The Supreme Court issued its first and only crim/imm opinion of the term. It was a day of excitement and sadness for crim/imm fanatics (such as me) because who doesn’t love a good crim/imm case? I mean do Supreme Court decisions get any more interesting than crim/imm cases? (The obvious answer is no). The Court held that a conviction for obstruction of justice (which includes crimes such as accessory after the fact, witness tampering, and witness dissuasion) is an aggravated felony where a sentence of one year or longer is imposed – even if there is no pending or foreseeable investigation or proceeding. The key is that the defendant intended to obstruct justice. Pugin v. Garland, No. 22-23 (June 22, 2023). For the casual reader that snippet is all that you need to know. Except… I want to give a huge shout-out to Mike Mehr who represented Mr. Cordero Garcia (the companion case in Pugin) before the BIA and the Ninth Circuit. Mike did an amazing job. You can read the BIA’s decision here and the Ninth Circuit’s decision here to see Mike’s advocacy in this case.
Back to the Supreme Court case. It is an odd decision, and dare I say, sloppily written. It’s as though the Supreme Court justices were mentally done for the term and were anxious to get to the beach. (I love going to the beach, so I get it, but I do wish that the Court issued a decision that gave us more guidance). Let me explain why I think the decision is sloppy. First, the Supreme Court did not seem to apply the categorical approach and, it did not seem to conduct a Chevron analysis. Most shockingly, they did not define the term “obstruction of justice” as a generic federal offense. Rather, as Justice Sotomayor wrote in her dissent, they looked at “obstruction-adjacent” offenses to determine whether there was a match. Her language is so good here, that I have to quote part of it.
“Instead of focusing on whether a pending investigation or proceeding is part of the heartland of obstruction of justice, it wanders off into an array of obstruction-adjacent federal and state laws that do not require a pending investigation or proceedings. The Court then announces that those offenses are core obstruction of justice, even though the evidence it relies on, taken as a whole, reveals they are not. The result is predictable.” Pugin, slip op. at *3 (Sotomayor, J. dissenting). I love her writing.
LEGAL REFRESHER
As I said, I think that this case was oddly decided. To understand why I found this case to be odd, it is important to have some crim/imm background. If you understand both of these concepts, just skip ahead to the facts and save yourself.
The Categorical Approach
For those of you who, unlike me, do not spend most of your days (and nights) thinking about crim/imm let me give you a quick refresher on the categorical approach. This case should have been analyzed under the categorical approach. Now I could write a book about the categorical approach because there are literally zillions of cases (yes, zillions is a number – it comes after infinity) explaining the categorical approach – and the modified categorical approach – and the circumstance-specific approach. For our purposes, we are going to limit the explanation to an oversimplification of the categorical approach.
As we are all well aware, immigration law is federal law. But most people are convicted of state crimes. How does the government ensure that a person convicted of a crime for certain conduct in California faces the same consequences as a person convicted of a crime for the same conduct in Florida? The answer is by using the categorical approach. And, as imperfect as it is, it is what we use.
Under the categorical approach, the facts don’t matter. Whatever happened in the case is completely irrelevant. What matters are the elements of the statute of conviction and the minimum conduct necessary to secure a unanimous jury verdict. There are three steps to it. First, the adjudicator determines elements of the federal generic definition of the crime. Second, they determine the elements of the state crime. Finally, they compare the two elements and see if they match. The Supreme Court did not seemingly engage in this analysis rather, they skipped ahead and got to their decision.
Chevron Deference
The second odd thing about this case is the lack of analysis of Chevron deference. The Supreme Court recently held that where a federal court is tasked with adjudicating an agency’s decision, if the statute that the agency is adjudicating is ambiguous, the federal court must defer to the agency’s reasonable interpretation of that statute. Chevron v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984). Wait, as I’m looking at the citation, I see that this decision wasn’t recent – it was in 1984. Okay, so it’s actually a well-known analysis.
