Patricia Flores v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________

No. 16-1979
_________________

PATRICIA YUISEL FLORES,
Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_________________

On Petition for Review of a Decision of the
Board of Immigration Appeals
Immigration Judge: Honorable Leo A. Finston
(A089-827-629)
_________________

Argued: November 17, 2016

Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges

(Opinion Filed: May 8, 2017)
Marcia Kasdan [ARGUED]
Marcia S. Kasdan & Associates
127 Main Street, 1st Floor
Hackensack, NJ 07601

Attorney for Petitioner

Jefferson B. Sessions III
United States Attorney General
Benjamin C. Mizer
Principal Deputy Assistant Attorney General
Douglas E. Ginsburg
Assistant Director
Thomas W. Hussey
Andrew B. Insenga [ARGUED]
Karen L. Melnick
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondent

_________________

OPINION OF THE COURT
_________________

FUENTES, Circuit Judge.

Patricia Flores, a native and citizen of Guatemala,
seeks review of a decision by the Board of Immigration
Appeals (“BIA”) that found her ineligible for withholding of

2
removal because she had been convicted of a “particularly
serious crime”—namely, she was convicted of accessory after
the fact in South Carolina for witnessing, but failing to report,
a murder. Flores now petitions for review, contending that
her South Carolina conviction does not constitute a
“particularly serious crime” under our decision in Denis v.
Attorney General, and that she should therefore be eligible for
withholding of removal. We agree. Because Flores’s South
Carolina accessory-after-the-fact conviction is not an offense
“relating to obstruction of justice,” it cannot be considered
either an “aggravated felony” or a “particularly serious
crime” under the Immigration and Nationality Act (“INA”).
Accordingly, Flores is eligible for withholding of removal.

I.

Flores, a Guatemalan native, originally entered the
United States with her husband to escape her abusive father.
Although her husband traveled with a visa, she entered the
country illegally. The two had a daughter together, but
subsequently divorced, and Flores entered various
relationships with other men and women.

According to the record on appeal, Flores traveled
to South Carolina to visit family in late 2007. While there,
she struck up a relationship with a young man, Fredy Sibrian.
Unfortunately, this relationship soon deteriorated as Sibrian
became increasingly “violent, jealous and possessive,”
causing Flores to leave Sibrian.1 She then traveled to North
Carolina, where she met, and started dating, another man,
Antonio Perez. When Flores subsequently returned to South
Carolina with Perez in April 2008, Sibrian confronted them at
a gas station, causing a heated exchange that ended when
1
App. at 316.

3
Sibrian shot and killed Perez. According to Flores, she did
not immediately report the murder because Sibrian threatened
to kill her and her then-three-year-old daughter if she
disclosed Sibrian’s actions to the police. Fearing Sibrian’s
retribution, Flores returned to North Carolina, but she was
later arrested and sent back to South Carolina, where she was
charged with Perez’s murder.

Flores eventually pleaded guilty to accessory after
the fact under South Carolina law 2 and was sentenced to five
years’ imprisonment. According to Flores’s testimony, which
the Immigration Judge (“IJ”) found credible, she pleaded
guilty to accessory after the fact because she failed to report
the murder to police. The record does not reflect that Flores
covered up the homicide, lied to police or prosecutors, or
assisted the shooter in any way.

After serving about two years of her prison term,
Flores was removed to Guatemala. A few months later,
however, she re-entered the United States illegally. In 2015,
following her arrest for prostitution, Flores was detained by
Immigration and Customs Enforcement. During an asylum
interview, she stated that she feared returning to Guatemala
because: (1) her father, who had physically and sexually
abused her as a child, wanted to kill her; (2) she had been
raped by members of a local gang immediately following her
previous removal to Guatemala; and (3) she feared that she
would be persecuted because she is a lesbian. The asylum
officer determined that Flores had a reasonable fear of
persecution.

The case was referred to the Immigration Court
where Flores filed an application for withholding of removal
2
S.C. Code Ann. § 16-1-55.

4
and relief under the Convention Against Torture (“CAT”).
The IJ made two primary findings with respect to Flores.
First, the IJ found that Flores’s conviction for accessory after
the fact was a “particularly serious crime” under the INA,
rendering her ineligible for withholding of removal. Second,
the IJ found that Flores failed to adequately establish that she
would, more likely than not, be subjected to torture in
Guatemala, as required to obtain relief under CAT. Flores
then appealed to the BIA.

The BIA dismissed the appeal and affirmed the IJ’s
decision on both grounds. First, relying on its own decisions
and our holding in Denis, 3 the BIA concluded that Flores’s
accessory-after-the-fact conviction “relat[es] to obstruction of
justice,” and therefore constitutes a “particularly serious
crime.” 4 The BIA also concluded that Flores had not
meaningfully challenged the denial of her CAT claim because
she failed to produce any purported new evidence in support
of her position.

II.5

Flores now petitions for review of two BIA
determinations: (1) that her accessory-after-the-fact
conviction is a “particularly serious crime” rendering her

3
633 F.3d 201, 212-13 (3d Cir. 2011) (holding that a New
York conviction for evidence tampering was “relat[ed] to”
obstruction of justice within the meaning of the INA).
4
App. 30.
5
The BIA exercised appellate jurisdiction under 8 C.F.R.
§ 1003.1(b)(3), and we exercise jurisdiction over Flores’s
petition for review pursuant to 8 U.S.C. § 1252(a)(1).

5
ineligible for withholding of removal, 6 and (2) that she did
not meaningfully challenge the denial of her CAT claim. 7 We
address each in turn.

A.

The INA provides that the Attorney General “may
not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in
that country.” 8 However, such withholding of removal is
unavailable if the alien committed a “particularly serious
crime” because, in such a case, the alien is considered a
“danger to the community of the United States.” 9 A
“particularly serious crime,” under the INA, includes crimes
that are considered “aggravated felon[ies]” for which the
alien received a prison sentence of at least five years. 10 The
INA’s list of aggravated felonies, in turn, includes 21
descriptions of various offenses, including, as relevant here,
“offense[s] relating to obstruction of justice, perjury or

6
With respect to this question, we review the BIA’s decision
de novo. Denis, 633 F.3d at 209; see also Restrepo v. Att’y
Gen., 617 F.3d 787, 790 (3d Cir. 2010).
7
With respect to this question, we review factual findings for
substantial evidence, “which means we must uphold findings
of fact unless the record evidence compels a contrary
finding.” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d
Cir. 2011). We review legal conclusions de novo. Id.
8
8 U.S.C. § 1231(b)(3)(A).
9
8 U.S.C. § 1231(b)(3)(B)(ii).
10
8 U.S.C. § 1231(b)(3)(B).

6
subornation of perjury, or bribery of a witness” (the
“Obstruction Provision”). 11 Because Flores was sentenced to
five years for her accessory-after-the-fact conviction, the
question before us is straightforward: is accessory after the
fact “relat[ed] to obstruction of justice”? We now answer that
question in the negative.

1.

Our inquiry starts, as it must, with our decision in
Denis. There, we examined whether an alien’s prior New
York conviction for tampering with evidence was an “offense
relating to obstruction of justice.” 12 In doing so, we first
explained that we apply the categorical approach of statutory
interpretation in determining whether a state conviction
constitutes an aggravated felony (and thus a “particularly
serious crime”) under the INA.13 This approach involves a
comparison between the statute of the alien’s prior conviction
and the relevant federal crime listed as an aggravated felony,
without regard to the underlying facts of the petitioner’s
offense. 14 If the elements of the alien’s statute of conviction
are broader than the elements of the aggravated felony crime,
then the crime of conviction does not qualify as an aggravated
felony. 15 If, however, the elements of the statute of
conviction are the same or narrower than the elements of the

11
8 U.S.C. § 1101(a)(43)(S).
12
633 F.3d 201 (3d Cir. 2011).
13
Id. at 206 (citation omitted).
14
Restrepo, 617 F.3d at 791.
15
Denis, 633 F.3d at 206.

