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Gallardo v. Lynch

United States Court of Appeals, Ninth Circuit

March 31, 2016

AUGUSTIN VALENZUELA GALLARDO, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent

         Argued November 21, 2014

         Submitted January 5, 2015 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A056-010-094.

          PETITION GRANTED AND REMANDED.

          SUMMARY[**]

         Immigration

         The panel granted Augustin Valenzuela Gallardo's petition for review of the Board of Immigration Appeals' precedential published opinion in Matter of Valenzuela Gallardo, 25 I. & N. Dec. 838 (BIA 2012), holding that a conviction for accessory to a felony under California Penal Code § 32 is an aggravated felony " offense relating to obstruction of justice" under Immigration and Nationality Act § 101(a)(43)(S).

         The panel wrote that the BIA's revised interpretation of obstruction of justice to require only " the affirmative and intentional attempt, with specific intent, to interfere with the process of justice," departed from its prior construction of the statute by requiring no nexus to an ongoing investigation or proceeding. The panel held that the new construction raises grave doubts about whether § 101(a)(43)(S), so construed, is unconstitutionally vague. The panel remanded for the BIA to apply its previous interpretation in In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc), or to offer a new construction.

         Dissenting, Judge Seabright wrote that the majority mistakenly found that the BIA in In re Espinoza-Gonzalez had previously required a nexus to an ongoing investigation or proceeding, and that the BIA's opinion in Matter of Valenzuela Gallardo did not announce a new interpretation removing the requirement. Judge Seabright wrote that rather Matter of Valenzuela Gallardo explicitly clarified language in In re Espinoza-Gonzalez in light of what the BIA considered to be this court's misreading of BIA precedent in Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). Judge Seabright would also find that the absence of a requirement for an ongoing investigation or proceeding does not render the BIA's definition vague, much less create grave constitutional doubts.

         Frank P. Sprouls (argued) and John E. Ricci, Law Office of Ricci & Sprouls, San Francisco, California, for Petitioner.

         Rebecca Hoffberg Phillips (argued) and Imran Raza Zaidi, Trial Attorneys, and Ada Elsie Bosque, Senior Litigation Counsel, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

         Before: Sidney R. Thomas, Chief Judge, Morgan Christen, Circuit Judge, and J. Michael Seabright,[*] District Judge.

          OPINION

         Morgan Christen, Circuit Judge.

         Augustin Valenzuela Gallardo, a citizen of Mexico, pleaded guilty to violating California Penal Code § 32, accessory to a felony. An immigration judge (IJ) ordered him removed to Mexico, concluding that his conviction constituted an " offense relating to obstruction of justice" and therefore an aggravated felony under the Immigration and Nationality Act (INA) § 101(a)(43)(S). The Board of Immigration Appeals (BIA) dismissed Valenzuela Gallardo's appeal. In its decision, it announced a new interpretation of " obstruction of justice" that requires only " the affirmative and intentional attempt, with specific intent, to interfere with the process of justice." Contrary to the prior construction, this interpretation of INA § 101(a)(43)(S) requires no nexus to an ongoing investigation or proceeding. Valenzuela Gallardo petitions for review, arguing that the agency's revised interpretation of the statute raises serious constitutional concerns about whether the statute is unconstitutionally vague. We agree and remand to the Board for application of the previous interpretation or formulation of a construction that does not raise grave constitutional doubts.

         BACKGROUND

         I. Facts

         Augustin Valenzuela Gallardo was admitted to the United States as a lawful permanent resident in 2002. In November 2007, police discovered him in a stolen vehicle with possession of methamphetamine, ecstacy, and a loaded firearm. Valenzuela Gallardo was arrested and charged with two counts of possession of a controlled substance (methamphetamine) in violation of California Health and Safety Code § 11378, one count of possessing methamphetamine while armed in violation of California Health and Safety Code § 11370.1, and one count of failing to comply with the terms of his probation in violation of California Penal Code § 1203. He agreed to plead guilty to an amended count of accessory to a felony in violation of California Penal Code § 32. All remaining charges were dismissed. Initially, Valenzuela Gallardo was placed on probation, but he subsequently violated the terms of his probation and was sentenced to sixteen months' imprisonment.

