Higgins v. Holder

11-924
Higgins v. Holder
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2011

(Submitted : February 7, 2012 Decided: April 19, 2012)
________________________________________________________

ALBERT LLOYD HIGGINS,

Petitioner,

—v.—

ERIC H. HOLDER, JR.,
United States Attorney General,

Respondent.

Docket No. 11-924(ag)

________________________________________________________

B e f o r e : KATZMANN and CARNEY, Circuit Judges, and RESTANI,* Judge.

_______________

Petition for review from the BIA’s February 11, 2011 decision denying petitioner’s requests
for cancellation of removal under 8 U.S.C. § 1229b(a) and a waiver of inadmissibility under 8
U.S.C. § 1182(h). We hold that a conviction for witness tampering under Connecticut General
Statutes § 53a-151 constitutes an “offense relating to obstruction of justice” within the meaning of
8 U.S.C. § 1101(a)(43)(S), and that Higgins is therefore ineligible for relief. Accordingly, the
petition for review is DISMISSED.

Judge Katzmann concurs in a separate opinion.

*
The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by
designation.
 _______________

Carlton L. Hume, Hume Law Firm, LLC, Hartford, Conn., for Petitioner
(on submission).

Tony West, Assistant Attorney General; Leslie McKay, Assistant
Director; Kristofer R. McDonald, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Washington, D.C., for Respondent (on submission).

_______________

PER CURIAM:

Petitioner Albert Lloyd Higgins petitions for review of a February 11, 2011 decision

issued by the Board of Immigration Appeals (the “BIA” or the “Board”) denying his requests for

cancellation of removal under 8 U.S.C. § 1229b(a) and a waiver of inadmissibility under 8

U.S.C. § 1182(h). In order to resolve this appeal, we must determine whether a conviction for

witness tampering under Connecticut General Statutes (“CGS”) § 53a-151 constitutes an

“offense relating to obstruction of justice” within the meaning of 8 U.S.C. § 1101(a)(43)(S), a

definitional section of the Immigration and Nationality Act (“INA”) listing the various

“aggravated felon[ies]” that may disqualify a petitioner from various forms of relief. For the

reasons explained herein, we conclude that a conviction under CGS § 53a-151 constitutes an

“offense relating to obstruction of justice,” and we therefore dismiss the petition for review.

BACKGROUND

Albert Lloyd Higgins (“Higgins” or “petitioner”), a native and citizen of Jamaica, was

admitted to the United States as a lawful permanent resident in April 1987. On May 4, 2001,

Higgins was convicted, following a jury trial, of one count of tampering with a witness in

violation of CGS § 53a-151. The conviction stemmed from allegations that Higgins sexually

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assaulted a minor and later instructed her that, if she talked to the police, she should tell them

that “nothing ever happened.” See State v. Higgins, 811 A.2d 765, 768 (Conn. App. Ct. 2003).

The jury acquitted Higgins of the underlying sexual-assault charges, but found him guilty of

witness tampering, for which crime Higgins was sentenced principally to five years’

incarceration, execution suspended after one year. Id. Higgins appealed his conviction, arguing,

inter alia, that the trial court improperly denied his motions for a judgment of acquittal

notwithstanding the verdict and for a new trial because the guilty verdict on the witness

tampering charge was inconsistent with the judgment of acquittal on the sexual-assault charges.

Id. The Appellate Court of Connecticut affirmed Higgins’s conviction in a published decision

dated January 7, 2003. Id.

In November 2008, Higgins applied for admission, and was admitted, to the United

States at Miami International Airport as a returning lawful permanent resident. On March 9,

2009, the Department of Homeland Security served Higgins with a Notice to Appear (“NTA”) in

immigration proceedings, charging him with removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I)

as an alien convicted of a crime involving moral turpitude. On May 28, 2009, Higgins submitted

a written pleading denying the allegation concerning his criminal conviction and denying he was

removable as charged. He also indicated his intent to seek termination of his immigration

proceedings, cancellation of removal, adjustment of status and, in the alternative, voluntary

departure. In hearings held before an immigration judge (“IJ”) on June 30, 2009 and September

8, 2009, Higgins conceded that his conviction constituted a crime involving moral turpitude, but

argued that it did not constitute an aggravated felony. He also indicated his intent to apply for a

waiver of inadmissibility under § 212(h) of the INA, 8 U.S.C. § 1182(h).

