FERNANDO CORDERO-GARCIA V. MERRICK GARLAND, No. 19-72779 (9th Cir. 2022)
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The BIA concluded that Petitioner’s CPC Section 136.1(b)(1) convictions were offenses relating to obstruction of justice under Section 1101(a)(43)(S). In light of Valenzuela Gallardo I, and after Petitioner filed a petition for review, this court granted an unopposed motion to remand. The BIA then decided Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (BIA 2018), modifying its definition of “an offense relating to obstruction of justice” to include: “offenses covered by chapter 73 of the Federal criminal code or any other Federal or State offense” involving certain conduct motivated by a specific intent—as relevant here—“to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant.”
The Ninth Circuit granted Petitioner’s petition for review and remanding, the court held that dissuading or attempting to dissuade a witness from reporting a crime, in violation of Section 136.1(b)(1), is not a categorical match to “an offense relating to obstruction of justice” aggravated felony under 8 U.S.C. Section 1101(a)(43)(S). The government argued that Valenzuela Gallardo II left untouched the first prong of the BIA’s definition from Matter of Valenzuela Gallardo—“offenses covered by chapter 73 of the Federal criminal code.”
The court rejected the government’s new position as flatly inconsistent with Valenzuela Gallardo II’s requirement of a nexus to an ongoing or pending proceeding or investigation. The court concluded that CPC Section 136.1(b)(1) is not a categorical match with Section 1512 because the California statute lacks the requirement, in Section 1512(b)(3), that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.”
Court Description: Immigration Granting Fernando Cordero-Garcia’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that dissuading or attempting to dissuade a witness from reporting a crime, in violation of California Penal Code (“CPC”) § 136.1(b)(1), is not a categorical match to “an offense relating to obstruction of justice” aggravated felony under 8 U.S.C. § 1101(a)(43)(S), and therefore, Cordero-Garcia’s CPC § 136.1(b)(1) convictions did not render him removable. In 2012, the BIA concluded that Cordero-Garcia’s CPC § 136.1(b)(1) convictions were offenses relating to obstruction of justice under § 1101(a)(43)(S). In 2016, this court decided Valenzuela Gallardo v. Lynch (“Valenzuela Gallardo I”), 818 F.3d 808 (9th Cir. 2016), holding that the BIA’s most recent definition of “an offense relating to obstruction of justice” raised grave constitutional concerns and remanding to the BIA. In light of Valenzuela Gallardo I, and after Cordero-Garcia filed a petition for review, this court granted an unopposed motion to remand. The BIA then decided Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (BIA 2018), modifying its definition of “an offense relating to obstruction of justice” to include: “offenses covered by chapter 73 of the Federal criminal code or any other Federal or State offense” involving certain conduct motivated by a specific intent—as relevant here—“to interfere either in an investigation or proceeding that is CORDERO-GARCIA V. GARLAND 3 ongoing, pending, or reasonably foreseeable by the defendant.” Applying Matter of Valenzuela Gallardo to Cordero- Garcia’s case on remand, the BIA concluded that CPC § 136.1(b)(1) was an aggravated felony offense relating to obstruction of justice. After Cordero-Garcia petitioned for review, this court decided Valenzuela Gallardo v. Barr (“Valenzuela Gallardo II”), 968 F.3d 1053 (9th Cir. 2020), holding that “obstruction of justice” under § 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings. In light of Valenzuela Gallardo II, the panel concluded that CPC § 136.1(b)(1) is not a categorical match to “an offense relating to obstruction of justice” because—as the parties agreed—the California statute is missing a nexus to an ongoing or pending proceeding or investigation. Before this court, the government argued for the first time that Valenzuela Gallardo II left untouched the first prong of the BIA’s definition from Matter of Valenzuela Gallardo—“offenses covered by chapter 73 of the Federal criminal code.” Under the government’s view, an offense “covered by chapter 73” qualifies as “an offense relating to obstruction of justice” under § 1101(a)(43)(S), with or without a nexus to an ongoing or pending proceeding or investigation. The government also argued that CPC § 136.1(b)(1) is a categorical match to 18 U.S.C. § 1512— tampering with a witness, victim, or an informant—a chapter 73 offense that does not require a nexus to an ongoing or pending proceeding or investigation. The panel rejected the government’s new position as flatly inconsistent with Valenzuela Gallardo II’s 4 CORDERO-GARCIA V. GARLAND requirement of a nexus to an ongoing or pending proceeding or investigation. The panel also wrote that the government conceded that the BIA did not analyze whether Cordero- Garcia’s CPC § 136.1(b)(1) conviction was a categorical match with § 1512, and so the panel could not deny the petition on these grounds. In any event, the panel concluded that CPC § 136.1(b)(1) is not a categorical match with § 1512 because the California statute lacks the requirement, in § 1512(b)(3), that an individual “uses intimidation, threatens, or corruptly persuades another person,” or “engages in misleading conduct toward another person.” Dissenting, Judge VanDyke wrote that this case well illustrates why he has not been shy in criticizing this court’s abysmal and indefensible immigration precedents. Judge VanDyke described how, since 2011, this court has been whipsawing the BIA, doing everything in the court’s power (and much not) to upset the BIA’s consistent and reasonable interpretation of “an offense related to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S). And while binding precedent previously addressed the second prong of the BIA’s definition, this panel was free to consider the first prong—whether CPC § 136.1(b)(1) is “covered by” 18 U.S.C. § 1512(b)(3). As to that question, Judge VanDyke concluded that CPC § 136.1(b)(1) is a categorical match for § 1512(b)(3), explaining that the majority erred in concluding that the California statute reaches “innocent persuasion.” Specifically, the majority ignored numerous California cases explicitly saying that CPC § 136.1(b)(1) proscribes only “culpable conduct” and not innocent behavior. The majority also failed to point to a single case in which California courts have applied CPC § 136.1(b)(1) to innocent behavior, relying instead on a California case construing an altogether different offense. CORDERO-GARCIA V. GARLAND 5
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