VALENZUELA GALLARDO

 Cite as 

 (BIA 2018)                                 Interim Decision #3936




   Matter of Agustin VALENZUELA GALLARDO, Respondent
                             Decided September 11, 2018
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


(1) An “offense relating to obstruction of justice” under section 101(a)(43)(S) of the
   Immigration and Nationality Act, 

(a)(43)(S) (2012), encompasses
   offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521
   (2012), or 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. Matter
   of Valenzuela Gallardo, 

 (BIA 2012), clarified.
(2) A conviction for accessory to a felony under section 32 of the California Penal Code
   that results in a term of imprisonment of at least 1 year is a conviction for an aggravated
   felony offense relating to obstruction of justice under section 101(a)(43)(S) of the Act.
FOR RESPONDENT: Frank P. Sprouls, Esquire
FOR THE DEPARTMENT OF HOMELAND SECURITY:                               Donald W. Cassidy,
Associate Legal Advisor
BEFORE: Board Panel: GUENDELSBERGER, MALPHRUS, LIEBOWITZ, Board
Members.
MALPHRUS, Board Member:


    This case is before us on remand from the United States Court of Appeals
for the Ninth Circuit for further consideration of the respondent’s
removability under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 

(a)(2)(A)(iii) (2012), as an alien convicted
of an aggravated felony. Valenzuela Gallardo v. Lynch, 

 (9th
Cir. 2016). The respondent’s appeal will be dismissed.

              I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident on May 23, 2002. On
December 28, 2007, he was convicted of accessory to a felony in violation
of section 32 of the California Penal Code and was sentenced to 16 months


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in prison. 1 Based on this conviction, the respondent was placed in removal
proceedings where an Immigration Judge found him removable under section
237(a)(2)(A)(iii) of the Act, as an alien convicted of an aggravated felony
offense relating to obstruction of justice under section 101(a)(43)(S) of the
Act, 

(a)(43)(S) (2012). The respondent contested his
removability before the Immigration Judge, arguing that his conviction was
not an offense relating to obstruction of justice because it did not relate to an
ongoing judicial proceeding, and he filed a motion to terminate his
proceedings. The Immigration Judge found that the definition of an offense
relating to obstruction of justice under the Act is not limited to obstruction
offenses involving an ongoing judicial proceeding. He then denied the
respondent’s motion and ordered him removed to Mexico.
    We dismissed the respondent’s appeal from the Immigration Judge’s
decision and denied his motion to reconsider our order in this regard. On
May 17, 2011, the Ninth Circuit issued its decision in Trung Thanh Hoang
v. Holder, 

 (9th Cir. 2011). In that case, the court looked to
our two prior precedents interpreting section 101(a)(43)(S) and held that a
crime is an offense relating to obstruction of justice under that provision
when “it interferes with an ongoing proceeding or investigation.” 

.
    In light of the Ninth Circuit’s decision in Hoang, we sua sponte reopened
the respondent’s appeal for further consideration of his removability.
On June 27, 2012, we issued a published decision, clarifying our prior
precedents interpreting section 101(a)(43)(S) of the Act and holding that an
offense relating to obstruction of justice must have as an element “the
affirmative and intentional attempt, with specific intent, to interfere with the
process of justice . . . . [T]he existence of [an ongoing criminal investigation
or trial] is not an essential element of ‘an offense relating to obstruction of
justice.’” Matter of Valenzuela Gallardo, 

 (BIA 2012)
(emphasis added) (citation omitted). Because a violator of section 32 of the
California Penal Code must act with the intent to aid a principal in avoiding
arrest, trial, conviction, or punishment, we concluded that the respondent’s
State crime has as an element the affirmative and intentional attempt, with
specific intent, to interfere with the process of justice and is therefore an
offense relating to obstruction of justice. See 

 at 841–42.
1
   At the time of the respondent’s conviction, section 32 of the California Penal Code
provided:

        Every 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.


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    The respondent filed a petition for review of our decision, which the
Ninth Circuit granted, concluding that our definition of “an offense relating
to obstruction of justice” is impermissibly “vague” because it does “not
give[] an indication of what it does include in ‘the process of justice,’
or where that process begins and ends.” Valenzuela Gallardo, 

. Based on this conclusion, the court remanded the case to us either
“for consideration of a new construction or application of the interpretation
[of section 101(a)(43)(S) we] previously announced in” Matter of Espinoza,

 (BIA 1999), to which the Ninth Circuit had deferred in
Hoang, 

. Valenzuela Gallardo, 818 F.3d at 812–13.