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 On September 30, 2009, the IJ denied Higgins’s applications for relief and ordered him

removed to Jamaica. Employing the analytical framework set forth by the BIA in its

precedential decision In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc), the IJ

concluded that Higgins’s conviction under CGS § 53a-151 constitutes an offense “relating to

obstruction of justice,” an aggravated felony rendering Higgins ineligible for cancellation of

removal and a waiver of inadmissibility. Higgins appealed to the BIA, which affirmed the IJ’s

decision on February 11, 2011. Like the IJ, the BIA applied the reasoning of Espinoza-Gonzalez

and concluded that a conviction under CGS § 53a-151 meets the definition of “an offense

relating to obstruction of justice.” On March 9, 2011, Higgins filed a timely petition for review

in this Court, and this appeal followed.

DISCUSSION

In his petition, Higgins argues that his conviction for violating CGS § 53a-151 does not

constitute an “offense relating to obstruction of justice” within the meaning of 8 U.S.C. §

1101(a)(43)(S), and that he did not in fact obstruct justice as that term is defined under federal

law. The Attorney General counters that: (1) this Court should defer to the BIA’s reasonable

interpretation of “an offense relating to obstruction of justice” as set forth in Espinoza-Gonzalez;

(2) Higgins’s conviction for witness tampering under CGS § 53a-151 constitutes an “offense

relating to obstruction of justice”; and (3) Higgins may not use this appeal to collaterally attack

his witness-tampering conviction.

I. Jurisdiction and Standard of Review

Under the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, 302, we lack

jurisdiction to review “any final order of removal against an alien who is removable by reason of

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having committed [certain drug and aggravated felony] offense[s].” 8 U.S.C. § 1252(a)(2)(C).

We retain jurisdiction, however, to review the legal question of whether a conviction underlying

an order of removal, or the denial of relief from an order of removal, constitutes an aggravated

felony. See 8 U.S.C. § 1252(a)(2)(D); Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119, 121

(2d Cir. 2011). “The inquiry determines our jurisdiction: If [the] conviction is an aggravated

felony, we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction

and [review the petition].” Oouch, 633 F.3d at 121. Accordingly, the jurisdictional issue merges

with the merits, and we are therefore required to consider Higgins’s substantive argument that

his Connecticut conviction is not an aggravated felony under the INA. See Mugalli v. Ashcroft,

258 F.3d 52, 55 (2d Cir. 2001).

Under the circumstances of this case, it is well-established that we review the IJ’s

decision as supplemented by the BIA as the final agency determination. See Mufied v. Mukasey,

508 F.3d 88, 90 (2d Cir. 2007) (“When the BIA adopts the decision of the IJ and supplements the

IJ’s decision or emphasizes particular aspects of it, we review the IJ’s decision as supplemented

by the BIA as the final agency determination.”). We defer to the factual findings of the BIA and

the IJ if they are supported by substantial evidence, and we review de novo legal conclusions and

the application of legal principles to undisputed facts. Id. at 91.

II. Applicable Law: The INA’s Definition of “Aggravated Felony” and Our Categorical
Approach

A conviction for an “aggravated felony” renders Higgins ineligible for both cancellation

of removal and a waiver of inadmissibility. See 8 U.S.C. § 1229b(a); 8 U.S.C. § 1182(h). The

INA defines the term “aggravated felony” to include, as relevant here, “an offense relating to

obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the

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term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(S). In this case, there is no

question that Higgins was convicted of an offense “for which the term of imprisonment is at least

one year.” See United States v. Pacheco, 225 F.3d 148, 153-54 (2d Cir. 2000) (construing the

phrase “for which the term of imprisonment is at least one year” to refer to the actual sentence

imposed rather than the authorized minimum term). Accordingly, if a conviction for witness

tampering under CGS § 53a-151 constitutes an “offense relating to obstruction of justice,” we

must dismiss Higgins’s petition.

