BIA

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 842 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, with a sentence of 16 months imprisonment, is a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S) because it include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice), quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999); disagreeing with Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011) (BIA requires actual interference with an ongoing criminal proceeding or investigation). Note: The BIA interpreted the obstruction of justice provision more broadly than the Ninth Circuits more restrictive approach, pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012), discussing Natl Cable & Telecomms. Assn v. BrandX Servs., 545 U.S. 967 (2005). The question remains whether the Ninth Circuit will conclude that the aggravated felony definition, also used extensively in federal criminal cases, falls exclusively within the purview of the BIA to interpret immigration laws. The Ninth Circuit could also determine the statute is not ambiguous, after employing normal statutory interpretation standards, or that the BIAs interpretation is unreasonable, to justify deference.

OBSTRUCTION OF JUSTICE - MISPRISION OF FELONY
Matter of Espinoza, 22 I. & N. Dec. 889 (BIA June 11, 1999) (en banc) (federal conviction for misprision of a felony under 18 U.S.C. § 4 does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S), as an offense relating to obstruction of justice), distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997)).

OBSTRUCTION OF JUSTICE - HINDERING ONES OWN ARREST
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 ones 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.").

OBSTRUCTION OF JUSTICE - ACCESSORY AFTER THE FACT
Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA July 15, 1997) (federal conviction pursuant to 18 U.S.C. § 3 as accessory after the fact to a drug-trafficking crime establishes deportability as an aggravated felony under former INA § 241(a)(2)(A)(iii), because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S)).

AGGRAVATED FELONY - OBSTRUCTION OF JUSTICE
Salazar-Luviano v. Mukasey, 551 F.3d 857 (9th Cir. Dec. 23, 2008) (federal conviction of Aiding and Abetting an Escape from Custody, in violation of 18 U.S.C. 751, did not categorically qualify as an "obstruction of justice" aggravated felony, within the meaning of INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), so respondent is therefore eligible for cancellation of removal under INA 240A(a): "Because a violation of 18 U.S.C. 751 does not require the existence of a pending judicial proceeding, much less knowledge of or specific intent [footnote omitted] to obstruct such a proceeding, one could violate 751 while serving a sentence in federal prison after the conclusion of all judicial proceedings, for example, or (as here) while in detention before the commencement of any judicial proceedings. Under either circumstance, a person attempting to escape from custody would fail all three elements of obstructing justice under 1503."), following Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892 (BIA 1999) ("Thus, the question whether a specific offense of conviction counts as an aggravated felony under 1101(a)(43)(S) depends exclusively on whether "the elements of the offense ... constitute the crime of obstruction of justice as that term is defined" in the federal criminal law, U.S.Code Title 18, Chapter 73 (18 U.S.C. 1501-1521).").

Second Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " WITNESS TAMPERING
Higgins v. Holder, 677 F.3d 97 (2d Cir. Apr. 19, 2012) (Connecticut conviction for witness tampering under General Statutes 53a-151 ["if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding,"] categorically constituted an "offense relating to obstruction of justice" under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), and thus was an aggravated felony that precluded LPR cancellation). Note: The facts involved asking the victim to say "nothing happened" if she talked to the police.

Fifth Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
United States v. Gamboa-Garcia, ___ F.3d ___ (5th Cir. Sept. 22, 2010) (Idaho convictions for violation of Idaho Code 18-205, for being accessory after the fact to murder, was an aggravated felony obstruction of justice offense to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). for illegal re-entry sentencing purposes). Note: The court here did not address the issue of whether an obstruction of justice offense must interfere with a court proceeding to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). CD:19.80, 19.15;AF:5.2, 5.63, A.31, A.2, B.31, B.62

OBSTRUCTION OF JUSTICE - CONTEMPT OF COURT
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).

Ninth Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " RENDERING CRIMINAL ASSISTANCE
Hoang v. Holder, ___ F.3d ___, 2011 WL 1885989 (9th Cir. May 17, 2011) (Washington conviction of misdemeanor rendering criminal assistance in the second degree, to a person who committed a felony, by providing such person transportation, in violation of Wash. Rev. Code 9A.76.080, did not categorically constitute an aggravated felony crime related to obstruction of justice under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), because a person could be convicted of violating this statute if to one whom s/he provided transportation s/he knows has committed a crime, before any investigation or judicial proceeding has begun; generic federal obstruction of justice requires that defendant commit an act involving either active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate with the process of justice.); quoting Matter of Espinoza"Gonzalez, 22 I. & N. Dec. 889, 893 (BIA 1999) (en banc).

AGGRAVATED FELONY - OBSTRUCTION OF JUSTICE - FAILURE TO APPEAR
Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. Dec. 12, 2008), withdrawing previous opinion, 532 F.3d 949 (9th Cir. July 10, 2008) (federal conviction of failure to appear, in violation of 18 U.S.C. 3146, qualifies as an aggravated felony obstruction of justice conviction, under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), if a sentence of one year or more was imposed, because the statute requires an intentional failure to appear; conviction is not an aggravated felony "failure to appear" conviction, under INA 101(a)(43)(T), 8 U.S.C. 1101(a)(43)(T).)

Eleventh Circuit

OBSTRUCTION OF JUSTICE
Oguejiofor v. Attorney General of U.S., 277 F.3d 1305 (11th Cir. Jan. 2, 2002) (conviction of obstruction of justice constituted an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) for removal purposes).

Other

B
ack to Category List

LOG OUT

SAFE HAVENS " MISPRISON OF A FELONY
Active concealment, whether physical or verbal, is required for the elements [of misprision of a felony] to be established. See Christopher Mark Curenton, The Past, Present, and Future of 18 U.S.C. 4: An Exploration of the Federal Misprision of Felony Statute, 55 ALA. L. REV. 183, 185"86 (2003) (explaining the dichotomy between physical and verbal concealment, and noting the heightened standard for verbal concealment to include cases such as knowingly providing the police with completely false information); see also Roberts v. United States, 445 U.S. 552, 558 n.5 (1980) (requiring some affirmative act of concealment); United States v. Worcester, 190 F. Supp. 548, 565"66 (D. Mass. 1960) (summarizing federal court holdings as requiring active concealment rather than mere failure to disclose for the establishment of the crime of misprision of felony).