                                   II. ANALYSIS
    Section 101(a)(43)(S) of the Act defines an aggravated felony as
“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.” To establish whether the respondent’s conviction is for
“an offense relating to obstruction of justice” under section 101(a)(43)(S),
we apply the categorical approach by focusing on whether the elements of
his State statute of conviction proscribe conduct that categorically falls
within the Federal generic definition of an offense relating to obstruction of
justice. See Mathis v. United States, 

 (2016).
    The Ninth Circuit found the “phrase . . . ‘process of justice’” in the
generic definition of an offense relating to obstruction of justice we
articulated in Matter of Valenzuela Gallardo to be “amorphous.” Valenzuela
Gallardo, 

. The court stated, “Absent some indication of the
contours of ‘process of justice,’ an unpredictable variety of specific intent
crimes could fall within it, leaving us unable to determine what crimes make
a criminal defendant deportable under [section] 101(a)(43)(S) and what
crimes do not.” 

. 2 We respectfully take the opportunity to clarify
our prior precedents regarding the contours of the generic definition of an
aggravated felony offense relating to obstruction of justice under section
101(a)(43)(S) of the Act. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
2
   In the wake of the Ninth Circuit’s determination that the phrase “process of justice” in
our definition of an offense relating to obstruction of justice is impermissibly vague, the
Fifth and Seventh Circuits have declined to defer to our decision in Matter of Valenzuela
Gallardo. See Victoria-Faustino v. Sessions, 

 (7th Cir. 2017) (applying
the definition outlined in Matter of Espinoza); Cruz v. Sessions, 

(5th Cir. 2017) (per curiam) (remanding an alien’s petition for review to us for further
proceedings because we had relied on “the now-vacated Valenzuela Gallardo decision”
but reserving judgment “as to whether the Ninth Circuit’s ruling was correctly decided or
whether Valenzuela Gallardo provided an appropriate standard”).


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Inc., 

 (1984); see also Nat’l Cable & Telecomms. Ass’n
v. Brand X Internet Servs., 

 (2005).
    The Ninth Circuit has recognized that the language of section
101(a)(43)(S) is ambiguous because it does not clearly answer whether an
offense relating to obstruction of justice must involve interference in an
ongoing investigation or proceeding. See Valenzuela Gallardo, 818 F.3d
at 815–19, 824; 3 see also Matter of Valenzuela Gallardo, 

 (citing Hoang, 641 F.3d at 1060–61). Because that language is
susceptible to varying interpretations in this regard, it is our duty to resolve
any “ambiguities in [that] statute[]” and “to fill the statutory gap in
reasonable fashion.” Negusie v. Holder, 

 (2009) (citation
omitted) (internal quotation mark omitted); see also, e.g., Matter of
Richmond, 

 (BIA 2016).
    The Act does not define the phrase “obstruction of justice.” We therefore
find it appropriate to adopt a generic definition “based on the ‘generic,
contemporary meaning’ of [that phrase] at the time the statute was enacted.”
Matter of Sanchez-Lopez, 

, 260–61 (BIA 2018) (citation
omitted); see also Taylor v. United States, 

 (1990). To do
so, we survey Federal and State law, 4 Federal sentencing guidelines, the
3
   The court found that our interpretation of section 101(a)(43)(S) was impermissibly
vague after applying the canon of constitutional avoidance. See Valenzuela Gallardo, 818
F.3d at 815–19. This canon only applies to ambiguous statutes, “susceptible [to] more than
one plausible construction.” Jennings v. Rodriguez, 

 (2018) (citation
omitted) (internal quotation mark omitted). The Third Circuit is the only court that has
concluded that the phrase “an offense relating to obstruction of justice” under section
101(a)(43)(S) is unambiguous, and, for this reason, it does not defer to our interpretation
of that phrase. See, e.g., Flores v. Att’y Gen. U.S., 