In order to determine whether a conviction under CGS § 53a-151 “relat[es] to obstruction

of justice,” we apply a categorical approach “that looks to the elements of the penal statute rather

than the particulars of the alien’s conduct.” Oouch, 633 F.3d at 122; see also Taylor v. United

States, 495 U.S. 575, 601-02 (1990); Dickson v. Ashcroft, 346 F.3d 44, 48 (2d Cir. 2003). Under

this analysis, “[w]e must ask whether every set of facts violating a statute satisfies the criteria for

removability, keeping in mind that only the minimum criminal conduct necessary to sustain a

conviction under a given statute is relevant.” Abimbola v. Ashcroft, 378 F.3d 173, 176 (2d Cir.

2004) (internal citations, quotation marks, and alterations omitted).

III. Deference to the BIA’s Decision in In re Espinoza-Gonzalez

The meaning of the phrase “relating to obstruction of justice” presents a question of first

impression in this Circuit. The BIA, however, has issued a precedential opinion analyzing its

meaning. In Espinoza-Gonzalez, the BIA considered whether the federal crime of misprision of

a felony1 constitutes an offense relating to obstruction under section 101(a)(43)(S) of the INA.

1
The United States Code defines “misprision of a felony” as follows:

Whoever, having knowledge of the actual commission of a felony cognizable by a

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22 I. & N. Dec. at 889. The BIA looked to the chapter of the federal criminal code entitled

“Obstruction of Justice” to guide its interpretation of the phrase, which is not specifically defined

in the United States Code. Id. at 891. The BIA reasoned that, “[i]n general, the obstruction of

justice offenses listed in 18 U.S.C. §§ 1501-1518 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. The BIA further reasoned

that, by utilizing the term “obstruction of justice” in the INA, Congress intended to limit the

types of offenses that potentially could be classified as “obstruction of justice” offenses for

immigration purposes to those analogous to the “obstruction of justice” offenses listed in the

United States Code:

Congress did not adopt a generic descriptive phrase such as “obstructing justice”
or “obstruct justice,” but chose instead a term of art utilized in the United States
Code to designate a specific list of crimes. It employed that term in conjunction
with other crimes (e.g., perjury and bribery) that also are clearly associated with
the affirmative obstruction of a proceeding or investigation. We do not believe
that every offense that, by its nature, would tend to “obstruct justice” is an offense
that should properly be classified as “obstruction of justice.” . . . To include all
offenses that have a tendency to, or by their nature do, obstruct justice would cast
the net too widely.

Id. at 893-94. Further supporting a more narrow interpretation of the phrase, the BIA concluded,

is the fact that the Supreme Court has construed the “obstruction of justice” offenses in a manner

that limits their applicability, thereby declining to accord the various offenses the full range of

court of the United States, conceals and does not as soon as possible make known
the same to some judge or other person in civil or military authority under the
United States, shall be fined under this title or imprisoned not more than three
years, or both.

18 U.S.C. § 4.

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their arguably wide scope. Id. at 892-93 (citing United States v. Aguilar, 515 U.S. 593, 598-99

(1995) (interpreting 18 U.S.C. § 1503, a “catchall” statute prohibiting influencing or injuring

officer or juror generally, to require that the action taken by the accused must be with an intent to

influence judicial or grand jury proceedings).

Guided by these principles and applying the categorical approach, the BIA concluded

that misprison of a felony does not constitute an “offense relating to obstruction of justice”

because “it lacks the critical element of an affirmative and intentional attempt, motivated by a

specific intent, to interfere with the process of justice.” Espinoza-Gonzalez, 22 I. & N. at 894.

In other words, the BIA concluded that, for a crime to qualify as an “offense relating to

obstruction of justice,” it must include as elements both (1) the actus reus of an “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) the mens rea of a “specific intent to

interfere with the process of justice.” Id. at 893; see also Renteria-Morales v. Mukasey, 551

F.3d 1076, 1086 (9th Cir. 2008).

A threshold question is the appropriate level of deference we should accord the BIA’s

interpretation. In general, to the extent that a legal question requires us to construe state or

federal criminal laws, we owe no deference to the BIA, and our review is de novo. See Santos v.

