FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORBERTO SALAZAR-LUVIANO,
Petitioner, No. 05-70505
v.
Agency No.
A36-165-328
MICHAEL B. MUKASEY, Attorney
General of the United States, OPINION
Respondent.
On Petition for Review of an
Order of the Board of Immigration Appeals
Argued and Submitted
November 19, 2008—Pasadena, California
Filed December 23, 2008
Before: Myron H. Bright,* Michael Daly Hawkins, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Hawkins
*The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
16681
16684 SALAZAR-LUVIANO v. MUKASEY
COUNSEL
David A. Schlesinger (presented argument) and Andrea Guer-
rero (authored briefs), Guerrero, Jacobs & Schlesinger, LLP,
San Diego, California, for the petitioner.
Colette J. Winston (presented argument) and Janice K. Red-
fern (authored brief), U.S. Department of Justice, Civil Divi-
sion, Office of Immigration Litigation, Washington, D.C., for
the respondent.
OPINION
HAWKINS, Circuit Judge:
Is aiding and abetting an attempted escape from custody an
“obstruction of justice” crime, and therefore an aggravated
felony, within the meaning of the Immigration and National-
ity Act (“INA”) § 101(a)(43)(S)? Petitioner Norberto Salazar-
Luviano (“Salazar-Luviano”) argues that it is not and that he
is therefore eligible for cancellation of removal under INA
§ 240A(a). We agree, grant his petition for review, and
remand to the BIA for consideration of his request for cancel-
lation of removal.1
1
Salazar-Luviano argues in the alternative that, even if he had commit-
ted an aggravated felony, he would still be entitled to relief pursuant to
former INA § 212(c). Because we conclude he has not committed an
aggravated felony, we do not address this argument.
SALAZAR-LUVIANO v. MUKASEY 16685
I. BACKGROUND
Salazar-Luviano is a fifty-five-year-old citizen of Mexico,
originally admitted to the United States as a lawful permanent
resident in 1976. He has lived in the Los Angeles metropoli-
tan area for over thirty years with his wife, also a lawful per-
manent resident. As of 2005, Salazar-Luviano had four U.S.
citizen children and five U.S. citizen grandchildren.
In 1987, Salazar-Luviano pled guilty to Aiding and Abet-
ting an Escape from Custody, in violation of 18 U.S.C. § 751,
for attempting to free illegal aliens who had been appre-
hended by the U.S. Border Patrol. The aliens had been in cus-
tody near the border, in a Border Patrol vehicle; no legal
proceedings had yet been commenced against them. Salazar-
Luviano was sentenced to one year in prison for aiding and
abetting the attempted escape but served only seventy-five
days.
Fourteen years later, Salazar-Luviano was caught assisting
another alien to enter the country illegally and was charged
with removability under INA § 237(a)(1)(E)(i), which renders
removable “[a]ny alien who . . . knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or
to try to enter the United States in violation of law.” 8 U.S.C.
§ 1227(a)(1)(E)(i). In the removal proceedings giving rise to
this appeal, Salazar-Luviano conceded removability and
sought cancellation of removal under INA § 240A(a), which
permits the Attorney General to “cancel removal” of an “inad-
missible or deportable” alien who “has resided in the United
States continuously for 7 years after having been admitted in
any status.” 8 U.S.C. § 1229b(a)(2).
Cancellation of removal is not available, however, to any
resident who “has been convicted of any aggravated felony.”
INA § 240A(a)(3), 8 U.S.C. § 1229b(a)(3). A subsequent gov-
ernment investigation revealed that, since 1976, Salazar-
Luviano had been convicted of six misdemeanor crimes,
16686 SALAZAR-LUVIANO v. MUKASEY
including his 1987 conviction for aiding and abetting
attempted escape from custody.
The Immigration Judge (“IJ”) determined that Salazar-
Luviano’s 1987 conviction constituted an “aggravated felony”
pursuant to INA § 101(a)(43)(S), which renders any “offense
relating to obstruction of justice . . . for which the term of
imprisonment is at least one year” an aggravated felony. 8
U.S.C. § 1101(a)(43)(S). In the IJ’s view, “[a]n obstruction of
justice occurs where there is an affirmative action knowingly
undertaken in order to hinder or prevent apprehension, trial or
punishment.” Because Salazar-Luviano had “attempt[ed] to
prevent an apprehension by the Service . . . [and] to hinder the
immigration proceedings and removal of the escapees,” his
conviction qualified as an aggravated felony within the mean-
ing of § 1101(a)(43)(S). The IJ accordingly denied Salazar-
Luviano eligibility for cancellation of removal.
