I’ve been reading court cases for 33 years, but have never seen one so refreshingly honest as Cordero-Garcia v. Garland, a Ninth Circuit decision with seriously convoluted jurisprudence. The majority opinion isn’t as interesting as Judge Lawrence VanDyke’s dissent, wherein he lays bare the frustrations that many — me included — have with that circuit’s decision-making. As the judge says, “Pass the popcorn.”
Criminal Alien Removal and the Categorical Approach. Before I begin, however, some background on legal interpretation.
In the Immigration and Nationality Act (INA), Congress has delineated certain categories of crimes that render aliens — even lawful permanent residents (LPRs) with “green cards” — removable from the United States. The most serious crimes are termed “aggravated felonies”.
There are 21 different categories of crimes designated as aggravated felonies in section 101(a)(43) of the INA, many of which have subcategories. They run the gamut from murder and rape to passport mutilation. Lawfully admitted aliens who have been convicted of one of those offenses are removable under section 237(a)(2)(A)(iii) of the INA.
While there are no corresponding aggravated felony inadmissibility grounds, aliens convicted of aggravated felonies are barred from certain forms of relief, including asylum and cancellation of removal.
The first problem with those grounds is that while immigration is a federal issue, most crimes are prosecuted at the state and local level. Consequently, Congress usually defines aggravated felonies broadly and leaves it up to DOJ and reviewing courts to determine whether those state and local offenses meet the INA definition.
To do that, courts employ a three-step “categorical approach”. The first step is identifying the elements of the generic federal offense. For example, the federal "generic” definition of burglary (an aggravated felony under section 101(a)(43)(G) of the INA) includes "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime”.
Second, the court identifies the elements of the criminal offense for which the alien was convicted. Many states have both statutory and common law crimes, and a common law burglary is defined as: “The breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony.”
In the third step, the court compares the criminal conviction statute to the generic definition of the offense to determine whether there is a “categorical match”, that is, to determine whether the state statute is the same as, or broader or narrower than, the generic federal definition.
An offense is an aggravated felony if the state statute includes the same or more elements than the generic definition, but not if certain elements are missing from the state offense as defined.
In the burglary scenario, the common law definition has more elements than the generic one, because a “dwelling house” is a specific building, the “crime to be committed” must be a felony, “breaking and entering” is a more specific act than just “unlawful entry”, and common law burglary can only happen at night, whereas the generic definition does not specify a time of day. So it’s an aggravated felony.
If that sounds simple, it sometimes is — but often isn’t, which leads me to the second problem courts encounter in applying federal removal grounds to state crimes.
States will leave it up to courts to flesh out criminal statutes, too. Certain elements of an offense are not listed in the state statutory definition, but are elements of the crime, included through reference to other statutes, in practice, or in caselaw. With respect to such statutes, the reviewing court must sort through precedential decisions to determine how the statute has been interpreted and applied.
A third problem arises when the INA definition is ambiguous and there’s no federal generic definition of the crime. Immigration judges (first), the Board of Immigration Appeals (BIA) (second), and the article III federal courts (last) must then craft one, usually from precedent or federal statutes.
Under Supreme Court precedent in Chevron v. Natural Resources Defense Council, circuit courts are supposed to defer to the BIA’s interpretation of such ambiguous statutes, but often don’t. In fact, different circuits may adopt different generic definitions. It’s then up to the Supreme Court to sort things out, which can take years.
The Facts and History. Which brings me to the Ninth Circuit’s decision in Cordero-Garcia. First, the facts and history of the case.
Cordero-Garcia is a Mexican national who was admitted to the United States in 1965 as an LPR. He started working for the Alcohol, Drug and Mental Health Service Department in Santa Barbara County, Calif., as a staff psychologist in 1990. It was in that role that he committed the crimes for which he was convicted.
The actual offenses with which he was accused are set forth in pages 29 through 31 of the decision, in Judge VanDyke’s dissent. As the judge explained: “It’s 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.” Trust me, that’s apt, but suffice it to say Cordero-Garcia abused his position of trust.
He was originally arrested in 2007 for rape by threat of use of public authority but was convicted in 2009 in state court in California for: one count of sexual battery without restraint, in violation of Cal Pen. C. § 243.4(e)(1); one count of sexual exploitation by a psychotherapist or drug abuse counselor, in violation of Cal. Bus. and Prof. C. § 729(a); and two counts of dissuading or attempting to dissuade a witness from reporting a crime, in violation of Cal. Pen. C. § 136.1(b)(1).
