel-Quintana, 137 S. Ct. at 1567-68 (ellipsis in 

original) (quoting Kawashima v. Holder, 565 U.S. 478, 483 (2012)); 

see also De Lima v. Sessions, 867 F.3d 260, 262-63 (1st Cir. 2017). 

"Under that approach, we ask whether 'the state statute defining 

the crime of conviction categorically fits within the generic 

federal definition of a corresponding aggravated felony.'" 

Esquivel-Quintana, 137 S. Ct. at 1568 (some internal quotation 

marks omitted) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190 

(2013)); see also De Lima, 867 F.3d at 262-63. "[W]e presume that 

the state conviction 'rested upon 

. . . the least of th[e] acts' criminalized by the statute, and 

then we determine whether that conduct would fall within the 

[generic] federal definition of the crime." Esquivel-Quintana, 

137 S. Ct. at 1568 (second and third alterations in original) 

(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)); see 

also De Lima, 867 F.3d at 263.

6 Valenzuela Gallardo, applying the categorical approach, 

held that the generic definition of obstruction of justice includes 
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Silva then filed applications for asylum, withholding of 

removal, and protection under the CAT. In a written decision in 

December 2019, the IJ denied all three forms of relief from 

removal. The IJ concluded that Silva's aggravated felony 

conviction for accessory after the fact rendered him statutorily 

ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), 

(b)(2)(B)(i), and that the conviction was a "particularly serious 

crime" which barred his application for withholding of removal,

see id. § 1231(b)(3)(B)(ii). The IJ also concluded that Silva did 

not provide sufficient evidence to support his application for CAT 

protection.

Silva appealed to the BIA. In May 2020, the BIA denied 

that appeal. The BIA, referencing Matter of Valenzuela Gallardo, 

adopted and affirmed the IJ's decision, holding that Silva's 

Massachusetts accessory-after-the-fact conviction was 

categorically an aggravated felony relating to obstruction of 

justice. The BIA also held that the IJ did not clearly err in 

finding that Silva's Massachusetts accessory-after-the-fact 

crimes involving: "(1) an affirmative and intentional attempt 

(2) that is motivated by a specific intent (3) to interfere with 

an investigation or proceeding that is ongoing, pending, or 

'reasonably foreseeable by the defendant.'" 27 I. & N. Dec. at 

456 (emphasis added) (quoting Marinello v. United States, 138 S. 

Ct. 1101, 1110 (2018)) (citing United States v. Aguilar, 515 U.S. 

593, 599 (1995)). Applying that generic federal definition of 

obstruction of justice, the IJ concluded that the elements of 

Silva's Massachusetts accessory-after-the-fact conviction were a 

categorical match.
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conviction was a particularly serious crime for purposes of

withholding of removal, and affirmed the denial of all forms of 

relief.

This timely petition for review followed.

II.

Silva first argues that the Court should give no 

deference to the BIA's interpretation in Matter of Valenzuela 

Gallardo of "an offense relating to obstruction of justice" for 

various reasons. He also argues that, even if his Massachusetts 

accessory-after-the-fact conviction is an aggravated felony 

relating to obstruction of justice, the BIA erred in determining 

that the conviction is a "particularly serious crime" for purposes 

of barring him from withholding of removal.7

Where, as here, "the BIA adopts and affirms an IJ's 

decision, we review the IJ's decision 'to the extent of the 

adoption, and the BIA's decision as to [any] additional ground.'" 

Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (alteration 

in original) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163, 

167 (1st Cir. 2006)). We review de novo the BIA's legal 

7 Silva does not challenge the IJ's and BIA's 

determination that his conviction for accessory after the fact, if 

found to be an aggravated felony, would render him statutorily 

ineligible for asylum. Nor does he challenge the IJ's and BIA's 

denial of his application for deferral of removal under the CAT. 

Any challenge to those two determinations has been waived. See

Bekele v. Lyft, Inc., 918 F.3d 181, 186 (1st Cir. 2019).
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conclusions, including its determination that Silva's 

Massachusetts accessory-after-the-fact conviction is an aggravated 

felony. See Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 2013). We 

review the BIA's factual findings under a deferential standard, 

upholding them "as long as they are 'supported by reasonable, 

substantial, and probative evidence on the record considered as a 

whole.'" Sanabria Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020)

(quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)).

A. Applying the Tools of Statutory Interpretation as Applied by 

the Supreme Court in Esquivel-Quintana, the Conviction for

Accessory After the Fact Is an Aggravated Felony "Relating to 

Obstruction of Justice" Under the INA

We turn first to Silva's argument that his Massachusetts 

accessory-after-the-fact conviction is not categorically "an 

offense relating to obstruction of justice" because, he alleges,

it does not require a nexus to a pending or ongoing investigation 

or judicial proceeding. In Esquivel-Quintana, the Supreme Court 

addressed a similar issue of whether the petitioner's state 

conviction for unlawful sexual intercourse with a minor was 

categorically an offense for "sexual abuse of a minor" under 8 

U.S.C. § 1101(a)(43)(A). 137 S. Ct. at 1567. Applying "the normal 

tools of statutory interpretation," id. at 1569, the Court held 

that "in the context of statutory rape offenses that criminalize 

sexual intercourse based solely on the age of the participants, 

the generic federal definition of sexual abuse of a minor requires 
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that the victim be younger than 16," id. at 1568. It held that

"[b]ecause the California statute at issue in this case does not 

categorically fall within that definition, a conviction pursuant 

to it is not an aggravated felony under § 1101(a)(43)(A)." Id.8 

The Court determined the meaning of the statutory definition based 

on the text, the structure of the statute and closely related 

federal statutes, the consensus of state criminal statutes, and

definitions from other sources, like the Model Penal Code. Id. at 

1569-72. Because it determined the unambiguous meaning of the 

statute, the Court held it was unnecessary to consider the Chevron

and rule of lenity issues. Id. at 1572.

We initially, as we said, follow the same analytical 

path as the Supreme Court in Esquivel-Quintana and consider the 

same factors to determine the generic federal definition of "an 

offense relating to obstruction of justice."

8 In Esquivel-Quintana, the petitioner had been convicted 

under a California statute criminalizing "unlawful sexual 

intercourse with a minor who is more than three years younger than 

the perpetrator" in which the statute defined "minor" as "a person 

under the age of 18 years." 137 S. Ct. at 1567 (quoting Cal. Penal 

Code § 261.5(a), (c)). The petitioner was convicted under that 

statute for having had "consensual sexual intercourse . . . [with] 

a 17-year-old" when he was 21. Id.
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1. The Text of the Statute as a Whole Shows That the 

Generic Federal Definition of "An Offense Relating 

to Obstruction of Justice" Must Be Construed to 

Include Accessory After the Fact

We begin with the text of the INA. See id. at 1568-69;

United States v. De la Cruz, 998 F.3d 508, 513 (1st Cir. 2021). 

"[W]e accord the statutory text its ordinary meaning by reference 

to the specific context in which that language is used, and the 

broader context of the statute as a whole." De la Cruz, 998 F.3d

at 513 (internal quotation marks omitted) (quoting Recovery Grp., 

Inc. v. Comm'r, 652 F.3d 122, 125 (1st Cir. 2011)). When resolving

a dispute over the meaning of a statute, we "normally seek[] to 

afford the law's terms their ordinary meaning at the time Congress 

adopted them." Id. at 515 (quoting Niz-Chavez v. Garland, 141 S. 

Ct. 1474, 1480 (2021)); see also Esquivel-Quintana, 137 S. Ct. at 

1569-72 (interpreting 8 U.S.C. § 1101(a)(43)(A) according to what 

its ordinary meaning was in 1996 when Congress added that provision 

to the INA).

a. The Text of § 1101(a)(43)(S) Supports That 

Accessory After the Fact Is "An Offense 

Relating to Obstruction of Justice"

Section 1101(a)(43)(S), which provides that "an offense 

relating to obstruction of justice" is an aggravated felony, was 

added to the INA in 1996. See Antiterrorism and Effective Death 

Penalty Act of 1996, Pub. L. No. 104-132, § 440(e)(8), 110 Stat. 

1214, 1278; Illegal Immigration Reform and Immigrant 
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Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(11), 110 

Stat. 3009, 3009-628. The INA does not define "obstruction of 

justice." So we turn to reliable contemporaneous dictionaries to 

determine that term's ordinary meaning. See Esquivel-Quintana,

137 S. Ct. at 1569-70; De la Cruz, 998 F.3d at 515. 

Black's Law Dictionary defined "obstructing justice" as

"[i]mpeding or obstructing those who seek justice in a court, or 

those who have duties or powers of administering justice therein,"

"attempt[ing] to prevent, or . . . prevent[ing], the execution of 

lawful process," or "obstructing the administration of justice in 

any way -- as by hindering witnesses from appearing, assaulting 

process servers, influencing jurors, obstructing court orders or 

criminal investigations." Obstructing Justice, Black's Law 

Dictionary 1077 (6th ed. 1990). Another dictionary at that time 

defined "obstruction of justice" as "the crime or act of willfully 

interfering with the process of justice and law esp. by 

influencing, threatening, harming, or impeding a witness, 

potential witness, juror, or judicial officer or legal officer or 

by furnishing false information in or otherwise impeding an 

investigation or legal process." Obstruction of Justice, MerriamWebster's Dictionary of Law 337 (1996). 

Indeed, Bryan Garner, a noted legal commentator often 

cited by the Supreme Court, see, e.g., Esquivel-Quintana, 137 S. 

Ct. at 1569; Van Buren v. United States, 141 S. Ct. 1648, 1657 
- 13 -

(2021); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020); 

Lockhart v. United States, 577 U.S. 347, 351 (2016), defined 

"obstruction of justice" as "interference with the orderly 

administration of law" and stated that it was "a broad phrase that 

captures every willful act of corruption, intimidation, or force 

that tends somehow to impair the machinery of the civil or criminal 

law," Obstruction of Justice, B. Garner, A Dictionary of Modern 

Legal Usage 611 (2d ed. 1995). These definitions did not

explicitly require that the obstructive conduct be committed in 

relation to a pending or ongoing investigation or judicial 

proceeding. Acting as an accessory to a crime after the fact by 

providing some sort of aid to the principal with the intent that 

the principal evade capture, trial, or punishment, even if there 

is not then a pending or ongoing investigation or proceeding, 

certainly fits within these definitions of "obstruction of 

justice."

Furthermore, the relevant statutory term to be 

interpreted is not just "obstruction of justice"; rather, it is 

"an offense relating to obstruction of justice." 8 U.S.C. 

§ 1101(a)(43)(S) (emphasis added). The Supreme Court has stated

in other contexts that the ordinary meaning of the phrase "relating 

to" is "a broad one," holding that it normally means "connection 

with or reference to" something else. Morales v. Trans World 
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Airlines, Inc., 504 U.S. 374, 383-84 (1992).9 The generic federal 

definition of § 1101(a)(43)(S) must necessarily encompass more

than the definition of "obstruction of justice" itself, including

offenses connected with or in reference to that concept. Indeed, 

we "must give effect, if possible, to every clause and word of a 

statute." Loughrin v. United States, 573 U.S. 351, 358 (2014) 

(quoting Williams v. Taylor, 529 U.S. 362, 404 (2000)). To limit 

the scope of § 1101(a)(43)(S) to only the narrowest possible 

reading of obstruction of justice would violate that core tenet of 

statutory interpretation. Accordingly, even if we read the 

dictionary detentions more narrowly, we would still conclude that 

Congress intended to cover offenses like Massachusetts accessoryafter-the-fact.

9 Silva relies on the Supreme Court's decision in Mellouli

v. Lynch, 575 U.S. 798 (2015), for the proposition that the 

"relating to" language in § 1101(a)(43)(S) must be given a more 

restrictive reading. Mellouli is distinguishable. There, the 

Supreme Court concluded that the "relating to" language in a 

different provision of the INA had to be given a narrower reading 

within the context of the statute because that provision included 

a cross-reference to another specific statute further defining the 

statute of conviction for purposes of removal. See id. at 801-

02, 808-12, 808 n.9. Here, there is no cross-reference to another 

statute which defines "obstruction of justice" or requires a nexus 

to a pending or ongoing investigation or judicial proceeding.
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b. The Text and Structure of Surrounding 

Provisions of the INA Support That Accessory 

After the Fact Is "An Offense Relating to 

Obstruction of Justice"

In addition to the text of the specific provision at 

issue, we also consider the text and structure of the INA as a 

whole. See Esquivel-Quintana, 137 S. Ct. at 1571 (considering the 

INA's disparate use of cross-references to other statutes in 

interpreting a particular provision). Most of the offenses listed 

as "aggravated felon[ies]" under § 1101(a)(43) specifically 

include cross-references to other federal statutes which define 

those offenses, while no such cross-reference is included to define 

"an offense relating to obstruction of justice." Compare 8 U.S.C. 

§ 1101(a)(43)(B)-(F), (H)-(J), (K)(ii)-(iii), (L), (M)(ii), (N)-

(P) (all containing cross-references to other statutes), with id.

§ 1101(a)(43)(S) (containing none). See also id. § 1101(a)(43)(A), 

(G), (K)(i), (M)(i), (Q)-(R), (T) (also containing no crossreferences to other statutes). Moreover, § 1101(a)(43)(S) is 

among only a few of the aggravated felonies under the INA in which 

Congress deliberately used the expansive qualifier "relating to"

to describe the aggravated felony. Compare 8 U.S.C. 