7
aggravated felony crime, then the crime of conviction
qualifies as an aggravated felony. 16

Importantly, unlike other contexts, Denis makes
clear that, when applying the categorical approach, we do not
strictly compare the elements of the statute of conviction to
the elements of the Obstruction Provision’s referenced
offenses.17 Instead, we apply a looser categorical approach in

16
Restrepo, 617 F.3d at 791. We may sometimes look
beyond the mere text of the state statute and employ a
“modified categorical approach” if the statute is divisible—
i.e., it lists several elements in the alternative, thereby
defining multiple crimes. Mathis v. United States, 136 S. Ct.
2243, 2249 (2016). In such a case, we may consult “a limited
class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a[n alien] was convicted of.”
Id. Then, under the modified categorical approach, we
perform the same comparison as under the categorical
approach: if the elements of the crime of conviction are
broader than the elements of the aggravated felony crime,
then the crime of conviction does not qualify as an aggravated
felony, and vice versa. United States v. Brown, 765 F.3d 185,
190 (3d Cir. 2014) (“The modified categorical approach still
‘retains the categorical approach’s central feature: a focus on
the elements, rather than the facts, of a crime.’ It simply
allows a sentencing court ‘to examine a limited class of
documents to determine which of a statute’s alternative
elements formed the basis of the defendant’s prior
conviction.’” (quoting Descamps v. United States, 133 S.
Ct. 2276, 2285 (2013))).
17
See, e.g., Mathis, 136 S. Ct. at 2250-51 (using a strict
categorical approach to compare the elements of generic

8
light of the Obstruction Provision’s statutory text, which
states that aggravated felonies include any offense “relating
to obstruction of justice.” 18 Thus, “rather than ascertaining
whether the elements of a [prior] crime of conviction match
the elements of a generic federal offense with precision, we
must only decide that the [prior] conviction ‘relates to’ the
offense criminalized by [the Obstruction Provision], namely,
obstruction of justice.” 19 In other words, we “survey the
interrelationship between the [crime committed and the
relevant obstruction statute], and apply the phrase ‘relating to’
broadly, seeking a logical or causal connection.” 20 As the
“prime example” of this “causal connection,” we remarked
that “Section 510(b), which criminalizes the knowing
exchange of stolen or forged Treasury instruments,” is
“related to” forgery, even though it lacks the “essential
element” of an intent to defraud or deceive. 21 Similarly, we
noted that a conviction for trafficking in counterfeit items

burglary and Iowa burglary under the Armed Career Criminal
Act); Descamps, 133 S. Ct. at 2285 (using a strict categorical
approach to compare the elements of generic burglary and
California burglary under the Armed Career Criminal Act).
18
Denis, 633 F.3d at 207 (emphasis in original).
19
Id.
20
Id. at 212 (alterations, internal quotation marks, and
citations omitted).
21
Id. at 211 (citing Bobb v. Att’y Gen., 458 F.3d 213, 219-20
(3d Cir. 2006)).

9
constitutes an aggravated felony “relating to” counterfeiting
in light of the connection between these two offenses. 22

With those principles in mind, we then turned to
Denis’s prior New York conviction for tampering with
evidence. In reviewing the Obstruction Provision, we
explained that “Title 18 of the U.S. Code contains a listing of
crimes entitled ‘obstruction of justice,’ permitting us to easily
determine the types of conduct Congress intended the phrase
to encompass.” 23 Looking at that obstruction-of-justice
section of the U.S. Code—Chapter 73, to be precise—we
noted that § 1503 and § 1512(c)(1) were most relevant to
Denis’s conduct. 24 Section 1503 prohibits a person from
“corruptly or by threats or force . . . influenc[ing],
obstruct[ing], or imped[ing], or endeavor[ing] to influence,

22
Id. (citing Park v. Att’y Gen., 472 F.3d 66, 72 (3d
Cir. 2006)).
23
Id. at 209. In contrast to other circuits, we do not defer to
the BIA’s interpretation of the Obstruction Provision in
making this determination. Compare Denis, 633 F.3d at 209,
with Valenzuela Gallardo v. Lynch, 818 F.3d 808, 815 (9th
Cir. 2016) (noting that the Ninth Circuit had previously
deferred to the BIA’s interpretation of the obstruction
provision but declining to do so in light of a subsequent BIA
decision), and Alwan v. Ashcroft, 388 F.3d 507, 510 (5th
Cir. 2004) (deferring to the BIA’s interpretation of the
obstruction provision); see also Higgins v. Holder, 677 F.3d
97, 103-04 (2d Cir. 2012) (acknowledging a circuit split on
whether courts defer to the BIA’s interpretation of the
obstruction provision, but declining to weigh in).
24
Denis, 633 F.3d at 212.

10
obstruct or impede, the due administration of justice.”25 We
explained that “Denis’s conviction for tampering bears a
close resemblance to the federal obstruction of justice offense
defined in Section 1503” because “[b]oth Denis’s crime of
conviction and [the Obstruction Provision], by their terms,
proscribe any behavior that entails the use of force in an effort
to impede or obstruct an official proceeding, such as through
evidence tampering.” 26 Likewise, § 1512(c)(1) prohibits the
alteration, destruction, mutilation, or concealment of any
object that would “impair the object’s integrity or availability
for use in an official proceeding.” 27 Section 1512(c)(1)’s
“focus on destroying or mutilating evidentiary items in
anticipation of their potential production in a prospective
proceeding,” we observed, “is directly analogous, and thus,
logically connected to Denis’s state crime of conviction.” 28
Accordingly, we held that New York’s tampering-with-
evidence offense “relat[es] to obstruction of justice” as
defined in § 1503 and § 1512(c)(1), and therefore constituted
an aggravated felony within the meaning of the INA. 29

2.

The Government construes Denis expansively,
seeking to extend that decision beyond its central holding in
an effort to reach Flores’s accessory-after-the-fact

25
18 U.S.C. § 1503(a).
26
Denis, 633 F.3d at 212 (footnote omitted).
27
18 U.S.C. § 1512(c)(1).
28
Denis, 633 F.3d at 213.
29
Id.

11
conviction. 30 Specifically, the Government argues that: (1)
we may use the federal accessory-after-the-fact statute, 18
U.S.C. § 3, as a suitable basis with which to compare Flores’s
accessory-after-the-fact conviction, rather than the
obstruction-of-justice statutes in Chapter 73 31; and (2) even
setting aside the federal accessory-after-the-fact statute,
Flores’s conviction is connected to “a broad notion of
‘obstruction of justice’” 32 and therefore falls within the
Obstruction Provision’s purview. We reject both contentions.

The Government first claims that we may look
beyond Chapter 73 and compare Flores’s conviction to the
federal accessory-after-the-fact statute, § 3, in order to
determine whether her offense “relat[es] to obstruction of
30
While Flores’s statute of conviction does not codify the
elements of accessory after the fact, see S.C. Code Ann. § 16-
1-55, the elements of this offense are well settled under South
Carolina law. They are: “(1) the felony has been completed;
(2) the accused must have knowledge that the principal
committed the felony; and (3) the accused must harbor or
assist the principal felon.” State v. Collins, 495 S.E.2d 202,
204 (S.C. 1998). “The assistance or harboring rendered must
be for the purpose of enabling the principal felon to escape
detection or arrest.” State v. Legette, 330 S.E.2d 293, 294
(S.C. 1985) (citations omitted).
31
Resp’t’s Br. at 13; Resp’t’s Suppl. Br. at 3. That statute
provides: “Whoever, knowing that an offense against the
United States has been committed, receives, relieves,
comforts or assists the offender in order to hinder or prevent
his apprehension, trial or punishment, is an accessory after the
fact.” 18 U.S.C. § 3.
32
Resp’t’s Br. at 12.

