FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO CORDERO-GARCIA, AKA No. 19-72779
Fernando Cordero,
Petitioner, Agency No.
A014-690-577
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2022
San Francisco, California
Filed August 15, 2022
Before: Andrew D. Hurwitz and Lawrence VanDyke,
Circuit Judges, and Barry Ted Moskowitz, * District Judge.
Opinion by Judge Moskowitz;
Dissent by Judge VanDyke
*
The Honorable Barry Ted Moskowitz, United States District Judge
for the Southern District of California, sitting by designation.
2 CORDERO-GARCIA V. GARLAND
SUMMARY **
Immigration
Granting Fernando Cordero-Garcia’s petition for review
of a decision of the Board of Immigration Appeals, and
remanding, the panel held that dissuading or attempting to
dissuade a witness from reporting a crime, in violation of
California Penal Code (“CPC”) § 136.1(b)(1), is not a
categorical match to “an offense relating to obstruction of
justice” aggravated felony under 8 U.S.C. § 1101(a)(43)(S),
and therefore, Cordero-Garcia’s CPC § 136.1(b)(1)
convictions did not render him removable.
In 2012, the BIA concluded that Cordero-Garcia’s CPC
§ 136.1(b)(1) convictions were offenses relating to
obstruction of justice under § 1101(a)(43)(S). In 2016, this
court decided Valenzuela Gallardo v. Lynch (“Valenzuela
Gallardo I”), 818 F.3d 808 (9th Cir. 2016), holding that the
BIA’s most recent definition of “an offense relating to
obstruction of justice” raised grave constitutional concerns
and remanding to the BIA. In light of Valenzuela Gallardo
I, and after Cordero-Garcia filed a petition for review, this
court granted an unopposed motion to remand. The BIA
then decided Matter of Valenzuela Gallardo, 27 I. & N.
Dec. 449 (BIA 2018), modifying its definition of “an offense
relating to obstruction of justice” to include: “offenses
covered by chapter 73 of the Federal criminal code or any
other Federal or State offense” involving certain conduct
motivated by a specific intent—as relevant here—“to
interfere either in an investigation or proceeding that is
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CORDERO-GARCIA V. GARLAND 3
ongoing, pending, or reasonably foreseeable by the
defendant.”
Applying Matter of Valenzuela Gallardo to Cordero-
Garcia’s case on remand, the BIA concluded that CPC
§ 136.1(b)(1) was an aggravated felony offense relating to
obstruction of justice. After Cordero-Garcia petitioned for
review, this court decided Valenzuela Gallardo v. Barr
(“Valenzuela Gallardo II”), 968 F.3d 1053 (9th Cir. 2020),
holding that “obstruction of justice” under § 1101(a)(43)(S)
unambiguously requires a nexus to ongoing or pending
proceedings.
In light of Valenzuela Gallardo II, the panel concluded
that CPC § 136.1(b)(1) is not a categorical match to “an
offense relating to obstruction of justice” because—as the
parties agreed—the California statute is missing a nexus to
an ongoing or pending proceeding or investigation.
Before this court, the government argued for the first
time that Valenzuela Gallardo II left untouched the first
prong of the BIA’s definition from Matter of Valenzuela
Gallardo—“offenses covered by chapter 73 of the Federal
criminal code.” Under the government’s view, an offense
“covered by chapter 73” qualifies as “an offense relating to
obstruction of justice” under § 1101(a)(43)(S), with or
without a nexus to an ongoing or pending proceeding or
investigation. The government also argued that CPC
§ 136.1(b)(1) is a categorical match to 18 U.S.C. § 1512—
tampering with a witness, victim, or an informant—a
chapter 73 offense that does not require a nexus to an
ongoing or pending proceeding or investigation.
The panel rejected the government’s new position as
flatly inconsistent with Valenzuela Gallardo II’s
4 CORDERO-GARCIA V. GARLAND
requirement of a nexus to an ongoing or pending proceeding
or investigation. The panel also wrote that the government
conceded that the BIA did not analyze whether Cordero-
Garcia’s CPC § 136.1(b)(1) conviction was a categorical
match with § 1512, and so the panel could not deny the
petition on these grounds. In any event, the panel concluded
that CPC § 136.1(b)(1) is not a categorical match with
§ 1512 because the California statute lacks the requirement,
in § 1512(b)(3), that an individual “uses intimidation,
threatens, or corruptly persuades another person,” or
“engages in misleading conduct toward another person.”
Dissenting, Judge VanDyke wrote that this case well
illustrates why he has not been shy in criticizing this court’s
abysmal and indefensible immigration precedents. Judge
VanDyke described how, since 2011, this court has been
whipsawing the BIA, doing everything in the court’s power
(and much not) to upset the BIA’s consistent and reasonable
interpretation of “an offense related to obstruction of justice”
under 8 U.S.C. § 1101(a)(43)(S). And while binding
precedent previously addressed the second prong of the
BIA’s definition, this panel was free to consider the first
prong—whether CPC § 136.1(b)(1) is “covered by”
18 U.S.C. § 1512(b)(3). As to that question, Judge VanDyke
concluded that CPC § 136.1(b)(1) is a categorical match for
§ 1512(b)(3), explaining that the majority erred in
concluding that the California statute reaches “innocent
persuasion.” Specifically, the majority ignored numerous
California cases explicitly saying that CPC § 136.1(b)(1)
proscribes only “culpable conduct” and not innocent
behavior. The majority also failed to point to a single case
in which California courts have applied CPC § 136.1(b)(1)
to innocent behavior, relying instead on a California case
construing an altogether different offense.
CORDERO-GARCIA V. GARLAND 5
COUNSEL
Michael K. Mehr (argued), Mehr & Soto LLP, Santa Cruz,
California, for Petitioner.
Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.
Hogan, Assistant Director; Brian Boynton, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C., for Respondent.
OPINION
MOSKOWITZ, District Judge:
This petition for review presents the following question:
is dissuading or attempting to dissuade a witness from
reporting a crime, in violation of California Penal Code
(“CPC”) § 136.1(b)(1), “an offense relating to obstruction of
justice” under 8 U.S.C. § 1101(a)(43)(S), and thus an
“aggravated felony” for purposes of the Immigration and
Nationality Act (“INA”)? Applying the categorical
approach, we conclude that CPC § 136.1(b)(1) is not a
categorical match to “an offense relating to obstruction of
justice” under § 1101(a)(43)(S), which requires a nexus to
an ongoing or pending proceeding or investigation, or to the
federal witness tampering statute, 18 U.S.C. § 1512(b)(3),
which requires the use of intimidation, threats or corrupt
persuasion. Accordingly, we grant the petition for review
and remand.
I.
Fernando Cordero-Garcia, a native and citizen of
Mexico, was admitted to the United States as a lawful
6 CORDERO-GARCIA V. GARLAND
permanent resident on July 2, 1965. On April 24, 2009,
Cordero-Garcia was convicted of two counts of CPC
§ 136.1(b)(1) and sentenced to two years of imprisonment.
Cordero-Garcia was also convicted of one count of sexual
battery without restraint in violation of CPC § 243.4(e)(1),
and one count of sexual exploitation by a psychotherapist or
drug abuse counselor in violation of California Business and
Professions Code (“CBPC”) § 729(a).
On November 29, 2011, the Department of Homeland
Security (“DHS”) served Cordero-Garcia with a Notice to
Appear, alleging that he had “been convicted of an
aggravated felony as defined in [§ 1101(a)(43)(S)], an
offense relating to obstruction of justice, perjury or
subornation of perjury, or bribery of a witness, for which the
term of imprisonment is at least one year.” On December 21,
2011, DHS served Cordero-Garcia with additional charges
of deportability, alleging that he had also “been convicted of
two crimes involving moral turpitude not arising out of a
single scheme of criminal misconduct.”
Cordero-Garcia moved to terminate his removal
proceedings on the ground that he was not removable, or in
the alternative, moved for cancellation of removal. On June
27, 2012, the immigration judge (“IJ”) sustained the charges
of removability against Cordero-Garcia, denied his
application for cancellation of removal, and ordered him
removed. The IJ held that Cordero-Garcia’s CPC
§ 136.1(b)(1) convictions were offenses relating to
obstruction of justice, and that his CPC § 243.4(e)(1) and
CPC § 136.1(b)(1) convictions were crimes of moral
turpitude. The IJ declined to reach the issue of whether
Cordero-Garcia’s CBPC § 729(a) conviction was also a
crime of moral turpitude. On November 27, 2012, the Board
of Immigration Appeals (“BIA”) dismissed Cordero-
CORDERO-GARCIA V. GARLAND 7
Garcia’s appeal. Upholding the IJ’s determination that
Cordero Garcia’s CPC § 136.1(b)(1) convictions were
offenses relating to obstruction of justice, the BIA held that
“a crime may relate to obstruction of justice within the
meaning of [§ 1101(a)(43)(S)] irrespective of the existence
of an ongoing criminal investigation or proceeding.”
On March 31, 2016, we decided Valenzuela Gallardo v.
Lynch (“Valenzuela Gallardo I”), 818 F.3d 808 (9th Cir.
2016), which considered the BIA’s new definition of “an
offense relating to obstruction of justice” under
§ 1101(a)(43)(S) as the “the affirmative and intentional
attempt, with specific intent, to interfere with the process of
justice.” Id. at 811. We held that the BIA’s new definition
raised “grave constitutional concerns” because it used “an
amorphous phrase—‘process of justice’—without telling us
what that phrase means.” Id. at 822. We remanded to the BIA
to either offer a new construction of § 101(a)(43)(S) or apply
its prior interpretation from In Re Espinoza-Gonzalez,
22 I. & N. Dec. 889 (BIA 1999). 1 Id. at 824.
In light of Valenzuela Gallardo I, and after Cordero-
Garcia filed a petition for review with this court, on July 10,
2017, we granted an unopposed motion to remand the case
to the BIA. Meanwhile, on September 11, 2018, in Matter of
Valenzuela Gallardo, the BIA had modified its definition of
“an offense relating to obstruction of justice” to include:
offenses covered by chapter 73 of the Federal
criminal code or any other Federal or State
1
“For over a decade, we upheld the interpretation that the BIA
announced in Espinoza-Gonzalez—requiring a nexus to an ongoing
proceeding—as a plausible construction.” Valenzuela Gallardo I,
818 F.3d at 824.
8 CORDERO-GARCIA V. GARLAND
offense that involves (1) an affirmative and
intentional attempt (2) that is motivated by a
specific intent (3) to interfere either in an
investigation or proceeding that is ongoing,
pending, or reasonably foreseeable by the
defendant, or in another’s punishment
resulting from a completed proceeding.
27 I. & N. Dec. 449, 460 (BIA 2018).
On October 18, 2019, on remand, the BIA dismissed
Cordero-Garcia’s appeal. Matter of Cordero-Garcia, 27 I. &
N. Dec. 652, 663 (BIA 2019). The BIA “conclude[d] that
dissuading a witness in violation of [CPC § 136.1(b)(1)] is
categorically an aggravated felony offense relating to
obstruction of justice under [§ 1101(a)(43)(S)] pursuant to
the criteria that [the BIA] outlined in [Matter of Valenzuela
Gallardo].” Id. at 654–55. The BIA also determined that it
was appropriate to apply its modified definition from Matter
of Valenzuela Gallardo retroactively and concluded that
Cordero-Garcia was removable and ineligible for
cancellation of removal. Id. at 663. On November 1, 2019,
Cordero-Garcia timely petitioned for review.