, 287 n.23 (3d Cir. 2017).
4
   State law is of limited benefit to our analysis because there is no discernible pattern in
how the States treated the concept of obstruction of justice in their criminal statutes in 1996,
and thus we will primarily look to Federal law for guidance. When section 101(a)(43)(S)
was enacted, only 17 States used phrases like “obstruction of justice” and “obstructing
justice” to define certain crimes. See 

-101–116 (1996); 

.01–.19 (1996); 

 (1996); 720 Ill. Comp. Stat. 5/31-4
(1996); 

 (1996); 

.1–.8 (1996); La. Rev. Stat. Ann.
§ 14:130.1 (1996); Miss. Code. Ann. § 97-9-55 (1996); 

(1996); 

-221–227 (1996); 

 (1996);
R.I. Gen. Laws §§ 11-32-1–7 (1996); 

-601–609 (1996); 

 (1996); 

 (1996); 

 (1996); 

 (1996). Of these jurisdictions, three States limited
the concept of obstruction of justice to offenses involving interference in a pending or
ongoing investigation or judicial proceeding. See 

; 

; 

. The remaining jurisdictions extended this concept to
offenses involving interference with a criminal investigation or a reasonably foreseeable
proceeding. See 

 (proscribing accessory to a crime); Fla. Stat.


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Model Penal Code, and scholarly commentary to determine the common
meaning of the phrase “obstruction of justice” in 1996, when section
101(a)(43)(S) was enacted. 5 See Matter of Alvarado, 

(BIA 2016); see also Esquivel-Quintana v. Sessions, 

,
1570–72 (2017) (employing a similar analysis to discern the definition for
“sexual abuse of a minor” under section 101(a)(43)(A) of the Act).

                A. Interference in an Investigation or Proceeding

    We have previously looked to chapter 73 of the Federal criminal code,
see 18 U.S.C. §§ 1501–1520 (2006), which lists a number of offenses under
the heading “Obstruction of Justice,” for guidance regarding the contours of
section 101(a)(43)(S). See Matter of Valenzuela Gallardo, 26 I&N Dec.
at 842–43; see also Matter of Espinoza, 22 I&N Dec. at 892–94 & n.4. Many
of the provisions listed under chapter 73 require interference in an ongoing
investigation or proceeding. See Matter of Espinoza, 

.
“The intent of the two broadest provisions, § 1503 (prohibiting persons from

§§ 843.01, .02, .08 (criminalizing obstructing or impersonating a police officer
investigating a crime); 

.1–.2 (resisting arrest and failing or refusing to
assist an officer in making an arrest); La. Rev. Stat. Ann. § 14:130.1 (“The crime of
obstruction of justice is . . . committed with the knowledge that such act has, reasonably
may, or will affect an actual or potential present, past, or future criminal proceeding . . . .”
(emphases added)); 

(2)(a)–(b) (criminalizing, inter alia,
harboring, concealing, or warning an offender of “impending discovery or apprehension”
(emphasis added)); 

, 225 (resisting arrest and false reporting to a
police officer); 

(A)(1), (3) (same); R.I. Gen. Laws
§§ 11-32-1, -2 (obstructing an officer in the execution of his or her duties and false
reporting of a crime); 

 (evading arrest); 

(b), (e) (harboring, concealing, or warning an offender of impending discovery
or apprehension); People v. Jenkins, 

, 1240–41 (Ill. App. Ct. 2012)
(indicating that an individual may be convicted of obstruction of justice for furnishing false
information to a police officer immediately after a crime has been committed but before it
has been discovered); Wilbourn v. State, 

, 425–26 (Miss. 1964) (suggesting
that obstructing justice extends to interference with a police investigation before a judicial
proceeding is instituted as long as that interference is accompanied by “threats, force or
abuse”); State v. O’Neill, 

 (Vt. 1996) (holding that “advocating the
making of false statements and destroying material evidence” qualifies as obstruction of
justice because the Vermont statute at issue “makes no reference to a ‘pending proceeding’
requirement, and such a requirement is not necessary to reasonably limit the law to a proper
scope”); Turner v. Commonwealth, 

 (Va. Ct. App. 1995) (indicating
that obstructing law enforcement officers in the lawful discharge of their duties does not
require proof of interference in an ongoing or pending proceeding).
5
   Section 101(a)(43)(S) was added to the Act by section 440(e)(8) of the Antiterrorism
and Effective Death Penalty Act of 1996, 

 Stat. 1214, 1276–78.