12
justice.” Given the similarities between § 3 and South
Carolina accessory after the fact, the Government argues,
Flores’s prior conviction constitutes obstruction of justice
within the meaning of the INA. 33 This argument is unavailing
for three reasons.

First, Denis straightforwardly tells us that we
review Chapter 73 to determine whether an alien’s prior
offense “relat[es] to obstruction of justice.” In that case, we
scrutinized the Obstruction Provision and explicitly stated
that we were “[e]xamining [the alien’s] crime of conviction in
relation to the federal obstruction of justice offenses codified
in Section 1501 et seq. [i.e., Chapter 73].”34 Nothing in Denis
remotely suggested searching the U.S. Code to discover other
offenses that might qualify as obstruction-of-justice crimes.

Second, the text of the Obstruction Provision
indicates Congress’s intention to reference Chapter 73 and
not, as the Government contends, § 3. The Obstruction
Provision facially encompasses all “offense[s] relating to
obstruction of justice, perjury or subornation of perjury, or
bribery of a witness.” 35 Importantly, both “perjury and
subornation of perjury” and “bribery of a witness” reference
specific chapters of Title 18 and, indeed, specific offenses
codified therein. 36 The first phrase in the list, “obstruction of

33
Resp’t’s Br. at 13.
34
Denis, 633 F.3d at 212.
35
8 U.S.C. § 1101(a)(43)(S).
36
See 18 U.S.C. § 201(b)(3)-(4) (criminalizing bribery of a
witness in Chapter 11, “Bribery, Graft, and Conflicts of
Interest”); 18 U.S.C. § 1621(1) (criminalizing perjury in

13
justice,” seems to follow this same pattern: while it is not tied
to any specific statute, it is identical to the title of Chapter 73,
labeled “Obstruction of Justice.” As the Supreme Court has
recognized, “[t]itles can be useful devices to resolve doubt
about the meaning of a statute,” especially where, as here,
other aspects of the statute indicate the same result. 37 Given
Congress’s linking of the textually adjacent terms—“perjury
and subornation of perjury” and “bribery of a witness”—with
their respective chapters, it seems odd that Congress would
not similarly link the first term in the list, “obstruction of
justice,” with its identically named chapter. We therefore do
not believe Congress engaged in such tortuous drafting.

Third and relatedly, Congress codified its own
accessory-after-the-fact statute at 18 U.S.C. § 3, but it placed
that statute outside the provisions related to obstruction of
justice. 38 If Congress considered § 3 an obstruction-of-justice

Chapter 79, “Perjury”); 18 U.S.C.§ 1622 (criminalizing
subornation of perjury in Chapter 79, “Perjury”).
37
Yates v. United States, 135 S. Ct. 1074, 1090 (2015) (Alito,
J., concurring) (internal quotation marks and citations
omitted).
38
The Government observes that “the Court does not give
weight to where a statute is codified unless Congress (as
opposed to the Office of the Law Revision Counsel)
intentionally placed each statute.” Resp’t’s Suppl. Br. at 3
(citing United States v. Welden, 377 U.S. 95, 98-99 n.4
(1964)). True enough. But this proposition is of no moment
because Title 18 was enacted as positive law and accordingly
approved by Congress. See United States v. Loniello, 610

14
offense, it presumably would have placed that statute in
Chapter 73, entitled “Obstruction of Justice,” or referenced §
3 in the Obstruction Provision. It did neither.

Thus, we decline the Government’s invitation to
look at the federal accessory-after-the-fact offense, 18 U.S.C.
§ 3, 39 in determining whether Flores’s offense “relat[es] to
obstruction of justice.”

The Government also argues that, even setting
aside § 3, Flores’s conviction is connected to “a broad notion
of ‘obstruction of justice’” and therefore falls within the
Obstruction Provision’s purview. 40 This argument raises a

F.3d 488, 492 (7th Cir. 2010) (noting Title 18’s enactment in
positive law); United States v. Falvey, 676 F.2d 871, 874 (1st
Cir. 1982) (same); United States v. Watson, 570 F.2d 282,
284 (8th Cir. 1978) (“Congress has [] enacted Title 18 into
positive law as codified.”).
39
Even if we were to search beyond Chapter 73 for relevant
offenses, Flores’s South Carolina conviction is arguably more
analogous to the federal misprision-of-felony offense, 18
U.S.C. § 4, than to the federal accessory-after-the-fact
offense, 18 U.S.C. § 3. It is therefore far from certain that the
Government would prevail were we to accept its argument.
In Re Espinoza-Gonzalez, 22 I. & N. Dec. 889, 894-96
(BIA 1999) (distinguishing between § 3 and § 4 and finding
that the former “relat[es] to obstruction of justice” while the
latter does not).
40
Resp’t’s Br. at 12.

15
broader question: how close a connection is required between
an alien’s prior offense and “obstruction of justice” such that
the former may be considered “relating to obstruction of
justice”? We answered that question in Denis and we
reiterate that holding today: an analysis of specific statutes
must be employed to determine whether a “logical or causal
connection” exists between an alien’s prior offense and a
Chapter 73 offense.

Our case law identifies a spectrum of possible
connections that may be made between an alien’s prior
offense and some federal offense. On one end of the
spectrum, we could require a precise match between the
elements of alien’s prior offense and the elements of one
specific federal offense. We rejected this approach in Park,
where we faced the question of whether an alien’s prior
offense for trafficking counterfeited goods under 18 U.S.C.
§ 2320 was an aggravated felony “relating to . . .
counterfeiting.” The alien sought to compare his § 2320
conviction with one particular statute, 18 U.S.C. § 471, which
“criminalizes falsely making, forging, counterfeiting, or
altering any obligation or other security of the United States
with intent to defraud.” 41 But we precluded such an analysis,
noting that the INA’s description of offenses “relating to . . .
counterfeiting” required us to look beyond one statute and
instead examine a class of criminal statutes related to
counterfeiting.42

41
Park v. Att’y Gen., 472 F.3d 66, 71 (3d Cir. 2006) (internal
alterations and quotation marks omitted).
42
Id. at 71-72; see also Kamagate v. Ashcroft, 385 F.3d 144,
154 (2d Cir. 2004) (noting that, in the context of “offense[s]
‘relating to’ . . . counterfeiting,” the term “relating to” is

16
 On the other end of the spectrum, we could, as the
Government urges, merely require some connection to “broad
notions” derived from federal offenses. But this approach
was rejected by Denis and would otherwise engender
uncertainty among those tasked with applying it. Indeed, the
Ninth Circuit rejected a similar interpretation of the
Obstruction Provision in Valenzuela Gallardo v. Lynch. 43
That case confronted a new BIA explanation of the
Obstruction Provision, which stated that, to qualify as an
aggravated felony, accessory-after-the-fact convictions must
only involve the “affirmative and intentional attempt,
motivated by a specific intent, to interfere with the process of
justice,” regardless of the existence of an ongoing
investigation or proceeding. 44 The Ninth Circuit declined to
follow this interpretation because it “raises serious
constitutional concerns about whether the statute is
unconstitutionally vague.” 45 Specifically, the court found that
this “construction leaves grave uncertainty about the plethora
of steps before and after an ‘ongoing criminal investigation or
trial’ that comprise ‘the process of justice,’ and, hence,

used “to define aggravated felonies by reference to
the general subject of the offense of conviction, suggesting
Congress’s intent to reach more broadly than any single
statute” (emphasis added)).
43
818 F.3d 808, 812 (9th Cir. 2016).
44
Id. at 819 (quoting In re Valenzuela Gallardo, 25 I. & N.
Dec. 838, 842 (BIA 2012)).
45
Id. at 811.