The three circuits analyzed the cases using Chevron but were split on whether to defer to the BIA’s decision. The First Circuit and the Fourth Circuit found that the statute was ambiguous and that the BIA’s interpretation was reasonable. The Ninth Circuit found that the statute was not ambiguous and did not afford Chevron deference to the BIA’s opinions. Again, there is much more to this legal theory but for the purposes of the blog, we are now good to go.
FACTUAL AND PROCEDURAL BACKGROUND
Jean Francois Pugin is a citizen of Mauritius. In 2014, he was convicted under a Virginia statute of accessory after the fact to a felony. Fernando Cordero-Garcia is a citizen of Mexico. In 2009, he was convicted under a California statute of witness dissuasion (and some other crimes that are not relevant here). The BIA found that both convictions were aggravated felonies for obstruction of justice under INA § 101(a)(43)(S). To help you out here, I am quoting INA § 101(a)(43)(S) in its entirety.
“an offense 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.”
In Mr. Cordero-Garcia’s case, the BIA issued a published decision finding that California witness dissuasion (Cal. Penal Code § 136.1(b)(1)) is categorically an aggravated felony and that the decision is retroactive. Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019).
Let’s back up here a second. Back in 2018, the BIA issued its second published decision on whether a California conviction for accessory after the fact was an aggravated felony as obstruction of justice. Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018) (Valenzuela II). This case had been bouncing between the Ninth Circuit and the BIA for years over the issue of whether a California conviction for accessory after the fact was an aggravated felony where the person was sentenced to a term of imprisonment of one year or more. The second time the case was remanded to the BIA, the Board defined the elements of obstruction of justice.
“[Obstruction of justice] consists of offenses covered by chapter 73 of the Federal criminal code [18 U.S.C. §§ 1501-1521 (2012)] or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from completing the proceeding.” Valenzuela Gallardo, 27 I&N Dec. at 460, quoted in Cordero-Garcia, 27 I&N Dec. at 654.
When the Cordero case got to the Ninth Circuit, the court disagreed with the BIA’s decision. In effect they said, “Nope. That definition is wrong.” The Ninth held that in 1996 when Congress enacted the aggravated felony statute, “an offense relating to obstruction of justice unambiguously required a nexus to an ongoing or pending proceeding or investigation.” Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1068 (9th Cir. 2020). They found that the statute wasn’t ambiguous and did not grant Chevron deference to the BIA’s decision. The Ninth Circuit held that for a state conviction to match the federal definition for obstruction of justice, the state offense needed to be related to a pending, or ongoing investigation or proceeding.
The Fourth Circuit, and the First Circuit disagreed with the Ninth Circuit’s approach and both circuits deferred to the BIA’s definition of the generic crime of obstruction of justice. (That the investigation or proceeding did not need to be pending and only had to be “reasonably foreseeable”). Silva v. Garland, 27 F.4th 95 (1st Cir. 2022); Pugin v. Garland, 14 F.4th 437 (4th Cir. 2021).
With this split between the circuits, the Supreme Court granted certiorari. In a six to three decision (with Ketanji Brown Jackson writing a concurring opinion and Neil Gorsuch joining Sonya Sotomayor and Elena Kagan in the dissent) Justice Kavanaugh, writing for the majority, held that an offense relating to obstruction of justice does not require that an investigation or proceeding be pending.
LEGAL ANALYSIS
Personally, as you may have gleaned from the previous paragraphs, I have issues with this decision – mainly because neither the majority opinion, nor the concurrence, nor the dissent, define the federal generic definition of obstruction of justice. The Court focuses on the meaning of the phrase “relating to” an obstruction of justice charge. The Court holds that “this statute covers offenses that have “a connection with” obstruction of justice – which surely covers common obstruction offenses that can occur when an investigation or proceeding is not pending.” Pugin v. Garland, slip op. at *7. In (what I have come to think of as critical) footnote five, the Court notes that “offenses “relating to obstruction of justice” require an intent to interfere with the legal process. . . . That mens rea requirement targets the same basic overbreadth concern as a foreseeability requirement and ensures that [INA § 101(a)(43)((s)] will not sweep in offenses that are not properly understood as offenses “relating to obstruction of justice.” Pugin, slip op. at *7, n. 5. The Supreme Court without acknowledging the BIA’s decision limited it and swept away the “foreseeability” requirement.