Gonzales, 436 F.3d 323, 325 (2d Cir. 2006) (per curiam); Mugalli, 258 F.3d at 55 (“[W]here the

BIA is interpreting state or federal criminal laws, we must review its decision de novo because

the BIA is not charged with administration of these laws.”) (internal quotation marks and

citations omitted). It is clear, therefore, that we owe no deference to the BIA’s ultimate

conclusion that Higgins’s conviction for witness tampering under Connecticut law qualifies as an

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“offense relating to obstruction of justice.” See Mugalli, 258 F.3d at 56 (deferring to the BIA’s

construction of the term “attempt” as used in the INA, but declining to defer to the BIA’s

conclusion that a conviction under a federal criminal statute necessarily constituted an “attempt”

as the BIA had defined it).

A more difficult question, however, is whether we owe deference to the BIA’s

interpretation of the INA’s key phrase, “relating to obstruction of justice.” In general, pursuant

to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

reviewing courts are required “to defer to an agency’s interpretation of the statute it administers

when the intent of Congress is unclear and the agency’s determination is reasonable.” Sui v.

INS, 250 F.3d 105, 112 (2d Cir. 2001). To determine whether deference is appropriate, we

conduct the familiar two-step Chevron analysis:

At Chevron step one, we consider de novo whether Congress has clearly
spoken to the question at issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress. To ascertain Congress’s intent, we
begin with the statutory text because if its language is unambiguous, no further
inquiry is necessary. . . . If the statutory language is ambiguous, however, we
resort first to canons of statutory construction, and, if the statutory meaning
remains ambiguous, to legislative history, to see if these interpretive clues clearly
reveal Congress’s intent.

If we determine that Congress has not directly addressed the precise
question at issue, we proceed to Chevron step two, which instructs us to defer to
an agency’s interpretation of the statute, so long as it is reasonable. While
unpublished BIA decisions do not constitute agency interpretations of law
warranting Chevron deference, where, as in this case, the challenged unpublished
decision relies on a binding published decision, Chevron deference will extend to
that earlier decision’s reasonable resolution of statutory ambiguity.

Mizrahi v. Gonzales, 492 F.3d 156, 158 (2d Cir. 2007) (internal quotation marks, citations, and

alterations omitted).

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 There is a circuit split on the question of whether deference is owed to the BIA’s

reasoning in Espinoza-Gonzalez. On the one hand, the Fifth and Ninth Circuits have both

concluded that deference is warranted. In Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. 2004), the

Fifth Circuit held that a conviction for contempt of court in violation of 18 U.S.C. § 401(3)

constitutes an “offense relating to obstruction of justice.” Id. at 508, 514. In so holding, the

Fifth Circuit concluded that it was obliged to accord Chevron deference to the BIA and therefore

reviewed its decision only to determine whether it represented a “permissible construction of the

language of the INA.” Id. at 510, 514 (internal quotation marks omitted). Similarly, in

Renteria-Morales v. Mukasey, 551 F.3d 1076 (9th Cir. 2008), the Ninth Circuit concluded that

“[b]ecause § 1101(a)(43) is part of the INA, we must defer to the BIA’s articulation of the

generic federal definition if the statute is silent or ambiguous with respect to the specific issue

before the agency and the BIA’s interpretation is based on a permissible construction of the

statute.” Id. at 1081 (internal quotation marks omitted). Determining that the INA does not

define the phrase “offense relating to obstruction of justice,” the Ninth Circuit deferred to the

BIA’s decision in Espinoza-Gonzalez and, employing the BIA’s reasoning in that case,

concluded that a conviction for “failure to appear” under 18 U.S.C. § 3146 is categorically an

“offense relating to obstruction of justice” under Section 1101(a)(43)(S).1 Id. at 1086, 1089.

1
The Ninth Circuit has applied the same analysis in two other cases following its decision in
Renteria-Morales. See Salazar-Luviano v. Mukasey, 551 F.3d 857, 862 (9th Cir. 2008) (holding
that aiding and abetting an attempted escape from custody in violation of 18 U.S.C. § 751 does
not qualify as an aggravated felony under Section 1101(a)(43)(S) because “a violation of 18
U.S.C. § 751 does not require the existence of a pending judicial proceeding, much less
knowledge of or specific intent to obstruct such a proceeding”) (footnote omitted); Trung Thanh
Hoang v. Holder, 641 F.3d 1157, 1162 (9th Cir. 2011) (holding that rendering criminal
assistance in the second degree, a misdemeanor in violation of Washington Revised Code §
9A.76.080, does not constitute an aggravated felony under the INA because the Washington

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 The Third Circuit, however, has declined to defer to the BIA’s reasoning. In Denis v.