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influencing or injuring an officer or juror generally) and § 1510 (prohibiting
obstruction of criminal investigations), is to protect individuals assisting in a
federal investigation or judicial proceeding and to prevent a miscarriage of
justice in any case pending in a federal court.” Id. 6
    However, several crimes proscribed under chapter 73 do not contain this
limitation. See 

, 1519 (2012). In fact, prior to the
enactment of section 101(a)(43)(S), chapter 73 proscribed, among other
things, the knowing use of intimidation, physical force, threats, corrupt
persuasion, or misleading conduct

        toward another person, with the intent to—
            (1) influence, delay, or prevent the testimony of any person in an official
          proceeding;
            (2) cause or induce a person to—
              ....
              (B) alter, destroy, mutilate, or conceal an object with intent to impair the
            object’s integrity or availability for use in an official proceeding; [or]
              ....
            (3) hinder, delay, or prevent the communication to a law enforcement officer or
          judge of the United States of information relating to the commission or possible
          commission of a Federal offense or a violation of conditions of probation, parole,
          or release pending judicial proceedings . . . .

(b) (1994) (emphases added).
   It also proscribed intentionally harassing another and thereby hindering,
delaying, preventing, or dissuading another person from


6
    Interpreting § 1503, which proscribes, inter alia, “obstruct[ing], or imped[ing] the due
administration of justice,” the Supreme Court held that a violator of that provision must
take action “with an intent to influence judicial or grand jury proceedings.” United States
v. Aguilar, 

, 598–99 (1995). Likewise, the Supreme Court recently concluded
that the phrase “obstruct or imped[e] the due administration of [the Internal Revenue
Code]” in 

(a) (2012) “refers to specific interference with targeted
governmental tax-related proceedings, such as a particular investigation or audit.”
Marinello v. United States, 

 (2018) (first alteration in original).
However, the Court in Marinello ultimately held that such a proceeding need not be
“pending at the time the defendant engaged in the obstructive conduct [as long as it] was
then reasonably foreseeable by the defendant.” 

 (emphasis added).
Significantly, the decisions in Aguilar and Marinello were based on the fact that the object
of the word “obstruct” in §§ 1503 and 7212(a) was “the due administration of” justice or a
particular title of the United States Code, respectively. Id. at 1106. By contrast, the object
of “obstruction” in section 101(a)(43)(S) is simply the word “justice,” suggesting that
Congress intended section 101(a)(43)(S) of the Act to apply more broadly than the
provisions at issue in Aguilar and Marinello.


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            (2) reporting to a law enforcement officer or judge of the United States the
          commission or possible commission of a Federal offense or a violation of
          conditions of probation, parole, or release pending judicial proceedings;
            (3) arresting or seeking the arrest of another person in connection with a Federal
          offense; . . .
            ....
        or attempt[ing] to do so . . . .

(c) (emphasis added).
    For purposes of these crimes, “an official proceeding need not be pending
or about to be instituted at the time of th[e] offense.” 

(e)(1)
(emphasis added); 7 see also, e.g., United States v. Scaife, 

(6th Cir. 1984). Moreover, prior to the enactment of section 101(a)(43)(S),
it was well settled that interference in an ongoing or pending proceeding was
not a necessary element of the crimes listed in § 1512—rather, the
Government needed only to establish that an individual acted with the intent
to frustrate an investigation or proceeding that he or she believed might be
instituted. See, e.g., United States v. Stansfield, 

 (3d Cir.
1996) (collecting cases), abrogation recognized by United States v. Tyler,

, 251–52 (3d Cir. 2013).
    Following the enactment of section 101(a)(43)(S), courts continued to
hold that interference in an ongoing or pending investigation or proceeding
was not a necessary element of § 1512, finding that interference in a
reasonably foreseeable investigation or proceeding may be sufficient. See
Arthur Andersen LLP v. United States, 

, 707–08 (2005)
(requiring the Government to prove that a proceeding was “foreseen” to
convict a defendant of persuading others to shred documents under § 1512);
United States v. Veal, 

 (11th Cir. 1998) (providing that
§ 1512 “does not depend on the existence or imminency of a federal case or
investigation but rather on the possible existence of a federal crime and a
defendant’s intention to thwart an inquiry into that crime”), abrogation
recognized by United States v. Chafin, 

 (11th Cir. 2015).
Recently, the Supreme Court in Marinello v. United States, 

 (2018), synthesized the Court’s prior precedents interpreting offenses
under chapter 73 and concluded that the Government must show that the
proceeding was, at least, “reasonably foreseeable by the defendant” at the
time of the obstructive conduct. (Emphasis added.)