That latter penal code section makes it a crime “to prevent or dissuade another person who has been the victim of a crime” from “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”.
There was no pending investigation of his other criminal acts when he committed those offenses. In fact, he committed them to dissuade his victims from going to the authorities. The issue is whether that’s “an offense relating to obstruction of justice”, an aggravated felony under section 101(a)(43)(S) of the INA and the basis for the section 237(a)(2)(A)(iii) charge ICE included in his 2011 Notice to Appear.
Cordero-Garcia argued that he was not removable as charged, and in the alternative that he was eligible for cancellation of removal (which, as noted, aliens convicted of aggravated felonies are barred from receiving). The immigration judge found that he was removable as charged and ordered him removed.
The BIA dismissed his subsequent appeal, finding that his convictions for dissuading a witness were aggravated felonies as charged.
Cordero-Garcia filed a petition for review of the BIA’s order with the Ninth Circuit, which remanded the matter back to the BIA in 2016. The circuit court complained that the BIA had applied a new definition of “an offense relating to the obstruction of justice” for purposes of the aggravated felony provision in the INA, which raised “grave constitutional concerns”.
The BIA Precedent. The circuit directed the BIA to either come up with a new generic definition or apply its precedent decision in Matter of Espinoza (1999), which involved “misprision of felony”, the concealment of an offense by another after the fact. That ignored the fact that the BIA’s definition wasn’t new, that there were no constitutional concerns, and that, as Judge VanDyke explained, the Ninth Circuit itself was to blame.
In Matter of Espinoza, the BIA distinguished misprision from accessory after the fact — which it had held in Matter of Batista-Hernandez (1997) was an aggravated felony under section 101(a)(43)(S) of the INA — because accessory after the fact requires a specific purpose of hindering justice, which misprision does not. In other words, the crime of accessory after the fact must be done for a reason, while misprision doesn’t always.
Cordero-Garcia filed a second petition for review in 2017, and the government moved to remand the matter back to the BIA. While the BIA’s consideration on remand was pending in September 2018, it issued a new precedent decision on obstruction as an aggravated felony, Matter of Valenzuela Gallardo.
There (another Ninth Circuit remand as I will explain below), the BIA held that an “offense relating to obstruction of justice” under section 101(a)(43)(S) of INA includes any offense described in the federal “obstruction of justice” provisions in 18 U.S.C. §§ 1501 to 1521, or any other offense involving:
(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. [Emphasis added.]
Keep the highlighted part in mind.
In 2019, the BIA issued a new decision in Cordero-Garcia’s case, holding in accordance with Matter of Valenzuela Gallardo that his crimes were aggravated felonies. Specifically, it held that “there would be little reason for a person to try to prevent or dissuade a victim or witness from reporting the crime to appropriate authorities” under Cal. Pen. C. § 136.1(b)(1) “unless there was an investigation in progress or one was”, again, “reasonably foreseeable”.
The Ninth Circuit’s Decision. It was that BIA decision that Cordero-Garcia appealed, leading to the Ninth Circuit’s latest decision.
The court held that to constitute an “obstruction of justice” aggravated felony, the elements of the criminal offense must have a “nexus to an ongoing or pending proceeding or investigation”, which Cordero-Garcia’s crimes lacked.
In this regard, it concluded that section 101(a)(43)(S) of the INA “unambiguously does not extend to cover intentional interference with ‘reasonably foreseeable’ proceedings or investigations” (emphasis added), and thus the BIA’s determination to the contrary did not merit Chevron deference.
Further, the majority held, the alien’s crimes were not a match for tampering under 18 U.S.C. § 1512 because the state statute lacks the federal requirement that the actor “use intimidation, threatens, or corruptly persuades another person”, or “engage[d] in misleading conduct toward another person”.
Judge VanDyke’s Dissent. Enter Judge VanDyke, and his 30-page, sharp-tongued dissent.
It begins with a general complaint about the circuit’s “results-oriented judging”, in which he grouses that the court had “been whipsawing” the BIA for over a decade, “doing everything in [its] power (and much not) to upset the BIA’s consistent and reasonable interpretation of what constitutes ‘an offense related to obstruction of justice’”.
To prove those points, he next sets the stage:
To understand just how dirty our court has played to prevent the deportation of immigrants who have willingly interfered with our justice 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.
First, he analyzed Matter of Batista-Hernandez and Matter of Espinoza, countering the majority’s conclusion that the latter had added a requirement that the obstruction be related to an “ongoing proceeding or investigation” to the former. Again, the difference between the two had to do with the purpose of the offense (accessory after the fact versus misprision), not the pendency of an investigation.