On August 6, 2020, we decided Valenzuela Gallardo v.
Barr (“Valenzuela Gallardo II”), “hold[ing] that the BIA’s
new construction is inconsistent with the unambiguous
meaning of the term ‘offense relating to obstruction of
justice’ in [§ 1101(a)(43)(S)] as enacted by Congress and,
therefore, is an unreasonable construction of the statute.”
968 F.3d 1053, 1056 (9th Cir. 2020). We held that
“‘obstruction of justice’ under § 1101(a)(43)(S)
unambiguously requires a nexus to ongoing or pending
proceedings.” Id. at 1069.
CORDERO-GARCIA V. GARLAND 9
II.
We have jurisdiction over Cordero-Garcia’s petition for
review pursuant to 8 U.S.C. § 1252(a)(2)(D). “We review
constitutional and other questions of law de novo.”
Bojnoordi v. Holder, 757 F.3d 1075, 1077 (9th Cir. 2014)
(internal quotation marks omitted). “Whether an offense is
an aggravated felony for removal purposes is a question of
law.” Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th
Cir. 2011) (brackets omitted). “We do not defer to the BIA’s
interpretations of state law or provisions of the federal
criminal code, and instead must review de novo whether the
specific crime of conviction meets the INA’s definition of an
aggravated felony.” Salazar-Luviano v. Mukasey, 551 F.3d
857, 860–61 (9th Cir. 2008) (internal citations and quotation
marks omitted).
III.
“Under the INA, any noncitizen who is convicted of an
aggravated felony suffers several consequences, such as
becoming deportable, inadmissible, and ineligible for
cancellation of removal.” Cortes-Maldonado v. Barr,
978 F.3d 643, 647 (9th Cir. 2020) (footnotes omitted). Under
§ 1101(a)(43)(S), an “aggravated felony” includes “an
offense relating to obstruction of justice, perjury or
subornation of perjury, or bribery of a witness, for which the
term of imprisonment is at least one year.” 8 U.S.C.
§ 1101(a)(43)(S).
“Courts employ the categorical approach to determine
whether a state criminal conviction is an aggravated felony
for the purposes of the INA.” Medina-Rodriguez v. Barr,
979 F.3d 738, 744 (9th Cir. 2020). “The categorical
approach prescribes a three-step process for determining
whether an offense is an ‘aggravated felony.’” Ho Sang Yim
10 CORDERO-GARCIA V. GARLAND
v. Barr, 972 F.3d 1069, 1077 (9th Cir. 2020). “First, we must
identify the elements of the generic federal offense.” Id.
“Second, we must identify the elements of the specific crime
of conviction.” Id. “Third, we compare the statute of
conviction to the generic federal offense to determine
whether the specific crime of conviction meets the . . .
definition of an aggravated felony.” Id. (internal quotation
marks omitted). “Under the categorical approach, we ignore
the actual facts of the particular prior conviction and instead
compare the elements of the state statute of conviction to the
federal generic crime to determine whether the conduct
proscribed by the state statute is broader than the generic
federal definition.” Cortes-Maldonado, 978 F.3d at 647
(internal quotation marks omitted). “There is a categorical
match only if the statute’s elements are the same as, or
narrower than, those of the generic offense.” Lopez-Aguilar
v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020) (citation and
quotation marks omitted).
“A state offense qualifies as a generic offense—and
therefore . . . an aggravated felony—only if the full range of
conduct covered by the state statute falls within the meaning
of the generic offense.” Id. (brackets omitted). “[T]o find
that a state statute creates a crime outside the generic
definition of a listed crime in a federal statute requires more
than the application of legal imagination to a state statute’s
language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). “It requires a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct
that falls outside the generic definition of a crime.” Id.
“There are two ways to show a realistic probability that a
state statute exceeds the generic definition. First, there is not
a categorical match if a state statute expressly defines a
crime more broadly than the generic offense.” Lopez-
Aguilar, 948 F.3d at 1147 (internal quotation marks
CORDERO-GARCIA V. GARLAND 11
omitted). When “a state statute explicitly defines a crime
more broadly than the generic definition, no legal
imagination is required to hold that a realistic probability
exists that the state will apply its statute to conduct that falls
outside the generic definition of the crime and a statute’s
overbreadth is evident from its text.” United States v.
Rodriguez-Gamboa, 972 F.3d 1148, 1152 (9th Cir. 2020)
(citing United States v. Grisel, 488 F.3d 844, 850 (9th Cir.
2007) (en banc), abrogated on other grounds by United
States v. Stitt, 139 S. Ct. 399 (2018)) (internal quotation
marks omitted). “Second, a petitioner can show that a state
statute exceeds the generic definition if the petitioner can
point to at least one case in which the state courts applied the
statute in a situation that does not fit under the generic
definition.” Lopez-Aguilar, 948 F.3d at 1147 (internal
quotation marks omitted); Duenas-Alvarez, 549 U.S. at 193
(“To show that realistic probability, an offender, of course,
may show that the statute was so applied in his own case.
But he must at least point to his own case or other cases in
which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.”).
IV.
Applying the categorical approach here, 2 we find that
CPC § 136.1(b)(1) is not a categorical match to “an offense
relating to obstruction of justice” under § 1101(a)(43)(S),
because the California statute is missing the element of a
nexus to an ongoing or pending proceeding or investigation.
2
The parties do not argue that CPC § 136.1(b)(1) is divisible or that
the modified categorical approach is applicable here. See Lopez-Aguilar,
948 F.3d at 1147 (“If the statute of conviction is broader than the generic
offense, we next determine whether the statute is divisible or
indivisible.”).
12 CORDERO-GARCIA V. GARLAND
Thus, it is not an “aggravated felony” for purposes of the
INA.
We do not write on a clean slate. In Valenzuela Gallardo
II we held that “the statute is unambiguous in requiring an
ongoing or pending criminal proceeding, and the Board’s
most recent interpretation [in Matter of Valenzuela
Gallardo] is at odds with that unambiguous meaning.” 3
This holding was expressly reiterated at least four more times in
3
Valenzuela Gallardo II:
The precise question at issue in this case is whether an
offense relating to obstruction of justice under
§ 1101(a)(43)(S) requires a nexus to an ongoing or
pending proceeding or investigation. We conclude that
Congress has clearly answered this question in the
affirmative.
968 F.3d at 1062.
Because § 1101(a)(43)(S) unambiguously does not
extend to cover intentional interference with
“reasonably foreseeable” proceedings or
investigations, we conclude our analysis here and do
not proceed to Chevron Step Two to determine
whether the agency’s interpretation is a reasonable
choice within a gap left open by Congress.
Id. at 1068.
We would reach the same conclusion even if we were
not applying the Chevron framework: In 1996, when
Congress enacted § 1101(a)(43)(S) into law, an
offense relating to obstruction of justice
unambiguously required a nexus to an ongoing or
pending proceeding or investigation.
CORDERO-GARCIA V. GARLAND 13
968 F.3d at 1062. In short, “an offense relating to obstruction
of justice” under § 1101(a)(43)(S) requires the element of a
nexus to an ongoing or pending proceeding or investigation.
Both parties agree that CPC § 136.1(b)(1) does not
require a nexus to an ongoing or pending proceeding or
investigation. We concur. In relevant part, the statute states:
[E]very person who attempts to prevent or
dissuade another person who has been the
victim of a crime or who is witness to a crime
from doing any of the following is guilty of a
public offense and shall be punished by
imprisonment in a county jail for not more
than one year or in the state prison:
(1) Making any report of that victimization to
any peace officer or state or local law
enforcement officer or probation or parole or
correctional officer or prosecuting agency or
to any judge.
The text does not require a nexus to an ongoing or pending
proceeding or investigation. Nor have California courts read
such a requirement into the statute. See People v. Cook,
Id.
Because “obstruction of justice” under
§ 1101(a)(43)(S) unambiguously requires a nexus to
ongoing or pending proceedings, and California Penal
Code § 32 does not, [petitioner’s] state criminal
conviction is not a categorical match with the
aggravated felony offense charged in his Notice to
Appear.
Id. at 1069.
14 CORDERO-GARCIA V. GARLAND
59 Cal. App. 5th 586, 590 (2021) (“[T]o prove a violation of
[CPC § 136.1(b)(1)], the prosecution must show (1) the
defendant has attempted to prevent or dissuade a person
(2) who is a victim or witness to a crime (3) from making
any report of their victimization to any peace officer or other
designated officials.”) (internal quotation marks omitted).
Moreover, the California courts’ decisions involving CPC
§ 136.1(b)(1) demonstrate that convictions under the statute
do not require the existence of ongoing or pending
proceedings or investigations. See, e.g., Cook, 59 Cal. App.
5th at 588–89 (defendant attacked a family member at home,
and while another family member was calling 911 to report
the attack, defendant broke the phone); People v. Galvez,
195 Cal. App. 4th 1253, 1257–58 (2011) (while a witness to
an assault outside of a restaurant was calling 911 on his
cellphone, the defendant assaulted the witness causing the
cell phone to fall to the ground); People v. McElroy, 126 Cal.
App. 4th 874, 881 (2005) (“When [defendant’s partner]
dialed 911, she specifically told defendant she was calling
the police. Defendant responded by taking the telephone
away and hanging it up, thereby preventing her from
contacting the police.”). Indeed, California courts have
characterized CPC § 136.1(b)(1) as designed to address
conduct that occurs prior to the initiation of a proceeding or
investigation. See People v. Fernandez, 106 Cal. App. 4th
943, 948–50 (2003) (“[CPC § 136.1(b)(1)] is not a catch-all
provision designed to punish efforts to improperly influence
a witness” but rather “punishes a defendant’s pre-arrest
efforts to prevent a crime from being reported to the
authorities. Under the current statutory scheme, such
conduct is not the equivalent of an effort to prevent a witness
from giving testimony after a criminal proceeding has been
commenced.”).
CORDERO-GARCIA V. GARLAND 15
Because CPC § 136.1(b)(1)’s lack of the element of a
nexus to an ongoing or pending proceeding or investigation
is evident from its text and practical application, there is a
realistic probability that the statute covers offenses that fall
outside the definition of “an offense relating to obstruction
of justice” under § 1101(a)(43)(S). CPC § 136.1(b)(1) is
therefore not a categorical match to the generic definition of
obstruction of justice. See Valenzuela Gallardo II, 968 F.3d
at 1069 (finding that California’s accessory to a felon
offense, CPC § 32, “is not a categorical match with
obstruction of justice under § 1101(a)(43)(S) because
California’s statute encompasses interference with
proceedings or investigations that are not pending or
ongoing”).
V.
In Valenzuela Gallardo II, we expressly took issue with
the second prong of the BIA’s definition of “an offense
relating to obstruction of justice” under § 1101(a)(43)(S),
specifically its language regarding “reasonably foreseeable”
investigations or proceedings. See 968 F.3d at 1068 (holding
that Ҥ 1101(a)(43)(S) unambiguously does not extend to
cover intentional interference with reasonably foreseeable
proceedings or investigations”) (internal quotation marks
omitted). The government now for the first time argues that
Valenzuela Gallardo II left untouched the first prong of the
BIA’s definition—“offenses covered by chapter 73 of the
Federal criminal code.” 4 Under the government’s view, an
offense “covered by chapter 73” qualifies as “an offense
relating to obstruction of justice” under § 1101(a)(43)(S),
with or without a nexus to an ongoing or pending proceeding
4
The BIA did not find that CPC § 136.1(b)(1) was an “offense[]
covered by chapter 73.”
