November 21, 2014
January 5, 2015 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals. Agency No. A056-010-094.
PETITION GRANTED AND REMANDED.
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).
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
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.
P. Sprouls (argued) and John E. Ricci, Law Office of Ricci &
Sprouls, San Francisco, California, for Petitioner.
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.
Sidney R. Thomas, Chief Judge, Morgan Christen, Circuit
Judge, and J. Michael Seabright,[*] District Judge.
Christen, Circuit Judge.
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.
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.
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).
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
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.
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.
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).
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.
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.
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).
The BIA's most recent interpretation departs from its
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 §
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.
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
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
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).
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"
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" ).
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. Id. at 844.
The constitutional avoidance doctrine applies in the
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.
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. 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.
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). 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
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)).
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.
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).
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
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 ...