He next turned to the circuit’s precedents on the issue, concluding that the court’s “train first jumped the tracks” in a 2011 decision that, he asserted, ignored Matter of Batista-Hernandez and “cherry-picked portions of” Matter of Espinoza to add a requirement that obstruction must include an element that there be an “ongoing proceeding or investigation” to satisfy section 101(a)(43)(S) of the INA.
Thereafter, he explained that the BIA tried to fix the circuit’s “bungled mess” in its first decision in Matter of Valenzuela-Gallardo (the earlier referenced one was the second) to clarify that the key element in the aggravated felony “obstruction” analysis is intent to interfere with the process of justice, and not evidence of ongoing investigations or proceedings.
The BIA there supported this conclusion by noting that there are offenses in the federal criminal “obstruction of justice” provisions, 18 U.S.C. §§ 1501 to 1521, that “clearly involve conduct that significantly precedes the onset of any official proceeding, even of an investigative nature”.
Judge VanDyke held that the Ninth Circuit “erroneously read” that decision as adopting a “new” obstruction definition that required no nexus to an ongoing investigation of proceeding (which it didn’t), and that it was this misreading that prompted the circuit’s concerns that the BIA’s definition was “unconstitutionally vague”.
To address that concern, Judge VanDyke explained, the BIA in its 2018 decision in Matter of Valenzuela Gallardo added the requirement that proceedings be “reasonably foreseeable” to qualify as aggravated felony obstruction.
He argued that the majority’s description of these BIA efforts to define “obstruction of justice” “was distorted and detached from reality, painting our court as a beacon of consistency and the BIA as fickler than Tom Brady in retirement”. Judge VanDyke then took off the gloves, stating flatly:
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. [Emphasis in original.]
Again, Article III courts are supposed to defer to the BIA’s interpretation of ambiguous statutes and, as Judge Van Dyke noted, the Ninth Circuit had “previously determined at least three times that” section 101(a)(43)(S) of the INA is, in fact, ambiguous.
Now shifting its position, he explained, the circuit had “discerned that” section 101(a)(43)(S) “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’”.
After recapping the Ninth Circuit’s various gyrations on the issue, Judge VanDyke exclaimed that his circuit had been “gasli[ghting] the BIA”, “pretend[ing]” the agency had been “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.”
After attacking the majority’s misreading of federal precedents, Judge VanDyke then turned on its misreading of state case law. He asserted his fellow judges had erroneously determined that Cal. Pen. C. 136.1(b)(1) criminalizes “innocent persuasion” by relying on a separate part of § 136.1 with different elements and concluded that Cordero-Garcia’s crime is a categorical match for federal obstruction of justice under 18 U.S.C. § 1512(b)(3), as the BIA had held.
Take Aways. I’ve practiced immigration in the Ninth Circuit, but always felt constrained in complaining about its “results-oriented judging” or about “how dirty” it “has played to prevent the deportation of immigrants who have willingly interfered with our justice system”. I am glad Judge VanDyke bravely did it for me.
More broadly, however, his dissent underscores serious problems inherent in our immigration laws. Congress has broadly prescribed certain criminal offenses as being grounds of removability, and then left it to the courts to divine its intent.
That’s what judges get paid to do, but Congress could assist the process by more precisely explaining what it means. The legislature could have referred to 18 U.S.C. §§ 1501 to 1521 in defining “an offense relating to obstruction of justice” on its own, for example. It did so in including “illicit trafficking in a controlled substance under 21 U.S.C. § 802” as an aggravated felony in section 101(a)(43)(B) of the INA.
That said, Congress could also limit the ability of circuit courts (and the Ninth Circuit in particular) to ignore reasonable interpretations of ambiguous INA provisions by the BIA. Chevron is a decision that circuits flaunt at their will, and the Supreme Court is too busy to stop them every time they try.
Even then, however, the categorical approach can be unwieldy, as Cordero-Garcia shows. Immigration judges and the BIA should be able to look at the alien’s actions in determining whether the alien is removable. At the present, they cannot.
Some former colleagues have suggested a simpler regime, in which two or more misdemeanors or a single felony will render an alien removable. That would require, at least with respect to certain offenses, some leeway to avoid incongruous results, but most immigration judges and BIA members can be trusted with discretion.
The circuit courts have too much power to reach absurd, results-oriented outcomes in immigration cases. That leads to wildly dissimilar outcomes depending on the circuit and the panel. Congress should address this discrepancy, and if it does, I will follow Judge VanDyke’s directive to “pass the popcorn” and watch.