16 CORDERO-GARCIA V. GARLAND
or investigation. The government then argues that CPC
§ 136.1(b)(1) is a categorical match to 18 U.S.C. § 1512—
tampering with a witness, victim, or an informant—a
Chapter 73 offense that does not require a nexus to an
ongoing or pending proceeding or investigation. See
18 U.S.C. § 1512(f)(1) (“an official proceeding need not be
pending or about to be instituted at the time of the offense”).
The government’s new position, however, is flatly
inconsistent with Valenzuela Gallardo II, in which we
stated:
The precise question at issue in this case is
whether an offense relating to obstruction of
justice under § 1101(a)(43)(S) requires a
nexus to an ongoing or pending proceeding
or investigation. We conclude that Congress
has clearly answered this question in the
affirmative.
968 F.3d at 1062. We noted that § 1101(a)(43)(S) “does not
expressly define ‘an offense relating to obstruction of
justice.’” 5 Id. at 1063; see also Trung Thanh Hoang v.
Holder, 641 F.3d 1157, 1160 (9th Cir. 2011) (“Though the
5
The term “aggravated felony” in § 1101(a)(43) encompasses
twenty-one subsections identifying qualifying offenses. Fourteen of
those subsections explicitly cross-reference other statutes to define the
relevant qualifying offenses. See 8 U.S.C. § 1101(a)(43)(B), (C), (D),
(E), (F), (H), (I), (J), (K), (L), (M), (N), (O), and (P). In contrast,
§ 1101(a)(43)(S) does not contain such a cross-reference to Chapter 73
of the federal criminal code for the term “obstruction of justice.” See
Victoria-Faustino v. Sessions, 865 F.3d 869, 874 (7th Cir. 2017) (as
amended) (“Unlike other crimes enumerated as aggravated felonies,
[§ 1101(a)(43)(S)] does not equate a crime relating to the obstruction of
justice to a particular federal crime.”).
CORDERO-GARCIA V. GARLAND 17
United States criminal code includes a chapter entitled
‘Obstruction of Justice,’ 18 U.S.C. §§ 1501–1521, it does
not clearly set forth the elements of a generic federal
obstruction of justice crime; nor does § 1101(a)(43)(S)
provide a generic definition.”) (footnote omitted). And, we
observed that the ordinary meaning of the term “obstruction
of justice” indicated that “an offense relating to obstruction
of justice” under § 1101(a)(43)(S) requires a nexus to an
ongoing or pending proceeding or investigation. Valenzuela
Gallardo II, 968 F.3d at 1063. Moreover, we noted that when
the Antiterrorism and Effective Death Penalty Act of 1996
was enacted, “the contemporaneous understanding of
‘obstruction of justice’ required a nexus to an extant
investigation or proceeding.” Id. We also found that the
relevant statutory context, specifically Chapter 73 of the
federal criminal code, supported our holding. Id. at 1064. We
explained that “[o]f the substantive provisions in Chapter 73
that existed when § 1101(a)(43)(S) was enacted, almost all
of them required a nexus to an ongoing or pending
proceeding or investigation.” Id. “Therefore, the norm in
Chapter 73 is that an offense relating to obstruction of justice
requires a nexus to an ongoing or pending proceeding or
investigation.” Id. at 1065.
Indeed, we specifically discussed 18 U.S.C. § 1512,
explaining that
Congress’s explicit instruction that § 1512
reach proceedings that are not pending at the
time of commission of the act only
underscores that the common understanding
at the time § 1101(a)(43)(S) was enacted into
law was that an obstruction offense referred
only to offenses committed while
proceedings were ongoing or pending. If that
18 CORDERO-GARCIA V. GARLAND
were not the case, it would not have been
necessary for Congress to make clear that
§ 1512 operates differently than the other
provisions in Chapter 73. Thus, contrary to
the BIA’s conclusion, § 1512 is the exception
that proves the rule: “an offense relating to
obstruction of justice” requires a nexus to an
ongoing or pending proceeding.
Id. at 1065–66.
We recognize that a circuit split has emerged regarding
whether “an offense relating to obstruction of justice” under
§ 1101(a)(43)(S) unambiguously requires a nexus to an
ongoing or pending proceeding or investigation. Compare
Valenzuela Gallardo II, 968 F.3d at 1062 (“the statute is
unambiguous in requiring an ongoing or pending criminal
proceeding”), with Pugin v. Garland, 19 F.4th 437, 449 (4th
Cir. 2021) (“Considering federal and state laws, the Model
Penal Code, and dictionary definitions, it is at least
ambiguous as to whether the phrase ‘relating to obstruction
of justice’ requires the obstruction of an ongoing
proceeding.”), and Silva v. Garland, 27 F.4th 95, 108 (1st
Cir. 2022) (“That the vast majority of jurisdictions with
obstruction of justice offenses did not limit that concept to
only offenses with a nexus to a pending or ongoing
investigation or judicial proceeding further confirms our
reading of the generic federal definition.”). In our Circuit,
however, Valenzuela Gallardo II is controlling precedent
that we are bound to apply. See United States v. Shelby,
939 F.3d 975, 978 (9th Cir. 2019). And Valenzuela
Gallardo II mandates the conclusion that 18 U.S.C. § 1512
cannot serve as the generic obstruction of justice definition
because it does not contain the required element of a nexus
to an ongoing or pending proceeding or investigation.
CORDERO-GARCIA V. GARLAND 19
Accordingly, it is not an appropriate comparator to CPC
§ 136.1(b)(1) for purposes of a categorical approach
analysis.
VI.
The government’s argument—that because “offenses
covered by chapter 73 of the Federal criminal code” are
“offense[s] related to the obstruction of justice” under
§ 1101(a)(43)(S), CPC § 136.1(b)(1) qualifies as a
categorical match to a chapter 73 offense—also fails. The
government concedes that the BIA did not analyze whether
Cordero-Garcia’s CPC § 136.1(b)(1) conviction was a
categorical match with 18 U.S.C. § 1512, the federal
analogue identified by the government, so we cannot deny
the petition on these grounds. See Santiago-Rodriguez v.
Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the
decision of the BIA, we consider only the grounds relied
upon by that agency.”) (quotation marks and citation
omitted); see also Andia v. Ashcroft, 359 F.3d 1181, 1184
(9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 16–17
(2002) (“If we conclude that the BIA’s decision cannot be
sustained upon its reasoning, we must remand to allow the
agency to decide any issues remaining in the case.”). In any
event, CPC § 136.1(b)(1) is not a categorical match with
18 U.S.C. § 1512.
The elements of § 136.1(b)(1) are “(1) the defendant has
attempted to prevent or dissuade a person (2) who is a victim
or witness to a crime (3) from making any report of his or
her victimization to any peace officer or other designated
officials.” People v. Upsher, 155 Cal. App. 4th 1311, 1320
(2007). “[S]ection 136.1 is a specific intent crime.” People
v. Navarro, 212 Cal. App. 4th 1336, 1347 (2013).
20 CORDERO-GARCIA V. GARLAND
In comparison, the elements of 18 U.S.C. § 1512(b)(3)
are that the defendant (1) “knowingly uses intimidation,
threatens, or corruptly persuades another person or attempts
to do so, or engages in misleading conduct toward another
person”; (2) “with the intent to hinder, delay, or prevent the
communication to a law enforcement officer or judge of the
United States”; (3) “of information relating to the
commission or possible commission of a Federal offense.”
Id.
CPC § 136.1(b)(1) is broader than 18 U.S.C.
§ 1512(b)(3) because the former lacks the requirement that
an individual “uses intimidation, threatens, or corruptly
persuades another person,” or “engages in misleading
conduct toward another person.” While CPC § 136.1(a) and
(c) expressly require proof of malice, CPC § 136.1(b)(1)
does not. 6 See Cook, 59 Cal App. 5th at 590 (“[CPC
§ 136.1(b)(1)] does not require that the defendant act
knowingly and maliciously.”) (internal quotation marks
omitted). The California Court of Appeal has explained the
omission of a malice requirement from CPC § 136.1(b)(1) as
follows:
The Legislature could have reasonably
concluded that a person who prevents or
attempts to prevent a victim or witness from
attending or testifying at a trial or other
proceeding commits a crime only if the
6
CPC § 136.1(a) punishes any person who, “knowingly and
maliciously prevents or dissuades” or “attempts to prevent or dissuade
any witness or victim from attending or giving testimony at any trial,
proceeding, or inquiry authorized by law.” Cal. Penal Code
§§ 136.1(a)(1)–(2). CPC § 136.1(c) punishes “[e]very person doing any
of the acts described in subdivision (a) or (b) knowingly and maliciously
under [certain aggravating circumstances].” Id. §§ 136.1(c)(1)–(4).
CORDERO-GARCIA V. GARLAND 21
person did so with malice. For instance, the
Legislature may have been concerned about
potentially criminalizing the conduct of an
employer who intentionally prevented an
employee from testifying at a proceeding if
the employer was motivated by the desire to
keep the employee at work rather than by a
malicious desire to thwart the administration
of justice or to vex or annoy the employee.
As a result, the Legislature may have wished
to limit section 136.1, subdivision (a)
offenses to those involving malice. No such
concern arises with regard to a section 136.1,
subdivision (b) offense since, even without a
malice element, a subdivision (b) offense
requires the perpetrator to intend to prevent a
crime from even being reported by a victim
or witness. The Legislature could have
reasonably concluded that the limited scope
of subdivision (b) did not need to be further
narrowed by a malice requirement,
particularly in light of the importance of
encouraging reports to law enforcement.
. . . Furthermore, the Legislature could have
reasonably concluded that it would be
reasonable for a family member to try to
protect a victim or witness from the trauma of
attending a proceeding, but unreasonable for
a family member to try to prevent a victim or
witness from reporting a crime.
People v. Brackins, 37 Cal. App. 5th 56, 67 (2019).
22 CORDERO-GARCIA V. GARLAND
Likewise, with respect to the scope of conduct covered
by the malice requirements in CPC § 136.1(a) and (c), the
California Court of Appeal has explained:
[T]he model statute, on which California’s
statute was based, was designed to apply to
persons who attempt to dissuade witnesses
from testifying, other than persons such as
family members and individuals who make
offhand comments about not becoming
involved. The statute provided that the
prosecution could show malice in either of
two ways: proving the traditional meaning of
malice (to vex, annoy, harm, or injure) or
proving the meaning of malice that is unique
to the statute (to thwart or interfere in any
manner with the orderly administration of
justice). By including the latter definition of
malice, the [California] Legislature
envisioned a relatively broad application of
the term. The Assembly Committee on
Criminal Justice bill analysis noted: “This
new misdemeanor may make criminal
attempts to settle misdemeanor violations,
certain traffic accidents, etc., among the
parties without reporting them to the police.
Likewise, a person arrested by a civilian (i.e.,
a shopkeeper) may face criminal charges by
trying to talk the shopkeeper into not calling
the police.”
People v. Wahidi, 222 Cal. App. 4th 802, 809 (2013)
(footnote omitted).