The question is, how does the Supreme Court define obstruction of justice? Well, in a rhetorical technique, reminiscent of a poorly written high school commencement speech, they basically say, “Merriam-Webster’s dictionary defines obstruction of justice as….” To be fair, their decision is not quite as unsophisticated as all that. The Court looked at various definitions of the term “obstruction of justice” in 1996 – when the statute was enacted.
Here are the three definitions the Court cites:
“[O]bstruction of justice covers “the crime or act of willfully interfering with the process of justice and law,” including “by influencing, threatening, harming or impeding a witness, potential witness, juror, or judicial or legal officer or by furnishing false information or otherwise impeding an investigation or legal process.” Merriam-Webster’s Dictionary of Law 337 (1996).” Pugin, slip op. at *4.
“The offense “captures every willful act of corruption, intimidation or force that tends somehow to impair the machinery of civil or criminal law. B. Garner, A Dictionary of Modern Legal Usage 611 (2d ed. 1995). Pugin, slip op. at *4 (emphasis added).
“[O]bstructing the administration of justice in any way.” Pugin, slip op. at *4 quoting Black’s Law Dictionary 1077 (6th ed. 1990).
The Court holds “[n]otably missing from those dictionary definitions is a requirement that an investigation or proceeding be pending. The dictionaries demonstrate that obstruction of justice includes offenses where an investigation or proceeding is pending, but is not limited to offenses where an investigation or proceeding is pending. Pugin, slip op. at *4.
After reviewing the dictionary definitions, the Court notes that chapter 73 of Title 18 of the federal code “has long proscribed various obstruction offenses that do not require a pending investigation or proceeding.” Pugin, slip op. at *4. The Court cites the federal witness tampering statute which does not require that an official proceeding be pending or about to be instituted. 18 U.S.C. §§ 1512(a)(1)(A), (b)(1). And section 1519 which forbids destroying, altering, or falsifying records with an intent to impede a federal investigation or proceeding. The Court notes that section 1519 includes an investigation or proceeding “not even on the verge of commencement.” Pugin, slip op. at *4, citing 18 U.S.C. § 1519. (In a footnote the Court notes that section 1519 was enacted after 1996 but justifies relying on it by noting “that courts do not interpret statutes in isolation, but in the context of the corpus juris of which they are a part, including later enacted statutes.” Pugin, slip op. at *5 n. 1 quoting Branch v. Smith, 538 U.S. 254, 281 (2003)).
The Court then looks at various state obstruction statutes in 1996 and found that many states did not include the element that an investigation or proceeding be pending for a person to be convicted of obstruction of justice. Finally, the Court looked at the Model Penal Code and notes that the MPC focuses on the actor’s intent, not whether an investigation or proceeding is pending. What appears really to decide the issue for the Court is the Solicitor General’s argument that “one can obstruct the wheels of justice even before the wheels have begun to move; indeed, obstruction is often “most effective” when it prevents “an investigation or proceeding from commencing in the first place.” Brief for Attorney General 15.” Pugin, slip op. at *6. I cannot argue with that.
The Court dismissed Mr. Pugin’s and Mr. Cordero-Garcia’s arguments regarding the statutory interpretation. As a final argument, Mr. Pugin and Mr. Cordero-Garcia argued that the rule of lenity applied in their case. (You know, if it’s a close question, rule for the vulnerable victim). The Court wrote “even assuming the rule of lenity can be invoked in this particular civil immigration context, the rule applies only if “after seizing everything from which aid can be derived,” there remains “grievous ambiguity.”” Pugin, slip op. at *10, quoting, Ocasio v. United States, 578 U.S. 282, 295, n. 8 (2016). That sentence sounds ominous to me.
