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SCOTUS Announces Pending Investigation or Proceeding Is Not Required for an Offense to be ‘Related to Obstruction of Justice’ and Qualify as ‘Aggravated Felony’ in Removal of Noncitizen

by Douglas Ankney

Resolving a conflict among the U.S. Courts of Appeals, the Supreme Court of the United States (“SCOTUS”) held that a pending investigation or proceeding is not required for an offense to be “relat[ed] to the obstruction of justice” and considered “an aggravated felony” for the purposes of removal of a noncitizen under 8 U.S.C. § 1227(a)(2)(A)(iii).

In 2009, Mexican citizen Fernando Cordero-­Garcia was convicted in California state court of several offenses, including “dissuading a witness from reporting a crime.” In 2014, Mauritian citizen Jean Francois Pugin was convicted under Virginia law of “being an accessory after the fact to a felony.”

The U.S. Department of Homeland Security (“DHS”) charged both Cordero-­Garcia and Pugin as “removable from the United States on the ground that they had convictions for aggravated felonies – namely, offenses ‘relating to obstruction of justice.’” 8 U.S.C. §§ 1101(a)(43)(S), 1227(a)(2)(A)(iii). In each case, an Immigration Judge and the Board of Immigration Appeals ruled in favor of the DHS.

Cordero-­Garcia and Pugin each petitioned for review in the appropriate U.S. Court of Appeals. “In Cordero-­Garcia’s case, the Ninth Circuit concluded, in pertinent part, that his state conviction for dissuading a witness from reporting a crime did not constitute an offense ‘relating to obstruction of justice’ because the state offense did not require that an investigation or proceeding be pending.” Cordero-­Garcia v. Garland, 44 F.4th 1181 (9th Cir. 2022).

On the other hand, in Pugin’s case, “the Fourth Circuit concluded that his state conviction for accessory after the fact constituted an offense ‘relating to obstruction of justice’ even if the state offense did not require that an investigation or proceeding be pending.” Pugin v. Garland, 19 F.4th 437 (4th Cir. 2021). SCOTUS granted certiorari to resolve the Circuit conflict.

SCOTUS observed under “the Immigration and Nationality Act, noncitizens convicted of an ‘aggravated felony’ are removable from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). The Act defines ‘aggravated felony’ to cover a broad range of federal and state crimes.” Id. § 1101(a)(43). “Aggravated felony” includes offenses “relating to obstruction of justice, perjury, or subordination of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” Id. § 1101(a)(43)(S).

SCOTUS generally employs “the categorical approach to determine whether a prior conviction qualifies as an ‘aggravated felony’ under § 1101(a)(43).” Esquivel-­Quintana v. Sessions, 581 U.S. 385 (2017). “Under that approach, courts look to ‘the elements of the statute of conviction, not to the facts of each defendant’s conduct.’” Taylor v. United States, 495 U.S. 575 (1990). Obstruction of justice covers “‘the crime or act of willfully interfering with the process of justice and law,’ including ‘by influencing, threatening, harming, or impeding a witness, potential witness, juror, or judicial or legal officer or by furnishing false information in or otherwise impending an investigation or legal process.’” Merriam-­Webster’s Dictionary of Law (1996). “The offense ‘captures every willful act of corruption, intimidation, or force that tends somehow to impair the machinery of civil or criminal law.’” B. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995).

The Court noted notably “missing from those dictionary definitions is a requirement that an investigation or proceeding be pending. The dictionaries demonstrate that obstruction of justice includes offenses where an investigation or proceeding is pending, but is not limited to offenses where an investigation or proceeding is pending.” (Emphasis original.)

The Court explained “Title 18 of the U.S. Code has long proscribed various obstruction offenses that do not require a pending investigation or proceeding. Entitled ‘Obstruction of Justice,’ Chapter 73 of Title 18 houses many such offenses. For example, the federal witness tampering statute covers various offenses, such as killing or threatening a witness with an intent to prevent the person from testifying at an official proceeding. See 18 U.S.C. §§ 1512(a)(1)(A), (b)(1). That statute provides that ‘an official proceeding need not be pending or about to be instituted at the time of an offense.’ § 1512(f)(1). Likewise, § 1519 forbids assorted means of destroying, altering, or falsifying records with an intent to obstruct certain investigations or proceedings. That provision covers acts intended to impede a federal investigation or proceeding, ‘including one not even on the verge of commencement.’” Yates v. United States, 574 U.S. 528 (2015).

Additionally, the Model Penal Code “generally does not require that an investigation or proceeding be pending” for obstruction of justice offenses, the Court explained. “For witness tampering, for example, the Model Penal Code focuses on an actor’s intent to tamper with a witness, not whether an investigation or proceeding is pending.” ALI, Model Penal Code § 241.6, Comment 2.

The Court reasoned that “if an offense ‘relating to obstruction of justice’ under § 1101(a)(43)(S) required that an investigation or proceeding be pending, then many common obstruction offenses would not qualify as aggravated felonies under that provision.” The Court declined “to interpret § 1101(a)(43)(S) to exclude numerous heartland obstruction offenses.” SCOTUS “should not lightly conclude that Congress enacted a self-­defeating statute.” Quarles v. United States, 139 S. Ct. 1872 (2019).

Finally, in the phrase “relating to obstruction of justice” of § 1101(a)(43)(S), the term “‘relating to’ ensures that this statute covers offenses that have ‘a connection with’ obstruction of justice – which surely covers common obstruction offenses that can occur when an investigation or proceeding is not pending.” Coventry Health Care of Mo., Inc. v. Nevils,581 U.S. 87 (2017).

Thus, the Court concluded that an offense “relating to obstruction of justice under § 1101(a)(43)(S) does not require that an investigation or proceeding be pending.”

Accordingly, the Court affirmed the judgment of the Fourth Circuit, reversed the judgment of the Ninth Circuit, and remanded Cordero-­Garcia’s case for further proceedings consistent with the instant opinion. See: Pugin v. Garland, 143 S. Ct. 1833 (2023).  

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