CORDERO-GARCIA V. GARLAND 23
Because CPC § 136.1(b)(1) only requires the defendant
specifically intend to “prevent or dissuade a person” from
reporting a crime, without any requirement of malice, it is
broader than 18 U.S.C. § 1512(b)(3), which requires use of
intimidation, threats, misleading conduct, or corrupt
persuasion. “Corrupt persuasion” is distinct from “innocent
persuasion.” See United States v. Doss, 630 F.3d 1181, 1190
(9th Cir. 2011) (as amended) (explaining that “[the
defendant’s conduct], without more, was insufficient to
establish ‘corrupt’ as opposed to innocent persuasion”); see
also Arthur Andersen LLP v. United States, 544 U.S. 696,
705 (2005) (“‘Corrupt’ and ‘corruptly’ are normally
associated with wrongful, immoral, depraved, or evil.”);
United States v. Farrell, 126 F.3d 484, 489 (3d Cir. 1997)
(“We read the inclusion of ‘corruptly’ in § 1512(b) as
necessarily implying that an individual can ‘persuade’
another not to disclose information to a law enforcement
official with the intent of hindering an investigation without
violating the statute, i.e., without doing so ‘corruptly.’”);
United States v. Weiss, 630 F.3d 1263, 1273 (10th Cir. 2010)
(“The ‘corruptly persuades’ element of the witness
tampering statute requires the government to prove a
defendant’s action was done voluntarily and intentionally to
bring about false or misleading testimony or to prevent
testimony with the hope or expectation of some benefit to
the defendant or another person.”) (internal quotation marks
omitted); United States v. Edlind, 887 F.3d 166, 173 (4th Cir.
2018) (“To convict [the defendant] under § 1512, the
Government had to prove not only that she used persuasion
toward [another person], but that the persuasion was corrupt,
because the word ‘corruptly’ is what serves to separate
criminal and innocent acts of influence.”) (internal quotation
marks omitted).
24 CORDERO-GARCIA V. GARLAND
Because CPC § 136.1(b)(1)’s overbreadth is evident
from its text, we need not identify a case in which the state
courts did in fact apply the statute in a non-generic manner.
See United States v. Taylor, 142 S. Ct. 2015, 2025 (2022)
(explaining that “in Duenas-Alvarez the elements of the
relevant state and federal offenses clearly overlapped,” and
finding it unnecessary to determine whether state courts
applied a statute in a special nongeneric manner where
“there [was] no overlap to begin with”); Lopez-Aguilar, 948
F.3d at 1147. Nonetheless, California caselaw demonstrates
a realistic probability that CPC § 136.1(b)(1) would be
applied to conduct that falls outside the definition of
18 U.S.C. § 1512(b)(3). In People v. Wahidi, the defendant
was convicted under CPC § 136.1(a)—dissuading a witness
from giving testimony with malice. 222 Cal. App. 4th at 805.
The defendant was involved in a physical altercation with
other individuals in a parking lot, during which the defendant
punched one of the individuals and broke another
individual’s car windows with a baseball bat. Id. at 804. The
day before the preliminary hearing related to the altercation,
the defendant approached one of the individuals at his
mosque, apologized, and said: “We’re both Muslims. That if
we could just settle this outside the court in a more Muslim
manner family to family, have our families meet and settle
this out of court and not take this to court.” Id. at 804–05
(brackets omitted). “[The individual] understood [the
defendant] wanted the case to be resolved informally and did
not want [the individual] to testify at the preliminary hearing.
[The individual] responded sympathetically to [the
defendant] and accepted his apology.” Id. at 805. “[The
defendant] never demanded that [the individual] refrain from
testifying or threatened [the individual] with harm if he were
to come to court.” Id. “The [trial] court . . . found [the
defendant] had attempted to dissuade [the individual] from
testifying, but not by using force or threat of force, and
CORDERO-GARCIA V. GARLAND 25
declared the offense a misdemeanor.” Id. The California
Court of Appeal affirmed the trial court’s judgment,
explaining that:
Section 136 defines “malice” for purposes of
section 136.1: “‘Malice’ means an intent to
vex, annoy, harm, or injure in any way
another person, or to thwart or interfere in
any manner with the orderly administration
of justice.” There is no substantial evidence
that [the defendant] intended to “vex, annoy,
harm, or injure” [the individual] when [the
defendant] approached [the individual] in the
mosque. But the evidence does show that [the
defendant] intended to “thwart or interfere in
any manner with the orderly administration
of justice” by convincing [the individual] not
to testify at the preliminary hearing the next
day. Under the definition of malice in section
136, [the defendant] maliciously attempted to
dissuade [the individual] from testifying.
Id. at 807. Plainly, the defendant’s “malicious” conduct in
Wahidi was not the kind of intimidation, threat, corrupt
persuasion, or misleading conduct that would give rise to
liability under 18 U.S.C. § 1512(b). And because CPC
§ 136.1(b) lacks a malice requirement and is broader than
CPC § 136.1(a), Wahidi demonstrates that California would
apply CPC § 136.1(b) to conduct outside the definition of
U.S.C. § 1512(b). 7
7
Because we conclude that CPC § 136.1(b)(1) is not a categorical
match to “an offense relating to obstruction of justice” under
26 CORDERO-GARCIA V. GARLAND
VII.
For the reasons above, we hold that Cordero-Garcia’s
conviction under CPC § 136.1(b)(1) is not “an offense
relating to obstruction of justice” under 8 U.S.C.
§ 1101(a)(43)(S), and that he is not removable on that basis.
We grant the petition for review and remand to the BIA for
further proceedings consistent with this opinion.
PETITION GRANTED and REMANDED.
VANDYKE, Circuit Judge, dissenting.
I haven’t been shy in my criticism of our court’s
“abysmal and indefensible immigration precedents,” 1 and
this case well illustrates why. The majority emphasizes that
in reaching its result, “[w]e do not write on a clean slate.”
Quite true. Since 2011, our court has been whipsawing the
Board of Immigration Appeals (“BIA”), doing everything in
our power (and much not) to upset the BIA’s consistent and
reasonable interpretation of what constitutes “an offense
related to obstruction of justice.” To understand just how
dirty our court has played to prevent the deportation of
immigrants who have willingly interfered with our justice
§ 1101(a)(43)(S), we do not proceed with a Montgomery Ward & Co. v.
F.T.C., 691 F.2d 1322 (9th Cir. 1982) retroactivity analysis.
1
Reyes v. Garland, 11 F.4th 985, 998 (9th Cir. 2021) (VanDyke, J.,
dissenting); see also Molina v. Garland, 37 F.4th 626, 641 (9th Cir.
2022) (VanDyke, J., dissenting); E. Bay Sanctuary Covenant v. Biden,
993 F.3d 640, 696 (9th Cir. 2021) (VanDyke, J., dissenting); Sanchez
Rosales v. Barr, 980 F.3d 716, 721–23 (9th Cir. 2020) (VanDyke, J.,
concurring dubitante).
CORDERO-GARCIA V. GARLAND 27
system requires another depressing walk down memory
lane, where successive panels of our court—often over a
dissent—have misrepresented the BIA, misrepresented the
law, and even completely reversed key positions taken in our
own decisions issued only a few years earlier. All for only
one discernable reason: to entrench an indefensible legal
conclusion that was clearly wrong when first made over a
decade ago and, despite our wrongheaded efforts to defend
it at every turn, has made us an embarrassing outlier with our
sister circuits.
While I appreciate, as the majority does, that we are
bound by precedent, that does not mean that we are bound to
perpetuate the irrationality of our immigration jurisprudence
by projecting it headlong into the future. I must regrettably
dissent.
* * *
One more thing before we start our journey. I have been
critical of what I see as results-oriented judging by our court,
particularly (although not exclusively) in immigration cases.
I want to be clear: generally, it is not the result in any
individual case that has led me to that conclusion. Only God
knows whether erroneous judging in any individual case is a
result of bad motives, mere human foibles, or something else
(or a combination, I suppose). And that is no doubt true of
this case.
But there is also the jurisprudential equivalent of the law
of large numbers. While any single erroneous decision can
usually be explained as a mere well-intentioned mistake, the
ongoing and indefensible jurisprudential trainwreck that is
our court’s immigration jurisprudence writ large—which
I’ve chronicled not only below, but also sadly in a now long
list of decisions—doesn’t just happen by accident. To
28 CORDERO-GARCIA V. GARLAND
paraphrase the Bard, something is rotten in our court’s
immigration jurisprudence, and it’s not by chance.
My colleagues in the majority should be embarrassed.
Perhaps not for their wrong decision today—to err is human,
after all, even for those in robes. But they should be troubled
by our court’s jaw-dropping, always-increasing, epic
collection of immigration gaffes. The fact that they are not,
but rather charge on heedlessly in this case, is itself perhaps
a clue as to why the trainwreck continues.
I. DISCUSSION
A. Factual Background
Before I recount the history of how we got to this point
in our jurisprudence, it is important to know the facts of this
case. Not because the facts are relevant to application of the
“categorical approach”—they aren’t, a point that my
colleague felt compelled to reiterate during oral argument,
explaining that facts are “nice” but “we don’t care what the
facts of [Cordero-Garcia’s] crime were . . . .” But the facts
of this case are important nonetheless because they show
how far we’ve strayed from Congress’s purpose in defining
deportable crimes. See H.R. Rep. No. 104-22, at 6–7 (1995)
(explaining Congress’s purpose in defining “aggravated
felony” was to “strengthen the government’s ability to
efficiently deport aliens who are convicted of serious
crimes” to address the fact that “many aliens who commit[]
serious crimes [a]re released into American society after
they [a]re released from incarceration, where they then
continue to pose a threat to those around them”). The
majority largely ignores the facts, and you can’t blame them.
The Department of Justice attorney arguing this case
described Cordero-Garcia’s crimes as “some of the most
horrendous . . . in all of [her] time in the government.” It’s
CORDERO-GARCIA V. GARLAND 29
difficult to hear the depravity in detail, but easy to see why
Congress acted to prevent criminal aliens like Cordero-
Garcia from being released back into American society.
* * *
Cordero-Garcia, a native and citizen of Mexico, worked
as a staff psychologist for the County of Santa Barbara
Alcohol, Drug and Mental Health Service Department since
1990. Following a report of sexual abuse by a female
patient, police began investigating him in September 2007.
As a result of this investigation, Cordero-Garcia “was
arrested for rape by threat of use of public authority” and
released on bail in November 2007. Prosecutors alleged that
for years Cordero-Garcia abused his position by sexually
assaulting, raping, and sodomizing his patients. While
Cordero-Garcia denied the accusations against him, he
admitted to having continuous, repeated sexual relationships
with his patients. Cordero-Garcia was ultimately convicted
of: (1) sexual battery without restraint under California
Penal Code (“CPC”) § 243.4(e)(1); (2) sexual exploitation
by a psychotherapist under CPC § 729(a); and (3) two counts
of dissuading a victim or witness from reporting a crime
under CPC § 136.1(b)(1).
The first of Cordero-Garcia’s patients to come forward
recalled being “sexually abused . . . for more than three
years.” She claimed that Cordero-Garcia repeatedly raped
and sodomized her, threatening her with time “in jail or a
mental hospital” if she refused. She later recounted for
authorities that Cordero-Garcia filmed the assaults and
would sometimes use a “dildo” to penetrate her vaginally
and anally. While executing a search warrant, police officers
found video of Cordero-Garcia having sex with the patient
and also located a “dildo” with “mixed DNA on it” matching
that of Cordero-Garcia and the patient.