On appeal, the BIA affirmed, reasoning that aiding and
abetting “is a specific intent crime,” and that “aiding and abet-
ting escape from lawful custody is an interference with the
proceedings of a tribunal and/or law enforcement.” Thus “aid-
ing and abetting escape is an offense relating to obstruction of
justice for purposes of § 1101(a)(43)(S) of the Act [and] the
respondent is ineligible for cancellation of removal.” Salazar-
Luviano filed a timely petition for review.
II. DISCUSSION
A. Standard of Review & Analytical Framework
To determine whether attempted escape from custody con-
stitutes an aggravated felony under § 1101(a)(43)(S), we first
apply the “categorical approach” set forth in Taylor v. United
States, 495 U.S. 575 (1990). See Renteria-Morales v.
Mukasey, ___ F.3d ___, 2008 WL 5192056, at *3-*4 (9th Cir.
Dec. 12, 2008) (applying the Taylor categorical approach to
determine whether a conviction for failure to appear in court
SALAZAR-LUVIANO v. MUKASEY 16687
constitutes an aggravated felony under § 1101(a)(43)(S)) (cit-
ing Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1125 (9th
Cir. 2006) (en banc)).
According to the categorical approach, our task is to deter-
mine what Congress meant by “an offense relating to obstruc-
tion of justice” by reference to the generic federal definition
of the crime. Renteria-Morales, 2008 WL 5192056, at *3.
Because Congress itself did not define the phrase “offense
relating to obstruction of justice” in the INA, we defer to the
BIA’s “interpret[ation of] the elements of a generic obstruc-
tion of justice offense under § 1101(a)(43)(S) [as set forth in]
In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999).”
Id. at *7-*8 (according Chevron deference to Espinoza-
Gonzalez with respect to interpretation of § 1101(a)(43)(S)).
After determining the elements of the generic crime listed
in § 1101(a)(43)(S), we next identify the elements of the spe-
cific crime of conviction, in this case 18 U.S.C. § 751.2 We
do “not defer to the BIA’s interpretations of state law or pro-
visions of the federal criminal code,” id. at *3 (citing Parrilla
v. Gonzales, 414 F.3d 1038, 1041 (9th Cir. 2005)), and
instead must “review de novo whether the specific crime of
conviction meets the INA’s definition of an aggravated felo-
ny,” id. (citing Li v. Ashcroft, 389 F.3d 892, 895 (9th Cir.
2004); Randhawa v. Ashcroft, 298 F.3d 1148, 1151 (9th Cir.
2002)). If the elements of the specific crime of conviction are
narrower than or the same as the elements of the generic
crime, then the specific crime of conviction categorically
2
Salazar’s aiding and abetting conviction is technically a violation of 18
U.S.C. § 2. That Salazar was convicted of aiding and abetting, however,
makes him liable as a principal of the underlying offense. See, e.g., Ortiz-
Magana v. Mukasey, 542 F.3d 653, 659 (9th Cir. 2008) (because “there
is no material distinction between an aider and abettor and principals in
any jurisdiction of the United States,” aiding and abetting an aggravated
felony is “functional equivalent [to] personally committing that offense”
directly).
16688 SALAZAR-LUVIANO v. MUKASEY
counts as an offense under § 1101(a)(43)(S). Id. (citing
Fernandez-Ruiz, 466 F.3d at 1125).
If, however, the elements of attempted escape from custody
are broader than the elements of obstruction of justice as
defined in the INA, we must “go beyond the mere fact of con-
viction” and consider, de novo, whether Salazar-Luviano was
necessarily convicted of all the elements of the generic crime.
Taylor, 495 U.S. at 602. “In making this determination, we
. . . ‘conduct a limited examination of documents in the record
of conviction.’ ” Renteria-Morales, 2008 WL 5192056, at *3
(quoting Ferreira v. Ashcroft, 390 F.3d 1091, 1095 (9th Cir.
2004)). Because Salazar-Luviano pled guilty to the offense,
the examination of the record is “limited to the terms of the
charging document, the terms of a plea agreement or tran-
script of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or
to some comparable judicial record of this information.”
