Aggravated Felonies

The INA includes as an aggravated felony conviction for an offense “relating to . . . obstruction of justice . . . .”[501] 

This aggravated felony is not defined by reference to a federal statute, but the BIA has adopted a “generic” definition of the offense.[502]  In Matter of Espinoza-Gonzalez,[503] the BIA found that “obstruction of justice” should be defined as that set of offenses punishable under Chapter 73 of title 18, United States Code (“Obstruction of Justice”).[504]  These offenses include assault on a process server, influencing or injuring an officer or juror, obstruction of proceedings before agencies, theft or alteration of record or process, false bail, picketing or parading, recording jury deliberations, obstruction of court orders, audits, criminal investigations, and law enforcement, and tampering with or retaliating against a witness, victim, or informant.  The Fifth Circuit has found that a conviction of contempt of court, under 18 U.S.C. § 401(3), was also an offense related to the obstruction of justice.[505]

The BIA has stated, however, that at a minimum the offense must involve “an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”[506]  Therefore, an offense should not be considered obstruction of justice unless there is an intent to interfere with a judicial process.[507]

See also “Accessory After the Fact,” § 3.49, supra, and “Misprision of Felony,” § 3.52, supra. 

[501] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[502] See § § 4.34-4.36, supra.

[503] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc).

[504] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

[505] Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (federal conviction of contempt of court, under 18 U.S.C. § 401(3), was one “relating to obstruction of justice,” and thus an “aggravated felony” for immigration purposes).

[506] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. at 894 (BIA 1999).

[507] See, e.g., Matter of Joseph, 22 I. & N. Dec. 799, 808 (BIA May 28, 1999) (“[I]t is substantially unlikely that the offense of simply obstructing or hindering one’s own arrest will be viewed as an obstruction of justice aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) of the Act for removal purposes.”).