30 CORDERO-GARCIA V. GARLAND
Numerous other patients explained how Cordero-Garcia
victimized them, including one he was supposed to be
treating for “depression and suicidal tendencies.” She
described that Cordero-Garcia would hug and kiss her and
touch her breasts during therapy sessions. Another patient
said Cordero-Garcia threatened to take her children away,
warning that “he could do anything and get away with it
because judges respected him.” She described that over the
course of numerous sessions, he “fondled and photographed
her breasts, exposed his erect penis,” forced his hand down
her pants and digitally penetrated her, and finally, “shoved
[her] face down on a desk and raped her.”
Another patient said Cordero-Garcia threatened to put
her schizophrenic brother “in a mental hospital where he
would be tied down and not fed,” so she “submitted” to oral,
vaginal, and anal sex with Cordero-Garcia. The patient
recalled being “victimized . . . for years” as Cordero-Garcia
“raped her mind and body.” She described Cordero-Garcia
as a “monster” and explained that “he would touch his penis
during most of their sessions and masturbate . . . while she
was forced to watch. He would always talk about ‘how hard’
he was and reminded her of the power he had over her.”
While released on bail, Cordero-Garcia “begged” this
woman “not to testify against him.” He confessed to her that
the accusations against him “were true,” admitting that there
were even “more girls.”
Ultimately, seven women, six of whom were patients of
Cordero-Garcia, came forward. In a civil suit against
Cordero-Garcia and the County of Santa Barbara, these
women accused Cordero-Garcia of being “a sexual predator”
and “intentionally seeking out socio-economic
disadvantaged female mental health patients whom he could
systematically re-victimize.” The county agreed to
CORDERO-GARCIA V. GARLAND 31
confidential monetary settlements with each of the women
“as a result of the serious mental and physical harm”
inflicted on them by Cordero-Garcia.
Given the facts in cases like this, one might wonder why
our court has worked so hard to prevent the deportation of
individuals like Cordero-Garcia, even to the point, as the
majority acknowledges, of creating a lopsided circuit-split.
Of course, much of the damage that I recount below is now
our court’s binding precedent, which can be fixed only by
our court en banc or the Supreme Court. But precedent does
not mandate today’s result. If it did, there would be no need
for the majority to publish its lengthy decision. Instead, the
majority today drives the train even farther off the tracks. It
did not need to do so. And to understand why it should have
tried to avoid doing so, we start at the beginning.
B. Legal Background
Our tale starts on a less depressing note, with In re
Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997). The
respondent Juan Batista-Hernandez was convicted of being
an accessory after the fact in violation of 18 U.S.C. § 3. Id.
at 956. 2 Following his conviction, the Immigration and
Naturalization Service (“INS”) charged that he was
deportable for committing “an offense relating to obstruction
of justice” under 8 U.S.C. § 1101(a)(43)(S). Id. at 961; see
also 8 U.S.C. §§ 1227(a)(2)(A)(iii) (“Any alien who is
convicted of an aggravated felony at any time after
admission is deportable.”); 1101(a)(43)(S) (defining
2
Section 3 provided that “[w]hoever, 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 CORDERO-GARCIA V. GARLAND
“aggravated felony” to include “an offense relating to
obstruction of justice . . . for which the term of imprisonment
is at least one year”). An en banc panel of the BIA
considered whether Batista-Hernandez’s accessory after the
fact conviction was an “obstruction of justice” under the
statute. Batista-Hernandez, 21 I. & N. Dec. at 961. The BIA
concluded that it “clearly” was. Id. Specifically, “the
wording of . . . § 3 itself indicates its relation to obstruction
of justice, for the statute criminalizes actions knowingly
taken to ‘hinder or prevent (another’s) apprehension, trial or
punishment.’” Id.
Two years later, in In Re Espinoza-Gonzalez, 22 I. & N.
Dec. 889 (BIA 1999), the BIA again addressed the definition
of “obstruction of justice.” This time, the respondent Rafael
Espinoza-Gonzalez was convicted of misprision of a felony
in violation of 18 U.S.C. § 4. Id. at 890.3 The BIA explained
that “[t]he United States Code does not define the term
‘obstruction of justice’ or ‘obstructing justice.’ Instead,
[C]hapter 73 of title 18[, specifically, 18 U.S.C. §§ 1501–
1518,] lists a series of offenses collectively entitled
‘Obstruction of Justice.’” Id. at 891. And “the obstruction
of justice offenses listed in [Chapter 73] have as an element
interference with the proceedings of a tribunal or require an
intent to harm or retaliate against others who cooperate in
the process of justice or might otherwise so cooperate.” Id.
at 892. “[A]nd although misprision of a felony bears some
resemblance to these offenses, it lacks the critical element of
an affirmative and intentional attempt, motivated by a
specific intent, to interfere with the process of justice.” Id.
3
Section 4 provided that “[w]hoever, having knowledge of the
actual commission of a felony cognizable by a court of the United States,
conceals and does not as soon as possible make known the same . . . ,
shall be fined . . . or imprisoned . . . , or both.” 18 U.S.C. § 4.
CORDERO-GARCIA V. GARLAND 33
at 894 (emphasis added). Thus, the BIA concluded that
Espinoza-Gonzalez’s misprision of a felony conviction was
not an “obstruction of justice.” Id. at 897.
In distinguishing Batista-Hernandez, the BIA explained
that unlike the crime of accessory after the fact, which
“requires an affirmative action knowingly undertaken ‘in
order to hinder or prevent (another’s) apprehension, trial or
punishment,’” id. at 894 (quoting 18 U.S.C. § 3), the crime
of misprision of a felony does not require a “specific purpose
for which the concealment must be undertaken,” id. In other
words, “[t]he specific purpose of hindering the process of
justice brings the federal ‘accessory after the fact’ crime
within the general ambit of offenses that fall under the
‘obstruction of justice’ designation.” Id. at 894–95
(emphasis added). But nowhere did the BIA suggest—
explicitly or implicitly—that “an ongoing proceeding or
investigation” was a requirement.
Nearly a decade later in Renteria-Morales v. Mukasey,
551 F.3d 1076 (9th Cir. 2008), our court considered
“whether a conviction for failure to appear in court in
violation of 18 U.S.C. § 3146 meets the definition of an
aggravated felony in . . . § 1101(a)(43)(S).” Id. at 1079. 4
Because Ҥ 1101(a)(43)(S) does not clearly set forth the
elements of the generic federal crime,” we looked to
Espinoza-Gonzalez as “binding agency precedent . . .
interpret[ing] the elements of a generic obstruction-of-
4
Section 3146 provided that “[w]hoever, having been released
under this chapter knowingly (1) fails to appear before a court as
required by the conditions of release; or (2) fails to surrender for service
of sentence pursuant to a court order; shall be punished . . . .” 18 U.S.C.
§ 3146.
34 CORDERO-GARCIA V. GARLAND
justice offense under § 1101(a)(43)(S).” Id. at 1086 (cleaned
up). We observed that, in Espinoza-Gonzalez,
the BIA articulated both an actus reus and
mens rea element of the generic definition of
such crimes for purposes of § 1101(a)(43)(S).
First, the BIA held that obstruction of justice
crimes include “either 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.” Second, the BIA held that
such crimes include an intent element,
defined as a “specific intent to interfere with
the process of justice.”
Id. (cleaned up) (quoting Espinoza-Gonzalez, 22 I. & N.
Dec. at 892–93). We determined that the BIA had “acted
reasonably in deriving the definition of ‘obstruction of
justice’ for purposes of § 1101(a)(43)(S) from the body of
federal statutes imposing criminal penalties on obstruction-
of-justice offenses.” Id. We concluded that § 3146 “clearly
includes the requisite actus reus . . . [and] mens rea,” id.
at 1087, and thus, “a conviction under § 3146 is
categorically ‘an offense relating to obstruction of justice’
under § 1101(a)(43)(S),” id. at 1089.
The following year, in In re Trung Thanh Hoang
(“Hoang I”), No. A074 465 074, 2009 WL 2981785 (BIA
Aug. 31, 2009), the BIA considered whether a Washington
state conviction “for the offense of rendering criminal
assistance . . . qualified as an aggravated felony pursuant to
CORDERO-GARCIA V. GARLAND 35
[§ 1101(a)(43)(S)].” Id. at *1. 5 The respondent Trung
Thanh Hoang argued that Batista-Hernandez had been
overruled by Espinoza-Gonzalez “and that his offense [did]
not . . . correspond to the definition provided in Espinoza-
Gonzalez.” Id. The BIA disagreed. In Espinoza-Gonzalez,
the BIA had “concluded . . . that obstruction-of-justice
crimes include (1) ‘either 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 (2) an intent element defined as a ‘specific
intent to interfere with the process of justice.’” Id. at *2
(quoting Espinoza-Gonzalez, 22 I. & N. Dec. at 893). 6
Espinoza-Gonzalez, the BIA explained, “reaffirmed rather
than overruled our holding in . . . Batista-Hernandez, . . .
that a conviction . . . for being an accessory after the fact
constitutes an obstruction-of-justice offense.” Id. (emphasis
added) (citing Espinoza-Gonzalez, 22 I. & N. Dec. at 894–
95). The BIA determined that the elements of the federal
crime of accessory after the fact were “substantially the
same” as those for the state crime of rendering criminal
assistance. Id. (emphasis added). As a result, the BIA
concluded that the respondent’s conviction of rendering
criminal assistance was “an obstruction-of-justice” because
5
The relevant Washington state statute provided that a “person is
guilty of rendering criminal assistance in the second degree if he or she
renders criminal assistance to a person who has committed or is being
sought for a class B or class C felony or an equivalent juvenile offense
or to someone being sought for violation of parole, probation, or
community supervision.” Wash. Rev. Code § 9A.76.080(1).
6
Notably, the BIA cited Renteria-Morales, agreeing with our
court’s summary therein of the BIA’s “articulation of both an actus reus
and mens rea element of the generic definition of obstruction-of-justice
crimes.” Hoang I, 2009 WL 2981785, at *2 (citing Renteria-Morales,
551 F.3d at 1086).
36 CORDERO-GARCIA V. GARLAND
it, like the federal crime of accessory after the fact,
“require[d] that the defendant (1) have knowledge that the
principal has committed an offense; and (2) take actions to
assist the principal with the intent that the principal avoid
arrest, trial, or punishment.” Id.
Hoang petitioned our court for review of the BIA’s
decision in his case. And that’s when the train first jumped
the tracks.
In Trung Thanh Hoang v. Holder (“Hoang II”), 641 F.3d
1157 (9th Cir. 2011), our court considered, as the BIA had
below, whether a state “conviction for rendering criminal
assistance is a crime related to obstruction of justice.” Id.
at 1158. The panel majority noted, as we had in Renteria-
Morales, that Chapter 73 “does not clearly set forth the
elements of a generic federal obstruction of justice crime;
nor does § 1101(a)(43)(S) provide a generic definition.” Id.
at 1160 (citing Renteria-Morales, 551 F.3d at 1086).
“Consequently,” the majority explained, “we must
determine whether [the BIA] has defined the term. We defer
to the BIA’s reasonable interpretations of ambiguous terms.”
Id. (citing Renteria-Morales, 551 F.3d at 1086). This proved
to be lip service.
