The INA includes as an aggravated felony a conviction for an offense “relating to . . . obstruction of justice . . . .”[841] 

 

This aggravated felony is not defined by reference to a federal statute, but the BIA has adopted a “generic” definition of the offense.[842]  In Matter of Espinoza-Gonzalez,[843] 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”).[844]  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.[845]

 

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.”[846]  Therefore, an offense should not be considered obstruction of justice unless there is an intent to interfere with a judicial process.[847]

 

See also “Accessory After the Fact,” § 19.15, supra, and “Misprision of Felony,” § 19.18, supra. 

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

[842] See § 19.9, supra.

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

[844] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

[845] 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).

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

[847] 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.”).

BIA

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 841 (BIA 2012) (crime relate[s] to obstruction of justice within the meaning of INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S), if it includes the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding); reaffirming Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997); clarifying Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999).

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.

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

Ninth Circuit

PRACTICE ADVISORY " CRIMES OF MORAL TURPITUDE " MISPRISON OF A FELONY PRACTICE ADVISORY " AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " MISPRISION OF A FELONY
Federal conviction of misprision of a felony, under 18 U.S.C. 4, does not constitute an aggravated felony, or a crime of moral turpitude, at least within the Ninth Circuit. This offense is not considered a drug-trafficking aggravated felony, even if the principals felony was a drug-trafficking offense and the client were to receive a sentence of one year or more. See Matter of Espinoza-Gonzalez, 22 I & N Dec. 889 (BIA 1999), distinguishing, but not overruling Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997), while holding that misprision conviction does not constitute obstruction of justice aggravated felony). Compare Matter of Batista-Hernandez, supra (holding that noncitizen convicted of accessory to drug crime is deportable under obstruction of justice aggravated felony ground). The BIA considers this offense to be a crime of moral turpitude, which can trigger deportation or inadmissibility. Matter of Robles, 24 I & N Dec. 22 (BIA 2006). The Ninth Circuit reversed, saying the BIA interpretation was so unreasonable that it was not a permissible interpretation of the moral turpitude deportation statute. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012). That is the law, at least in the Ninth Circuit, at least right now. This rule, however, applies only within the Ninth Circuit. The BIA Robles rule prevails in all other circuits in the country. For example, the Eleventh Circuit has held misprision was categorically a CMT. Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 22, 2002). There is therefore a circuit split, giving rise to the possibility that the Supreme Court might take up the issue in the future. In the meantime, the client risks being placed in removal proceedings for this conviction if found in the U.S. outside the Ninth Circuit. To avoid this possibility, the client should therefore enter and leave the United States through Ports of Entry within the 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).)

AGGRAVATED FELONY - OBSTRUCTION OF JUSTICE
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) (aggravated felony obstruction of justice involves: (a) active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate in the process of justice; and (b) the specific intent to interfere with the process of justice; no meaning distinction exists between failing to appear for court proceedings and hindering a third party from appearing; "Although misprision of felony or fleeing arrest may obstruct justice in a general sense, neither act interferes with judicial process and thus both offenses are different in kind than generic obstruction-of-justice offenses."), following Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 893 (BIA 1999).

Other

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).