Att’y Gen. of U.S., 633 F.3d 201 (3d Cir. 2011), the Third Circuit considered whether petitioner’s

conviction for tampering with physical evidence in violation of New York Penal Law (“NYPL”)

§ 215.40(2) constitutes a crime “relating to obstruction of justice.” Id. at 203-04. In answering

this question in the affirmative, the Third Circuit reasoned that interpreting the phrase “relating

to obstruction of justice” does not “present an obscure ambiguity or a matter committed to

agency discretion,” but rather requires courts to construe “two discrete phrases -- ‘relating to’

and ‘obstruction of justice’ -- both of which are capable of definition.” Id. at 209. With respect

to the latter, the Third Circuit concluded that courts can “easily determine the types of conduct

Congress intended the phrase to encompass” by referring to the “obstruction of justice” offenses

listed under Title 18 of the United States Code. Id. Indeed, the Third Circuit reasoned that

“construction of the criminal provisions in Title 18 is a task outside the BIA’s special

competence and congressional delegation, while it is very much a part of this Court’s

competence.” Id. (internal quotation marks omitted). Further, the Third Circuit noted that it had

previously “discussed the meaning of the phrase ‘relating to’ in Section 1101(a)(43) [of Title 8,

Section101 of the INA], observing that the phrase is to be read expansively and ‘must not be

strictly confined to its narrowest meaning.’” Id. (quoting Drakes v. Zimski, 240 F.3d 246, 249

(3d Cir. 2001)). Accordingly, the Third Circuit concluded that it owed no deference to the BIA’s

statute “criminalizes conduct falling outside the bounds of the generic federal obstruction of
justice crime as defined by Espinoza-Gonzalez [in that] it does not require that defendant commit
an act involving either active interference with proceedings of a tribunal or investigation, or
action or threat of action against those who would cooperate with the process of justice”)
(internal quotation marks omitted) (emphasis in original).

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reasoning and proceeded to review the issue de novo. Having done so, the Third Circuit arrived

at a far broader interpretation of the phrase “relating to obstruction of justice” than the one

formulated by the BIA, concluding that it would be appropriate to “survey the interrelationship”

between the crime at issue and the crimes enumerated in the obstruction of justice section of

Title 18 and “apply the phrase ‘relating to’ broadly, seeking a logical or causal connection.”

Denis, 633 F.3d at 212.

This circuit split raises questions regarding the appropriate level of deference to accord

the BIA’s decision in Espinoza-Gonzalez; in particular, it poses the issue of what deference to

accord an agency’s interpretation of the statute it is charged with administering when that

interpretation is itself based on the agency’s construction of federal criminal statutes. We need

not definitively resolve these questions today, however. Because the Third Circuit’s

interpretation of the phrase “relating to obstruction of justice” is broader than the one adopted by

the BIA, any crime qualifying as an “offense relating to obstruction of justice” under the BIA’s

definition will necessarily constitute an “offense relating to obstruction of justice” under the

Third Circuit’s reasoning as well. Consequently, because we conclude, for the reasons explained

below, that a conviction for witness tampering under CGS § 53a-151 constitutes an “offense

relating to obstruction of justice” even under the BIA’s more restrictive definition, we need not

definitively decide whether deference to the BIA’s decision in Espinoza-Gonzalez is required.

III. Connecticut General Statutes § 53a-151

Adopting for now the BIA’s interpretation and applying the categorical approach, we

must consider whether CGS § 53a-151(a) includes as elements the requisite actus reus and mens

rea. The statute provides:

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 Sec. 53a-151. Tampering with a witness: Class C felony.

(a) A person is guilty of tampering with a witness if, believing that an official
proceeding is pending or about to be instituted, he induces or attempts to induce a
witness to testify falsely, withhold testimony, elude legal process summoning him
to testify or absent himself from any official proceeding.

Id.

From the plain language of the statute, it is apparent that CGS § 53a-151 clearly includes

the requisite actus reus: an “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.”