While the majority acknowledged that Espinoza-
Gonzalez “did not overrule Batista-Hernandez,” it refused to
“defer to Batista-Hernandez.” Id. at 1164. Per the majority,
Batista-Hernandez “merely conclude[d] that [the crime of
accessory after the fact] is obstruction of justice without
defining the ambiguous term, identifying the elements of the
statute of conviction, or applying a definition of obstruction
of justice to the statute.” Id. Thus, although Batista-
Hernandez was clearly more factually relevant—concerning
a crime the BIA viewed to be “substantially the same,”
Hoang I, 2009 WL 2981785, at *2—the majority looked
CORDERO-GARCIA V. GARLAND 37
instead to Espinoza-Gonzalez “to supply the definition of the
generic federal obstruction of justice offense,” Hoang II,
641 F.3d at 1161. The majority’s motivation for doing so
quickly became apparent.
While purporting to defer to the BIA’s “reasonable
interpretation” of “obstruction of justice,” the majority
cherry-picked portions of the Espinoza-Gonzalez decision
without context to conclude that “[t]he language used [in
Espinoza-Gonzalez] indicates that the BIA now concludes
that accessory after the fact is an obstruction of justice crime
when it interferes with an ongoing proceeding or
investigation.” Id. at 1164 (emphasis added). But the BIA
never made any such conclusion. Nevertheless, with this
definition securely divined, the majority determined that a
“conviction for a misdemeanor by rendering criminal
assistance . . . lacks the necessary actus reus and is not
categorically obstruction of justice according to the
definition provided in Espinoza-Gonzalez.” Id. at 1165. Our
court accordingly granted Hoang’s petition for review. Id.
Judge Bybee dissented. As he correctly pointed out, the
majority’s claim that the BIA had not defined the ambiguous
term “obstruction of justice” in Batista-Hernandez was flatly
inconsistent with our court’s earlier decision in Renteria-
Morales. There, our court “[i]n no uncertain terms, . . . held
that ‘in determining whether [a] specific crime of conviction
is an obstruction-of-justice . . . , we rely on the BIA’s
definition.’” Id. at 1166 (Bybee, J., dissenting) (quoting
Renteria-Morales, 551 F.3d at 1086–87). “Here, the BIA
has indeed crafted such a definition, and it contradicts the
one asserted by the majority.” Id. As Judge Bybee
explained, Batista-Hernandez “cannot be ignored” despite
the majority’s obvious preference to do so. Id. at 1167. And
although the majority claimed to defer to the BIA’s
38 CORDERO-GARCIA V. GARLAND
definition in Espinoza-Gonzalez, it “remarkably, applie[d]
its own interpretation of the standard articulated by the BIA
in Espinoza-Gonzalez.” Id. “The weakness in the majority’s
position,” Judge Bybee observed, is “highlighted by its
acknowledgment that ‘the BIA was correct that Espinoza-
Gonzalez . . . did not overrule Batista-Hernandez.’
Nonetheless, it maintains that ‘the BIA now concludes that
accessory after the fact is an obstruction of justice crime
when it interferes with an ongoing proceeding or
investigation.’” Id. In short, “not only has the majority
conceded that Espinoza-Gonzalez did not overrule Batista-
Hernandez, but it has also fashioned a definition that, to its
own satisfaction, fuses the two together.” Id. at 1168
(emphasis added).
Hoang II, as badly decided as it was, is just the opening
chapter in our sad story. As our court has repeatedly (if
begrudgingly) recognized, it is the BIA—not our court—that
has the final word in how ambiguous provisions in the
immigration statutes are interpreted. Id. at 1160 (citing
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984)). And since the majority in
Hoang II acknowledged that “a crime relating to obstruction
of justice” is ambiguous, there was hope that the BIA might
fix our bungled mess.
Which the BIA quickly attempted. Following our
decision in Hoang II¸ the BIA sua sponte reopened removal
proceedings in a different case: In re Valenzuela Gallardo
(“Valenzuela Gallardo I”), 25 I. & N. Dec. 838 (BIA 2012).
It did so expressly to address whether the respondent
Agustin Valenzuela Gallardo’s “felony accessory offense
qualifies as ‘an offense relating to obstruction of justice,’”
CORDERO-GARCIA V. GARLAND 39
id. at 839, 7 and “to clarify [its] prior precedents” since our
court seemed to be having trouble comprehending them, id.
at 840. Discussing Batista-Hernandez and Espinoza-
Gonzalez, the BIA reiterated that the “critical element”—
“the affirmative and intentional attempt, with specific intent,
to interfere with the process of justice—demarcates the
category of crimes constituting obstruction of justice.” Id.
at 841 (emphasis added). And “[w]hile many crimes fitting
this definition will involve interference with an ongoing
criminal investigation or trial, we now clarify that the
existence of such proceedings is not an essential element of
‘an offense relating to obstruction of justice.’” Id. (emphasis
added). Applying this definition to Valenzuela Gallardo’s
conviction, the BIA concluded that the state crime of felony
accessory “is properly classified as an offense ‘relating to
obstruction of justice.’” Id. As the BIA explained, the
elements of felony accessory are “closely analogous, if not
functionally identical, to those [of the crime of accessory
after the fact at issue in Batista-Hernandez]. Critically, both
[crimes] include the element of an affirmative and
intentional attempt, motivated by a specific intent, to
interfere with the process of justice.” Id.
No doubt recognizing that our court is sometimes oddly
obtuse when it comes to reading the BIA’s decisions, the
BIA directly addressed our holding in Hoang II, explaining
that the BIA had never held “that obstruction offenses must
7
Valenzuela Gallardo was convicted of the crime of accessory to a
felony under CPC § 32, which provided that “[e]very person who, after
a felony has been committed, harbors, conceals or aids a principal in such
felony, with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that said
principal has committed such felony or has been charged with such
felony or convicted thereof, is an accessory to such felony.” Cal. Penal
Code. § 32.
40 CORDERO-GARCIA V. GARLAND
involve interference with an ongoing investigation or
proceeding. Rather, the standard we set forth was that an
obstruction offense must include ‘the critical element of an
affirmative and intentional attempt, motivated by a specific
intent, to interfere with the process of justice.’” Id. at 842
(quoting Espinoza-Gonzalez, 22 I & N Dec. at 894). And
again, “[i]nterference with the ‘process of justice’ does not
require the existence of an ongoing investigation or
proceeding.” Id. As the BIA explained, Chapter 73 defines
criminal offenses “as within the category of offenses
described as ‘Obstruction of Justice’ [that] clearly involve
conduct that significantly precedes the onset of any official
proceeding, even of an investigative nature.” Id. at 842–43.
The BIA therefore concluded Valenzuela Gallardo was
removable as charged. Id. at 844.
Given the clarity with which the BIA rebuffed our
holding in Hoang II, our court would need to get creative on
appeal to achieve its preferred result. We didn’t disappoint.
First, we erroneously read Valenzuela Gallardo I as
establishing a “new” definition of “obstruction of justice”
that was inconsistent with the BIA’s “prior construction”
because its “new” definition “require[d] no nexus to an
ongoing investigation or proceeding.” Valenzuela Gallardo
v. Lynch (“Valenzuela Gallardo II”), 818 F.3d 808, 811 (9th
Cir. 2016). But the BIA had never required any such nexus.
Rather, it was our court in Hoang II that introduced this
requirement. 641 F.3d at 1164. Judge Seabright, sitting by
designation, vehemently dissented, making this exact point.
See Valenzuela Gallardo II, 818 F.3d at 825 (Seabright, J.,
dissenting) (explaining that Valenzuela Gallardo I “did not
announce a new . . . interpretation that removed a required
nexus between an obstructive act and an existing
proceeding”). As he observed,
CORDERO-GARCIA V. GARLAND 41
the majority . . . relies on a mistaken premise
that [Espinoza-Gonzalez] previously
required a nexus to an ongoing investigation
or proceeding for a crime of conviction to be
“an offense relating to obstruction of justice”
for purposes of . . . § 1101(a)(43)(S). In fact,
Espinoza-Gonzalez did not (and [Valenzuela
Gallardo I] explains why). [Valenzuela
Gallardo I] is not a change from BIA
precedent—it is a change from this Circuit’s
interpretation of BIA precedent.
Id. (emphasis added); see also id. at 829 (“Espinoza-
Gonzalez never required a crime of conviction to have as an
element only ‘active interference with proceedings of a
tribunal;’ it always required ‘either 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.’” (quoting Espinoza-Gonzalez, 22 I. & N. Dec.
at 893)).
The majority downplayed Judge Seabright’s concern,
suggesting that it didn’t matter whether it characterized the
BIA’s definition as “new, newly clarified, or merely ‘a
change from this Circuit’s interpretation of BIA precedent.’”
Id. at 814 n.2. But the majority’s treatment of the BIA’s
definition as “new” went well beyond mere unnecessary
“characterization.” Id. In fact, it controlled its analysis. The
majority acknowledged that our court had previously
“deferred to the BIA’s interpretation of ‘obstruction of
justice’ in at least three cases,” but was able to elide the
obvious inconsistent treatment only by pretending the BIA’s
earlier definition was consistent with the one first announced
by our court in Hoang II, and thus “was reasonable” and
merited our prior deference. Id. at 815. But according to the
42 CORDERO-GARCIA V. GARLAND
majority, the BIA’s supposedly “new” definition “raise[d]
grave constitutional concerns.” Id. at 818. Framing the
BIA’s definition as “new” thus allowed the majority to
attack the BIA’s definition unshackled by the weight of our
court’s own precedent.
Continuing, the majority explained that because the
BIA’s “new” definition didn’t give “an indication of what it
does include in ‘the process of justice,’ or where that process
begins and ends,” it was “unconstitutionally vague.” Id.
at 819; see also id. at 818–22. Specifically, “[t]he BIA’s
new 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,
uncertainty about which crimes constitute ‘obstruction of
justice.’” Id. at 820; see also id. at 822. The majority thus
remanded the case to the BIA, so that it could “either offer a
new construction of [obstruction of justice] or, in the
alternative, apply Espinoza-Gonzalez’s interpretation to the
instant case.” Id. at 824. In doing so, the majority all but
invited the BIA to modify its definition of “an offense
relating to obstruction of justice” to require at least a nexus
“to ‘a foreseeable or contemplated proceeding.’” Id. at 822
n.7 (noting that if “the BIA intends interference with the
‘process of justice’ to mean interference with an ongoing or
foreseeable or contemplated investigation or proceeding, it
can clarify this on remand”).
On remand, the BIA tried—yet again—“to clarify [its]
prior precedents regarding the contours of the generic
definition of an aggravated felony offense relating to
obstruction of justice.” In re Valenzuela Gallardo
(“Valenzuela Gallardo III”), 27 I. & N. Dec. 449, 451 (BIA
2018). The BIA first observed that “[t]he Ninth Circuit has
recognized that the language of [§ 1101(a)(43)(S)] is
CORDERO-GARCIA V. GARLAND 43
ambiguous because it does not clearly answer whether an
offense relating to obstruction of justice must involve
interference in an ongoing investigation or proceeding.” Id.
at 452. After analyzing the crimes proscribed under Chapter
73, the BIA “conclude[d] that Congress did not intend
interference in an ongoing or pending investigation or
proceeding to be a necessary element of an ‘offense relating
to obstruction of justice.’” Id. at 456. Nor did Congress
intend “to limit the phrase ‘obstruction of justice’ to the
crimes listed in [C]hapter 73.” Id. at 460. Thus, “an offense
relating to obstruction of justice” consists of: first, “offenses
covered by [C]hapter 73 of the Federal criminal code”; or
second, “any other Federal or State offense that involves
(1) an affirmative and intentional attempt (2) that is
motivated by a specific intent (3) to interfere either in an
investigation or proceeding that is ongoing, pending, or
reasonably foreseeable by the defendant, or in another’s
punishment resulting from a completed proceeding.” Id.