         II. Proceedings

         In June 2010, the Government placed Valenzuela Gallardo in removal proceedings. The Government argued that a conviction under California Penal Code § 32 constitutes an " offense relating to obstruction of justice," and therefore an aggravated felony under INA § 101(a)(43)(S).

         Valenzuela Gallardo filed a motion to terminate removal proceedings in July 2010. He appeared before an immigration judge and contested removability on the grounds that his conviction was not an offense " relating to obstruction of justice" because " the federal 'Obstruction of Justice' grounds must relate to an extant judicial proceeding."

         The IJ denied Valenzuela Gallardo's motion to terminate removal proceedings. The IJ reasoned that the BIA had previously held that the federal crime of accessory after the fact, 18 U.S.C. § 3, is an aggravated felony, that there was " no material difference" between § 3 and California Penal Code § 32, and that the BIA has not " limit[ed] the scope of the obstruction of justice aggravated felony to cases in which there is a pending judicial proceeding." The IJ thus concluded that a conviction under California Penal Code § 32 is an " offense relating to obstruction of justice," and ordered Valenzuela Gallardo removed to Mexico.

         Valenzuela Gallardo filed an appeal but the BIA dismissed it. After the BIA denied Valenzuela Gallardo's motion to reconsider, he petitioned for review and requested a stay of removal. Our court dismissed that petition for lack of jurisdiction.

         In May 2011, we issued an opinion in Trung Thanh Hoang v. Holder, a case that looked to two prior BIA decisions and held, under the agency's interpretation, that a crime constitutes an obstruction of justice crime " when it interferes with an ongoing proceeding or investigation." 641 F.3d 1157, 1164 (9th Cir. 2011) (some emphasis added).

         In light of our opinion in Hoang, the BIA sua sponte reopened Valenzuela Gallardo's proceedings for further consideration of his removability. In the opinion that followed, In re Valenzuela Gallardo, a three-judge panel of the BIA sought " to clarify [the BIA's] prior precedents on the scope of the phrase 'relating to obstruction of justice,'" and rejected Hoang 's holding. 25 I. & N. Dec. 838, 840, 842 (B.I.A. 2012). The three-judge panel announced that " obstruction of justice" requires only:

the affirmative and intentional attempt, with specific intent, to interfere with the process of justice--[this] demarcates the category of crimes constituting obstruction of justice. While many crimes fitting this definition will involve interference with an ongoing criminal investigation or trial, we now clarify that the existence of such proceedings is not an essential element of " an offense relating to obstruction of justice."

Id. at 841 (emphasis added) (citation omitted). In light of this interpretation, the BIA concluded that Valenzuela Gallardo's conviction was an offense " relating to obstruction of justice." Id. at 844. Because Valenzuela Gallardo was ultimately sentenced to more than one year of imprisonment for his offense, the BIA concluded that his conviction was for an aggravated felony. Id. It therefore dismissed Valenzuela Gallardo's reopened appeal. Id.

         Valenzuela Gallardo petitions for review, challenging the BIA's most recent interpretation of INA § 101(a)(43)(S). We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and we hold that the BIA's new construction of " obstruction of justice" raises grave doubts about whether the statute, so construed, is unconstitutionally vague. Because we see no clear indication that Congress intended to delegate authority to the agency to push the constitutional boundary, we remand to the agency, as the agency requested, for consideration of a new construction or application of the interpretation it previously announced in In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (B.I.A. 1999) (en banc), and to which we deferred in Hoang, 641 F.3d at 1161.

         STANDARD OF REVIEW

          We review legal questions de novo. Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1009 (9th Cir. 2006). Where, as here, the BIA reviews an IJ's decision de novo, our review is limited to the BIA's decision. Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000).