17
uncertainty about which crimes constitute ‘obstruction of
justice.’”46 While the Ninth Circuit’s decision is not wholly
applicable to our case, 47 its point is well taken: adopting a
construction of the Obstruction Provision that reaches
unknowable offenses 48 based on “broad notion[s] of
‘obstruction of justice’” causes confusion for courts,
puzzlement for practitioners, and incomprehension for
immigrants.49

46
Id. at 820 (quoting Valenzuela Gallardo, 25 I. & N. Dec. at
842). This would not only leave courts “unable to determine
what crimes make a criminal defendant deportable under [the
Obstruction Provision] and what crimes do not,” but would
also leave “defense lawyers . . . unable to accurately advise
their clients about the immigration-related consequences of a
conviction or plea agreement.” Id. at 820-21 (citations
omitted).
47
Unlike the Ninth Circuit, we do not defer to the BIA’s
interpretation of the Obstruction Provision. Denis, 633 F.3d
at 209.
48
Would “broad notion[s] of ‘obstruction of justice’” cover,
for example, money laundering (18 U.S.C. § 1956)? False
statements (18 U.S.C. § 1001)? Smuggling (18 U.S.C. §
545)?
49
So while the phrase “relating to” in the Obstruction
Provision is certainly broad, we are mindful of both the
Supreme Court’s warning that these words, “extended to the
furthest stretch of their indeterminacy, stop nowhere,” and the
consequences thereof. Mellouli v. Lynch, 135 S. Ct. 1980,
1990 (2015) (alterations omitted) (citing N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 655 (1995)).

18
 Recognizing these concerns, Denis adopted a
categorical approach somewhere in the middle of the
spectrum: while “[w]e need not determine the precise degree
of similarity between the elements of [an alien’s] offense and
a listed federal crime,” 50 we must “survey the
interrelationship between the two statutory provisions and
apply the phrase ‘relating to’ broadly, seeking a logical or
causal connection.” 51 This requirement of a “logical or causal
connection” is derived from Bobb, 52 where we adopted the
dictionary definition of “relate,” which means “to show
or establish a logical or causal connection between.” 53 In
Bobb, and again in Denis, we stressed the “causality” prong
of this definition, explaining by way of example that the
knowing exchange of stolen or forged Treasury instruments is
“relat[ed] to” forgery because, “but for the forged
endorsement, there would be no criminal offense.” 54 For
similar reasons, we found in Park that a conviction for
trafficking in counterfeit items constituted an aggravated
felony “relating to . . . counterfeiting.” 55 Therefore, a “causal

50
Denis, 633 F.3d at 212.
51
Id. (citations and some quotation marks omitted).
52
458 F.3d 213 (3d Cir. 2006).
53
Id. at 219 (internal quotation marks omitted) (citing
Webster’s Third New International Dictionary (Unabridged)
1916 (1991)).
54
Id.; see Denis, 633 F.3d at 211-12 (citing Bobb for the
proposition that a “‘causal connection’ may suffice to make
the separate crimes related”).
55
Denis, 633 F.3d at 211 (citing Park, 473 F.3d at 72).

19
connection” requires a link between the alien’s offense and a
listed federal crime: without the listed federal offense, the
alien’s offense could not have occurred.

A “logical connection” is also defined by Denis.
There, we stated that the obstruction-of-justice offense
codified at § 1512(c)(1)—which prohibits “corruptly
alter[ing], destroy[ing], mutilate[ing], or conceal[ing] a
record, document, or other object . . . with the intent to impair
the object’s integrity or availability for use in an official
proceeding”—was “directly analogous, and thus, logically
connected” to New York’s tampering statute because both
statues focus on “destroying or mutilating evidentiary items
in anticipation of their potential production in a prospective
proceeding.”56 So while the New York statute in Denis and
§ 1512(c)(1) are not a perfect match in terms of prohibited
conduct, Denis makes clear that the Obstruction Provision
does not require a precise matching of elements given its
reference to offenses “relating to obstruction of justice.” It is
enough that the two crimes target the same, core criminal
conduct such that they are “directly analogous.”57

Accordingly, we reject the Government’s position
and reaffirm Denis’s central holding: to determine whether a
petitioner’s prior offense constitutes an aggravated felony
“relating to obstruction of justice,” we apply a categorical
approach, seeking a “logical or causal connection” between
56
Id. at 213.
57
See id. Indeed, it has been recognized that New York’s
tampering-with-evidence statute, at issue in Denis, and
§ 1512(c), while not “mirror images,” are “essentially
similar.” In re Coren, 905 N.Y.S.2d 62, 63 (N.Y. App. Div.
2010).

20
an alien’s offense and a relevant Chapter 73 offense.
“Logical” means that both an alien’s statute of conviction and
a Chapter 73 statute are directly analogous; “causal” means
that, but for a Chapter 73 offense, the alien’s offense could
not have occurred.

3.

Applying this framework reveals that Flores’s
accessory-after-the-fact conviction is not “relat[ed] to
obstruction of justice.” In South Carolina, accessory after the
fact occurs where the defendant, knowing that a principal has
committed a felony, “harbor[s] or assist[s] the principal
felon . . . for the purpose of enabling the principal felon to
escape detection or arrest.” 58 We must compare this South
Carolina offense to the federal obstruction offenses listed in
Chapter 73 to determine whether Flores’s conviction is
“relat[ed] to obstruction of justice.” Of those offenses, only §
1503 and § 1512(c)(2) contain language that could arguably
encompass accessory after the fact.

Section 1503(a) includes a “catchall” provision
prohibiting a person from “corruptly or by threats or force . . .
influenc[ing], obstruct[ing], or imped[ing], or endeavor[ing]
58
Legette, 330 S.E.2d at 294 (citations omitted). The
elements of accessory after the fact are: “(1) the felony has
been completed; (2) the accused must have knowledge that
the principal committed the felony; and (3) the accused must
harbor or assist the principal felon.” Collins, 495 S.E.2d at
204. “The assistance or harboring rendered must be for the
purpose of enabling the principal felon to escape detection or
arrest.” Legette, 330 S.E.2d at 294 (citations omitted); Hooks
v. State, 577 S.E.2d 211, 213 (S.C. 2003), overruled on other
grounds by State v. Gentry, 610 S.E.2d 494 (S.C. 2005).

21
to influence, obstruct or impede, the due administration of
justice.”59 In Denis, we explained that a New York statute
prohibiting intentionally tampering with physical evidence to
prevent its use in an official proceeding 60 was sufficiently
connected to § 1503 to constitute an aggravated felony
because both statutes “by their terms, proscribe any behavior
that entails the use of force in an effort to impede or obstruct
an official proceeding, such as through evidence
tampering.” 61

But Flores’s conviction does not bear this same
type of resemblance to § 1503 and it is therefore not logically
or causally connected to accessory after the fact. With
respect to a logical connection, both the mens rea (“corruptly
or by threats or force”) and actus reus (“influence[],
obstruct[] or impede[] . . . the due administration of justice”)
of § 1503 focus on a defendant’s intent and actions with
respect to “the due administration of justice.” The “due
administration of justice,” we have held, refers to “a judicial
proceeding,” and not “some ancillary proceeding, distinct
from a judicial proceeding such as an investigation

59
18 U.S.C. § 1503(a).
60
This New York statute reads: “Believing that certain
physical evidence is about to be produced or used in an
official proceeding or a prospective official proceeding, and
intending to prevent such production or use, he suppresses it
by any act of concealment, alteration or destruction, or by
employing force, intimidation or deception against any
person.” N.Y. Penal Law § 215.40.
61
Denis, 633 F.3d at 212 (citing cases for the proposition that
§ 1503 covers evidence tampering).