Notably, the BIA (again) explained that its definition was not
new: “This definition is consistent with our prior holdings
regarding the limited contours of the phrase ‘obstruction of
justice.’” Id. Based on this definition, the BIA once again
“conclude[d] that [Valenzuela Gallardo’s] conviction is
categorically one . . . relating to obstruction of justice that
renders him removable.” Id. at 461.
In short, in Valenzuela Gallardo III the BIA effectively
reiterated the same definition that it had consistently held
since at least its 1997 Batista-Hernandez decision—with one
small tweak. Dutifully attempting to be responsive to our
court’s Valenzuela Gallardo II decision, the BIA added the
requirement that obstruction of justice be an attempt to
interfere with an “investigation or proceeding that is
ongoing, pending, or reasonably foreseeable.” Id. at 460
(emphasis added). The avid and informed court-watcher
44 CORDERO-GARCIA V. GARLAND
would be atremble with eager anticipation: how would the
Ninth Circuit get around this one? It seemed like the BIA
had gone the extra mile this time.
Pass the popcorn.
On appeal, our court began by purporting to describe the
BIA’s history defining “obstruction of justice.” But the
panels’ view—like that of its predecessor in Valenzuela
Gallardo II—was distorted and detached from reality,
painting our court as a beacon of consistency and the BIA as
fickler than Tom Brady in retirement:
In an en banc precedential decision issued
over two decades ago, the [BIA] held that “an
offense relating to obstruction of justice” is
defined by the federal obstruction of justice
offenses listed under that title in 18 U.S.C.
§§ 1501–18, almost all of which require a
nexus to an ongoing criminal proceeding or
investigation. Matter of Espinoza-Gonzalez,
22 I. & N. Dec. 889, 892–94 (BIA 1999) (en
banc). Our court approved that definition as
applied to a state misdemeanor conviction for
rendering criminal assistance. Hoang v.
Holder, 641 F.3d 1157, 1164–65 (9th Cir.
2011).
Since then, in this very case, the BIA has
twice changed that settled definition, each
time expanding it in different ways to
encompass the crime for which Agustin
Valenzuela Gallardo was convicted:
accessory to a felony in violation of [CPC]
§ 32.
CORDERO-GARCIA V. GARLAND 45
Valenzuela Gallardo v. Barr (“Valenzuela Gallardo IV”),
968 F.3d 1053, 1056 (9th Cir. 2020).
Clearly our court was laying the foundation for
something drastic. After all, the basis for our decision in
Valenzuela Gallardo II—unconstitutional vagueness—was
no longer on the table. See id. at 1067 (“We agree that
[Marinello v. United States, 138 S. Ct. 1101 (2018)] settles
any concern that defining obstruction of justice to include
interference with a ‘reasonably foreseeable’ proceeding is
unconstitutionally vague.”). But desperate times call for
desperate measures, and our court was desperate. The BIA
had proven a resilient foe, apparently missing our not-so-
subtle insistence that we really, really like our crabbed
interpretation of “relating to obstruction of justice” over the
BIA’s—Chevron be damned. With the rationales from all
our cases in shambles, it was obvious that if we continued to
pretend deference to the agency, we would never get our
way. So we just stopped pretending.
Despite having previously determined at least three
times that § 1101(a)(43)(S) is ambiguous about the
definition of “an offense relating to obstruction of justice,”
Renteria-Morales, 551 F.3d at 1086; Salazar-Luviano v.
Mukasey, 551 F.3d 857, 860 (9th Cir. 2008); Hoang II,
641 F.3d at 1160, 1160 n.3; see also Valenzuela Gallardo II,
818 F.3d at 815, our court—tapping into a deep reservoir of
creativity—now discerned that the statute is in fact
“unambiguous in requiring an ongoing or pending criminal
proceeding, and the [BIA’s] most recent interpretation is at
odds with that unambiguous meaning,” Valenzuela Gallardo
IV, 968 F.3d at 1062 (emphasis added). 8 Fully aware that
8
To my knowledge, no other circuit agrees with our court’s volte-
face. The First Circuit recently held that “the generic federal definition
46 CORDERO-GARCIA V. GARLAND
this might seem inconsistent, our court doubled down on our
historical revisionism:
We did not previously have occasion to opine
on this point because, prior to its first
precedential opinion below, see Valenzuela
Gallardo, 25 I. & N. Dec. 838, the BIA
consistently construed obstruction of justice
offenses as requiring a nexus to an ongoing
proceeding.
Id. at 1062–63.
Based on a fanciful determination that “an offense
relating to obstruction of justice unambiguously required a
nexus to an ongoing or pending proceeding or
investigation,” our court held that the second prong of the
BIA’s definition “cannot stand.” Id. at 1068. And because
CPC § 32 “encompasses interference with proceedings or
investigations that are not pending or ongoing,” it “is not a
categorical match with obstruction of justice under
of ‘an offense relating to obstruction of justice’ unambiguously does not
require a nexus to a pending or ongoing investigation or judicial
proceeding.” Silva v. Garland, 27 F.4th 95, 98 (1st Cir. 2022) (emphasis
added). And even “assuming § 1101(a)(43)(S) is ambiguous,” the First
Circuit concluded the BIA’s definition in Valenzuela Gallardo III was
“reasonable.” Id. at 113. The Third Circuit has likewise determined that
an offense “relating to obstruction of justice” is unambiguous—but in
exactly the opposite way our court says. Denis v. Att’y Gen., 633 F.3d
201, 209 (3d Cir. 2011). The Fourth Circuit determined that
§ 1101(a)(43)(S) “is at least ambiguous as to whether the phrase ‘relating
to obstruction of justice’ requires the obstruction of an ongoing
proceeding.” Pugin v. Garland, 19 F.4th 437, 449 (4th Cir. 2021). And
like the Third Circuit, it concluded that the BIA’s definition in
Valenzuela Gallardo III was “reasonable.” Id. at 449.
CORDERO-GARCIA V. GARLAND 47
§ 1101(a)(43)(S).” Id. at 1069. So we granted Valenzuela
Gallardo’s petition for review. Id.
* * *
Our court’s series of illogical and inconsistent
maneuvers are intentionally hard to follow, so to briefly
recap: In Hoang II, our court interjected a brand-new nexus
requirement—interference with an ongoing proceeding or
investigation—into the BIA’s definition of “obstruction of
justice.” 641 F.3d at 1164. No other court has insisted on
such a requirement. And after the BIA explicitly rejected
that new nexus requirement, see Valenzuela Gallardo I,
25 I. & N. Dec. at 841, our court tried a different tact:
treating the BIA’s old definition as “new” so that we could
hold it unconstitutionally vague without appearing to be
inconsistent with our prior precedents, see Valenzuela
Gallardo II, 818 F.3d at 819–20. On remand, the BIA tried
once more to appease us, “clarifying” its definition but again
rejecting our nexus requirement. See Valenzuela Gallardo
III, 27 I. & N. Dec. at 460. With our prior rationale—
unconstitutional vagueness—no longer an option, our court
was forced to employ a different type of inconsistency. In
Valenzuela Gallardo IV, we suddenly decided that
§ 1101(a)(43)(S) was unambiguous—despite previously
repeatedly holding that it was ambiguous—and that the
BIA’s definition was inconsistent with the statute’s newly
unambiguous meaning. See 968 F.3d at 1062. All the while
our court gaslit the BIA and pretended it was the agency that
was changing its mind, when in fact, it was our court that at
each step replaced our old rationale with something new—
each time more farfetched than the last, and often
inconsistent with aspects of our prior rationales. And in
doing so we created and then continually deepened a circuit
split.
48 CORDERO-GARCIA V. GARLAND
C. This Case
That brings us to this case, where unfortunately the
majority’s decision continues the ugly trajectory set by prior
panels. Notably, the majority does not attempt to defend our
indefensible precedents. But while maintaining a healthy
degree of separation from the faulty rationales underlying
those precedents, the majority nonetheless wraps itself in
them as dictating the result in this case.
Somewhat surprisingly, given the tortured history
recounted above, the government still had one argument left
to it in this case. In Valenzuela Gallardo III, the BIA
provided a two-part definition with two different ways that a
crime might constitute “an offense relating to obstruction of
justice”: first, “offenses covered by [C]hapter 73 of the
Federal criminal code”; and second, “any other Federal or
State offense that involves (1) an affirmative and intentional
attempt (2) that is motivated by a specific intent (3) to
interfere either in an investigation or proceeding that is
ongoing, pending, or reasonably foreseeable by the
defendant, or in another’s punishment resulting from a
completed proceeding.” 27 I. & N. Dec. at 460. As the
majority acknowledges, Valenzuela Gallardo IV addressed
only the second prong, foreclosing any argument for the
government under that definition. But here we are free to
consider and apply the first prong of the BIA’s definition—
that is, whether CPC § 136.1(b)(1) is “covered by” Chapter
73, namely, 18 U.S.C. § 1512(b)(3).
The Government has squarely raised this issue before our
court. The majority claims that because “the BIA did not
CORDERO-GARCIA V. GARLAND 49
analyze” the issue, we cannot address it. 9 But “[w]e do not
remand a case to the BIA where only legal questions remain
and these questions do not invoke the [BIA’s] expertise and
where all relevant evidence regarding the conviction [has]
been presented to the BIA in earlier proceedings.” See Diaz-
Quirazco v. Barr, 931 F.3d 830, 846 (9th Cir. 2019) (cleaned
up). This is such a case. Indeed, by devoting more than six
pages of its opinion to this exact issue, the majority
demonstrates that it is willing to ignore any purported
inability to consider whether CPC § 136.1(b)(1) is a
categorical match with § 1512(b)(3)—so long as the analysis
reaches a preferred result. But in doing so, we continue our
court’s history of distorting caselaw—this time,
California’s—to reach that result.
“The categorical approach prescribes a three-step
process for determining whether an offense is an ‘aggravated
felony.’” Ho Sang Yim v. Barr, 972 F.3d 1069, 1077 (9th
Cir. 2020). “First, we must identify the elements of the
generic federal offense.” Id. “Second, we must identify the
elements of the specific crime of conviction.” Id. “Third,
we compare the statute of conviction to the generic federal
offense to determine whether the specific crime of
conviction meets the . . . definition of an aggravated felony.”
Id. (cleaned up). “There is a categorical match only if the
statute’s elements are the same as, or narrower than, those of
9
The majority avoids addressing whether the first prong of the
BIA’s definition—“offenses covered by [C]hapter 73 of the Federal
criminal code”—is a reasonable interpretation of “an offense relating to
obstruction of justice” under § 1101(a)(43)(S). I would decide this issue.
And I would conclude—like other circuits—that it is a “reasonable”
interpretation of the statute. See Silva, 27 F.4th at 98; Pugin, 19 F.4th
at 449.
50 CORDERO-GARCIA V. GARLAND
the generic offense.” Lopez-Aguilar v. Barr, 948 F.3d 1143,
1147 (9th Cir. 2020) (cleaned up).