§ 1101(a)(43)(B)-(F), (H)-(J), (K)(ii)-(iii), (L), (M)(ii), (N)-

(P) (all using instead something like "defined in" or "described 

in" followed by a cross-reference to another statute defining the 

offense), with id. § 1101(a)(43)(S). See also id.
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§ 1101(a)(43)(K)(i), (Q)-(R), (T) (using "relates to" or "relating 

to" without a cross-reference to another statute).

Congress easily could have included cross-references in 

§ 1101(a)(43)(S) to other statutes to define "an offense relating 

to obstruction of justice," but it chose not to do so. This shows

that Congress did not intend for "an offense relating to 

obstruction of justice" to be read restrictively to apply only to 

offenses defined by specific federal obstruction of justice 

statutes. See Russello v. United States, 464 U.S. 16, 23 (1983) 

("[W]here Congress includes particular language in one section of 

a statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and purposely 

in the disparate inclusion or exclusion." (alteration in original) 

(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 

1972))); De la Cruz, 998 F.3d at 517-18.

2. The Statute's Relationship to Other Federal 

Statutes Confirms That Accessory After the Fact Is 

"An Offense Relating to Obstruction of Justice"

In addition to the text of § 1101(a)(43)(S) and the other 

text of the INA, we consider "closely related federal statute[s]"

in determining the generic federal definition of an aggravated 

felony offense. Esquivel-Quintana, 137 S. Ct. at 1570-71; cf. De 

la Cruz, 998 F.3d at 517-18.
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a. The Federal Accessory-After-The-Fact Statute

and the Federal Bribery Statute Support That 

the Generic Federal Definition Does Not 

Require a Nexus to a Pending or Ongoing 

Investigation or Judicial Proceeding

The federal accessory-after-the-fact statute, 18 U.S.C. 

§ 3, is relevant to determining the generic federal definition of 

"an offense relating to obstruction of justice." That 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." 

Id. "[H]inder[ing] or prevent[ing]" is a type of obstructive 

conduct and "apprehension, trial or punishment" are all different

stages in the process of "justice." In that way, the federal 

accessory-after-the-fact statute relates to "obstruction of 

justice."10 That statute does not require a nexus to a pending or 

ongoing investigation or judicial proceeding and reaches conduct 

preceding an investigation or proceeding. See, e.g., United States

v. Neal, 36 F.3d 1190, 1195, 1211 (1st Cir. 1994) (affirming the 

10 The Massachusetts accessory-after-the-fact statute 

prohibits "harbor[ing], conceal[ing], maintain[ing] or assist[ing] 

the principal felon or accessory before the fact, or giv[ing] such 

offender any other aid, knowing that he has committed a felony or 

has been accessory thereto before the fact, with intent that he 

shall avoid or escape detention, arrest, trial or punishment." 

Mass. Gen. Laws ch. 274, § 4. That statute covers substantially 

the same conduct as that proscribed by the federal accessoryafter-the-fact statute.
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defendant's conviction for accessory after the fact where he 

provided aid to his co-defendants immediately after they robbed a 

bank and helped them to escape apprehension).

This understanding of the federal accessory-after-thefact statute as relating to obstruction of justice is bolstered by

case law from the federal circuit courts of appeal before 1996. 

See United States v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994)

(stating that "[t]he gist of being an accessory after the fact 

lies essentially in obstructing justice by rendering assistance to 

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

committed the crime" (alteration in original) (emphasis added) 

(quoting United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. 

Cir. 1972))); United States v. Huppert, 917 F.2d 507, 510 (11th 

Cir. 1990) (same), superseded by statute in other part, U.S. Sent'g 

Guidelines Manual § 2J1.2(c)(1), cmt. (U.S. Sent'g Comm'n 1991); 

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

abrogated in other part by Richardson v. United States, 468 U.S. 

317 (1984); United States v. Willis, 559 F.2d 443, 444 (5th Cir. 

1977) (same); Gov't of V.I. v. Aquino, 378 F.2d 540, 553 & n.19 

(3d Cir. 1967) (same); see also Pugin v. Garland, 19 F. 4th 437,

447 n.8 (4th Cir. 2021) (collecting cases). This consistent 

interpretation of the federal accessory-after-the-fact statute 

when § 1101(a)(43)(S) was enacted supports interpreting "an 

offense relating to obstruction of justice" to include accessory 
- 19 -

after the fact. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 

1072 (2020) ("We normally assume that Congress is 'aware of 

relevant judicial precedent' when it enacts a new statute." 

(quoting Merck & Co. v. Reynolds, 559 U.S. 633, 648 (2010))).

Another federal statute we consider is the statute 

related to bribery of a witness.11 See 18 U.S.C. § 201. The 

federal witness bribery statute includes the giving or offering of 

bribes to witnesses who give testimony at a hearing before a 

congressional committee. Id. § 201(b)(3), (c)(2). The witness

bribery statute also supports our reading of § 1101(a)(43)(S) as 

not requiring a nexus to a pending or ongoing investigation or 

judicial proceeding.

b. Several Obstruction of Justice Offenses Under 

18 U.S.C. Chapter 73 Do Not Require a Nexus to 

a Pending or Ongoing Investigation or Judicial 

Proceeding

Silva argues that we should look exclusively to Chapter 

73 of Title 18 of the U.S. Code, which is titled "Obstruction of 

Justice," to determine the generic federal definition of 

"obstruction of justice." He asserts that Chapter 73 cannot be 

11 Amici argue that, because the phrase "obstruction of 

justice" appears next to "perjury or subornation of perjury" and 

"bribery of a witness" in § 1101(a)(43)(S), all three must be read 

to share the common characteristic of a nexus to a pending or 

ongoing investigation or judicial proceeding. We do not agree 

that the federal witness bribery statute requires a nexus to a 

pending or ongoing judicial proceeding and so this cannot be a 

common characteristic to all three offenses listed.
- 20 -

reviewed for its components but must be read as a whole to require

a nexus to a pending or ongoing investigation or judicial 

proceeding. We disagree. Chapter 73 contains many offenses and 

cannot be read as a whole.

Section 1512, which is titled "[t]ampering with a 

witness, victim, or an informant," specifically provided in 1996 

that "[f]or the purposes of this section . . . an official 

proceeding need not be pending or about to be instituted at the 

time of the offense."12 18 U.S.C. § 1512(e)(1) (1996); see Pugin, 

19 F.4th at 445.13 Nor does the text of § 1511, which prohibited 

the "[o]bstruction of State or local law enforcement,"14 require 

12 The Ninth Circuit reads § 1512 as "underscor[ing] that 

the common understanding at the time § 1101(a)(43)(S) was enacted 

into law was that an obstruction offense referred only to offenses 

committed while proceedings were ongoing or pending. [For] [i]f 

that were not the case, it would not have been necessary for 

Congress to make clear that § 1512 operates differently than the 

other provisions in Chapter 73." Valenzuela-Gallardo, 968 F.3d at 

1065-66. Not so. A proceeding that is about to be instituted is 

not pending or ongoing, but it could be reasonably foreseeable. 

The "about to be instituted" language thus suggests that Congress 

believed that obstruction of justice could encompass the 

frustration of official proceedings that are not yet in place.

13 In Pugin, the Fourth Circuit relied on Chevron deference 

to conclude that Virginia accessory after the fact is "an offense 

relating to obstruction of justice" for purposes of 

§ 1101(a)(43)(S). 19 F.4th at 439. We find much of the Fourth 

Circuit's analysis persuasive.

14 In any event, as to those Chapter 73 offenses which do 

require a nexus to a pending or ongoing investigation or judicial 

proceeding, it is clear that Congress did not intend for those 

specific offenses to define "an offense relating to obstruction of 

justice" for purposes of § 1101(a)(43)(S). For that same reason, 

we reject Silva's argument that we cannot consider the federal 
- 21 -

that an investigation or judicial proceeding be pending or ongoing. 

Id. § 1511 (1996).

Indeed, as the Fourth Circuit recently held, obstruction 

of justice for the purposes of § 1101(a)(43) is not limited to 

"the narrow confines of Chapter 73." Pugin, 19 F.4th at 445.

c. Congress Intended Obstruction of Justice to be 

Read More Broadly Than Other Aggravated 

Felonies

Congress specifically included cross-references to other 

federal statutes in defining other offenses that constitute 

aggravated felonies under § 1101(a)(43), but it included no crossreference to Chapter 73 or any particular offense under that 

chapter to define "an offense relating to obstruction of justice." 

Congress also deliberately used the qualifier "relating to" in 

conjunction with "obstruction of justice" in § 1101(a)(43)(S), 

even though it did not do so for most of the other offenses listed 

as aggravated felonies under the INA. This shows that Congress 

clearly did not intend for "an offense relating to obstruction of 

justice" to be restricted only to the obstruction of justice 

offenses listed under Chapter 73, let alone to any particular 

Chapter 73 offense that requires a nexus to a pending or ongoing 

accessory-after-the-fact statute, 18 U.S.C. § 3, because it is not 

located under Chapter 73.
- 22 -

investigation or judicial proceeding.15 See Pugin, 19 F.4th at 

448; Russello, 464 U.S. at 23; De la Cruz, 998 F.3d at 517-18; see

also Esquivel-Quintana, 137 S. Ct. at 1571 (noting that "many other 

aggravated felonies in the INA are defined by cross-reference to 

other provisions of the United States Code," and relying on a 

related federal statute "for evidence of the meaning of [the

aggravated felony offense], but not as providing the complete or 

exclusive definition" where there was no such cross-reference); 

cf. Mellouli, 575 U.S. at 808 n.9, 811 n.11 (noting the importance 

of the relationship between the language "relating to" in the 

15 For this reason, the Supreme Court's decision in United 

States v. Aguilar, 515 U.S. 593 (1995), also does not support 

Silva's reading of § 1101(a)(43)(S). Aguilar held that, for 

purposes of the "catchall" provision of 18 U.S.C. § 1503, which 

criminalizes "[i]nfluencing or injuring [an] officer or [a] juror

generally," "[t]he action taken by the accused must be with an 

intent to influence judicial or grand jury proceedings; it is not 

enough that there be an intent to influence some ancillary 

proceeding, such as an investigation independent of the court's or 

grand jury's authority." 515 U.S. at 599 (emphasis added); see 

also id. at 600-01 (holding that making false statements to an 

investigating officer "who might or might not testify before a 

grand jury" was insufficient to violate the catchall provision of 

§ 1503); 18 U.S.C. § 1503(a) (1996) (prohibiting "corruptly or by 

threats or force, or by any threatening letter or communication, 

influenc[ing], obstruct[ing], or imped[ing], or endeavor[ing] to 

influence, obstruct, or impede, the due administration of 

justice"). 

That decision addressed only the specific statute at issue 

and did not establish the requirements of "obstruction of justice" 

more generally. Nor does § 1101(a)(43)(S) incorporate § 1503's 

particular definition of "obstruction of justice" through crossreference. Even Silva acknowledges that a nexus to a pending or 

ongoing investigation would be enough to satisfy his purported 

nexus requirement.
- 23 -

statute and a specific statutory cross-reference in applying the 

categorical approach).16

3. Other Sources of the Statute's Meaning Support That 

Accessory After the Fact Is "An Offense Relating to 

Obstruction of Justice"

In addition to the text and structure of the statute and 

closely related federal statutes, we also consider other indicia 

identified in Esquivel-Quintana in determining the generic federal 

definition of "an offense relating to obstruction of justice." 

a. A Consensus of State Obstruction of Justice 

Statutes Confirm That "An Offense Relating to 

Obstruction of Justice" Does Not Require a 

Nexus to a Pending or Ongoing Investigation or 

Judicial Proceeding

One of those other sources we consider is a consensus of

"state criminal codes" which "we look to . . . for additional 

evidence about the generic meaning of" an offense. Esquivel16 Silva relies on the Third Circuit decision in Flores v. 

Attorney General, 856 F.3d 280, 292-96 (3d Cir. 2017), and the 

Ninth Circuit decision in Valenzuela Gallardo, which held that 

state convictions for accessory after the fact were not offenses 

relating to obstruction of justice because they lacked a nexus 

requirement. We find neither persuasive. Both Flores and 

Valenzuela Gallardo relied exclusively on offenses listed under 

Chapter 73 in defining the generic federal definition of § 

1101(a)(43)(S) and discounted or did not consider other evidence 

of the statute's meaning. See Flores, 856 F.3d at 287-96; id. at 

297-301 (Shwartz, J., concurring, in part, and dissenting, in part) 

(disagreeing with the majority that the court was limited to 

consideration of only Chapter 73 offenses to determine the generic 

federal definition of "an offense relating to obstruction of 

justice" and concluding that a South Carolina accessory-after-thefact conviction related to obstruction of justice); Valenzuela 

Gallardo, 968 F.3d at 1062-69.
- 24 -

Quintana, 137 S. Ct. at 1571; see also id. at 1571 n.3 (noting 

that a multijurisdictional analysis of state criminal codes can 

aid interpretation by providing "useful context"). When

§ 1101(a)(43)(S) was added to the INA, seventeen states used 

phrases like "obstruction of justice" or "obstructing justice" to 

define certain crimes. See Colo. Rev. Stat. §§ 18-8-101 to -116 

(1996); Fla. Stat. §§ 843.01 to .19 (1996); Haw. Rev. Stat. § 710-

1072.5 (1996); 720 Ill. Comp. Stat. 5/31-4 (1996); Ind. Code § 35-

44-3-4 (1996); Iowa Code §§ 719.1 to .8 (1996); La. Stat. Ann. 

