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Matter of Agustin Valenzuela Gallardo

The Board held that, with a sentence to a year or more, a conviction for California Penal Code § 32 is categorically an aggravated felony for obstruction of justice under INA § 101(a)(43)(S). In doing so, it clarified its previous decision in Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). The Ninth Circuit had interpreted Espinoza to mean that a conviction involves obstruction of justice only if it involved hindering an ongoing investigation or judicial proceeding. Trung Thanh Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). And a conviction under PC § 32 does not require the existence of an ongoing investigation or proceeding, so the Ninth Circuit's interpretation indicated it was not necessarily an aggravated felony.

The Board asserted that "obstruction of justice" in the aggravated felony definition is an ambiguous term and invoked the Supreme Court's decision in Brand-X to interpret that term despite the Ninth Circuit's decision. It held that an offense relates to obstruction of justice "if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice." Further, it implicitly held interference with the process of justice could include assisting with escape from arrest.

The Board distinguished Espinoza, where it held misprision in violation of 18 U.S.C. § 4 was not an obstruction of justice offense, because misprision does not require the person to act with the specific intent to interfere with the process of justice.

All of this points to the more basic problem that the Board has stretched "obstruction of justice" far past its traditional, accepted meaning. The Board asserts the phrase is ambiguous, but is it? Open any law dictionary and it is likely to define the term as interfering with the administration of justice, not as driving a get-away car. And it is not limited to any particular category of crimes, so an accessory after the fact conviction under the Board's definition could be an aggravated felony even where the underlying crime is not.