22
independent of the court’s authority.” 62 In stark contrast, the
mens rea (intending “the principal felon to escape detection
or arrest”) and actus reus (“harbor[ing] or assist[ing] the
principal felon”) of Flores’s South Carolina offense focus not
on a defendant’s intent and actions regarding a particular
judicial proceeding, but on the principal of a crime. 63 Put

62
United States v. Sussman, 709 F.3d 155, 169 (3d Cir. 2013)
(internal quotation marks and alterations omitted) (citing
United States v. Davis, 183 F.3d 231, 241 (3d Cir. 1999)); see
also United States v. Aguilar, 515 U.S. 593, 599 (1995)
(holding that “[t]he action taken by the accused must be with
an intent to influence judicial or grand jury proceedings”).
We have explained that the elements of a § 1503 offense are:
“(1) the existence of a judicial proceeding; (2) knowledge or
notice of the pending proceeding; (3) acting corruptly with
the intent of influencing, obstructing, or impeding the
proceeding in the due administration of justice; and (4) the
action had the ‘natural and probable effect’ of interfering with
the due administration of justice.” Sussman, 709 F.3d at 168
(quoting In re Impounded, 241 F.3d 308, 317 n.8 (3d Cir.
2001)).
63
The dissent places much emphasis on our note in Denis that
New York’s tampering-with-evidence statute applies to
defendants “regardless of whether the [defendants’] conduct
interfered with a judicial proceeding or a police
investigation.” Op. of Shwartz, J. at 6-7 & n.5 (citing Denis,
633 F.3d at 212 n.15). But while a defendant’s conduct need
not occur during the pendency of a judicial proceeding, the
New York statute still mandates a concrete link to official
proceedings: the defendant must “[b]eliev[e] that certain
physical evidence is about to be produced or used in an
official proceeding,” and must intend to “prevent such
production or use.” N.Y. Penal Law § 215.40; see also

23
another way, these two offenses target completely different
criminal conduct. Indeed, there are infinite actions a
defendant may undertake with the intent to aid the principal
after the commission of a crime, but before the
commencement of judicial proceedings, none of which would
constitute a violation of § 1503, and all of which could
constitute accessory after the fact. 64 So while Denis makes
clear that the elements of an alien’s offense and a Chapter 73
offense need not match precisely to fall within the
Obstruction Provision, 65 they must be “directly analogous”
such that a “logical connection” exists. In light of the widely

People v. Lewis, 901 N.Y.S.2d 901 (N.Y. Crim. Ct. 2009);
People v. Berdini, 845 N.Y.S.2d 717, 721 (N.Y. Crim. Ct.
2007); People v. Simon, 547 N.Y.S.2d 199, 203 (N.Y. Crim.
Ct. 1989). Here, in contrast, South Carolina accessory after
the fact requires no such nexus. See Collins, 495 S.E.2d at
204.

In any event, our note in Denis, 633 F.3d at 212 n.15, is
dictum and does not affect our decision today.
64
We have held that solely hindering a police investigation—
which is criminalized by South Carolina accessory after the
fact—plainly does not fall within § 1503’s ambit. See Davis,
183 F.3d at 239 (“Courts have repeatedly held that an
investigation simpliciter is not enough to trigger § 1503.”).
65
Denis, 633 F.3d at 207, 212-13.

24
divergent elements between accessory after the fact and §
1503, however, we find no such connection here. 66

With respect to a causal connection, Flores’s
accessory-after-the-fact offense does not form the basis of a
§ 1503 conviction, and a § 1503 offense does not form the
basis of an accessory-after-the-fact conviction. As discussed,
these crimes are independent: one may be convicted under
§ 1503 without ever aiding a principal felon, and one may be
convicted of South Carolina accessory after the fact without
ever interfering with a judicial proceeding. Thus, no causal
connection exists.

66
The dissent contends that “the purpose of the accessory
after the fact offense is to help the principal avoid facing
justice before a court,” and therefore “this conduct is related
to obstructing the due administration of justice.” Op. of
Shwartz, J. at 7. The dissent’s argument fails for two reasons.
First, the “administration of justice,” as used in § 1503, means
a judicial proceeding, see Aguilar, 515 U.S. at 599, so one
does not obstruct the “administration of justice” merely by
making it more difficult for authorities to move forward with
their investigation; a judicial proceeding is a judicial
proceeding regardless of how long it takes to commence.
Second, the dissent’s metaphysical argument echoes the
Government’s claim (invoking “broad notion[s] of
‘obstruction of justice’”) and must fail for the same reason:
the relevant inquiry is not abstract, but must focus on
Congress’s intent as embodied by the obstruction-of-justice
statutes in Chapter 73 and the Obstruction Provision.
Accordingly, the dissent’s cited cases—none of which relate
to the Obstruction Provision, Denis, or the INA—are
unavailing. See Op. of Shwartz, J. at 8.

25
 A similar analysis applies to § 1512(c)(2). That
provision makes conduct criminal where one “corruptly . . .
otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so.” 67 We did not address
§ 1512(c)(2) in Denis, but we stated that § 1512(c)(1)—which
prohibits “corruptly alter[ing], destroy[ing], mutilat[ing], or
conceal[ing] a record, document, or other object . . . with the
intent to impair the object’s integrity or availability for use in
an official proceeding”—is “directly analogous, and thus,
logically connected” to New York’s tampering statute
because both statues focus on “destroying or mutilating
evidentiary items in anticipation of their potential production
in a prospective proceeding.” 68

The same cannot be said of Flores’s accessory-
after-the fact conviction and § 1512(c)(2). As a threshold
matter, § 1512(c)(2) references “any official proceeding,” not
a judicial proceeding or the “the due administration of
justice” as in § 1503. However, this difference is immaterial
under United States v. Tyler, 69 which held that “in any
prosecution brought under a § 1512 provision charging
obstruction of justice involving an ‘official proceeding,’ the
government is required to prove a nexus between the
defendant’s conduct and a particular official proceeding
before a judge or court of the United States that the defendant
contemplated.” 70 Section 1512(c)(2)—which involves “any
official proceeding”—clearly falls under our holding in
67
18 U.S.C. § 1512(c)(2).
68
Denis, 633 F.3d at 213.
69
732 F.3d 241 (3d Cir. 2013).
70
Id. at 249-50 (citing Arthur Andersen LLP v. United States,
544 U.S. 696, 708 (2005)).

26
Tyler 71 and, therefore, we apply a nexus requirement to
§ 1512(c)(2).72

With § 1512(c)(2)’s nexus requirement in mind,
our analysis of this statute closely mirrors our analysis of §
1503, as § 1512(c)(2) is neither logically nor causally
connected to accessory after the fact. With respect to a
logical connection, both the mens rea (“corruptly”) and actus
reus (“obstruct[], influence[], or impede[] any official
proceeding”) of § 1512(c)(2) focus on a defendant’s intent
and actions concerning a judicial proceeding. As noted
previously, accessory after the fact, in contrast, contains mens
rea and actus reus elements directed toward a defendant’s
intent and actions regarding the principal of a crime, not a
judicial proceeding. Accordingly, as with § 1503, the widely
divergent elements between accessory after the fact and §
1512(c)(2) demonstrate that no logical connection exists.

71
See id. (favorably citing cases that apply the nexus
requirement to § 1512(c)(2)).
72
Our sister circuits have also applied a nexus requirement to
§ 1512(c)(2). See United States v. Petruk, 781 F.3d 438, 445
(8th Cir. 2015) (applying the nexus requirement to
§ 1512(c)(2)); United States v. Bennett, 664 F.3d 997, 1013
(5th Cir. 2011) (same), vacated on other grounds, 133 S. Ct.
71 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th
Cir. 2011) (same); United States v. Phillips, 583 F.3d 1261,
1264 (10th Cir. 2009) (same); United States v. Carson, 560
F.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the
“nexus requirement” applies to §1512(c)(2)); United States v.
Reich, 479 F.3d 179, 186 (2d Cir. 2007) (Sotomayor, J.)
(applying the nexus requirement to § 1512(c)(2)).