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

Ann. § 45-7-303 (1996); N.C. Gen. Stat. §§ 14-221 to -227 (1996); 

Ohio Rev. Code Ann. § 2921.32 (1996); R.I. Gen. Laws §§ 11-32-1 to 

-7 (1996); Tenn. Code Ann. §§ 39-16-601 to -609 (1996); Utah Code 

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

Code Ann. § 18.2-460 (1996); Wis. Stat. § 946.65 (1996). Of these, 

only three may have limited the obstruction of justice offenses to 

those involving a pending or ongoing investigation or judicial 

proceeding. See Haw. Rev. Stat. § 710-1072.5 (1996); Ind. Code 

§ 35-44-3-4 (1996); Wis. Stat. § 946.65 (1996); see also Pugin, 19 

F.4th at 445. Of the other fourteen, at least thirteen did not 

have such a requirement. See Colo. Rev. Stat. § 18-8-105 (1996); 

Fla. Stat. §§ 843.01 to .02, .08 (1996); 720 Ill. Comp. Stat. 5/31-

4 (1996); Iowa Code §§ 719.1 to .2 (1996); La. Stat. Ann. 

§ 14:130.1 (1996); Mont. Code Ann. § 45-7-303(2)(a)-(b) (1996); 
- 25 -

N.C. Gen. Stat. §§ 14-223, -225 (1996); Ohio Rev. Code Ann. 

§ 2921.32(A)(1), (3) (1996); R.I. Gen. Laws §§ 11-32-1 to -2 

(1996); Tenn. Code Ann. § 39-16-603 (1996); Utah Code Ann. § 76-

8-306(b), (e) (1996); Va. Code Ann. § 18.2-460(A) (1996); Vt. Stat. 

Ann. tit. 13, § 3015 (1996).

And the obstruction of justice statutes in four of these 

latter states proscribed conduct which would have been punishable 

under the federal accessory-after-the-fact statute. See Colo. 

Rev. Stat. § 18-8-105 (1996); Mont. Code Ann. § 45-7-303(2)(a)-

(b) (1996); Ohio Rev. Code Ann. § 2921.32(A)(1), (3) (1996); Utah 

Code Ann. § 76-8-306(b), (e) (1996). That the vast majority of 

jurisdictions with obstruction of justice offenses did not limit 

that concept to only offenses with a nexus to a pending or ongoing 

investigation or judicial proceeding further confirms our reading 

of the generic federal definition. See Esquivel-Quintana, 137 S. 

Ct. at 1571-72.

b. The Model Penal Code and Federal Sentencing 

Guidelines Further Support That Accessory 

After the Fact Is "An Offense Relating to 

Obstruction of Justice"

The Model Penal Code and Federal Sentencing Guidelines

also support that "an offense relating to obstruction of justice"

includes accessory after the fact. See id. at 1571 (citing the 

Model Penal Code as evidence of the generic meaning of a term in 

the INA). When § 1101(a)(43)(S) was enacted, the Model Penal Code 
- 26 -

listed "Hindering Apprehension or Prosecution," which proscribes

conduct like that proscribed in the federal accessory-after-thefact statute, under the article for "Obstructing Governmental 

Operations; Escapes." Model Penal Code § 242.3 (Am. L. Inst. 

1985). In describing the offense of hindering apprehension or 

prosecution of another, the explanatory notes to the Model Penal 

Code states that the "offense covers the common law category of 

accessory after the fact but breaks decisively with the traditional 

concept that the accessory's liability derives from that of his 

principal . . . [and instead provides that the accessory] is 

convicted . . . for an independent offense of obstruction of 

justice." Id. § 242.1 explanatory note; see also Pugin, 19 F.4th 

at 445.

The Federal Sentencing Guideline for "Obstruction of 

Justice" in effect in 1996 cross-referenced the guideline for 

"Accessory After the Fact." See U.S. Sent'g Guidelines Manual 

§ 2J1.2(c) (U.S. Sent'g Comm'n 1995). The commentary to the 

"Obstruction of Justice" guideline stated that "[b]ecause the 

conduct covered by this guideline is frequently part of an effort 

to avoid punishment for an offense that the defendant has committed 

or to assist another person to escape punishment for an offense, 

a cross reference to [the Accessory After the Fact guideline] is 

provided." Id. § 2J1.2 cmt. background (emphasis added). The

commentary and cross-reference are further support that there was 
- 27 -

an understood connection between accessory after the fact and 

obstruction of justice when § 1101(a)(43)(S) was adopted.

4. Even Assuming Arguendo That There Must Be a Nexus 

to an Investigation for the Normal Accessory-Afterthe-Fact Crime, That Nexus Is Satisfied

Assuming arguendo that § 1101(a)(43)(S) requires any 

nexus to an investigation, whether actually pending or in the 

offing, the Massachusetts accessory-after-the-fact crime and 

conviction easily satisfies it.17 

Mass. Gen. Laws ch. 274, § 4 provides:

[w]hoever, after the commission of a felony, 

harbors, conceals, maintains or assists the 

principal felon or accessory before the fact, 

or gives such offender any other aid, knowing 

that he has committed a felony or has been 

accessory thereto before the fact, with intent 

that he shall avoid or escape detention, 

arrest, trial or punishment, shall be an 

accessory after the fact.

17 Our dissenting colleague overreads our assumption in 

this section that a nexus is required. We find in the statutory 

text no requirement for a nexus, see supra Part II.A.1, and so in 

our de novo review under Esquivel-Quintana we do not graft a nexus 

requirement on to the statute. The BIA, however, interpreted the 

statute to mean that an offender must "interfere with an 

investigation or proceeding that is ongoing, pending, or 

'reasonably foreseeable'" Matter of Valenzuela Gallardo, 27 I. & 

N. Dec. at 456 (quoting Marinello, 138 S. Ct. at 1110). To the 

extent the statute is ambiguous, the BIA's interpretation of the 

nexus requirement is certainly reasonable and due deference. See

infra Part II.B. Our de novo analysis makes clear, though, that 

the BIA could also dispense with its nexus requirement. Either 

construction would "fill the statutory gap in reasonable fashion." 

Negusie v. Holder, 555 U.S. 511, 523 (2009)
- 28 -

To be convicted under that statute, the accessory must act with 

specific intent to enable a felon to "avoid or escape detention, 

arrest, trial, or punishment." Absent an investigation, there can 

be no prosecution and no detention, arrest, trial, or punishment 

to avoid or escape.

In determining the least culpable conduct that violates 

the statue, Moncrieffe v. Holder directs us to "focus on the 

minimum conduct criminalized by the state statue," rather than 

"apply 'legal imagination' to the state offense." 569 U.S. 184, 

191 (2013). Unlike the dissent, we look not to hypothetical 

conduct but to the "the least serious conduct for which there is 

a 'realistic probability' of charge and conviction." United States

v. Starks, 861 F.3d 306, 315 (1st Cir. 2017) (quoting id.). 

Looking at the mine run of prosecutions, we see none for aiding 

and abetting less serious felonies. When we look at the seventy 

Massachusetts state court opinions on Westlaw that cite § 4, the

overwhelming majority are convictions for accessory after the fact 

to homicide. Those that do not involve homicide, involve other 

serious offenses: armed robbery, e.g., Commonwealth v. Ayoub, 32 

N.E.3d 369 (Mass. App. Ct. 2015) (table); assault with a dangerous 

weapon, e.g., Commonwealth v. Nick N., 952 N.E.2d 991 (Mass. App. 

Ct. 2011) (table); arson, Commonwealth v. Sokorelis, 150 N.E. 197 

(Mass. 1926); kidnapping, Commonwealth v. Eagan, 259 N.E.2d 548 

(Mass. 1970); escape from prison, e.g., Commonwealth v. Holiday, 
- 29 -

206 N.E.2d 691 (Mass. 1965); extortion, Commonwealth v. Cachopa, 

18 N.E.3d 1137 (Mass. App. Ct. 2014) (table); dealing cocaine, 

Commonwealth v. St. Pierre, 786 N.E.2d 438 (Mass. App. Ct. 2003) 

(table); and larceny, e.g., Commonwealth v. Kudrya, 843 N.E.2d 

1117 (Mass. App. Ct. 2006) (table). Indeed, the serious nature of 

the crimes actually prosecuted under § 4 supports our holding that 

the least culpable conduct likely to be charged under the provision

includes a fair probability of criminal investigation.18 In fact, 

the serious crimes for which accessory-after-the-fact prosecutions 

have been brought by their nature would inform any person acting 

as an accessory that there will be an investigation resulting in 

"escape detention, arrest, trial or punishment."19 Further, the 

18 Our dissenting colleague relies on Marinello v. United 

States, 138 S. Ct. 1101 (2018), to support his contention that a 

felonious money launderer in Massachusetts must have more than 

mere awareness that the authorities might catch on to his illegal 

financial scheme. Dissenting Op. at 46-50 (citing Marinello, 138 

S. Ct. at 1110). In the dissenting opinion's telling, the 

government failed to establish that its investigation of Marinello 

was "reasonably foreseeable," because it could show no more than 

that mere awareness. Id. at 8 (quoting Marinello, 131 S. Ct. at 

1110). But in Marinello, the Court had no opportunity to weigh in 

on whether the government had presented evidence of 

foreseeability; the trial judge did not instruct the jury on 

foreseeability as Marinello requested, Marinello, 138 S. Ct. at 

1105, and the Court vacated and remanded, id. at 1110. Thus, the 

opinion cannot be read -- as our dissenting colleague does -- to 

support a categorical rule for financial criminals.

19 We note that on the facts here, an investigation to quote 

the dissent and "[t]o use a maritime analogy" is easily thought to

be "in the offing," Dissenting Op. at 46 (quoting Marinello, 138 

S. Ct. at 1110). While the dissent seems to treat the offing as 

a term of proximity, it refers, in the maritime sense, to "[t]he 
- 30 -

statute requires a specific intent to do so, buttressing our 

analysis.

These offenses are also markedly different from the tax 

fraud scheme in United States v. Marinello, on which our dissenting 

colleague puts so much weight, in another key way. Persons are 

often able to skirt tax laws and go undetected for some time. 

Indeed, by definition, a person who commits tax evasion attempts 

to conceal his acts and evade detection. United States v. 

Stierhoff, 549 F.3d 19, 25 (1st Cir. 2008) (elements of tax evasion 

include "an affirmative act of evasion or attempted evasion");

see, e.g., United States v. Marek, 548 F.3d 147, 150–51 (1st Cir. 

2008) (defendant falsified invoices); United States v. Lavoie, 433

F.3d 95, 98-100 (1st Cir. 2005) (defendant intentionally 

underreported revenue). An investigation of a tax offense would 

not be in the offing upon the commission of the offense. By 

contrast, consider murder, the underlying crime here. Following 

a homicide, more often than not the murder is reported, or a body 

is found, or a person is reported missing. A law enforcement

investigation is reasonably foreseeable. Also consider robbery or 

part of the sea visible from the shore that is very distant or 

beyond anchoring ground." Offing, The American Heritage 

Dictionary of the English Language 1223 (5th ed. 2018); accord

offing, The New Oxford American Dictionary 1181 (2d ed. 2005) 

("[T]he more distant part of the sea in view."). For this crime 

and for any of the serious crimes that have actually triggered an 

accessory-after-the-fact investigation in Massachusetts, the 

investigation could be spotted on the horizon. 
- 31 -

extortion, crimes which underlie other actual Massachusetts 

accessory-after-the-fact prosecutions. These crimes involve 

immediate harm to a victim, unlike with tax crimes, where the 

government must uncover an offense against the fisc. In such 

situations, it is more likely that a law enforcement investigation 

is in the offing. 

For the reasons stated above, it is clear that Silva's 

Massachusetts accessory-after-the-fact conviction is an aggravated 

felony under § 1101(a)(43)(S) because it is categorically "an 

offense relating to obstruction of justice."20 

5. The Dissent Misreads the BIA's Analysis

There is no basis to conclude that we have adopted a 

much looser nexus requirement than the BIA. Our dissenting 

colleague overreads the BIA's analysis in Matter of Valenzuela 

Gallardo to create a far tighter nexus requirement than the agency 

did.

20 We need not determine the precise boundaries of what 

constitutes "an offense relating to obstruction of justice" under 

§ 1101(a)(43)(S). Cf. Esquivel-Quintana, 137 S. Ct. at 1572. It 

is enough that the various sources show that accessory after the 

fact, as defined under the Massachusetts statute, clearly relates 

to obstruction of justice for purposes of the INA. For that same 

reason, Silva's argument that the statute is void for vagueness is 

also meritless. See United States v. Zhen Zhou Wu, 711 F.3d 1, 16 

(1st Cir. 2013) ("[W]e consider 'whether a statute is vague as 

applied to the particular facts at issue,' for a defendant 'who 

engages in some conduct that is clearly proscribed cannot complain 

of the vagueness of the law as applied to the conduct of others.'" 

(quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 18-19 

(2010)) (emphasis in original)).
- 32 -

The BIA held that generic obstruction of justice 

"cover[s] crimes involving (1) an affirmative and intentional 

attempt (2) that is motivated by a specific intent (3) to interfere 

with an investigation or proceeding that is ongoing, pending, or 

'reasonably foreseeable by the defendant.'" Matter of Valenzuela 

Gallardo, 27 I. & N. Dec. at 456 (quoting Marinello, 138 S. Ct. at 

1110); see also id. at 456 n.9. The BIA identified three types of 

investigations covered by the offense: ongoing, pending, and

reasonably foreseeable. But our dissenting colleague takes such 

a narrow view of "reasonably foreseeable" that it essentially 

merges into ongoing and pending investigations. He errs, in part, 

by interpreting the BIA's quotation of the reasonably foreseeable 

language in Marinello to require an identical nexus in both the 

statute at issue there, 26 U.S.C. § 7212(a), and the statute at 

issue here, § 1101(a)(43)(S). The BIA, however, expressly rejected

that false equivalence, explaining that "Congress intended section 

101(a)(43)(S) of the Act to apply more broadly than the provisions 

at issue in . . . Marinello." 27 I. & N. Dec. at 454 n.6.21

21 In our view, our dissenting colleague is also incorrect 

when he argues that Chenery I requires us to interpret Marinello

identically to the BIA. Dissenting Op. at 60-62; see SEC v. 

Chenery Corp., 318 U.S. 80, 95 (1943). Chenery I "merely hold[s] 

that an administrative order cannot be upheld unless the grounds 

upon which the agency acted in exercising its powers were those 

upon which its action can be sustained." 318 U.S. at 95. To be 

sure we cannot substitute a new rationale when the agency 

"misconceive[s] the law," id., but when the agency clearly states 
- 33 -

To confirm that the dissent misconstrues the BIA's 

decision, we need look no further than the BIA implementation of 

Matter of Valenzuela Gallardo. In Matter of Cordero-Garcia, the 

BIA held that the California offense of dissuading a witness is 

categorically an offense related to obstruction of justice. 27 I. 

& N. 652, 653-54 (2019) (citing Cal. Penal Code § 136.1(b)(1)), 

petition for review filed sub nom. Cordero-Garcia v. Garland, No. 

19-72779 (9th Cir. argued Feb. 11, 2022). The BIA held that the 

statute's specific intent requirement implied that " an 

investigation or proceeding would necessarily be either ongoing, 

pending, or reasonably foreseeable." Id. at 654. "In other 

words," it concluded, "there would be little reason for a person 

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

the crime to appropriate authorities unless there was an 

investigation in progress[,] or one was reasonably foreseeable." 

its legal basis for acting, Chenery I does not require that we 

follow the exact same interpretative path in sustaining the 

agency's actions, see H.J. Friendly, Chenery Revisited: 

Reflections on Reversal and Remand of Administrative Orders, 1969 

Duke L.J. 199, 211. The BIA determined that Massachusetts 

accessory-after-the-fact is categorically an offense related to 

obstruction of justice, that Silva was convicted of that offense, 

and that he was therefore ineligible for withholding of removal. 

We deny Silva's petition on the same grounds. To the extent that 

we read the INA to authorize the BIA to act through a potentially 

different pathway is of no moment. To hold otherwise would be 

perilous, with the Supreme Court indicating growing disfavor 

towards deference to administrative agencies, see, e.g., Kisor v. 

Wilkie, 139 S. Ct. 2400, 2424-2425 (Roberts, C.J., concurring); 

id. at 2425-2449 (Gorsuch, J., dissenting).
- 34 -

Id. The BIA's interpretation of that California statute is on all 

fours with our interpretation of the Massachusetts statute at issue 

in this case. It cannot, however, be squared with our dissenting 

colleague's reading of the nexus requirement articulated in Matter 

of Valenzuela Gallardo. Nor can it be reconciled with our 

dissenting colleague's mens rea\actus reus analysis, because like 

Matter of Valenzuela Gallardo, Matter of Cordero-Garcia relies 

solely on a specific intent requirement.

B. Alternatively, If § 1101(a)(43)(S) Were Ambiguous, the BIA 

Would Prevail Under Chevron deference

Assuming, arguendo, that the statute is ambiguous and 

thus subject to Chevron deference,22 we must defer to the BIA's 

interpretation. See Scialabba v. Cuellar de Osorio, 573 U.S. 41, 

56 (2014); Chevron, 467 U.S. at 844.

Chevron deference applies where an agency has followed 

suitably formal procedures, see United States v. Mead Corp., 533 

U.S. 218, 229-30 (2001), to interpret a civil statute it 

administers, see Gonzales v. Oregon, 546 U.S. 243, 265 (2006). In 

applying Chevron, we follow a familiar two-step pathway. First, 

we determine whether the statute is ambiguous. Second, if it is, 

we defer to the responsible agency's reasonable interpretation of 

the ambiguous text. See Chevron, 467 U.S. at 842-43.

22 In light of Esqiuvel-Quintana, it is not clear which 

interpretive approach we should employ, so we use both.
- 35 -

1. At "Step Zero," the BIA's Interpretation Is 

Eligible for Chevron Deference

The BIA's administration of the INA falls within Mead's 

safe harbor for formal adjudications. See Mead, 533 U.S. at 226-

27; see also Negusie v. Holder, 555 U.S. 511, 517 (2009). Its 

interpretation of § 1101(a)(43)(S) carries the force of law and 

thus falls within Chevron's domain. See Mead, 533 U.S. at 226-

27; see also T.W. Merrill & K.E. Hickman, Chevron's Domain, 89 

Geo. L.J. 833 (2001). Silva attempts to avoid that inexorable 

conclusion, arguing that the decision in his case was unpublished 

and thus not binding on future parties. That contention, however, 

looks to the wrong decision. The BIA established its 

interpretation in a published decision issued by a three-member 

panel in Matter of Valenzuela Gallardo. See 27 I. & N. Dec. at 

449. Once the BIA formally interprets a statue, we may defer to 

subsequent informal applications of the interpretation. GarciaMendez v. Lynch, 788 F.3d 1058, 1061 (9th Cir. 2015) (citing 

Neguise, 555 U.S. at 516). To require each decision to be 

published by a three-member panel would be to require more 

procedural safeguards than Congress intended. Cf. Vt. Yankee 

Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 524 

(1978).

Additionally, Silva's contention that we cannot defer to 

the BIA's interpretation of a statute with criminal implications 
- 36 -

is misguided. We have previously deferred to the BIA's 

interpretation of the definition of aggravated felonies,23 see, 

e.g., Soto-Hernandez v. Holder, 729 F.3d 1, 5 (1st Cir. 2013); 

Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013), and continue to do 

so here.24

To hold otherwise would be flatly inconsistent with 

precedents both of this Court and the Supreme Court. In Chevron

itself, the Supreme Court deferred to the EPA's interpretation of 

the Clean Air Act, even though knowing violation of an 

implementation plan under that act carried criminal penalties. 

See Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 

920 F.3d 1, 24 (D.C. Cir. 2019) (citing 42 U.S.C. § 7413(c)(1) 

(1982)). Similarly, in Babbitt v. Sweet Home Chapter of 

Communities for a Great Oregon, the Supreme Court expressly 

considered the potential criminal penalties for a violation of the 

Endangered Species Act and deferred to the Secretary of the 

Interior's interpretation of that law. 515 U.S. 687, 702-704 & 

704 n.18. We regularly defer to interpretations of the IRS 

Commissioner even though violating tax regulations can result in 

23 Silva and amici also argue that our previous decisions 

did not expressly address his proposed "dual-application statute" 

exception to Chevron. We now hold that no such exception exists.

24 Our holding certainly does not run afoul of the Supreme 

Court's observation in United States v. Appel that it has "never 

held that the Government's reading of a criminal statutes is 

entitled to any deference." 571 U.S. 359, 369 (2014).
- 37 -

criminal penalties. See, e.g., Dikow v. United States, 654 F.3d 

144, 149-51 (1st Cir. 2011); see also United States v. O'Hagan, 

521 U.S. 642, 647 (1997). Indeed, regulatory offenses carrying 

criminal penalties are legion in the Code of Federal Regulations, 

see generally M. Chase, How to Become a Federal Criminal (2019), 

but we continue to defer to agencies' interpretations of the

underlying statutes.

2. Assuming § 1101(a)(43)(S) Is Ambiguous, the BIA's 

Interpretation of it Is Reasonable

We explained earlier why interpreting § 1101(a)(43)(S) 

to encompass Massachusetts accessory after the fact is reasonable. 

See supra Part II.A. The BIA's understanding of the statute cannot 

be said to be beyond the "bounds of reasonable interpretation." 

Michigan v. EPA, 576 U.S. 743 (2015) (quoting Util. Air Regul. 

Grp. v. EPA, 573 U.S. 302, 321 (2014)). 

In the realm of immigration, "Congressional powers are 

at their apex and judicial powers are at their nadir." HernandezLara v. Lyons, 10 F.4th 19, 54 (Lynch, J., dissenting). Congress 

has used that broad power to "charge[] the Attorney General with 

administering the INA." Neguise, 555 U.S. at 516-17. Thus, 

"[j]udicial deference in the immigration context is of special 

importance, for executive officials 'exercise especially sensitive 

political functions that implicate questions of foreign 

relations.'" Id. at 517 (quoting INS v. Abudu, 485 U.S. 94, 110
- 38 -

(1988)). Compared to the executive, "[t]he judiciary is not well 

positioned to shoulder primary responsibility for assessing the 

. . . diplomatic repercussions" of sensitive immigration 

decisions. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); see

Griffiths v. INS, 243 F.3d 45, 49 (1st Cir. 2001). The BIA's 

exercise of its Congressionally assigned functions certainly was 

not unreasonable.

C. The IJ and BIA Did Not Err in Determining That Silva's 

Massachusetts Accessory-After-the-Fact Conviction Was a 

"Particularly Serious Crime" for Purposes of Denying 

Withholding of Removal

Silva also argues that even if his Massachusetts 

conviction is an aggravated felony under § 1101(a)(43)(S), it is 

not a particularly serious crime that bars him from withholding of 

removal. The parties dispute whether the appropriate standard of 

review of the BIA's particularly-serious-crime determination is de 

novo or only for substantial evidence. We need not decide this 

issue because we conclude that there was no error under either 

standard of review.

Under Matter of N-A-M-, 24 I. & N. Dec. 336 (B.I.A.

2007), overruled in part on other grounds by Blandino-Medina v. 

Holder, 712 F.3d 1338, 1347-48 (9th Cir. 2013), which Silva does 

not challenge, the BIA "examine[s] the nature of the conviction, 

the type of sentence imposed, and the circumstances and underlying 

facts of the conviction" in determining whether it is a 
- 39 -

particularly serious crime. Id. at 342. "[A]n offense is more 

likely to be considered particularly serious if it is against a 

person . . . ." Matter of R-A-M-, 25 I. & N. Dec. 657, 662 (B.I.A.

2012) (citing Matter of N-A-M-, 24 I. & N. Dec. at 343). And 

factual findings made by the BIA in determining whether a 

conviction is for "a particularly serious crime" are "conclusive 

unless any reasonable adjudicator would be compelled to conclude 

to the contrary," which "is a 'highly deferential' standard." 

Garland v. Ming Dai, 141 S. Ct. 1669, 1674, 1677 (2021) (first 

quoting 8 U.S.C. § 1252(b)(4)(B); and then quoting Nasrallah v. 

Barr, 140 S. Ct. 1683, 1692 (2020)).

The record supports the BIA's determination that, based 

on his guilty plea to the Massachusetts indictment, Silva admitted 

to knowing that the individuals whom he assisted had committed a 

murder. Based on that finding and Silva's conduct in aiding known

murderers to avoid or escape apprehension and punishment, the BIA 

did not commit any legal or other error in determining that the 

accessory-after-the-fact conviction was a particularly serious 

crime which rendered him ineligible for withholding of removal.

III.

Silva's petition for review of the BIA's final order of 

removal is denied.

-DISSENTING OPINION FOLLOWS-
- 40 -

BARRON, Circuit Judge, dissenting. Is the crime of being 

an accessory after the fact to a "felony" under Massachusetts law, 

see Mass. Gen. Laws ch. 274, § 4, an "offense relating to 

obstruction of justice" under the Immigration and Nationality Act 

("INA"), 8 U.S.C. § 1101(a)(43)(S), such that this state-law 

accessorial crime constitutes an "aggravated felony" and thus 

makes the lawful permanent resident convicted of committing it 

removable and ineligible for asylum, see 8 U.S.C. §§ 1158(b)(2), 

1227(a)(2)(A)(iii)? In concluding in this case that this statelaw accessorial crime is "an offense relating to obstruction of 

justice" under § 1101(a)(43)(S), the majority rejects the 

reasoning of the Third Circuit in Flores v. Attorney General, 856 

F.3d 280 (3d Cir. 2017), and the Ninth Circuit in Valenzuela 

Gallardo v. Barr (Valenzuela Gallardo IV), 968 F.3d 1053 (9th Cir. 

2020). But, even accepting that the majority is right to reject 

the reasoning of those courts, it is wrong to uphold the ruling of 

the Board of Immigration Appeals ("BIA") that the Massachusetts 

accessory-after-the-fact offense of which Carlos Monteiro Silva 

was convicted is an "obstruction of justice"-related offense 

within the meaning of § 1101(a)(43)(S).

I.

It helps first to explain exactly how the majority's 

construction of § 1101(a)(43)(S) differs from that of the Third 

Circuit in Flores and the Ninth Circuit in Valenzuela Gallardo IV. 
- 41 -

Each of those cases rejected the construction of the phrase "an 

offense relating to obstruction of justice" in § 1101(a)(43)(S) 

that the BIA had adopted in Matter of Valenzuela Gallardo

(Valenzuela Gallardo III), 27 I. & N. Dec. 449 (BIA 2018). 

The Third and Ninth Circuits held that the "obstruction 

of justice"-related offense referred to in that federal statute 

requires proof of a much tighter nexus than the BIA in Valenzuela 

Gallardo III had held that the offense requires between an official 

investigation or proceeding and the obstructive conduct. 

