Valenzuela Gallardo v. Barr, No. 18-72593 (9th Cir. 2020)
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The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.
The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order.
Court Description: Immigration. The panel granted Agustin Valenzuela Gallardo’s petition for review of a decision of the Board of Immigration Appeals and vacated his order of removal, holding that 8 U.S.C. § 1101(a)(43)(S), which describes an aggravated felony “offense relating to obstruction of justice,” requires a nexus to an ongoing or pending proceeding or investigation and that, therefore, the BIA’s contrary construction of the statute was inconsistent with the statute’s unambiguous meaning. In a prior published opinion, the BIA found Valenzuela Gallardo removable on the ground that his conviction for being an accessory to a felony, in violation of California Penal Code § 32, was an obstruction of justice aggravated felony under 8 U.S.C. § 1101(a)(43)(S). Switching directions from its precedent, the BIA concluded that the existence of an ongoing proceeding was not an essential element of an offense relating to obstruction of justice. However, a prior panel of this court vacated the BIA’s redefinition because it raised serious questions about whether the statute is unconstitutionally vague. On remand, the BIA issued a published decision concluding that obstruction of justice offenses included not only offenses that interfered with ongoing or pending investigations or proceedings, but also those that interfered with investigations or proceedings that were reasonably VALENZUELA GALLARDO V. BARR 3 foreseeable by the defendant. Valenzuela Gallardo again petitioned for review. The panel began at Chevron Step Zero, where the court determines whether the Chevron framework applies at all. The panel noted amici’s argument that the BIA’s interpretation of the term “aggravated felony,” which includes offenses related to obstruction of justice, is ineligible for Chevron deference because the term has dual application in both civil proceedings, including removal proceedings, and criminal proceedings, including increased maximum prison terms for illegal reentry. The panel explained that deferring to the BIA’s construction of statutes with criminal applications raises serious constitutional concerns because only Congress has the power to write new federal criminal laws. However, the panel concluded that it was bound by the law of the case doctrine because the panel that decided Valenzuela Gallardo’s prior petition for review had applied the Chevron framework, and no exceptions to the doctrine applied. At Chevron Step One, the panel concluded that 8 U.S.C. § 1101(a)(43)(S) is unambiguous in requiring a nexus to an ongoing or pending proceeding or investigation. The panel rejected the Government’s assertion that the court had already held that the statute is ambiguous in this regard. Next, the panel explained that the ordinary meaning of the term “obstruction of justice” when the statute was enacted in 1996 required a nexus to an extant investigation or proceeding. Looking to the term’s relevant statutory context – which the panel concluded to be Chapter 73 of Title 18, entitled “Obstruction of Justice” – the panel further explained that almost all of the substantive provisions in Chapter 73 that existed in 1996 required a nexus to an ongoing or pending proceeding or investigation. 4 VALENZUELA GALLARDO V. BARR Because the panel concluded that § 1101(a)(43)(S) was unambiguous, it did not proceed to Chevron Step Two. The panel also noted that it would reach the same conclusion even if it were not to apply the Chevron framework. Finally, the panel concluded that the statute under which Valenzuela Gallardo was convicted, California Penal Code § 32, is not a categorical match with obstruction of justice under § 1101(a)(43)(S) because the text of § 32 and its practical application demonstrate that it encompasses interference with proceedings or investigations that are not pending or ongoing. Accordingly, the panel vacated Valenzuela Gallardo’s removal order.
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