27
 Likewise, no causal connection exists between
accessory after the fact and § 1512(c)(2): Flores’s accessory-
after-the-fact offense does not form the basis of a
§ 1512(c)(2) conviction, and a § 1512(c)(2) offense does not
form the basis of an accessory-after-the-fact conviction.
Thus, like § 1503, no causal connection exists.

Our conclusion that the Obstruction Provision does
not capture Flores’s South Carolina conviction is further
bolstered by a straightforward review of the Obstruction
Provision’s statutory text and legislative history. Indeed, at
bottom, the categorical approach conducted today is merely a
tool of statutory interpretation73 used to avoid “the practical
difficulties and potential unfairness of a factual approach”
when analyzing prior convictions. 74 The categorical approach
is not talismanic; it does not eclipse or alter our other methods

73
See James v. United States, 550 U.S. 192, 214 (2007)
(noting that the Court is “engaging in statutory interpretation”
by employing the categorical approach), overruled on other
grounds by Johnson v. United States, 135 S. Ct. 2551 (2015);
Shepard v. United States, 544 U.S. 13, 23 (2005) (clarifying
application of the modified categorical approach and framing
the issue as one of statutory interpretation); Ezell v. United
States, 778 F.3d 762, 766 (9th Cir. 2015) (describing seminal
Supreme Court cases on the categorical approach as statutory
interpretation cases), cert. denied, 136 S. Ct. 256 (2015);
Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003)
(describing the categorical approach as a method of statutory
interpretation).
74
Taylor v. United States, 495 U.S. 575, 601 (1990).

28
of statutory interpretation. As always, our “primary purpose
in statutory interpretation is to discern legislative intent.” 75

The Obstruction Provision, on its face, includes all
“offense[s] relating to obstruction of justice, perjury or
subornation of perjury, or bribery of a witness.”76 The term
“obstruction of justice” is not alone, but listed in conjunction
with “perjury or subornation of perjury” and “bribery of a
witness.” “[T]his informs our understanding of Congress’s
intended interpretation of ‘obstruction of justice.’” 77 So while
“obstruction of justice” may, at its most expansive, be taken
to include offenses wholly divorced from any judicial
proceeding,78 the other offenses listed therewith—“perjury or
subornation of perjury” and “bribery of a witness”—relate
only to conduct that impedes a judicial proceeding. 79 Under

75
Morgan v. Gay, 466 F.3d 276, 277 (3d Cir. 2006).
76
8 U.S.C. § 1101(a)(43)(S).
77
Valenzuela Gallardo, 818 F.3d at 821.
78
See, e.g., Barlow, 470 F.2d at 1252-53 (“The gist of being
an accessory after the fact lies essentially in obstructing
justice by rendering assistance to hinder or prevent the arrest
of the offender after he has committed the crime.”). As noted
previously, this passing statement in Barlow was not in the
Obstruction Provision context, or even the INA context, and
the court did not undertake the exhaustive Chapter 73
categorical analysis necessary here. It thus has no bearing on
our decision today.
79
See 18 U.S.C. § 201(b)(3)-(4) (criminalizing bribery of a
witness); 18 U.S.C. § 1621(1) (criminalizing perjury); 18
U.S.C. § 1622 (criminalizing subornation of perjury).

29
such circumstances, the noscitur a sociis canon 80 counsels
toward a narrower definition of “obstruction of justice” that
does not reach conduct unmoored from judicial proceedings.

Moreover, in adding certain categories of offenses,
like the Obstruction Provision, to the list of aggravated
felonies in 1996, Congress made an effort “to ensure that the
overall reach of the definition would be consistent with the
sentencing guidelines.” 81 Specifically, “[w]ith only certain
limited exceptions,” Congress “attempted to ensure that all of
the crimes defined as aggravated felonies carry a base offense
level of at least 12,” in order “to ensure that only the most
serious crimes . . . render the alien deportable.” 82 But in the
United States Sentencing Guidelines of the time, “Obstruction
of Justice” had a base offense level of 12, 83 while “Accessory
After the Fact” had a base offense level as low as 4. 84 This
lends further support to the proposition that Congress did not

80
This canon of statutory interpretation “instructs that when a
statute contains a list, each word in that list presumptively has
a ‘similar’ meaning.” Yates, 135 S. Ct. at 1089 (2015)
(Alito, J., concurring); Gustafson v. Alloyd Co., 513 U.S. 561,
575 (1995). Put differently, this canon implements the idea
that the meaning of a word should be determined by
considering the words with which it is associated in context.
81
H.R. Rep. No. 104-22, at 7 (1995).
82
Id. at 7-8.
83
U.S.S.G. § 2J1.2 (1995).
84
U.S.S.G. § 2X3.1 (1995).

30
intend accessory-after-the-fact offenses to be considered
aggravated felonies. 85

Consistent with Denis’s categorical approach, and
our review of the relevant statutory text and legislative
history, we conclude that Flores’s South Carolina accessory-

85
The dissent argues that, under the Sentencing Guidelines,
accessory-after-the-fact offenses are related to obstruction of
justice because § 2J1.2 (“Obstruction of Justice”) cross-
references § 2X3.1 (“Accessory After The Fact”). Op. of
Shwartz, J. at 8 n.8. But § 2J1.2’s cross-reference only comes
into play after § 2J1.2 applies; and § 2J1.2 only applies when
the defendant has committed a bona fide obstruction-of-
justice offense. See U.S.S.G. § 1B1.2 cmt. n.1 (1995) (“As a
general rule, the court is to use the guideline section from
Chapter Two most applicable to the offense of conviction.”);
see also U.S.S.G. App. A (1995) (listing various statutes
corresponding to § 2J1.2, including 18 U.S.C. §§ 1503,
1512(c), but not including 18 U.S.C. §§ 2, 3, 4). Thus,
§ 2J1.2’s cross-reference is merely used to “punish more
severely (and to provide a greater disincentive for) . . .
obstruction of . . . prosecutions with respect to more serious
crimes.” United States v. Arias, 253 F.3d 453, 459 (9th Cir.
2001); see also United States v. Gallimore, 491 F.3d 871, 875
(8th Cir. 2007) (“Although § 2X3.1 normally applies to
convictions for being an accessory after the fact, in the
context of the § 2J1.2(c) cross reference provision, it merely
serves as a tool for calculating the base offense level for
particularly serious obstruction offenses.”); United States v.
Kimble, 305 F.3d 480, 485 (6th Cir. 2002) (same). Section
2J1.2’s cross-reference is therefore fully consistent with
Congress’s goal to “ensure that all of the crimes defined as
aggravated felonies carry a base offense level of at least 12.”
H.R. Rep. No. 104-22, at 7-8 (1995).

31
after-the-fact conviction is not an offense “relating to
obstruction of justice” and therefore constitutes neither an
aggravated felony nor a “particularly serious crime” under the
INA. She is therefore eligible for withholding of removal.

B.

Flores also seeks review of the BIA’s denial of her
CAT application. An applicant for CAT relief must show that
it is more likely than not that she would be tortured if she
were removed to her home country, 86 and that such torture
would be “inflicted by or at the instigation of or with the
consent or acquiescence of” a public official.87 Before both
the IJ and the BIA, Flores asserted that it was “more likely
than not” that she would face torture if removed. Before the
BIA, Flores also stated that she obtained new evidence that
her father sought to murder her. But the BIA observed that
she never provided this new evidence and concluded that she
failed to “meaningfully challenge[ ] . . . the [IJ’s] denial of
her application for” CAT relief. 88

In this appeal, Flores does not meaningfully dispute
the BIA’s conclusion that she failed to appeal the IJ’s ruling

86
8 C.F.R. § 1208.16(c).
87
Id. § 1208.18(a)(1).
88
App. 30.

32
on her CAT claim. 89 As a result, she did not exhaust her CAT
claim, and we therefore lack jurisdiction to review it. 90

III.