Specifically, those courts held that the required nexus needs to 

be between the obstructive conduct and an official investigation 

or proceeding that, at the time of that conduct, was at least 

pending and not, for example, merely reasonably foreseeable. 

Valenzuela Gallardo IV, 968 F.3d at 1068; Flores, 856 F.3d at 292-

294. 

Moreover, on that basis, the Third and Ninth Circuits 

rejected the BIA's determination in each of the cases before them 

that an accessory after the fact offense that did not require proof 

of such a tight nexus could be "an offense relating to obstruction 

of justice" within the meaning of § 1101(a)(43)(S). Valenzuela 

Gallardo IV, 968 F.3d at 1069; Flores, 856 F.3d at 293-96. And, 

the Third and Ninth Circuits further held, persuasively in my view, 

that the words "relating to" in § 1101(a)(43)(S) -- though words 

of inclusion -- do not bring within the scope of the offense 
- 42 -

referred to in that provision an offense that is not itself an 

"obstruction of justice" offense at all. Valenzuela Gallardo IV, 

968 F.3d at 1068; Flores, 856 F.3d at 290-91, 296.

In Silva's case, the BIA embraced the same looser 

description of the nexus requirement that the BIA had embraced in 

Valenzuela Gallardo III and that the Third and Ninth Circuits 

rejected for not being tight enough. The BIA then ruled based on 

that understanding of the nexus requirement that Silva's statelaw accessorial offense is an "offense relating to obstruction of 

justice" under § 1101(a)(43)(S). 

Silva now contends that we must reject the BIA's ruling 

in his case for essentially the reasons that Flores and Valenzuela 

Gallardo IV gave in ruling as they did in those cases. But, Silva 

does not ask us to overturn the BIA's ruling only by asking us to 

endorse the tighter nexus that the Third and Ninth Circuits 

described. He also contends, as a fallback argument, that even if 

we were to accept that the BIA has correctly described the nexus 

requirement to be looser than the Third and Ninth Circuits held it 

to be, the Massachusetts accessory-after-the-fact offense of which 

he was convicted would not be an "offense relating to obstruction 

of justice" under § 1101(a)(43)(S) because the least of the conduct 

that this accessorial offense criminalizes would still not be 

encompassed by that generic, federal "obstruction of justice"-
- 43 -

related offense. See Moncrieffe v. Holder, 569 U.S. 184, 190-91 

(2013). 

As I will explain, Silva's fallback argument for 

granting his petition for review is a winning one. For that 

reason, the majority's holding that the BIA's construction of the 

nexus requirement for "an offense relating to obstruction of 

justice" is a reasonable one under Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984), provides no 

basis for me to conclude otherwise. In that holding, the majority 

just endorses -- after drawing on the approach for interpreting 

§ 1101(a)(43) that the Supreme Court set forth in EsquivelQuintana v. Sessions, 137 S. Ct. 1562 (2017) -- the reasonableness 

of construing the "obstruction of justice"-related offense 

referred to in § 1101(a)(43)(S) to be constrained only by a nexus 

requirement that is as loose as the one that the BIA has described. 

For, as Silva persuasively contends, the BIA's construction of "an 

offense relating to obstruction of justice" -- given the looseness 

of that construction's understanding of the nexus requirement --

still defines that offense to encompass more conduct than the least 

of the conduct that Silva's accessorial offense of conviction 

encompasses. 

But, I emphasize, I also can see no reason to reject 

Silva's fallback argument insofar as the majority independently 

means to hold -- again pursuant to Esquivel-Quintana but this time 
- 44 -

without purporting to afford any deference under Chevron -- that 

the generic, federal "obstruction of justice"-related offense to 

which § 1101(a)(43)(S) refers is not constrained by any nexus 

requirement at all. For, under SEC v. Chenery Corp., 318 U.S. 80, 

94 (1943), we cannot sustain the BIA's ruling in Silva's case based 

on such a nexus-less construction of that offense unless we are 

bound to adopt that construction to the exclusion of the nexusbased one that the BIA has set forth and that the majority itself 

agrees is reasonable. And, as I will explain, the majority offers 

no persuasive reason to conclude that a nexus-less construction 

must be adopted over the nexus-based one that the BIA has set 

forth. 

II. 

Before turning to the majority's independent holding 

endorsing a nexus-less construction of the offense referred to in 

§ 1101(a)(43)(S), it makes sense to start with the majority's more 

modest one. True, the majority concludes in that holding that the 

offense requires some such nexus to be shown and that the BIA's 

operative description of that nexus requirement is a reasonable 

one. But, as I will explain, that holding provides no basis for 

rejecting Silva's petition for review, despite being nexus-based. 

To show why, it is necessary, as an initial matter, to explain in 

more detail just what the BIA's operative understanding of that 

nexus requirement is. I thus now turn to that task. 
- 45 -

A.

In Valenzuela Gallardo III, the BIA was attempting to 

address a Ninth Circuit ruling that had rejected a prior BIA 

construction of § 1101(a)(43)(S). See 27 I. & N. Dec. at 451-52. 

The Ninth Circuit had held that the BIA's earlier construction 

rendered the "obstruction of justice"-related offense to which 

§ 1101(a)(43)(S) refers too vague. See Valenzuela Gallardo v. 

Lynch (Valenzuela Gallardo II), 818 F.3d 808, 812, 824 (9th Cir. 

2016), vacating and remanding Matter of Valenzuela Gallardo

(Valenzuela Gallardo I), 25 I. & N. 838 (BIA 2012). That was so, 

the Ninth Circuit explained, because that construction did not 

require as an element of that offense any nexus between the 

defendant's obstructive conduct and an official investigation or 

proceeding and so left unclear the kind of conduct that would 

qualify as obstructive. Id.

To address that concern, the BIA explained in Valenzuela 

Gallardo III that, in accord with Esquivel-Quintana, it would draw 

its revised understanding of the offense referred to in 

§ 1101(a)(43)(S) from "Federal and State law, Federal sentencing 

guidelines, the Model Penal Code, and scholarly commentary." 27 

I. & N. Dec. at 452-53 (citing Esquivel-Quintana, 137 S. Ct. at 

1570-72). The BIA then focused heavily, though not exclusively, 

on the offenses set forth in Chapter 73 of the federal criminal 

code, which is entitled "Obstruction of Justice." Id. at 453-56.
- 46 -

In canvassing those materials, the BIA in Valenzuela 

Gallardo III acknowledged that most of the offenses in Chapter 73 

contained a quite tight nexus requirement; the provisions in that 

chapter that set forth those offenses made clear that they could 

be committed only if the defendant obstructed an investigation or 

proceeding that was in fact pending. Id. at 454. But, the BIA 

also noted that the "Obstruction of Justice" offense set forth in 

18 U.S.C. § 1512 was different. Id.

At the time that § 1101(a)(43)(S) was enacted, the BIA 

pointed out, § 1512 provided in relevant part that it was a crime 

knowingly to use "intimidation, physical force, threats, corrupt 

persuasion, or misleading conduct toward another person with the 

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.'" Id. (emphasis omitted) (quoting 18 U.S.C. 

§ 1512(b) (1994)). The BIA then also explained that the Supreme 

Court in Marinello v. United States, 138 S. Ct. 1101 (2018), had 

offered a "synthesi[s]" of the cases that had construed § 1512's 

nexus requirement and that the Court in Marinello had relied on 

that body of precedent to define the nexus required under the 

Internal Revenue Code provision that was there at issue, which 

made it a crime to interfere with investigations into tax crimes, 

see 26 U.S.C. § 7212(a). 27 I. & N. Dec. at 455. 
- 47 -

The BIA explained that, in setting forth the synthesis 

of the case law that concerned § 1512's nexus requirement, 

Marinello made clear that § 1512 required proof of a nexus between 

the defendant's obstructive conduct and an official investigation 

that was merely "'reasonably foreseeable by the defendant' at the 

time of the obstructive conduct" rather than pending as of that 

time. Valenzuela Gallardo III, 27 I. & N. Dec. at 455 (quoting 

Marinello, 138 S. Ct. at 1110). The BIA also explained that 

Congress would have been aware of that Marinello-based 

understanding of § 1512's nexus requirement in enacting 

§ 1101(a)(43)(S). Id. at 455-56. Based on that conclusion about 

what Congress would have known, the BIA then relied on the 

Marinello-based understanding of the required nexus in § 1512 to 

define "an offense relating to obstruction of justice" in a way 

that encompassed obstructive conduct so long as it was connected 

to "reasonably foreseeable" proceedings or investigations. 

It is thus clear that Valenzuela Gallardo III was relying 

on Marinello's understanding of the "reasonably foreseeable" 

standard for defining the required nexus to address the vagueness 

concern that had led the Ninth Circuit to reject the BIA's prior 

nexus-less construction of § 1101(a)(43)(S). And, that is notable 

for present purposes because Marinello explained that the 

"reasonably foreseeable" standard, though more expansive than a 
- 48 -

pending-investigation-or-proceeding standard such as the Third and 

Ninth Circuits had embraced, is still importantly constrained.

Specifically, the Court in Marinello made a point of 

explaining that to demonstrate that a "proceeding" or 

"investigation" was "reasonably foreseeable" at the time of the 

obstructive conduct, "[i]t is not enough for the Government to 

claim that the defendant knew [law enforcement] may catch on to 

his unlawful scheme eventually. To use a maritime analogy, the 

proceeding must at least be in the offing." Marinello, 138 S. Ct. 

at 1110. Thus, Marinello clearly rejected the notion that evidence 

that a defendant had engaged in a tax scheme that was unlawful 

could suffice in and of itself to prove that the "reasonably 

foreseeable"-based nexus requirement had been met under the 

federal tax crime there at issue for "obstruct[ing] or imped[ing] 

. . . the due administration" of Title 26. See id. (discussing 26 

U.S.C. § 7212(a)). 

Indeed, were that not so, the Court could have just said 

that proof of the defendant's predicate unlawful tax scheme would 

suffice to satisfy that nexus requirement for the offense defined 

in 26 U.S.C. § 7212 rather than that proof that law enforcement 

"may catch on to" that scheme "eventually" would not be enough to 

satisfy that requirement. After all, proof of the existence of 

the predicate unlawful tax scheme, in and of itself, would 

necessarily constitute proof that at least such a mere eventuality 
- 49 -

was possible. And, indeed, our own precedent accords with this 

same understanding of the narrowing import of Marinello's "in the 

offing" gloss on the "reasonably foreseeable" standard that the 

Court there described as constraining the nexus requirement not 

only for the offense at issue in that case but also for those like 

it, such as the one set forth in § 1512. See United States v. 

Takesian, 945 F.3d 553, 566-67 (1st Cir. 2019) (concluding a 

proceeding was reasonably foreseeable to the defendant under the 

Marinello standard because he knew that "the [Internal Revenue 

Service] was investigating the money trail that could lead to him" 

and because he testified that "he believed investigators put the 

screws on him").25

There is, of course, a separate question regarding the 

element or elements of the "obstruction of justice"-related 

offense referred to in § 1101(a)(43)(S) that the BIA understood to 

be constrained by the nexus requirement to which this "reasonably 

25 The majority notes that the phrase "in the offing" "refers, 

in the maritime sense, to '[t]he part of the sea visible from the 

shore that is very distant or beyond anchoring ground.'" Maj. Op. 

at 29 n.19 (quoting Offing, The American Heritage Dictionary of 

the English Language 1223 (5th ed. 2018)). The majority emphasizes 

the "very distant" portion of this definition; to me, the most 

important part for present purposes is the "visible" part. But, 

we need not parse the dictionary entry too finely because Marinello

makes clear that it used the phrase "in the offing" to establish 

that the government has not proven an investigation to have been 

"reasonably foreseeable" when all it has shown is that "the 

defendant knew [law enforcement] may catch on to his unlawful 

scheme eventually," 138 S. Ct. at 1110. 
- 50 -

foreseeable" standard applies. I have thus far described the nexus 

requirement as if it constrains the elements of that offense that 

define its actus reus and not merely its mens rea. And, that is 

for good reason.

The BIA, after having canvassed Chapter 73, Marinello, 

and other aspects of federal and state law, as well as other 

materials, expressly laid out the elements of the "obstruction of 

justice"-related offense in § 1101(a)(43)(S) as follows: "(1) an 

affirmative and intentional attempt (2) that is motivated by a 

specific intent (3) to interfere with an investigation or 

proceeding that is ongoing, pending, or 'reasonably foreseeable by 

the defendant.'" Valenzuela Gallardo III, 27 I. & N. Dec. at 460 

(emphasis added). Given the BIA's use of the word "attempt" in 

"(1)," and the word "is" in "(3)," the BIA must be read here to be 

describing the nexus requirement as a constraint on -- at least --

the scope of the offense's actus reus and not only on its mens 

rea.26

26 Nor should we be surprised that the BIA in Valenzuela 

Gallardo III chose to treat the "reasonably foreseeable" standard 

as a constraint that limited -- at least -- the actus reus of the 

generic, federal "obstruction of justice"-related offense. As we 

have seen, the BIA there was borrowing the "reasonably foreseeable" 

standard from the one that the Court had announced in Marinello. 