         DISCUSSION

         I. The BIA's most recent interpretation departs from its prior interpretations.

          " Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). The INA does not separately define " aggravated felony." Instead, it refers to a list of qualifying criminal offenses, which includes offenses " relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year." INA § 101(a)(43)(S).

         In 1997, a twelve-member en banc panel of the BIA ruled in In re Batista-Hernandez that the federal crime of accessory after the fact, 18 U.S.C. § 3, " clearly relates to obstruction of justice" and constitutes an aggravated felony under INA § 101(a)(43)(S). 21 I. & N. Dec. 955, 961 (B.I.A. 1997). The Board explained:

[T]he wording of 18 U.S.C. § 3 itself indicates its relation to obstruction of justice, for the statute criminalizes actions knowingly taken to " hinder or prevent (another's) apprehension, trial or punishment." . . . [T]he nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender.

Id.

         Two years later, a sixteen-member en banc panel of the BIA issued Espinoza-Gonzalez and concluded that misprision of felony, 18 U.S.C. § 4, does not constitute obstruction of justice and is not an aggravated felony under INA § 101(a)(43)(S). 22 I. & N. Dec. 889, 897 (B.I.A. 1999). The BIA reasoned:

We do not believe that every offense that, by its nature, would tend to " obstruct justice" is an offense that should properly be classified as " obstruction of justice." The United States Code delineates a circumscribed set of offenses that constitute " obstruction of justice," and although misprision of felony bears some resemblance to these offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice. . . . [W]here the obstruction of justice offenses are broadly stated, courts have interpreted them narrowly. To include all offenses that have a tendency to, or by their nature do, obstruct justice would cast the net too widely.

Id. at 893-94 (citation omitted). Espinoza-Gonzalez distinguished misprision of felony from accessory after the fact, which had been at issue in Batista-Hernandez :

The definition of the federal crime of accessory after the fact in 18 U.S.C. § 3 requires an affirmative action knowingly undertaken " in order to hinder or prevent (another's) apprehension, trial or punishment." Although misprision of a felony has as an element the affirmative concealment of the felony, there is, unlike § 3, nothing in § 4 that references the specific purpose for which the concealment must be undertaken. The specific purpose of hindering the process of justice brings the federal " accessory after the fact" crime within the general ambit of offenses that fall under the " obstruction of justice" designation.
Furthermore, concealment of a crime is qualitatively different from an affirmative action to hinder or prevent another's apprehension, trial, or punishment. It is a lesser offense to conceal a crime where there is no investigation or proceeding, or even an intent to hinder the process of justice, and where the defendant need not be involved in the commission of the crime. Further, accessory after the fact has been defined as obstructing justice. United States v. Barlow, [470 F.2d 1245,] 1252-53, 152 U.S.App. D.C. 336 [(D.C. Cir. 1972)].

Id. at 894-95 (emphasis added).

         Although the phrase " obstruction of justice" is not statutorily defined, the BIA observed that Title 18, Chapter 73 of the United States Code lists a number of offenses under the heading " Obstruction of Justice" and provides " substantial guidance, consistent with judicial pronouncements on the subject, as to the contours of the 'obstruction of justice' category of offenses." Id. at 893, 894 n.4; see also 18 U.S.C. § § 1501-1521. The Board noted:

The intent of the two broadest provisions, § 1503 (prohibiting persons from influencing or injuring an officer or juror generally) and § 1510 (prohibiting obstruction of criminal investigations), is to protect individuals assisting in a federal investigation or judicial proceeding and to prevent a miscarriage of justice in any case pending in a federal court.

Id. at 892 (emphasis added) (citation omitted). The BIA also found guidance in the Supreme Court's decision in United States v. Aguilar, which narrowly construed § 1503's " catchall phrase" [1] to require action taken with an intent to influence judicial or grand jury proceedings. 515 U.S. 593, 598-99, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) (holding that " [t]he action taken by the accused must be with an intent to influence judicial or grand jury proceedings" ).