Espinoza-Gonzalez, 22 I. & N. Dec. at 893. Moreover, the analogous federal “obstruction of

justice” statute prohibits “[t]ampering with a witness, victim, or an informant” in strikingly

similar language:

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades[2]
another person, or attempts to do so, or engages in misleading conduct toward
another person, with intent to--
(1) influence, delay, or prevent the testimony of any person in an official
proceeding;
(2) cause or induce any person to--
(A) withhold testimony, or withhold a record, document, or other object, from
an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the
object’s integrity or availability for use in an official proceeding;
(C) evade legal process summoning that person to appear as a witness, or to
produce a record, document, or other object, in an official proceeding; or
(D) be absent from an official proceeding to which such person has been
summoned by legal process;
...
shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 1512. Both the federal and Connecticut statutes criminalize the act of “induc[ing]”

2
We have previously interpreted “corruptly persuades” to mean that “the government must prove
that the defendant’s attempts to persuade were motivated by an improper purpose.” United
States v. Thompson, 76 F.3d 442, 452 (2d Cir. 1996).

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or attempting to “induce” another person to “withhold testimony” or testify falsely. They also

prohibit inducing a witness to either “evade” or “elude” “legal process,” or to “absent” himself

from an “official proceeding.” Additionally, both statutes require a nexus to an official

proceeding. Compare Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08 (2005)

(construing 18 U.S.C. § 1512 to require a “nexus” between the obstructive act and the

proceeding), with CGS § 53a-151 (specifically requiring a “belie[f] that an official proceeding is

pending or about to be instituted”). Accordingly, it is clear that CGS § 53a-151 satisfies the

actus reus element of an “offense relating to obstruction of justice” -- indeed, Higgins does not

appear to argue otherwise.

CGS § 53a-151 also includes the requisite mens rea: the “specific intent to interfere with

the process of justice.” Espinoza-Gonzalez, 22 I. & N. Dec. at 893. By its terms, CGS §

53a-151 provides that “[a] person is guilty of tampering with a witness if, believing that an

official proceeding is pending or about to be instituted, he induces or attempts to induce a

witness to testify falsely.” The Connecticut Supreme Court has explained that this text contains

an “implicit” intent requirement:

The language of § 53a-151 plainly warns potential perpetrators that the statute
applies to any conduct that is intended to prompt a witness to testify falsely or to
refrain from testifying in an official proceeding that the perpetrator believes to be
pending or imminent. The legislature’s unqualified use of the word “induce”
clearly informs persons of ordinary intelligence that any conduct, whether it be
physical or verbal, can potentially give rise to criminal liability. Although the
statute does not expressly mandate that the perpetrator intend to cause the
witness to alter or withhold his testimony, this implicit requirement is apparent
when the statute is read as a whole. By limiting the statute’s application to
situations where the perpetrator believes that an official proceeding is pending or
about to be instituted, the legislature indicated that it did not envisage outlawing
conduct that inadvertently convinces a witness to testify falsely or to refuse to
testify. The legislature’s choice of the verb “induce” connotes a volitional
component of the crime of tampering that would have been absent had it

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 employed a more neutral verb such as “cause.” Furthermore, the statute’s
application to unsuccessful, as well as successful, attempts to induce a witness to
render false testimony supports our conclusion that the statute focuses on the
mental state of the perpetrator to distinguish culpable conduct from innocent
conduct.

State v. Cavallo, 200 Conn. 664, 668-69 (1986) (emphasis added) (internal citations omitted);

see also id. at 672 (“[A] defendant is guilty of tampering with a witness only if he intends that

his conduct directly cause a particular witness to testify falsely or to refrain from testifying at

all.”). Further, Connecticut juries receive the following explicit instructions regarding the

specific intent requirement under CGS § 53a-151: “It is sufficient if the defendant specifically

intended by (his/her) conduct to cause a particular witness to testify falsely or to refrain from

testifying at all. A person acts ‘intentionally’ with respect to a result when (his/her) conscious

objective is to cause such result.” Conn. Crim. Jury Instructions § 4.5-3 (Nov. 1, 2008).