Shepard v. United States, 544 U.S. 13, 26 (2005). “ ‘If the
record of conviction does not establish that the offense the
petitioner committed qualifies as an aggravated felony, the
government has not met its burden of proving that the defen-
dant committed an aggravated felony.’ ” Renteria-Morales,
2008 WL 5192056, at *3 (quoting Ferreira, 390 F.3d at
1095).
B. Taylor Categorical Approach
Following this framework, we first examine whether
attempted escape from custody categorically constitutes an
aggravated felony under § 1101(a)(43)(S) as an offense relat-
ing to obstruction of justice.
[1] “[T]he BIA has interpreted the elements of a generic
obstruction of justice offense under § 1101(a)(43)(S) in a pre-
cedential decision” to which we defer. Renteria-Morales,
2008 WL 5192056, at *7 (citing In re Espinoza-Gonzalez, 22
I. & N. Dec. 889). In Espinoza-Gonzalez, the BIA explained
SALAZAR-LUVIANO v. MUKASEY 16689
with respect to § 1101(a)(43)(S) that “[w]e do not believe that
every offense that, by its nature, would tend to ‘obstruct jus-
tice’ is an offense that should properly be classified as
‘obstruction of justice.’ ” 22 I. & N. Dec. at 893-94. This is
so because “Congress did not adopt a generic descriptive
phrase such as ‘obstructing justice’ or ‘obstruct justice,’ but
chose instead a term of art utilized in the United States Code
to designate a specific list of crimes.” Id. at 893. Thus, the
question whether a specific offense of conviction counts as an
aggravated felony under § 1101(a)(43)(S) depends exclu-
sively 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).3 Id. at 892. See also Renteria-Morales,
2008 WL 5192056, at *8 (“[T]he BIA acted reasonably in
deriving the definition of ‘obstruction of justice’ for purposes
of § 1101(a)(43)(S) from the body of federal statutes impos-
ing criminal penalties on obstruction of justice offenses.”).
[2] Here, the parties agree that escape from custody does
not match any of the specifically enumerated obstruction
offenses and that, to qualify as an aggravated felony, it would
have to fall within 18 U.S.C. § 1503’s “catchall” provision.
The catchall applies to anyone who “corruptly or by threats or
force, or by any threatening letter or communication, influ-
3
In 1987, at the time of Salazar-Luviano’s conviction, Title 18, Chapter
73 included fourteen enumerated offenses. See 18 U.S.C. §§ 1501-1515
(1988). By 2001, Chapter 73 had been amended several times and by then
included seventeen enumerated offenses. See 18 U.S.C. §§ 1501-1518
(2000). None of the additional three enumerated offenses is relevant to the
question presented here. We therefore need not decide (and the parties
have not addressed) which version of Chapter 73 should apply—the 1987
version, (when Salazar-Luviano was convicted under 18 U.S.C. § 751), or
the 2001 version (when he was charged with removability). Cf. United
States v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994) (ex post facto chal-
lenge to classification of a conviction as an aggravated felony after com-
mission of the crime but before commission of the offense giving rise to
removability).
16690 SALAZAR-LUVIANO v. MUKASEY
ences, obstructs, or impedes, or endeavors to influence,
obstruct, or impede, the due administration of justice.” 18
U.S.C. § 1503(a).
Salazar-Luviano argues that because § 1503 requires spe-
cific intent to interfere with pending judicial proceedings, the
elements of escape from custody cannot constitute obstruction
of justice. The government counters that for an offense to
qualify under the catchall provision of § 1503, the act must
have only the “ ‘natural and probable effect’ of ‘interfering
with the due administration of justice,’ ” and any “escape
from lawful custody” necessarily and evidently “impede[s]
. . . the judicial process.” Even if specific intent were required,
says the government, aiding and abetting is a specific intent
crime sufficient to bring aiding and abetting an attempted
escape from custody within the ambit of § 1503, so inter-
preted.
[3] United States v. Aguilar, 515 U.S. 593 (1995), suggests
Salazar-Luviano, and not the government, is correct—
attempted escape from custody does not constitute obstruction
of justice under the § 1503 catchall provision.