For the foregoing reasons, we conclude that
Flores’s accessory after the fact conviction is not a
“particularly serious crime” within the meaning of the INA
and she is therefore eligible for withholding of removal. We
also conclude that we lack jurisdiction to review Flores’s
CAT claim. Accordingly, Flores’s petition is granted in part
and dismissed in part, the BIA’s decision is vacated in part,
and the case will be remanded to the BIA for further
proceedings consistent with this Opinion.

89
Pet’r’s Br. at 26-27.
90
8 U.S.C. § 1252(d)(1); see Lin v. Att’y Gen., 543 F.3d 114,
120-21 (3d Cir. 2008) (explaining that a petitioner must raise
all issues before the BIA to exhaust her administrative
remedies, and failure to exhaust all administrative remedies
deprives the appellate court of jurisdiction).

33
SHWARTZ, Circuit Judge, concurring in part, dissenting in
part.

I agree with my colleagues that we lack jurisdiction to
review Patricia Flores’s petition for relief under the
Convention Against Torture (“CAT”) because she did not
dispute the Board of Immigration Appeals’ (“BIA”) finding
that she failed to meaningfully challenge the Immigration
Judge’s (“IJ”) ruling. However, I part company with my
colleagues’ conclusion that a conviction under South
Carolina’s accessory after the fact statute does not constitute
an aggravated felony. Applying the framework set forth in
Denis v. Attorney General, 633 F.3d 201 (3d Cir. 2011), I
believe we are required to conclude that South Carolina’s
accessory after the fact offense is related to obstruction of
justice, and it therefore qualifies as an aggravated felony
under 8 U.S.C. § 1101(a)(43)(S). As a result, Flores is not
entitled to withholding of removal.

I

The Immigration and Nationality Act (“INA”)
provides a list of offenses that are considered aggravated
felonies. 8 U.S.C. § 1101(a)(43). To determine whether a
state conviction constitutes an aggravated felony under the
INA, we presumptively apply the “formal categorical
approach.” Ng v. Att’y Gen., 436 F.3d 392, 396 (3d Cir.
2006). Under this approach, we look at the elements of the
crime to determine whether it falls within a category

1
enumerated in the INA.1 Id. at 396-97. In general, “[i]f the
elements of the aggravated felony generic crimes enumerated
in the federal statute are the same as or broader than the
elements of the specific criminal statute of conviction, then
the specific crime of conviction categorically qualifies as an
aggravated felony.” Denis, 633 F.3d at 206.

One category of aggravated felony under the INA is
“an offense relating to obstruction of justice . . . for which the
term of imprisonment is at least one year.” 8 U.S.C. §
1101(a)(43)(S). In Denis, we observed that the phrase
“relating to” must be “read expansively” and “encompass[es]
crimes other than those specifically listed in the federal
statutes.” Denis, 633 F.3d at 209 (citations omitted); see also
Yong Wong Park v. Att’y Gen., 472 F.3d 66, 72 (3d Cir.
2006) (noting that the Supreme Court has defined “relating
to” as: “to stand in some relation; to have bearing or concern;
to pertain; refer; to bring into association with or connection
with” (quoting Morales v. Trans World Airlines, 504 U.S.
374, 383 (1992)) (internal quotation marks omitted)).
Mindful of Congress’s word choice, the Denis court held that
“in deciding whether a conviction is ‘related to’ another
offense . . . crimes of conviction can be ‘related to’ a listed
offense without containing what might be viewed as an
essential element.” Denis, 633 F.3d at 210. Thus, under
Denis, the elements of the federal statute and the crime of
conviction need not match for the latter to relate to
obstruction of justice. See id. at 211 (stating that “[t]o give
effect to Congress’s choice of language, a categorical

1
In making this determination, we may not consider
the particular facts underlying the conviction. Restrepo v.
Att’y Gen., 617 F.3d 787, 791 (3d Cir. 2010).

2
matching of the elements of the offense of conviction with the
elements of a federal law cannot be the sole test for
determining whether a crime of conviction ‘relates to’ a
generic federal offense”). Rather, a “logical” or “causal
connection may suffice to make the separate crimes related.”
Id. at 211-12 (internal quotation marks omitted); see also id.
at 212 (“[W]e will survey the interrelationship between [the]
two statutory provisions and apply the phrase relating to
broadly, seeking a logical or causal connection.” (second
alteration in original) (internal quotation marks and citation
omitted)). Therefore, our task is to determine whether the
state offense is logically or causally connected with the
generic federal obstruction of justice offense.2

2
My colleagues impose a much higher standard of
connection than required in Denis. For a state offense to be
logically connected to a federal obstruction of justice offense,
my colleagues conclude that the offenses must be “directly
analogous.” Majority Op. 19-20. In Denis, we did observe
that a federal obstruction of justice offense was “directly
analogous, and thus, logically connected to Denis’s state
crime of conviction.” Denis, 633 F.3d at 213. While it is true
that the two offenses at issue in Denis were directly
analogous and that directly analogous offenses are also
logically connected, nothing in Denis suggests that “direct
analogy” is the minimum threshold that is required to
establish a logical connection in every case. Indeed, the plain
meaning of the expansive phrase “relating to” in §
1101(a)(43)(s) shows that Congress did not require that the
two statutes be “directly analogous” in order to be “related.”
See Morales, 504 U.S. at 383 (“The ordinary meaning of
[relating to] is a broad one—‘to stand in some relation; to
have bearing or concern; to pertain; refer; to bring into

3
 Chapter 73 of Title 18 of the United States Code is
entitled “Obstruction of Justice” and contains more than
twenty different offenses.3 Most applicable here is 18 U.S.C.
§ 1503, which provides that “[w]hoever corruptly, or by
threats or force, . . . endeavors to influence, obstruct, or
impede, the due administration of justice” shall be imprisoned
(if the obstruction does not involve a killing or attempted
killing) not more than ten years.

association with or connection with,’ . . . .” (quoting Black’s
Law Dictionary 1158 (5th ed. 1979))). Moreover, in Denis
we emphasized that our precedent takes a broad reading of
the phrase “relating to.” Denis, 633 F.3d at 211. The “direct
analogy” standard that my colleagues rely upon is more than
what Denis and the plain meaning of § 1101(a)(43)(s) require.
3
My colleagues assert that the placement of the federal
accessory after the fact section outside of Chapter 73 signifies
that it is not an obstruction of justice offense. I do not think
we can draw such a conclusion. First, the accessory after the
fact section, 18 U.S.C. § 3, is placed in the chapter entitled
“General Provisions,” which includes definitions that are
applicable throughout the code. Second, the accessory after
the fact provision falls immediately after the section that
addresses principals and aiders and abettors, 18 U.S.C. § 2,
and before misprision of a felony, 18 U.S.C. § 4, and conveys
that it was placed there to make clear that criminal liability
may be imposed upon certain individuals even after the
primary offense is completed. Under § 3’s accessory after the
fact provision, one may be liable for assisting the offender to
prevent his apprehension, trial, or punishment. There is
nothing in the language of these provisions that suggests that
one who commits such an offense could not also commit a
Chapter 73 obstruction of justice offense.

4
 We have held that obstruction of the “due
administration of justice” under § 1503 requires an ongoing
judicial proceeding. United States v. Davis, 183 F.3d 231,
239 (3d Cir. 1999).4 Denis makes clear, however, that the
elements of the crime of conviction and the federal offense
need not precisely match for the conduct to be logically or
causally connected to obstruction of justice. See Denis, 633
F.3d at 206-07 (stating that § 1101(a)(43)(S)’s inclusion of
the words “relating to obstruction of justice” makes the

4
The elements of § 1503 are:

(1) the existence of a judicial proceeding; (2)
knowledge or notice of the pending proceeding;
(3) acting corruptly with the intent of
influencing, obstructing, or impeding the
proceeding in the due administration of justice;
and (4) the action had the ‘natural and probable
effect’ of interfering with the due administration
of justice.