Higgins maintains, however, that CGS § 53a-151 cannot qualify as an “offense relating to

obstruction of justice” because CGS § 53a-151, unlike its federal counterpart, does not include a

specific provision clarifying that, in a prosecution for witness tampering, “it is an affirmative

defense, as to which the defendant has the burden of proof by a preponderance of the evidence,

that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to

encourage, induce, or cause the other person to testify truthfully.” 18 U.S.C. § 1512(e). This

argument is unavailing. The Connecticut statute criminalizes only the act of inducing or

attempting to induce a witness to testify “falsely” or to “withhold testimony.” CGS §

53a-151(a). Accordingly, if a Connecticut jury finds a defendant guilty under the statute, it

necessarily determined that the defendant was not encouraging the witness to testify truthfully.

Moreover, because the State of Connecticut is required to prove, as part of its case in chief, that

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the defendant sought to induce a witness to testify falsely or to withhold testimony, the

Connecticut statute is actually more protective of the defendant than the federal statute, which

places the burden of proof on the defendant to show that his intention was to encourage the other

person to testify truthfully. See 18 U.S.C. § 1512(e) (requiring the defendant to prove the

affirmative defense by a preponderance of the evidence).

Higgins’ principal remaining arguments -- that his conviction for witness tampering is

inconsistent with his acquittal on the underlying sexual assault charges and that he did not, in

fact, “obstruct justice” -- are easily dismissed because they amount to nothing more than

collateral attacks on his prior conviction. We have repeatedly held that such collateral attacks on

state convictions are not available in a petition for review of the agency’s final order of removal.

See Arriaga v. Mukasey, 521 F.3d 219, 224 (2d Cir. 2008) (“[C]ollateral attack on a state

criminal conviction is not available on a petition to review the BIA’s removal decision.”) (citing

Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004)).

CONCLUSION

We have considered Higgins’s remaining arguments and find them to be without merit.

Because CGS § 53a-151 fulfills the elements of the generic offense of “obstruction of justice,”

we conclude that a conviction under CGS § 53a-151 is categorically “an offense relating to

obstruction of justice” under 8 U.S.C. § 1101(a)(43). Thus, the BIA did not err in affirming the

IJ’s holding that Higgins’s conviction for witness tampering under Connecticut state law

qualified as an aggravated felony, and we therefore DISMISS the petition for review.

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KATZMANN, Circuit Judge, concurring:

I concur in the Court’s judgment and agree with its reasoning. I write separately simply

to add my views on the question the Court’s opinion does not reach, namely, whether we owe

deference to the BIA’s opinion in In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999).

In Espinoza-Gonzalez, the BIA interpreted the meaning of 8 U.S.C. § 1101(a)(43)(S), a

definitional section of the statute the BIA is charged with administering: the Immigration and

Nationality Act (“INA”). When reviewing the agency’s interpretation of the statute it

administers, we employ the familiar two step inquiry set forth in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984). At Chevron step one, we first

ask “whether Congress has directly spoken to the precise question at issue. If the intent of

Congress is clear, that is the end of the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” Id. at 842-43. If, however, “the

statute is silent or ambiguous with respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.

In this case, 8 U.S.C. § 1101(a)(43)(S) does not define the term “relating to obstruction

of justice” by reference to state law or to another portion of the United States Code; in fact,

Section 1101(a)(43)(S) does not define the phrase at all. The absence of a definition is

particularly significant here because many of the aggravated felonies listed in Section

1101(a)(43) are, in fact, defined by references to the United States Code. For example, the term

“illicit trafficking in a controlled substance” is defined by reference to Section 102 of the

Controlled Substances Act, 21 U.S.C. § 802. See 8 U.S.C. § 1101(a)(43)(B). Similarly, the

subsection regarding “illicit trafficking in firearms or destructive devices . . . or in explosive

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materials” specifically defines “destructive devices” by reference to 18 U.S.C. § 921, and

“explosive materials” by reference to 18 U.S.C. § 841(c). Indeed, many of the offenses listed

under 8 U.S.C. § 1101(a)(43) are described first by reference to provisions in the United States

Code, and only later by parenthetical descriptions of the general nature of the crime. See, e.g., 8

U.S.C. § 1101(a)(43) (H) (listing as an aggravated felony “an offense described in section 875,

876, 877, or 1202 of Title 18[, United States Code] (relating to the demand for or receipt of

ransom)”).