“[I]nterpret[ing] the omnibus clause of § 1503 narrowly,” the
Supreme Court has explained that obstruction of justice under
that provision requires a defendant to act (1) with knowledge
that (2) his actions have the natural and probable effect of
interfering with (3) a pending judicial proceeding. Aguilar,
515 U.S. at 597, 599. The Court expressly clarified that the
catchall provision does not apply to an endeavor to interfere
with “some ancillary proceeding, such as an investigation
independent of the court’s or grand jury’s authority.” Id. And
“a defendant lack[ing] knowledge that his actions are likely to
affect [a pending judicial] proceeding [necessarily] lacks the
requisite intent to obstruct.” Id.
[4] According to this narrow construction, attempted escape
from custody does not constitute obstruction of justice within
the meaning of § 1503. Both now and at the time of Salazar-
SALAZAR-LUVIANO v. MUKASEY 16691
Luviano’s conviction in 1987, escape from custody required
an (1) escape or attempt to escape from (2) the custody of the
Attorney General or his authorized representative. See 18
U.S.C. § 751.
[5] 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 intent4 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 com-
mencement of any judicial proceedings. Under either circum-
stance, a person attempting to escape from custody would fail
all three elements of obstructing justice under § 1503.
[6] Although the government is probably correct that “an
escape from custody of one who is arrested or charged with
a [crime] or held for the purpose of extradition, exclusion, or
expulsion . . . impedes the prospective judicial or tribunal pro-
cess,” the BIA interpreted § 1101(a)(43)(S) narrowly
expressly because it “[did] not believe that every offense that,
by its nature, would tend to ‘obstruct justice’ is an offense that
should properly be classified as ‘obstruction of justice.’ ”
Espinoza-Gonzalez, 22 I. & N. Dec. at 893-94. Attempted
escape from custody therefore does not categorically qualify
as an aggravated felony under § 1101(a)(43)(S).
4
The government’s observation that aiding and abetting is a specific
intent crime, is beside the point. Aiding and abetting is not a stand-alone
offense—one convicted of aiding and abetting “is guilty of the [underly-
ing] substantive offense as if he committed it directly.” Matter of Beltran,
20 I. & N. Dec. 521, 525 (BIA 1992). Thus, under the categorical
approach, the question is not whether a defendant guilty under 18 U.S.C.
§§ 2, 751 has specific intent to aid or abet an escape from custody—rather,
it is whether escape from custody requires specific intent to obstruct a
pending judicial proceeding. Plainly it does not.
16692 SALAZAR-LUVIANO v. MUKASEY
C. Taylor Modified Categorical Approach
[7] Determining that escape from custody does not categor-
ically constitute generic obstruction of justice does not end
the inquiry. Salazar-Luviano’s conviction could still qualify
as an aggravated felony under the “modified” categorical
approach if he himself had necessarily been convicted of all
the elements of obstruction of justice. See Taylor, 495 U.S. at
602. “In making this determination, we . . . ‘conduct a limited
examination of documents in the record of conviction.’ ”
Renteria-Morales, 2008 WL 5192056, at *3 (quoting Fer-
reira, 390 F.3d at 1095).
[8] Here, the parties acknowledge that, at the time of
Salazar-Luviano’s offense, no judicial proceedings had been
initiated against those he helped attempt to escape. Nor do the
documents in the record of conviction evidence any such pro-
ceedings, and the government’s proposal that we “presume[ ]
judicial proceedings [were] imminent” simply does not meet
the bar. Salazar-Luviano could not have known of, and his
conduct could not have had the natural and probable effect of
interfering with, a judicial proceeding that did not exist.
Because Salazar-Luviano’s specific conviction does not qual-
ify as an obstruction of justice offense under the modified cat-
egorical approach, “the government has not met its burden of
proving that the defendant committed an aggravated felony.’ ”
Renteria-Morales, 2008 WL 5192056, at *3 (quoting Fer-
reira, 390 F.3d at 1095).
III. CONCLUSION
Because Salazar-Luviano’s conviction for aiding and abet-
ting an attempt to escape custody does not constitute an
aggravated felony within the meaning of § 1101(a)(43)(S) as
“an offense relating to obstruction of justice,” we conclude
that he is eligible for cancellation of removal. We therefore
grant his petition for review and remand to the BIA to con-
SALAZAR-LUVIANO v. MUKASEY 16693
sider his application for cancellation of removal. See INS v.
Ventura, 537 U.S. 12 (2002).
GRANTED.