         Our court has deferred to the agency interpretation announced in Espinoza-Gonzalez on three occasions. See Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1161 (9th Cir. 2011); Salazar-Luviano v. Mukasey, 551 F.3d 857, 860 (9th Cir. 2008); Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086-87 (9th Cir. 2008). In the proceedings below, a three-judge panel of the BIA revisited its en banc court's interpretation of obstruction of justice and clarified that a nexus to an " ongoing criminal investigation or trial . . . is not an essential element of 'an offense related to obstruction of justice.'" In re Valenzuela Gallardo, 25 I. & N. Dec. 838, 841 (B.I.A. 2012). Applying this broader definition, the BIA dismissed Valenzuela Gallardo's appeal.[2] Id. at 844.

         II. The constitutional avoidance doctrine applies in the Chevron context.

          We apply the Chevron framework where, as here, there is " binding agency precedent on-point" in the form of a published BIA opinion. See Renteria-Morales, 551 F.3d at 1081 (quoting Kharana v. Gonzales, 487 F.3d 1280, 1283 n.4 (9th Cir. 2007)). Under the familiar Chevron framework, we first ask " whether Congress has directly spoken to the precise question at issue." Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the statute " unambiguously bars" the agency's interpretation, that is the end of the analysis, see Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 471, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001), " for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress," Chevron, 467 U.S. at 842-43. To determine whether the statute unambiguously bars an agency interpretation we " apply[] the normal 'tools of statutory construction.'" INS v. St. Cyr, 533 U.S. 289, 320 n.45, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting Chevron, 467 U.S. at 843 n.9). If, after application of these tools, an immigration statute remains " silent or ambiguous with respect to the specific issue before the agency," we proceed to Chevron Step Two and determine whether " the BIA's interpretation is 'based on a permissible construction of the statute.'" Renteria-Morales, 551 F.3d at 1081 (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005)). If it is, the court must defer to the BIA's reasonable statutory interpretation.

         We have deferred to the BIA's interpretation of " obstruction of justice" in at least three cases because the INA did not unambiguously bar the interpretation and the interpretation was reasonable.[3] Hoang, 641 F.3d at 1160-61; Salazar-Luviano, 551 F.3d at 860; Renteria-Morales, 551 F.3d at 1086-87; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ( " It is clear that principles of Chevron deference are applicable to [the INA's] statutory scheme." ). However, our prior deference to the BIA's interpretation of " obstruction of justice" does not end the Chevron Step One inquiry. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446-48, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (concluding that the BIA's interpretation of " well-founded fear," an otherwise ambiguous term, was inconsistent with the INA at Chevron Step One). Rather, before turning to Chevron 's Step Two, we must ask whether Congress intended to permit the agency interpretation. Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). To answer this question we are aided by traditional tools of statutory construction. See id. at 132-33; MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225-26, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994). If a court, employing these tools, " ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, 467 U.S. at 843 n.9.

         Particularly relevant here are the doctrines of constitutional avoidance and constitutional narrowing. DeBartolo Corp. v. Fl. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645');">99 L.Ed.2d 645 (1988). The dissent objects to our use of constitutional narrowing to interpret the INA, arguing that we should stick with " the familiar Chevron standard." Dissent at 34. But Chevron itself instructs that " employing traditional tools of statutory construction" is a straightforward application of Chevron. Chevron, 467 U.S. at 843 n.9. Indeed, the canon of constitutional avoidance " is highly relevant at Chevron step one." Morales-Izquierdo v. Gonzales, 486 F.3d 484, 504 (9th Cir. 2007) (en banc) (Thomas, J., dissenting); id. at 492-93 (majority opinion) (holding that constitutional narrowing is inapplicable at Chevron Step Two).[4] Because we " assum[e] that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority," if an agency's statutory interpretation " invokes the outer limits of Congress' power, we expect a clear indication that Congress intended that result." Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs (SWANCC), 531 U.S. 159, 172-73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). Absent clear indication, we invoke constitutional narrowing at Step One to avoid the constitutional question and foreclose the constitutionally questionable interpretation. Williams v. Babbitt, 115 F.3d 657, 662-63 (9th Cir. 1997); see also DeBartolo, 485 U.S. at 588 (construing the NLRA to preclude an interpretation raising grave constitutional concerns rather than deferring to the agency interpretation).