The majority starts out by correctly noting that CPC
§ 136.1(b)(1) requires that “(1) the defendant has attempted
to prevent or dissuade a person (2) who is a victim or witness
to a crime (3) from making any report of his or her
victimization to any peace officer or other designated
officials.” People v. Upsher, 155 Cal. App. 4th 1311, 1320
(2007). By comparison, § 1512(b)(3) requires that the
defendant (1) “knowingly use[d] intimidation, threaten[ed],
or corruptly persuade[d] another person . . . or engage[d] in
misleading conduct toward another person” (2) “with the
intent to hinder, delay, or prevent the communication to a
law enforcement officer” (3) “of information relating to the
commission or possible commission of a Federal offense.”
18 U.S.C. § 1512(b)(3).
The majority finds a mismatch with only the first of
§ 1512(b)(3)’s elements: “Because CPC § 136.1(b)(1) only
requires the defendant specifically intend to ‘prevent or
dissuade a person’ from reporting a crime, without any
requirement of malice, it is broader than . . . § 1512(b)(3),
which requires use of intimidation, threats, misleading
conduct, or corrupt persuasion.” According to the majority,
because CPC § 136.1(b)(1) has no malice requirement, an
individual could be convicted under CPC § 136.1(b)(1) for
innocently preventing or dissuading another person from
reporting a crime, without satisfying the “corruptly
persuades” requirement of § 1512(b)(3). Thus, the majority
concludes, the two are not a categorical match.
While I agree with the majority that § 1512(b)(3) does
not proscribe “innocent persuasion,” where the majority gets
it wrong is in concluding that CPC § 136.1(b)(1) reaches
innocent persuasion, when California precedent explicitly
CORDERO-GARCIA V. GARLAND 51
says it does not. As multiple California courts have
observed, CPC § 136.1(b)(1) proscribes only “culpable
conduct.”
“There are two ways to show a realistic probability that
a state statute exceeds the generic definition.” See Lopez-
Aguilar, 948 F.3d at 1147 (cleaned up). The majority
attempts both. “First, there is not a categorical match if a
state statute expressly defines a crime more broadly than the
generic offense.” Id. “In identifying the elements of the
statute of conviction, ‘we consider not only the language of
the state statute, but also the interpretation of that language
in judicial opinions.’” Rodriguez-Castellon v. Holder,
733 F.3d 847, 853 (9th Cir. 2013) (emphasis added) (quoting
Covarrubias Teposte v. Holder, 632 F.3d 1049, 1054 (9th
Cir. 2010)). It is the latter that the majority largely ignores.
In People v. Navarro, 212 Cal. App. 4th 1336 (2013), for
example, the defendant David Navarro argued that CPC
§ 136.1(b)(1) “violate[d] the state and federal constitutions
by impermissibly inhibiting free speech” and “also
suggest[ed] the statute [was] ‘fatally uncertain’ or vague.”
Id. at 1347. The California Court of Appeal disagreed. As
it explained, CPC § 136.1(b)(1) “has been limited in its
application to persons who intentionally ‘prevent or
dissuade’ a victim or witness from reporting a crime.” Id.
at 1351 (cleaned up) (citing People v. McDaniel, 22 Cal.
App. 4th 278, 284 (1994)). “This focus on the mental state
of the perpetrator and his or her intent to affect or influence
a potential witness’s or victim’s report limits the statute’s
reach by distinguishing culpable conduct from innocent
conversation and restrains use of its provisions to inhibit
protected speech.” Id. (emphasis added). The court rejected
Navarro’s attempt to support his argument with a “number
52 CORDERO-GARCIA V. GARLAND
of hypotheticals” that “involve[d] innocent behavior.” Id.
at 1352. 10 Specifically, the court explained that
[t]here is no reason to believe persons
engaged in conduct of the type [Navarro]
posits are in substantial danger of prosecution
under the statute. The statute prohibits
statements specifically intended to induce a
witness or victim to withhold evidence of a
crime from law enforcement officials.
Ordinary citizens discussing the criminal
justice system and the pros and cons of
becoming involved in a police investigation
would not run afoul of the law.
Id. (emphasis added).
This same point was recently reaffirmed in People v.
Brackins, 37 Cal. App. 5th 56 (2019), where the state court
10
Navarro argued that CPC § 136.1(b)(1)
would preclude an attorney from “advising a client to
file a civil lawsuit for damages in response to a crime”;
prohibit a store manager from “directing employees to
call the parents of first-time shoplifters under the age
of [eighteen] instead of reporting such incidents to the
police”; and prevent citizens from “expressing their
opinion about which crimes warrant government
intervention, and which do not,” “attempting to
prevent a friend from reporting a small theft to the
police by expressing the opinion that it will be more
trouble and paperwork than it’s worth,” or “suggesting
that the problem of criminal activity be handled
privately with an apology, with amends being made,
or some other way.”
Navarro, 212 Cal. App. 4th at 1352 (cleaned up).
CORDERO-GARCIA V. GARLAND 53
again observed that there is “[n]o . . . concern” that CPC
§ 136.1(b) criminalizes innocent behavior. Id. at 67.
Thus, California courts have made it clear enough that
CPC § 136.1(b)(1) does not proscribe “innocent persuasion”
as the majority imagines. Rather, CPC § 136.1(b)(1)
criminalizes only “culpable conduct.” Navarro, 212 Cal.
App. 4th at 1351. This is consistent with § 1512(b)(3)’s
requirement of “corrupt persuasion,” which we have
interpreted to require only a “consciousness of wrongdoing.”
United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011),
as amended on reh’g in part (Mar. 15, 2011). Consequently,
CPC § 136.1(b)(1) and § 1512(b)(3) are a categorical match.
See Yim, 972 F.3d at 1083.
The second way to “show a realistic probability that a
state statute exceeds the generic definition” is by “point[ing]
to at least one case in which the state courts applied the
statute in a situation that does not fit under the generic
definition.” See Lopez-Aguilar, 948 F.3d at 1147 (cleaned
up). Not surprisingly, the majority fails to point to a single
case in which CPC § 136.1(b)(1) has been applied to
“innocent persuasion.” To the contrary, as just explained,
California courts have made clear that CPC § 136.1(b)(1)
would not apply to such conduct.
Recognizing that its preferred interpretation of
California law flounders under the California cases directly
addressing CPC § 136.1(b)(1), the majority resorts to a
strangely indirect approach—relying on a California case
construing a related yet altogether different offense: People
v. Wahidi, 222 Cal. App. 4th 802 (2013). Wahidi concerns
CPC § 136.1(a)(2), not subsection (b)(1). Despite this
critical distinction, the majority nonetheless unconvincingly
tries to extrapolate a rule supporting its view with respect to
CPC § 136.1(b)(1). But even putting aside that there are
54 CORDERO-GARCIA V. GARLAND
directly on-point California cases squarely blocking the
majority’s preferred interpretation of subsection (b)(1), its
reliance on Wahidi is also based on clearly wrong reasoning.
To understand why requires an accurate comparison of
subsections (a)(2) and (b)(1).
CPC § 136.1(a)(2) proscribes “[k]nowingly and
maliciously” attempting to prevent or dissuade “any witness
or victim from attending or giving testimony at any trial,
proceeding, or inquiry authorized by law.” Thus, subsection
(a)(2) requires a showing of “malice” (which, as the majority
emphasizes, subsection (b)(1) does not). But in this context,
the California legislature has provided a “unique” definition
of “malice,” much broader than the term’s “traditional
meaning.” Wahidi, 222 Cal. App. 4th at 809; see also CPC
§ 136 (defining “malice” as “an intent to vex, annoy, harm,
or injure in any way another person, or to thwart or interfere
in any manner with the orderly administration of justice”
(emphasis added)). In fact, California defines “malice” so
broadly in this context that it arguably renders the term
effectively meaningless. See Wahidi, 222 Cal. App. 4th at
807 (explaining that the provision’s unique “definition of
malice in [§] 136 appears to write the word ‘maliciously’ out
of [§] 136.1”). It is precisely because of this extremely
broad definition of malice that CPC § 136.1(a)(2)
criminalizes conduct that the majority refers to as “innocent
persuasion,” and that admittedly falls outside the reach of
§ 1512(b)(3). See id. at 809. Thus, the majority’s attempt to
paint subsection (b)(1) as “broader than CPC § 136.1(a)”
because it “lacks a malice requirement” has it exactly
backwards—it is subsection (a)(2)’s uniquely broad malice
element that allows it to criminalize “innocent persuasion,”
so attempting to transpose subsection (a)(2)’s overbreadth to
(b)(1), which lacks the very element that causes (a)(2)’s
overbreadth, is just faulty analysis.
CORDERO-GARCIA V. GARLAND 55
In contrast to CPC § 136.1(a)(2), subsection (b)(1)
proscribes “attempts to prevent or dissuade another person
who has been the victim of a crime or who is witness to a
crime from . . . [m]aking any report of that victimization.”
Unlike CPC § 136.1(a)(2), subsection (b)(1) does not
include a malice requirement. But this doesn’t mean that
subsection (b)(1) is necessarily broader than subsection
(a)(2). Quite the opposite. CPC § 136.1(b)(1) “is a specific
intent crime,” which California courts have explained means
that subsection (b)(1) proscribes only “culpable conduct.”
Navarro, 212 Cal. App. 4th at 1347, 1351; see also Brackins,
37 Cal. App. 5th at 66–67. Thus, in this respect—which is
the only one that matters in this case—California courts have
uniformly interpreted subsection (b)(1) to be narrower than
subsection (a)(2). See Brackins, 37 Cal. App. 5th at 67
(explaining that unlike CPC § 136.1(a)(2), subsection (b)(1)
“already described a sufficiently narrow offense that did not
require further restriction by means of a malice
requirement”).
So the majority is doubly wrong. First, it just refuses to
defer to the California courts, which have held that:
(1) subsection (b)(1) is narrower than subsection (a)(2), see
id. at 66–67; and (2) subsection (b)(1) does not criminalize
innocent conduct, see Navarro, 212 Cal. App. 4th at 1353;
Brackins, 37 Cal. App. 5th at 66–67. Second, it relies on its
own twisted and flawed logic that, while perhaps not as
audacious as our court’s past machinations, is no less
fallacious. The majority reasons that (1) because CPC
§ 136.1(b)(1) “lacks a malice requirement” it is necessarily
“broader than” CPC § 136.1(a)(2) (which, as shown, is
false); so (2) because CPC § 136.1(a)(2) criminalizes
innocent conduct like that at issue in Wahidi, CPC
§ 136.1(b)(1) necessarily criminalizes innocent conduct as
well. But Subsection (b)(1) is not “broader” than subsection
56 CORDERO-GARCIA V. GARLAND
(a)(2), at least insofar as the criminalization of “innocent
persuasion” is concerned.
When you remove the majority’s flawed reliance on
Wahidi, the majority is left with only its “legal imagination.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
That is not enough. The Supreme Court has made clear that
a categorical mismatch “requires a realistic probability, not
a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a crime.
To show that realistic probability, an offender, of course,
may show that the statute was so applied in his own case.”
Id. The majority does not try to make this showing,
presumably because of the heinous nature of Cordero-
Garcia’s conduct. As a result, the majority “must at least
point to . . . other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for
which he argues.” Id. It cannot.
Cordero-Garcia’s conviction under CPC § 136.1(b)(1) is
a categorical match for § 1512(b)(3), and the BIA did not
error in concluding that Cordero-Garcia is removable under
8 U.S.C. § 1227(a)(2)(A)(iii).
II. CONCLUSION
I would deny Cordero-Garcia’s petition for review, and
thus respectfully dissent.