On October 18, 2019, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a respondent for the second time, finding that his conviction for dissuading a witness under California Penal Code (CPC) §131.1(b)(1) qualifies categorially as an aggravated felony offense related to obstruction of justice. An Immigration Judge (IJ) had found Respondent removable under INA §237(a)(2)(A)(iii) as one convicted of an aggravated felony, denied his cancellation application and ordered him removed. The BIA dismissed the first appeal, affirming the IJ’s holding that respondent had been convicted of an aggravated felony, holding that a conviction for dissuading a witness under CPC §131.1 (b)(1) is an offense relating to obstruction of justice per INA §101(a)(43)(S). The Board also agreed with the IJ’s finding that respondent had not met his burden of showing that he merited a grant of cancellation in the exercise of discretion, then subsequently denied a DHS motion to reopen.
After the case got to the Ninth Circuit Court of Appeals, the Government moved for remand back to the BIA, which was granted by the Court, instructing the Board “to address whether the crime of dissuading a witness in violation of section 136.1(b)(1) of the California Penal Code is an aggravated felony offense relating to obstruction of justice in light of its decision in Valenzuela Gallardo v. Lynch, 818F.3d 808 (9th Cir. 2016).”
In its initial analysis, the BIA parsed the §101(a)(43)(S) definition of an aggravated felony obstruction of justice offense and the application of the categorical approach which focuses on whether the elements of the state crime proscribe conduct that categorically falls within the Federal definition of the offense, here: obstruction of justice. The Board noted it had outlined the generic offense in Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012)(“Valenzuela Gallardo I”) but that the Ninth Circuit had not deferred to its definition, finding it “impermissibly vague”. The opinion also explained that while the case was pending in the Court of Appeals, the BIA had “clarified the generic definition of an aggravated felony under section 101(a)(43)(S)” in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018)(“Valenzuela Gallardo II”) holding there that the crime of accessory to a felony under CPC §32 is an aggravated felony obstruction of justice offense requiring that the perpetrator have the specific intent to obstruct or interfere in an arrest, trial, conviction, or punishment.
Thus, concluded the Board – citing California state court precedent – to obtain a conviction under 136.1(b)(1), the State must prove that 1) the defendant has attempted to prevent or dissuade a person 2) who is a crime victim or witness 3) from making a report to any peace officer or designated official. The prosecution must also show that the defendant’s acts or statements were intended to affect or influence a potential victim’s or witness’s testimony or acts. Because under California law, §136.1(b)(1) requires “a specific intent to interfere in an investigation or proceeding”, the BIA held that dissuading a witness in violation of that statute “is categorically an aggravated felony offense relating to obstruction of justice” per INA §101(a)(43)(S), as outlined in Valenzuela Gallardo II.
In a much longer discussion of the retroactivity of Valenzuela Gallardo II’s obstruction of justice standard, the opinion first noted the “well-established principle” that agencies may adjudicate new rules and apply them retroactively. Because in enacting §101(a)(43) Congress had expressly stated an intent that the term “aggravated felony” applies regardless of when a conviction was entered, the Board held that it can apply its decisions retroactively, after considering the “relevant factors” as set forth in SEC v. Chenery Corp., 332 U.S. 194 (1947). Before deciding whether to apply Valenzuela Gallardo II retroactively, the BIA noted that it had to consider whether the holding in that case is a “change of law” which the Ninth Circuit requires before a retroactivity analysis is necessary. The decision acknowledged that Valenzuela Gallardo II’s interpretation of obstruction of justice “openly departed from the generic definition that the Ninth Circuit previously approved.” As the case clarified the prior precedent decision but offered a new standard, the opinion held that “a retroactivity analysis is appropriate in this case.”
The next question thus became what is the appropriate test for ascertaining whether Valenzuela Gallardo II can be applied retroactively. Finding that the overwhelming majority of Courts of Appeal have adopted the Ninth Circuit’s “Montgomery Ward” test, the Board concluded that it must consider: 1) whether the particular case is one of first impression, 2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law 3) the extent to which the party against whom the new rule is applied relied on the former rule, 4) the degree of the burden which a retroactive order imposes on a party, and 5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. After reviewing the recent “ongoing conversation” between the Ninth Circuit and the BIA about the “outer limits” of obstruction of justice aggravated felony offenses, the history of the Valenzuela Gallardo litigation, and the “unsettled” state of the law regarding whether the phrase “relating to obstruction of justice” is plain or ambiguous, the Board held that its conclusions in Valenzuela Gallardo I and II that accessory to a felony in violation of CPC §32 is categorically an obstruction of justice offense “were merely attempts to fill a void in an unsettled area of law and do not represent an abrupt departure from well-established practice.” As such, the BIA concluded that Valenzuela Gallardo II can be applied retroactively, citing the need for national uniformity in the immigration laws and dismissed the appeal. Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019).