And, Marinello clearly treated that standard as if it were a 

constraint on the actus reus of the offense there at issue rather 

than only on the offense's mens rea. Specifically, in articulating 

the "reasonably foreseeable" constraint on the scope of the offense 

set forth in § 7212 of Title 26, Marinello focused its interpretive 
- 51 -

As a result, I understand the BIA in Valenzuela Gallardo 

III to describe the offense referred to in § 1101(a)(43)(S) as one 

that requires proof of a nexus between the obstructive conduct and 

an investigation or proceeding that is in fact reasonably 

foreseeable at the time of that conduct. I thus understand the 

BIA to describe that offense in a manner that is at odds with the 

notion that proof that the defendant merely believed at that time 

(even if mistakenly) that an investigation was reasonably 

foreseeable could be enough. 

That said, I am aware that the BIA in Valenzuela Gallardo 

III did assert that Congress intended § 1101(a)(43)(S) to 

encompass both the federal accessory-after-the-fact offense, 18 

U.S.C. § 3, and the California accessory-after-the-fact offense at 

issue in that case, too. 27 I. & N. Dec. at 459, 461 & n.17. I 

am also aware that the BIA in that case explained that each of 

these accessorial offenses is encompassed by § 1101(a)(43)(S) 

because of its mens rea element -- in the case of the federal one, 

the specific intent "to hinder or prevent [an offender's] 

lens on the phrases "obstructs or impedes" and "due administration" 

in that statute. 138 S. Ct. at 1106. Each of those phrases 

concerns the actus reus of the offense that the statute sets forth. 

By contrast, the consensus among lower courts at the time was that 

"the statute's mens rea requirement" was embodied in the word 

"corruptly" in that statute, United States v. Miner, 774 F.3d 336, 

347 (6th Cir. 2014) (collecting cases); see also United States v. 

Sorensen, 801 F.3d 1217, 1229-30 (10th Cir. 2015), which is a word 

that was not at issue in Marinello.
- 52 -

apprehension, trial or punishment," 18 U.S.C. § 3, and in the case 

of the California one, the specific intent "to interfere either in 

an ongoing, pending, or reasonably foreseeable investigation or 

proceeding," 27 I. & N. Dec. at 461. Finally, I am aware that in 

theory such an intent could be proved without there being proof 

that any such investigation or proceeding was in fact reasonably 

foreseeable at the time of the defendant's accessorial conduct. 

See People v. Rizo, 996 P.2d 27, 30-31 (Cal. 2000) (holding that 

"a specific intent crime" that "focuses solely on the acts and 

intent of the violator" may be committed even if the defendant's 

intent is based on a mistaken understanding). 

Nonetheless, as I have explained, the BIA, after 

completing its analysis of § 1101(a)(43)(S) in accord with 

Esquivel-Quintana, quite clearly described the actus reus of the 

offense to be "an affirmative and intentional attempt . . . to 

interfere with an investigation or proceeding that is ongoing, 

pending, or 'reasonably foreseeable by the defendant.'" 

Valenzuela Gallardo III, 27 I. & N. Dec. at 460 (emphasis added). 

And, the government in its briefing to us cites to that same 

description in describing the BIA's understanding of the nexus 

requirement just as I have. Thus, in light of the BIA's express 

description of the elements of the offense in § 1101(a)(43)(S), I 

see no basis for concluding that the BIA has set forth a reasoned 

basis for construing that offense's actus reus to be unconstrained 
- 53 -

by the "reasonably foreseeable"-based nexus requirement. Cf.

Pugin v. Garland, 19 F.4th 437, 450 (4th Cir. 2021) (noting that 

courts "give no deference to the Board's construction of state law 

or determination of its fit with federal law," despite the court's 

finding that deference was due to the BIA's interpretation of 

§ 1101(a)(43)(S)); Higgins v. Holder, 677 F.3d 97, 109 (2d Cir. 

2012) (Katzmann, J., concurring) (same).27 

27 In the same "Application" section of Valenzuela Gallardo 

III in which the BIA discussed the California statute, it explained 

that the Marinello-informed, "reasonably foreseeable"-based 

construction of the nexus requirement for the actus reus of "an 

offense relating to obstruction of justice" that it was adopting 

was "consistent with [its] prior holdings." Valenzuela Gallardo 

III, 27 I. & N. Dec. at 460. It then pointed to cases in which it 

had held that although the offense set forth by the federal 

accessory-after-the-fact statute, 18 U.S.C. § 3, is an "offense 

relating to obstruction of justice" under the INA, the offense set 

forth in the federal misprision of felony statute, id. § 4, is 

not. Valenzuela Gallardo III, 27 I. & N. Dec. at 460 (citing 

Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 894 (BIA 1999) 

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

And, the BIA did so with reference to the specific intent element 

of the federal accessory-after-the-fact offense. Id. at 461. But, 

Valenzuela Gallardo III did not explain in discussing Espinoza --

which pre-dated Marinello itself -- how an element of an 

accessorial offense that requires proof of merely a purpose to 

interfere with an investigation in and of itself could suffice to 

make an offense one "relating to obstruction of justice," given 

Valenzuela Gallardo III's Marinello-based rationale for expressly 

holding that Congress must be understood to have intended the actus 

reus of an offense "relating to obstruction of justice" to require 

proof of a nexus between the obstructive conduct and a reasonably 

foreseeable investigation or proceeding. I thus also see no basis 

for concluding from Valenzuela Gallardo III's discussion of 

Espinoza that Valenzuela Gallardo III's Marinello-informed, actus 

reus-based definition of the nexus requirement is not the operative 

one. Nor does the government suggest otherwise, given that it 

describes the BIA's operative understanding of the elements of the 
- 54 -

B.

There is one hanging thread. The majority asserts that 

it is wrong to read the BIA as "requir[ing] an identical nexus in 

both the statute at issue [in Marinello], 26 U.S.C. § 7212, and 

the statute at issue here, § 1101(a)(43)(S)." Maj. Op. at 32. 

In support of this assertion, the majority first points 

to a statement by the BIA in Valenzuela Gallardo III in which it 

supposedly "expressly rejected that false equivalence." Id. The 

statement from Valenzuela Gallardo III that the majority has in 

mind is the one in which the BIA observes that Congress intended 

§ 1101(a)(43)(S) "to apply more broadly than" 26 U.S.C. § 7212 and 

18 U.S.C. § 1503, the section of Chapter 73 that defines the 

"catch-all" "obstruction of justice" offense. Maj. Op. at 32 

(quoting Valenzuela Gallardo III, 27 I. & N. Dec. at 454 n.6). 

But, a closer examination of the BIA's decision reveals 

that the purported "express[] reject[ion]" that statement makes 

has nothing to do with the scope of the nexus requirement for "an 

offense relating to obstruction of justice" under 

§ 1101(a)(43)(S). Read in context, the footnoted statement aims 

only to make the simple point that the generic, federal 

"obstruction of justice"-related offense that Congress there 

referred to encompasses crimes other than the two specific federal 

actus reus of the "obstruction of justice"-related offense 

referred to it § 1101(a)(43)(S) just as I do.
- 55 -

offenses set forth respectively in 18 U.S.C. § 1503 and 26 U.S.C. 

§ 7212 -- as it plainly does. See Valenzuela Gallardo III, 27 I. 

& N. Dec. at 454 & n.6. The footnoted statement thus clarifies 

that § 1101(a)(43)(S) is referring to a crime that encompasses 

even, for example, state-law crimes that criminalize the same swath 

of conduct as the generic, federal "obstruction of justice" offense 

to which § 1101(a)(43)(S) refers. 

In performing that clarifying function, the footnoted 

statement in no way purports to be defining anew the scope of the 

nexus requirement for the generic, federal "obstruction of 

justice"-related offense or the meaning of the "reasonably 

foreseeable" standard that constrains the nexus requirement of 

that offense's actus reus. The BIA in the main body of its opinion 

relied heavily on Marinello, as I have described, and then 

expressly cited Marinello and United States v. Aguilar, 515 U.S. 

593 (1995), which construed the nexus requirement in § 1503, see

id. at 599-600, when it set forth the elements of "an offense 

relating to obstruction of justice," see Valenzuela Gallardo III, 

27 I. & N. Dec. at 456. It would be strange for the BIA to then 

redefine a portion of those elements in a footnote without 

addressing why.

The majority also points to a BIA case decided after 

Valenzuela Gallardo III that, the majority contends, demonstrates 

that the BIA did not intend to rely on Marinello to define the 
- 56 -

actus reus of "an offense relating to obstruction of justice." 

Maj. Op. at 33-34 (discussing Matter of Cordero-Garcia, 27 I. & N. 

Dec. 652 (BIA 2019)). But, the BIA there did not purport to reject 

its earlier clear statement of the actus reus of the offense as 

being subject to a "reasonably foreseeable" standard. Nor do I 

read the BIA in Cordero-Garcia to have suggested that the 

"reasonably foreseeable" standard that constrains the actus reus 

of "an offense relating to obstruction of justice" is not itself 

constrained by the "in the offing" gloss that Marinello placed on 

it. Rather, I read Cordero-Garcia to have accepted Valenzuela 

Gallardo III's description of the actus reus of that offense as 

being subject to such a "reasonably foreseeable"-constrained --

and Marinello-informed -- nexus requirement and then to have 

concluded that, even still, the state law offense at issue there 

qualified as "an offense relating to obstruction of justice" under 

§ 1101(a)(43)(S). See Cordero-Garcia, 27 I. & N. Dec. at 654 

(relying on the "specific intent" element of a California criminal 

offense to find that the offense was a categorical match to the 

generic, federal offense set out in § 1101(a)(43)(S)).

In other words, I read Cordero-Garcia to be no different 

from Valenzuela Gallardo III or the BIA decision in Silva's case. 

It, too, embraces an understanding of the actus reus of "an offense 

relating to obstruction of justice" that is nexus-based and 

constrained by the reasonably foreseeable standard that Marinello
- 57 -

sets forth. And, it, too, does so notwithstanding that it 

concludes that a state-law accessorial offense is such an 

"obstruction of justice"-related offense even though that statelaw accessorial offense has no similarly constrained actus reus. 

I also emphasize that, in concluding that the BIA has not yet 

backed away from Valenzuela Gallardo III's quite clear description 

of the offense's actus reus, I am taking a position that the 

government itself appears to share, given the way that the 

government's briefing to us describes the understanding of actus 

reus of the offense that the BIA embraced in Valenzuela Gallardo 

III and re-embraced yet again in the case before us. 

III.

With the BIA's operative understanding of the nexus 

requirement for "an offense relating to obstruction of justice"

now in view, I am almost ready to address whether Silva's offense 

of conviction is such an offense. But, before taking up that 

question -- which, as I will explain, is the dispositive one in 

this case -- there remains one more task to complete. It concerns 

the majority's independent, Chevron-free holding that I mentioned 

at the outset.

In that holding, the majority appears to conclude that, 

insofar as we are not bound to defer under Chevron to the BIA's 

nexus-based construction of the offense referred to in 

§ 1101(a)(43)(S), that offense may reasonably be construed under 
- 58 -

the interpretive approach set forth in Esquivel-Quintana not to be 

subject to a nexus requirement at all. And, the majority then 

appears to go on to conclude in that holding that Silva's petition 

must be rejected for this reason, too. 

But, notably, the majority does not explain in so holding 

what basis there is for not applying Chevron here. It does not 

suggest, for example, that the BIA's nexus-based construction of 

the "obstruction of justice"-related offense referred to in 

§ 1101(a)(43)(S) is an unreasonable one, such that the BIA's 

construction would not be entitled to deference for that reason. 

In fact, the majority holds the opposite. 

Nor does the majority suggest that Chevron deference is 

not available to the interpretive question at hand, even if the 

BIA's construction is a reasonable one. Rather, the majority 

rejects each of Silva's arguments to that effect as well as those 

of the amici and even explains why our precedents leave us, as a 

panel, with no basis for rejecting Chevron's application to the 

extent that the BIA's nexus-based construction is a reasonable 

one.28

28 I note in this regard that I agree with the majority that 

there is no basis for this panel to hold that Chevron has no 

application at all, given that we have three times before upheld 

BIA constructions of other provisions of this same part of the INA 

under Chevron. See De Lima v. Sessions, 867 F.3d 260, 264-65 (1st 

Cir. 2017); Soto-Hernandez v. Holder, 729 F.3d 1, 3-5 (1st Cir. 

2013); Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013). I also 
- 59 -

There is, though, still one more problem with holding 

that Silva's petition must be rejected under Esquivel-Quintana

based on a nexus-less construction of the "obstruction of justice"-

related offense referred to in § 1101(a)(43)(S). And, that problem 

stems from the fact that the majority does not explain at any point 

how, insofar as Chevron somehow does not apply here, the EsquivelQuintana factors favor the adoption of a nexus-less construction 

of that offense to the exclusion of the nexus-based one that the 

BIA describes.

The majority does, in applying those factors, advance 

reasons to reject the strict, pending-investigation-or-proceeding 

nexus requirement that the Third and Ninth Circuits have adopted.29 

emphasize, as the majority does as well, that the BIA here is not 

construing a provision of the federal criminal code. It is 

construing a provision of the INA that determines the type of 

predicate offense that makes a lawful permanent resident removable 

and disqualifies a noncitizen from being eligible for asylum.