Concurring Opinion
Justice Brown Jackson issued a short concurring opinion noting that when Congress wrote “offense relating to obstruction of justice” “it might well have been referencing a specific and previously designated category of offenses – the offenses that are grouped together in Chapter 73 of Title 18 of the U.S. Code under the heading “Obstruction of Justice.” Pugin, slip op. *2 (Brown Jackson, J. concurring). Honestly, I would think that a Supreme Court justice might have the resources to have someone review the legislative history of the statute rather than surmising that “it might well have been referencing.” But I digress. This list of crimes might provide us with a powerful clue as to what offenses might be obstruction of justice aggravated felonies where a sentence of one year or more is imposed. The crimes in Chapter 73 include:
- 18 U.S.C. § 1501 – Assault on a process server;
- 18 U.S.C. § 1503 – Influencing or injuring an officer or a juror;
- 18 U.S.C. § 1505 – Obstruction of proceedings before departments, agencies, or committees;
- 18 U.S.C. § 1507 – Picketing or parading (with the intent to interfere with the administration of justice);
- 18 U.S.C. § 1508 – Recording, listening to or observing jury proceedings while deliberating or voting;
- 18 U.S.C. § 1509 – Obstruction of court orders;
- 18 U.S.C. § 1510 – Obstruction of criminal investigations;
- 18 U.S.C. § 1511 – Obstruction of state or local law enforcement;
- 18 U.S.C. § 1512 – Witness tampering, or tampering with a victim or informant;
- 18 U.S.C. § 1513 – Retaliating against a witness, victim or informant;
- 18 U.S.C. § 1518 Obstruction of criminal investigations of health care offenses; and,
- 18 U.S.C. § 1519 Destruction, alteration, or falsification of records in federal investigations and bankruptcy.
Dissent
Justice Sotomayor wrote the dissent joined by Justices Kagan and Gorsuch. The dissent argues that using the categorical approach, the adjudicator has to look at the elements of the generic federal offense and see if there is a match to the state offense. Crim/imm 101. They argue that the offenses listed in chapter 73 of title 18 support the conclusion that core obstruction of justice requires the administration of justice – meaning that there has to be a pending investigation or proceeding. It is one of the elements of the obstruction of justice crime. Pugin, slip op. at *3 (Sotomayor, J. dissenting). Justice Sotomayor then cites misdemeanor convictions that could fall under the obstruction of justice umbrella. Justice Sotomayor refers to the Amicus Brief from the National Immigrant Justice Center, et al. You can access that brief here. This brief may help you identify potential obstruction of justice offenses. (Remember if a sentence of one year or longer is imposed the state crime is still an aggravated felony – regardless of the state’s designation of the crime). These offenses include:
- Failing to report a crime;
- Presenting false identification to an officer;
- Refusing to aid a police officer;
- Leaving the scene of a crime; and,
- Purchasing a fake ID.
Justice Sotomayor argues that the majority by using this analysis “turns the categorical approach on its head.” Pugin, slip op. at *1 (Sotomayor, J. dissenting).
CONCLUSION
The bottom line for advocates (especially those in the Ninth Circuit) is that certain offenses such as accessory after the fact, witness tampering, and witness dissuasion are now aggravated felonies where the person has been sentenced to one year or more imprisonment. For some guidance on which crimes may be obstruction of justice offenses with a sentence of one year or more, advocates can look at the obstruction statutes at 18 U.S.C. § 1501 et seq., and at the NIJC’s amicus brief. The remaining issue for the courts is whether this definition is retroactive. Personally, I think there is an argument that this decision should not apply retroactively to cases decided before September 11, 2018 – the date that the BIA issued its precedential decision defining the term “obstruction of justice”. Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018). But that is an argument for another day.