https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/06/18-72593.pdf

Valenzuela Gallardo v. Barr, 9th Cir., 08-06-20, published

SYNOPSIS BY COURT STAFF:

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

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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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.

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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.

COUNSEL:

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

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S. Hogan, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano & Nightingale LLP, San Francisco, California, for Amici Curiae American Immigration Lawyers Association, U.C. Davis School of Law Immigration Law Clinic, and Asian Americans Advancing Justice—Asian Law Caucus.

PANEL: Eugene E. Siler,* Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges.

• The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

OPINION BY:  Judge Wardlaw

KEY QUOTE:

Nonetheless, both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis of the precise question before us—whether the BIA’s new “reasonably foreseeable” definition is at odds with the plain meaning of the statute, which was not before the prior panel—lead us to the same conclusion: the statute is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board’s most recent interpretation is at odds with that unambiguous meaning.

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So, let’s put this in perspective. Today’s EOIR has been “weaponized” by the Trump regime as a deportation assembly line. Immigration Judges and the BIA are pushed to cut corners and avoid careful legal analysis in a rush to deport. 

Beyond that, the regime has, with the connivance of the Supremes, found ways to deport asylum seekers and others without any meaningful hearing whatsoever. Notwithstanding all these gimmicks, moronic “production quotas,” coercive detention, biased anti-immigrant “precedents,” and the appointment of mostly prosecutors to function as “judges,” the EOIR backlog continues to mushroom out of control because of the regime’s gross mismanagement.

Yet, in the middle of all this mess, the BIA finds time to spend a decade, including three trips to the Court of Appeals, trying to manipulate the law and disregard and misinterpret prior precedent in a misguided effort to wrongfully deport this particular individual. What if we had judges who just got it correct in the first place? No wonder this system is totally out of control.

Do we need a maliciously incompetent and misdirected system like this? Of course not!

With the same amount of resources, a group of independent, qualified expert judges committed to the rule of law and due process could drastically improve the functioning of the Immigration Courts by rendering fair decisions, granting more relief where possible, and working with all “stakeholders” to  prioritize cases, find alternate dispositions for “non-priority cases,” and to move the cases that actually need to be tried through the system in a fair, reasonable, professional, and predictable manner. Such a system would produce more consistency and would avoid much of the wasteful litigation and constant intervention of the Courts of Appeals to correct mistakes that is now a staple of this system. It would be a “win” for everyone involved, including the DHS’s legitimate enforcement functions.

Of course, the particular problem with this case began when the “Post-Ashcroft-Purge” BIA started fabricating ways to deviate from one of the old “Schmidt Board” precedents, Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892–94 (BIA 1999) (en banc). That case had actually found in favor of the (unrepresented) respondent, an unheard of result in today’s “bend and distort the law to deport” climate fostered by “Billy the Bigot” Barr and his predecessor “Gonzo Apocalypto” Sessions! You basically can trace EOIR’s continuous downward “death spiral” from “The Purge.”

Due Process Forever!

PWS

08-07-20