29 I note in this regard that the majority invokes a series 

of dictionary definitions to support its contention that the Third 

and Ninth Circuits are wrong to hold that "an offense relating to 

obstruction of justice" requires proof of a nexus between 

obstructive conduct and an investigation or proceeding that, at 

the time of that conduct, is at least pending. But, even if those 

definitions support that conclusion, they do not themselves 

support a no-nexus understanding of the actus reus of "an offense 

relating to obstruction of justice." And, in fact, the majority 

does not attempt to explain how those definitions do. Nor, I 

should add, do any of the provisions in Chapter 73 to which the 

majority refers provide support for a non-nexus understanding, as 

one of the two that the BIA might be read to suggest does so is 18 

U.S.C. § 1512 itself while the other one is expressly restricted 

to conduct committed "with the intent to facilitate an illegal 

gambling business," 18 U.S.C. § 1511(a) (1996). 
- 60 -

And, I suppose, the majority could be understood in doing so also 

to be offering reasons that could explain why such a nexus-less 

construction is itself a permissible one. I suppose as well that, 

The majority does identify some state law criminal codes that 

have grouped disparate offenses, some of which lack a nexus 

requirement, within a chapter or section and given the entire 

assortment the label of "obstruction of justice" or something 

similar. But, the majority understandably does not go on to 

suggest on that basis that § 1101(a)(43)(S) is better read -- let 

alone best read even if the BIA reads the relevant materials 

otherwise -- to be referring to a nexus-less "obstruction of 

justice" offense. Cf. Jerome v. United States, 318 U.S. 101, 104 

(1943) ("[W]e must generally assume, in the absence of a plain 

indication to the contrary, that Congress when it enacts a statute 

is not making the application of the federal act dependent on state 

law."). 

The majority also points to the fact that the Model Penal 

Code identifies an accessory after the fact offense as "an 

independent offense of obstruction of justice." Maj. Op. at 26 

(quoting Model Penal Code § 242.1 explanatory note (Am. L. Inst. 

1985) [hereinafter MPC]). But, the majority does not hold that 

the only reasonable construction of § 1101(a)(43)(S) is one that 

tracks that understanding. That may be because the Model Penal 

Code did not even contain an offense labeled "obstruction of 

justice" at the time that § 1101(a)(43)(S) was enacted, see MPC 

§§ 242.1-.8, and because the Model Penal Code itself acknowledges 

that, under the "traditional concept" of "common law . . . 

accessory after the fact," a crime of that type was not "an 

independent offense of obstruction of justice," id. § 242.1 

explanatory note. Thus, here, too, the majority fails to offer a 

basis for favoring a nexus-less construction over the BIA's nexusbased one. 

Finally, although the majority relies on some precedent to 

assert that the federal accessory-after-the-fact statute, 18 

U.S.C. § 3, has a "gist" of "essentially . . . obstructing 

justice," Maj. Op. at 18, it does not explain why one may conclude 

from that precedent alone that such a nexus-less construction is 

to be preferred to the BIA's nexus-based construction of the actus 

reus of "an offense relating to obstruction of justice." I also 

note in that regard that Congress itself saw fit to put that 

accessory-after-the-fact statute in a chapter other than Chapter 

73, which is the only chapter on which Congress chose to bestow 

the title, "Obstruction of Justice." 
- 61 -

if we are not permitted to afford Chevron deference to the BIA's 

nexus-based construction despite its reasonableness, then we must 

adopt the nexus-less construction if it is superior to the BIA's. 

See H.J. Friendly, Chenery Revisited: Reflections on Reversal and 

Remand of Administrative Orders, 1969 Duke L.J. 199, 210. 

But, in light of Chenery, to justify the rejection of 

Silva's petition based on a nexus-less construction of the 

"obstruction of justice"-related offense referred to in 

§ 1101(a)(43)(S), the majority must do more than explain merely 

why that nexus-less construction is as permissible as the nexusbased one that the BIA describes. For, without a reason to 

conclude that the nexus-less construction is superior, there is no 

reason to conclude that the nexus-based construction that the BIA 

has adopted and that it relied on in Silva's case is not a 

permissible one for it to have applied. Yet, the majority at no 

point explains why (nor, for that matter, does the government) the 

nexus-less rather than the nexus-based construction is the one 

that the BIA would be bound to apply insofar as Chevron is not 

applicable.

Thus, because I see no basis under Chenery for 

attributing to the BIA the nexus-less understanding of 

§ 1101(a)(43)(S) to which the majority adverts, I also see no basis 

for denying Silva's petition for review based on that 

understanding. And so, unless the BIA's own understanding of the 
- 62 -

nexus requirement for the "obstruction of justice"-related offense 

to which that provision refers encompasses the accessorial offense 

that Silva was convicted of under Massachusetts law, his petition 

must be granted. All of which is to say that -- at last -- I can 

now move on to an assessment of the portion of the majority's 

opinion in which it holds pursuant to the BIA's nexus-based 

construction of the "obstruction of justice"-related offense 

referred to in § 1101(a)(43)(S) that Silva's conviction for being 

an accessory after the fact under Massachusetts law is an offense 

of that kind. 

IV.

The majority draws in this portion of its opinion on the 

approach -- commonly referred to as the "categorical approach" --

that the Court relied on in Moncrieffe to construe § 1101(a)(43). 

See 569 U.S. at 190-91. Under that approach, the critical question 

is whether a comparison of the elements of the generic, federal 

"obstruction of justice"-related offense referred to in 

§ 1101(a)(43)(S) and the elements of the state-law accessorial 

offense of which Silva was convicted reveals that the least of the 

conduct criminalized by that accessorial offense is encompassed by 

the generic, federal offense. For, under the categorical approach, 

unless that comparison does reveal such a match arising from the 

elements of the two offenses, Silva's accessorial offense of 

conviction is not "an offense relating to obstruction of justice." 
- 63 -

I have explained how the BIA defines the elements of the 

"offense relating to obstruction of justice" to which 

§ 1101(a)(43)(S) refers. There remains to address, then, only 

whether that offense -- so understood -- encompasses the least of 

the conduct encompassed by the elements of the Massachusetts 

accessory-after-the-fact offense of which Silva was convicted. 

That accessorial offense contains the following four 

elements: that the defendant (1) "harbors, conceals, maintains, or 

assists the principal felon or accessory before the fact, or gives 

such offender any other aid," (2) does so "after the commission of 

a felony," (3) does so "knowing that [the person being assisted] 

has committed a felony or has been accessory thereto before the 

fact," and (4) does so with the specific intent that the defendant 

"avoid or escape arrest, detention, trial, or punishment." Mass. 

Gen. Laws ch. 274, § 4; see also Commonwealth v. Watson, 165 N.E.3d 

1015, 1025 (Mass. 2021); Commonwealth v. Iacoviello, 58 N.E.3d 

1032, 1047 (Mass. App. Ct. 2016); Commonwealth v. Clipp, No. 10-

0296, 2011 WL 5182244, at *2 (Mass. Super. Ct. Aug. 26, 2011). 

None of the elements purports on its face to require that an 

official judicial proceeding or investigation be reasonably 

foreseeable -- let alone pending -- at the time of the alleged 

accessorial conduct by the defendant. Nor, as I will next explain, 

may any of them be read impliedly to so require. 
- 64 -

A.

The first element (though I suppose it could be 

understood to be a compendium of elements in its own right) defines 

part of the actus reus of the offense. It provides that the 

government must prove that the defendant engaged in conduct that 

could qualify as obstructive conduct of the kind that 

§ 1101(a)(43)(S) encompasses. 

But, nothing in the element requires there to be proof 

of a linkage of any kind between that conduct and an official 

investigation or proceeding into any crime. Thus, this element 

cannot ensure the required categorical match between the two 

offenses. Nor does the BIA -- or, for that matter, the majority 

-- suggest otherwise. 

B.

The second element requires proof that the recipient of 

the defendant's aid committed a felony or was an accessory before 

the fact to that felony. This element also defines part of the 

actus reus of the offense. But, it requires no more of a showing 

than that the defendant lent the requisite type of aid to the 

recipient of it after that recipient had in fact committed a felony 

or been an accessory before the fact to it. Thus, it would appear 

that, just like the first element, this element also does not on 

its face require proof of what the BIA by its own account 

understands the generic, federal "obstruction of justice"-related 
- 65 -

offense to demand: proof that an official investigation is 

reasonably foreseeable at the time of the obstructive conduct and 

thus that there is a nexus of at least that sort between the 

defendant's obstructive conduct and an official investigation. 

In addition, the accessorial offense cannot be 

understood to be impliedly subject to a "reasonably foreseeable"-

based nexus requirement as an element, because it applies to being 

an accessory after the fact to Massachusetts felonies that are in 

their nature no more likely to be detected than the offense at 

issue in Marinello. See, e.g., Mass. Gen. Laws ch. 62C, § 73(a)-

(b), (f) (defining several tax-related felonies, such as the 

willful evasion of or "failure to collect or truthfully account" 

for a tax); id. ch. 266, § 67C (making it a felony to knowingly 

and willfully make a false entry in a book or record of a public 

contract); id. § 111C (making certain variations of insurance 

fraud a felony); id. ch. 267, § 8 (making it a felony to counterfeit 

certain bank bills); id. ch. 267A, § 2 (making it a felony to 

launder any amount of money or property); id. ch. 271, § 49(a) 

(making it a felony to charge more than twenty percent annual 

interest on a loan). See generally id. ch. 274, § 1 (defining 

felonies to include any crime punishable by "imprisonment in the 

state prison"). Indeed, one of the tax-related felonies in Mass. 

Gen. Laws ch. 62C, § 73, such as willfully evading a tax or 

concealing goods on which a tax is to be imposed, seems to me to 
- 66 -

be the same as the offense at issue in Marinello, as there is no 

reason to presume from the fact that such an offense has been 

committed more than that authorities "may eventually catch on" to 

the commission of that offense. 

The only potential complication that I can see with this 

conclusion is that the underlying "felony" in Silva's case is 

murder, which as a general matter is a crime more likely to trigger 

an investigation upon its occurrence than a tax offense. But, 

Silva asserts, without dispute from the government or the 

expression of any contrary view by the BIA, that the Massachusetts 

accessory-after-the-fact statute is not divisible. Nor did the 

BIA suggest here that Silva's offense of conviction qualifies as 

"an offense relating to obstruction of justice" because of the 

nature of the predicate felony that the principal committed. 

C.

The third element does require proof that the defendant 

accused of the accessorial conduct lent aid to the one who 

committed the felony or was an accessory before the fact to it 

"knowing that [the person being assisted] ha[d] committed a felony 

or has been accessory thereto before the fact." Mass. Gen. Laws 

ch. 274, § 4. But, proof of such knowledge -- which is all that 

this element requires -- cannot demonstrate the kind of nexus that 

the BIA's Marinello-based "in the offing" standard requires 

between obstructive conduct and an investigation: that an 
- 67 -

investigation into that felony was in fact reasonably foreseeable 

at the time of the accessorial conduct. Nor did the BIA suggest 

that, given the principal's predicate crime in Silva's case, proof 

of such a nexus was necessarily required to convict Silva of this 

accessorial crime. 

D.

That leaves the fourth element, which requires proof 

that the defendant engaged in the alleged accessorial conduct "with 

intent that [the principal or accessory before the fact] shall 

avoid or escape detention, arrest, trial or punishment," Mass. 

Gen. Laws ch. 274, § 4. The majority rightly notes that "[a]bsent 

an investigation, there can be no prosecution and no detention, 

arrest, trial, or punishment to avoid or escape." Maj. Op. at 28. 

But, this element does not require proof that detention, arrest, 

trial or punishment is reasonably foreseeable. Rather, it is a 

classic mens rea element that does not concern the actus reus at 

all.

Nor does the element require proof -- as a means of 

proving the defendant's mental state -- that an investigation was 

in fact in the offing (or, for that matter, was even reasonably 

foreseeable under any understanding of that constraint). The 

element requires proof merely that the defendant lent certain kinds 

of aid to the one who committed a felony or was an accessory before 

the fact to that felony with the intent to help that recipient 
- 68 -

evade arrest, trial, punishment, or detention. See Watson, 165 

N.E.3d at 1025.

In fact, it appears that under this Massachusetts 

offense the defendant need not even have been shown to have 

reasonably but mistakenly believed that an official investigation 

was in the offing when he lent such aid. It instead appears that 

he need only be shown to have subjectively believed -- even if 

unreasonably -- that such an investigation was in the offing when 

he did so. Cf. Commonwealth v. Liebenow, 20 N.E.3d 242, 250 (Mass. 

2014) (holding that a defendant's honest but unreasonable belief 

that property was abandoned was sufficient to establish a defense 

that turned on that honest belief); Commonwealth v. Lahens, 177 

N.E.3d 935, 942 (Mass. App. Ct. 2021) ("Specific intent crimes are 

commonly identified by the presence of a subjective intent to cause 

a result that is separate from the crime's actus reus." (citing 1 

W.R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. 2018))); 

Commonwealth v. Cachopa, No. 09-P-2337, 2014 WL 5461490, at *2 

(Mass. App. Ct. Oct. 29, 2014) (inquiring into the defendant's 

state of mind to determine if evidence was sufficient to support 

a conviction under the accessory after the fact statute); Clipp, 

2011 WL 5182244, at *2 (same for an indictment). 

Proof of no more than that the defendant held a belief 

(and not necessarily even an objectively reasonable one) about the 

investigation being reasonably foreseeable as of the time of his 
- 69 -

accessorial conduct is not proof of the investigation being 

reasonably foreseeable in fact as of that time. As such, proof of 

that sort is not proof of what the BIA -- and thus the majority --

agrees the generic, federal offense in § 1101(a)(43)(S) requires. 

See Uppal v. Holder, 605 F.3d 712, 718 (9th Cir. 2010) (finding a 

Canadian criminal offense not to be a categorical match to a crime 

involving moral turpitude because the Canadian statute "require[d] 

only that the risk of harm resulting from the assault be 

'objective[ly] fores[eeable],'" while the relevant crime of moral 

turpitude required "subjective knowledge of a factor indicating 

risk to another").