         The use of constitutional narrowing in the Chevron context is not a novel concept. The Supreme Court and our court have refused to accord deference to agency interpretations that raise grave constitutional doubts where other permissible and less troubling interpretations exist. In DeBartolo Corp. v. Florida Gulf Coast Bufilding & Construction Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645');">99 L.Ed.2d 645 (1988), the Supreme Court announced the applicability of the constitutional avoidance doctrine in the Chevron context. DeBartolo concerned the National Labor Relations Board's (NLRB) interpretation of " coercion" as used in the National Labor Relations Act (NLRA). The NLRB decided that a labor union's peaceful handbilling of consumers was prohibited if it encouraged consumers to boycott stores that failed to pay fair wages. Id. at 573. The Court held that though the interpretation would otherwise be entitled to Chevron deference, the NLRB's interpretation posed serious questions of validity under the First Amendment. Id. at 574-76. The Court invoked the constitutional avoidance doctrine: " where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Id. at 575 (citing NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 499-501, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979)). The DeBartolo Court observed:

" [T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.

Id. (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895)).

         The Court ultimately determined that a less constitutionally suspect interpretation was not foreclosed by the statutory language or legislative history. It therefore declined to defer to the NLRB's interpretation because a less problematic construction " makes unnecessary passing on the serious constitutional questions that would be raised by the Board's understanding of the statute." Id. at 588.

         In Rust v. Sullivan, 500 U.S. 173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991), the Supreme Court further refined its application of the constitutional avoidance doctrine to agency interpretation of ambiguous statutes. The Rust Court reviewed facial challenges to regulations promulgated by the Secretary of Health and Human Services under Title X of the Public Health Service Act. Id. at 181. Because the regulations provided that funds under the Act could not be used to pay for abortions, directly or indirectly, the challengers claimed the regulation violated the First and Fifth Amendments. Id. The Court observed that the principle espoused in DeBartolo " is based at least in part on the fact that a decision to declare an Act of Congress unconstitutional 'is the gravest and most delicate duty that this Court is called on to perform,'" id. at 190-91 (quoting Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206, 1928-1 C.B. 324 (1927)), and concluded that a " statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." Id. (quoting United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061, T.D. 2340 (1916)). Applying this rule, the Court held that the public health regulations at issue in Rust did not " raise the sort of 'grave and doubtful constitutional questions' that would lead [it] to assume Congress did not intend to authorize their issuance," and declined to invalidate the regulations. Id. (citation omitted).

         Our court considered DeBartolo and Rust in Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997). There, we synthesized and applied the DeBartolo-Rust constitutional avoidance standard for the first time. Id. at 661-63. The Babbitt court reviewed an interpretation by the Interior Board of Indian Appeals (IBIA) of the Reindeer Industry Act as it pertained to reindeer sales in Alaska. Id. at 659. The IBIA interpreted the Act to prohibit non-Natives from joining the Alaska reindeer industry. Id. On appeal, non-Native appellants claimed that the IBIA interpretation violated the constitutional guarantee of equal protection. Id. at 660.

         Our analysis in Babbitt began by observing that the IBIA interpretation was entitled to Chevron deference " absent other considerations." Id. at 660 n.3. We then went on to analyze one of those " other considerations," namely, whether the interpretation raised equal protection concerns. Id. at 661. We concluded: " Rust and DeBartolo, read together, require courts to scrutinize constitutional objections to a particular agency interpretation skeptically. Only if the agency's proffered interpretation raises serious constitutional concerns may a court refuse to defer under Chevron." Id. at 662. Because we concluded that the IBIA's interpretation of the Reindeer Act raised serious constitutional concerns, and because " a less ...


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