United States v. Sussman, 709 F.3d 155, 168 (3d Cir. 2013)
(citation omitted). Interfering with an investigation
conducted by an executive agency, such as the FBI, does not
violate the “due administration of justice” clause because
those agencies “are not judicial arms of the government
‘administering justice.’” United States v. Simmons, 591 F.2d
206, 208 (3d Cir. 1979). Thus, obstruction of an event
“distinct from a judicial proceeding such as an investigation
independent of the court’s . . . authority,” Sussman, 709 F.3d
at 169 (citation and internal quotation marks omitted), does
not violate § 1503.

5
provision “more descriptive in nature and, thus, slightly more
expansive. . . . [R]ather than ascertaining whether the
elements of a state crime of conviction match the elements of
the generic federal offense with precision, we must only
decide that the state conviction ‘relates to’ the offense
criminalized by § 1101(a)(43)(S), namely, obstruction of
justice.”). Thus, my colleagues’ focus on the individual
elements of § 1503 and, in particular, the element that
requires proof of an ongoing judicial proceeding is
inconsistent with Denis. Indeed, in Denis we explicitly
rejected the argument that a crime of conviction must require
an ongoing judicial proceeding in order to relate to
obstruction of justice. There, we reviewed the elements of
the New York state evidence tampering statute and concluded
that it “related to” the offense set forth in § 1503 because both
statutes “proscribe any behavior that entails the use of force
in an effort to impede or obstruct an official proceeding, such
as through evidence tampering.” Id. at 212 (footnote
omitted). We explained that, although the New York statute
applied “regardless of whether the conduct interfered with a
judicial proceeding or a police investigation, and [§] 1503
only pertains to obstruction of judicial proceedings, this
distinction does not defeat our ‘relating to’ analysis” because
“our approach does not depend upon matching the elements
of the state crime of conviction with the elements of [§]
1503.” Id. at 212 n.15 (citations omitted).5 Instead, “we only

5
My colleagues characterize this statement in Denis as
dictum. Majority Op. 22 n.63. However, in Denis, we held
that the New York state evidence tampering statute “related
to” § 1503 even though the New York statute could apply in
the absence of a pending judicial proceeding. 633 F.3d at
212. Therefore, in Denis, we necessarily held that the

6
consider[ed] the provision to identify the nature of offenses
classified as obstruction of justice under federal law for
purposes of conducting the ‘relating to’ examination.” Id.

With this in mind, I conclude that the absence of a
pending judicial proceeding requirement does not mean South
Carolina’s accessory after the fact crime is unrelated to
obstruction of justice. Under South Carolina law, the crime
of accessory after the fact may be committed where the
defendant, knowing the principal committed a felony,
“harbor[s] or assist[s] the principal felon . . . for the purpose
of enabling the principal felon to escape detection or arrest.”
State v. Legette, 330 S.E.2d 293, 294 (S.C. 1985) (citations
omitted).6 Such an offense impedes law enforcement’s
efforts to apprehend wrongdoers and prevents courts and

absence of a pending judicial proceeding was not dispositive
of the “relating to” analysis. My colleagues suggest that the
state crime at issue must nonetheless have a “nexus” to an
official proceeding. Majority Op. 22 n.63. In Denis,
however, we made no mention of such a nexus requirement.
Given the result in Denis, we cannot now conclude that the
absence of a judicial proceeding requirement in South
Carolina’s accessory after the fact crime necessarily defeats
any relationship to § 1503.
6
The Legette court described the elements of
accessory after the fact as follows “(1) the felony has been
completed; (2) the accused must have knowledge that the
principal committed the felony; and (3) the accused must
harbor or assist the principal felon. The assistance or
harboring rendered must be for the purpose of enabling the
principal felon to escape detection or arrest.” Legette, 330
S.E.2d at 294 (citations omitted).

7
juries from considering criminal charges against them. Given
that the purpose of the accessory after the fact offense is to
help the principal avoid facing justice before a court, this
conduct is related to obstructing the due administration of
justice.7 Indeed, our court and others have recognized that
accessory after the fact is, by definition, an obstruction of
justice. See Gov’t of V.I. v. Aquino, 378 F.2d 540, 553 (3d
Cir. 1967) (“An accessory after the fact is one who, knowing
that a crime has been committed, obstructs justice by giving
comfort or assistance to the offender in order to hinder or
prevent his apprehension or punishment.”); see also United
States v. Brenson, 104 F.3d 1267, 1286 (11th Cir. 1997)
(“The gist of being an accessory after the fact lies essentially
in obstructing justice by rendering assistance to hinder or
prevent the arrest of the offender after he has committed the
crime.” (citation and internal quotation marks omitted));

7
My colleagues criticize this analysis as being overly
“abstract” and criticize the Government’s approach for
improperly “invoking broad notion[s] of obstruction of
justice.” Majority Op. 24 n.66 (internal quotation marks
omitted). However, this “broad” approach is exactly what is
required by the “relating to” analysis set forth in binding
precedent. See Denis, 633 F.3d at 212 (explaining that we
“apply the phrase ‘relating to’ broadly, seeking a logical or
causal connection”); Yong Wong Park, 472 F.3d at 72 (noting
the “broad reach of the term ‘relating to[ ]’”); Drakes v.
Zimski, 240 F.3d 246, 249 (3d Cir. 2001) (concluding that
Congress’s inclusion of the phrase “relating to” evidenced
“an intent to define [the listed offense] in its broadest sense”);
see also Morales, 504 U.S. at 383 (noting that “[t]he ordinary
meaning of [‘relating to’] is a broad one”). My colleagues’
approach reads “relating to” out of the statute.

8
United States v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994)
(same); United States v. Willis, 559 F.2d 443, 444 (5th Cir.
1977) (same); United States v. Barlow, 470 F.2d 1245, 1252-
53 (D.C. Cir. 1972) (same).8

8
Moreover, contrary to my colleagues’ interpretation,
the United States Sentencing Guidelines support the view that
accessory after the fact is logically connected with
obstruction of justice. The background portion of the
application notes to the obstruction of justice guideline states
that

[b]ecause the conduct covered by this guideline
is frequently part of an effort to avoid
punishment for an offense that the defendant
has committed or to assist another person to
escape punishment for an offense, a cross-
reference to §2X3.1 (Accessory After the Fact)
is provided. Use of this cross reference will
provide an enhanced offense level when the
obstruction is in respect to a particularly serious
offense, whether such offense was committed
by the defendant or another person.

U.S.S.G. § 2J1.2 cmt. background; see also U.S.S.G. §
2J1.2(c)(1) (stating that “[i]f the offense involved obstructing
the investigation or prosecution of a criminal offense, apply
§2X3.1 (Accessory After the Fact) in respect to that criminal
offense, if the resulting offense level is greater than that
determined” by applying the provisions of § 2J1.2). Thus,
while conviction for an offense under Chapter 73 can trigger
§ 2J1.2, the Sentencing Commission has acknowledged that
one who is an accessory after the fact may obstruct justice

9
 For these reasons, Denis requires us to conclude that
Flores’s conviction for accessory after the fact under South
Carolina law is “related to” the obstruction of justice, and that
the BIA appropriately designated Flores as an aggravated
felon. Because Flores committed an aggravated felony for
which she was sentenced to five years’ imprisonment, she has
committed a “particularly serious crime” and is ineligible for
withholding of removal. 8 U.S.C. § 1231(b)(3)(B).

II

For the foregoing reasons, I join my colleagues in
dismissing Flores’s CAT claim for lack of jurisdiction, but
under Denis I would be compelled to deny her petition for
review of her application for withholding of removal.

and, in such circumstances, should be treated as if he or she
committed an obstruction of justice offense.

10