Only a minority of the subsections under 8 U.S.C. § 1101(a)(43) contain no description

or elaboration whatsoever. In addition to 8 U.S.C. § 1101(a)(43)(S), another undefined

subsection is 8 U.S.C. § 1101(a)(43)(A), which specifies that the crimes of “murder, rape, [and]

sexual abuse of a minor” are aggravated felonies. In interpreting the phrase “sexual abuse of a

minor,” the Third Circuit observed:

Section 1101(a)(43)(A) is devoid of any descriptive or restrictive parentheticals
and simply lists the crimes of “murder, rape, or sexual abuse of a minor” without
further definition. When contrasted with the structure of the statute as a whole,
such an omission is instructive, for it is typically understood that the legislature
proceeds purposefully when it inserts specific language in one statutory section
but omits it in another. In other § 1101(a)(43) sections, Congress specified certain
aggravated felonies by cross-referencing criminal statutory provisions. The fact
that it did not do so with “sexual abuse of a minor” indicates that it intended that
the phrase be given its common law definition. Alternatively, Congress may have
intended for the BIA to utilize its expertise to define the phrase, or it may have
inserted the generic phrase because the definition of sexual abuse of a minor
varies by state and federal law. In any case, the pertinent point is that the precise
definition of the phrase is most assuredly not clear and unambiguous.

Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 793 (3d Cir. 2010) (internal citations and footnote

omitted).

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 So too in this case, the INA is silent on the meaning of “relating to obstruction of

justice.” It includes no indication of what specific crimes, or even what types of crimes, may

qualify as “offenses relating to obstruction of justice.” Nor does the INA specify where one

should look for interpretive guidance. Thus, because the INA is silent with respect to the

specific issue at hand, I believe the statute is most assuredly not “clear and unambiguous,” see,

e.g., Bodansky v. Fifth on the Park Condo, LLC, 635 F.3d 75, 86 (2d Cir. 2011), and that we

must proceed to Chevron step two.

At Chevron step two, we must consider whether the agency’s resolution of the ambiguity

is based on a permissible construction of the statute. Chevron, 467 U.S. at 843. To uphold the

BIA’s interpretation, we “need not conclude that the agency construction was the only one it

permissibly could have adopted . . . or even the reading the court would have reached if the

question initially had arisen in a judicial proceeding.” Id. at 843 n.11. “Instead, we will defer to

the agency’s interpretation as long as that interpretation is reasonable.” Xia Fan Huang v.

Holder, 591 F.3d 124, 129 (2d Cir. 2010) (internal quotation marks omitted). In this case, I see

nothing unreasonable in BIA’s decision to derive the definition of “obstruction of justice” from

the series of federal offenses collectively entitled “Obstruction of Justice” in the United States

Code. As the BIA explained, “Congress did not adopt a generic descriptive phrase such as

‘obstructing justice’ or ‘obstruct justice,’ but chose instead a term of art utilized in the United

States Code to designate a specific list of crimes.” Espinoza-Gonzalez, 22 I. & N. at 893. It was

therefore logical for the BIA to look to this list of crimes to discern Congress’s intent.

That being said, however, there is no reason to defer to the BIA’s interpretation of the

federal obstruction-of-justice offenses. It is well established that “analysis of a federal criminal

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statute . . . [is] beyond the BIA’s administrative responsibility and expertise.” Mugalli v.

Ashcroft, 258 F.3d 52, 56 (2d Cir. 2001). Accordingly, I believe we must review de novo the

BIA’s conclusion that “[i]n general, the obstruction of justice offenses listed in 18 U.S.C. §§

1501-1518 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.” 22 I. & N. at 892.

On the question of deference, therefore, I would adopt an approach somewhere in

between the two adopted by our sister circuits. Unlike the Third Circuit, I believe the statute is

silent on the meaning of 8 U.S.C. § 1101(a)(43)(S), and that we must therefore defer to the

BIA’s construction of the statute, to the extent that it is within the domain of the agency’s special

expertise in immigration law, as long as it is reasonable. Unlike the Fifth and Ninth Circuits,

however, I would not simply defer to the BIA’s interpretation of the federal obstruction of justice

statues, over which the BIA has no special expertise, but rather review them de novo.

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