To be sure, in finding here that the Massachusetts 

accessorial offense at issue is a categorical match for the 

generic, federal offense referred to in § 1101(a)(43)(S), the BIA 

does rely on this fourth element and does state that "[t]here would 

be little reason for a defendant to be an accessory after the fact 

in this manner unless an investigation or proceedings [sic] was 

reasonably foreseeable" (internal quotation marks omitted).30 But, 

the BIA ignores the obvious point that a defendant can have an 

intention to lend aid for such a purpose without there being any 

proof that, in fact, the purpose could be accomplished. Cf. United 

30 The Fourth Circuit also rested its decision on a similar 

specific intent element in interpreting a Virginia statute. Pugin, 

19 F.4th at 454. 
- 70 -

States v. Zhen Zhou Wu, 711 F.3d 1, 18 (1st Cir. 2013) ("[E]ven 

where the evidence is sufficient to show the necessary mens rea, 

the government still must always 'meet its burden of proving the 

actus reus of the offense.'" (quoting United States v. Whiteside, 

285 F.3d 1345, 1353 (11th Cir. 2002))).

One need only consider the case in which the felon tells 

the accessory that he, the felon, is sure to be arrested as a means 

of inducing the accessory to lend assistance. If, in fact, there 

is no evidence to show that it was reasonably foreseeable at the 

time the assistance was provided by the accessory that authorities 

would investigate the felon's unlawful conduct -- and there was 

instead at most evidence at that time that authorities "may" do so 

"eventually" -- the BIA's own articulated standard for proving the 

nexus would not be met even though the specific intent requirement 

of the Massachusetts accessory-after-the-fact offense would be 

satisfied. Cf., e.g., United States v. De Leon, 270 F.3d 90, 92 

(1st Cir. 2001) (recognizing that an offense "is a specific intent 

crime" because it "requires a subjective intent" to achieve a 

specific end); Cachopa, 2014 WL 5461490, at *2; Clipp, 2011 WL 

5182244, at *2. 

E.

In sum, careful attention to the elements of the 

Massachusetts accessorial offense of which Silva was convicted and 

the elements of the generic, federal "obstruction of justice"-
- 71 -

related offense referred to in § 1101(a)(43)(S) -- as described by 

the BIA -- shows that the two offenses (so understood) are not a 

categorical match. And that is so, even if the generic, federal 

offense requires no more of a nexus between the defendant's 

obstructive conduct and an investigation or proceeding than the 

BIA has determined that offense to require, given both the 

Marinello-informed "in the offing" gloss on the "reasonably 

foreseeable" standard that the BIA holds defines that offense's 

nexus requirement and the fact that this nexus requirement 

constrains the actus reus of that offense. Thus, there is no basis 

for us to uphold the BIA's conclusion that Silva's offense of 

conviction is a categorical match for it.31

V.

The majority contends that I am mistaken in reaching 

this conclusion. It does so in part by emphasizing that in 

applying the categorical approach we may not imagine "fanciful, 

hypothetical scenarios." United States v. Fish, 758 F.3d 1, 6 

(1st Cir. 2014) (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 

193 (2007)); see also United States v. Starks, 861 F.3d 306, 315 

(1st Cir. 2017). The majority points in this regard to the absence 

of any reported cases in Massachusetts of prosecutions for the 

31 The "relating to" words in § 1101(a)(43)(S) still retain a 

function: they pick up inchoate versions of an offense that is for 

"obstruction of justice." 
- 72 -

accessory after the fact offense that is at issue in circumstances 

in which the defendant's obstructive conduct did not have a nexus 

to a reasonably foreseeable investigation or proceeding. 

But, the categorical approach has never been understood 

to make the test of a state law's legally operative scope wholly 

dependent on the presence of reported cases of actual prosecutions 

for such conduct, in part because reported cases may not be 

representative of charging practices. Da Graca v. Garland, 23 

F.4th 106, 113-14 (1st Cir. 2022); Swaby v. Yates, 847 F.3d 62, 

65-66 (1st Cir. 2017) (noting that the Duenas-Alvarez limitation 

"has no relevance" to a case where the text of a state law clearly 

prohibited certain conduct but the petitioner "had failed to show 

that there was a realistic probability that [the state] would 

actually prosecute offenses" derived from that conduct). Nor would 

such a test make sense. 

The outcome under the categorical approach depends on 

what the statute setting forth the offense at issue is fairly read 

to require the government to prove. It does not depend on how 

aggressively prosecutors choose to enforce that offense or the 

actual conduct of defendants in committing it. See Swaby, 847 

F.3d at 65-66.32

32 For this reason, the majority's point that "Silva's plea 

leaves no doubt that he intended to obstruct a reasonably 

foreseeable investigation," Maj. Op. at 5 n.2, is irrelevant to 
- 73 -

I agree that we may not stretch the text of a criminal 

statute to cover conduct that we have no good reason to conclude 

that the statute in fact reaches. But, we must construe such a 

statute to reach the conduct that its text plainly does reach. 

And, that is so regardless of whether any case involving such 

conduct has been prosecuted and then resulted in a published 

opinion. See United States v. Burghardt, 939 F.3d 397, 409 (1st 

Cir. 2019) (reaffirming that we should "avoid treating the state 

offense as if it is narrower than it plainly is." (internal 

quotation marks and alterations omitted) (quoting Swaby, 847 F.3d 

at 66)). 

Thus, what matters here is what is clear from the text 

of the state-law statute that sets forth the accessorial offense 

at issue. And, what is clear from that text is both that the 

offense may be committed under Massachusetts law with respect to 

tax evasion and that the state may prove the commission of that 

accessorial offense in relation to that type of felony without 

proving that any investigation into that felony was "in the 

this case. The categorical approach demands that "we look 'not to 

the facts of the particular prior case,' but instead to whether 

'the state statute defining the crime of conviction' categorically 

fits within the 'generic' federal definition of a corresponding 

aggravated felony." Moncrieffe, 569 U.S. at 190 (quoting DuenasAlvarez, 549 U.S. at 186). A defendant's plea in an individual 

case cannot define the elements of a state law offense to be other 

than what the statutory text that sets forth that offense -- and 

the state's highest court's interpretation of it -- defines those 

elements to be. 
- 74 -

offing." Thus, it is clear that there is no requirement to prove 

a nexus of the "in the offing"-constrained sort that the BIA has 

determined must be proved as part of the actus reus of an "offense 

relating to obstruction of justice." 

The majority does attempt to respond to this line of 

argument. It does so by asserting that the state law accessorial 

offense at issue here is a categorical match for the "obstruction 

of justice"-related offense referred to in § 1101(a)(43)(S) only 

so long as the underlying "felony" for that accessorial offense is 

one that the majority understands to be a "serious" felony. The 

majority then goes on to hold that the accessorial offense of which 

Silva was convicted is such a categorical match precisely because 

Silva was convicted of being an accessory after the fact to such 

a "serious" felony -- namely, murder.

But, no party to the case or the BIA has indicated that 

the accessorial offense at issue either is divisible or is 

indivisible but, contrary to its plain text, has an implicit 

"seriousness" limitation that makes it just fine to be an accessory 

after the fact to a tax crime. Nor is the accessorial offense in 

Silva's case one for which the BIA's "reasonably foreseeable"-

based nexus had to be proved as part of its actus reus. I thus do 

not understand how the basis on which the majority purports to be 

explaining away Marinello's significance to this case -- which, I 

note, is not the bass on which the BIA itself relied -- comports 
- 75 -

with the categorical approach to which the majority purports to be 

faithful.

I would add only in this connection that the "traditional 

concept" of accessory after the fact offenses is that "the 

accessory's liability derives from that of his principal." Model 

Penal Code § 242.3 (Am. L. Inst. 1985); see also 5 Tucker's 

Blackstone *35 (defining an accessory as "he who is not the chief 

actor in the offense . . . but is someway concerned therein"). 

For that reason, there was no need at common law to require proof 

for such a crime that the aid to the felon that the accessory 

provided in fact interfered with an investigation that was "in the 

offing." It was enough to require proof that the accessory shared 

some culpability for the principal's crime, which could be proved 

through evidence of his culpable mental state at the time that he 

lent the aid. 

By contrast, offenses of the kind that Blackstone 

labeled as ones against "public justice" -- which are the kinds of 

offenses that we now usually call "obstruction of justice" 

offenses, see Maldonado v. Commonwealth, 829 S.E.2d 570, 575 (Va. 

Ct. App. 2019) (looking to Blackstone's list of offenses against 

public justice to determine the meaning of obstruction of justice 

at common law); People v. Jenkins, 624 N.W.2d 457, 465 (Mich. Ct. 

App. 2000) (same) -- were different. The criminal liability of 

the one who committed the offense against public justice was 
- 76 -

understood to be derived from his conduct as a principal in his 

own right based on his having done something criminal in and of 

itself -- impeding the administration of justice. See, e.g., 

5 Tucker's Blackstone *127-41; Wharton's Criminal Law §§ 562, 570 

(15th ed. 1996). 

As a result, it is not "fanciful" to conclude that 

Silva's offense of conviction requires no proof of the kind of 

nexus between obstructive conduct and an investigation or 

proceeding that the majority and the BIA acknowledge Congress did 

require for the generic, federal "obstruction of justice"-related 

offense referred to in § 1101(a)(43)(S). Rather, such a 

construction of Silva's offense of conviction merely results in 

that offense being different from an "obstruction of justice" 

offense in a way that even Blackstone would recognize. 5 Tucker's 

Blackstone *37-39, *127-41 (treating those types of offenses 

separately in distinct chapters of his treatise).

The majority separately takes issue with my invocation 

of Marinello, to the extent that I take the view that the BIA 

relied on Marinello's understanding of the "reasonably 

foreseeable" standard to define the required nexus for an "offense 

relating to obstruction of justice" under § 1101(a)(43)(S). The 

majority focuses in doing so on the fact -- which I do not dispute 

-- that the Court there did not have occasion to decide whether 

the evidence in that specific case could suffice to satisfy the 
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"in the offing"-based nexus requirement that the Court there 

described.

But, as I have already explained, proof of the commission 

of a predicate crime -- or the awareness of its commission by the 

one guilty of the accessorial offense -- is not proof that an 

investigation into that predicate crime was in fact reasonably 

foreseeable at the time of the accessorial conduct in the "in the 

offing" sense. It is at most proof that authorities "may" (or of 

the defendant's knowledge that the authorities may) "eventually" 

catch on to that predicate crime's commission. But, that is 

exactly the sort of proof that Marinello clearly deemed inadequate 

to satisfy the "reasonably foreseeable" standard that the Court 

described in that case. 

Thus, because the state law accessorial offense of which 

Silva was convicted requires, as to its actus reus, no more than 

proof of the defendant's mere awareness of the predicate crime's 

commission -- which, as best I can tell, is also a point that the 

majority does not dispute -- that state law accessorial offense 

cannot be a categorical match for the "obstruction of justice"-

related offense set forth in § 1101(a)(43)(S) as the BIA has 

described that offense's elements. For, while the BIA does point 

to the specific intent element of the Massachusetts accessoryafter-the-fact offense in concluding otherwise, the majority 

overlooks the way that the BIA itself defines the actus reus of an 
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"offense relating to obstruction of justice" and so mixes up actus 

reus and mens rea elements in a way that the elements-based 

categorical approach simply does not permit.

VI.

I have explained before why I do not agree with the 

criticism that the categorical approach permits technical 

inquiries to yield the conclusion that objectively concerning 

criminal conduct is of no concern to the Congress that enacted the 

measure that imposes the special, adverse consequence at issue. 

See United States v. Faust, 853 F.3d 39, 61-66 (1st Cir. 2017) 

(Barron, J., concurring). But, the objection that such a 

technical, elements-based inquiry misses the forest for the trees 

is especially misplaced here, given the history that I have just 

recounted about how accessorial offenses historically were 

understood to be conceptually distinct from offenses for impeding 

the administration of public justice. And, indeed, the 

organization of modern criminal codes still reflects such an 

understanding of those two types of offenses being distinct. See, 

e.g., 18 U.S.C. § 3, ch. 73; Mass. Gen. Laws ch. 268, ch. 274, 

§ 4; cf. Da Graca, 23 F.4th at 112 (determining the scope of a 

state criminal statute in part by looking to certain of the state's 

other criminal statutes, and approvingly noting that the BIA 

"interpreted the existence of a separate California joyriding 

statute to cabin the breadth of the California unauthorized use 
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[of a motor vehicle] statute"). Thus, if history is our guide, 

there is quite good reason to think that the Congress that singled 

out offenses "relating to obstruction of justice" -- even accepting 

as the majority does that the BIA is right in how expansively it 

has defined that category of offenses -- was not a Congress that 

had in view the kind of accessorial crime of which Silva was 

convicted. 

I do not mean to suggest that anything would prevent a 

state from defining the elements of an offense that it labels as 

an accessorial one in a way that would make that offense a match 

for "an offense relating to obstruction of justice," as the BIA 

understands that offense. But, as I have explained, there is no 

indication that Massachusetts has done so here. 

Accordingly, I conclude that although Silva was 

convicted of being an accessory after the fact to a felony, neither 

the BIA nor the majority has established that he has been convicted 

of an "offense relating to obstruction of justice," such that he 

may be deemed to have committed an "aggravated felony" within the 

meaning of the INA. I therefore would grant Silva's petition for 

review and so, respectfully, dissent.