7
   This language was originally added to the statute by section 4(a) of the Victim and
Witness Protection Act of 1982, 

 Stat. 1248, 1249–50 (codified at

(d)(1) (1982)). It was redesignated as § 1512(e)(1) and later as
§ 1512(f)(1). See Corporate Fraud Accountability Act of 2002, 

, 

, 807; Criminal Law and Procedures Technical Amendment 1986,

, 

, 3614.

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    Finally, the relevant legislative history indicates that Congress intended
§ 1512 to reach obstruction offenses committed prior to the commencement
of any investigation by law enforcement. S. Rep. No. 97-532, at 19 (1982),
as reprinted in 1982 U.S.C.C.A.N. 2515, 2525 (stating that this provision is
intended to “specifically reach[] intimidation offenses committed before
a crime is reported to the appropriate authorities” (emphasis added)). It is
reasonable to presume that Congress was aware of the legislative history of
§ 1512 and long-standing judicial interpretations of that provision when it
enacted section 101(a)(43)(S) of the Act.
    Based on the foregoing analysis of chapter 73, we conclude 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” under the Act. 8 Rather, it intended an offense relating to
obstruction of justice to cover crimes involving (1) an affirmative and
intentional attempt (2) that is motivated by a specific intent (3) to interfere
with an investigation or proceeding that is ongoing, pending, or “reasonably
foreseeable by the defendant.” Marinello, 

; Aguilar, 

 (“[I]f the defendant lacks knowledge that his actions are likely
to affect the judicial proceeding, he lacks the requisite intent to obstruct.”
(emphasis added)). 9 If we were to conclude otherwise, a conviction for either
witness tampering under § 1512 or obstruction of a Federal investigation
under § 1519 would never be a predicate for removal under section
101(a)(43)(S). See Descamps v. United States, 

 (2013)
(holding that where a statute of conviction is missing an element of the
generic offense, “a person convicted under that statute is never convicted of
the generic crime”). It is highly unlikely that Congress intended this result. 10
8
    In 2002, Congress expanded chapter 73 by adding § 1519, which proscribes obstructing,
among other things, “the investigation or proper administration of any matter within the
jurisdiction of any department or agency of the United States.” See Corporate and Criminal
Fraud Accountability Act of 2002, 

(a), 

, 800. This
“section covers conduct intended to impede any federal investigation or proceeding,
including one not even on the verge of commencement.” Yates v. United States, 

 (2015) (emphases added). The addition of § 1519 further indicates that
Congress did not intend interference in an ongoing or pending investigation or proceeding
to be a necessary element of “obstruction of justice” when it enacted section 101(a)(43)(S).
9
    Accordingly, when we stated that an offense relating to obstruction of justice under the
Act must “interfere with the process of justice’” in Matter of Valenzuela Gallardo, 

 (quoting Matter of Espinoza, 

), we should have said that
section 101(a)(43)(S) reaches crimes that interfere with an investigation or proceeding that
is ongoing, pending, or reasonably foreseeable by the defendant.
10
    Because Congress did not intend an ongoing or pending investigation or proceeding to
be a necessary element of obstruction of justice offenses in section 101(a)(43)(S), the fact
that the phrase “obstruction of justice” in that provision appears alongside “perjury” and


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                           B. Accessory After the Fact

    Chapter 73 provides important guidance for discerning the common
understanding of the phrase “obstruction of justice” when Congress enacted
section 101(a)(43)(S), and we agree with the Ninth Circuit that there must be
limits on what offenses this phrase covers. However, it is not reasonable to
conclude that Congress intended chapter 73 to be our sole reference under
Federal law. We believe that 

 (1994), which proscribes
accessory after the fact but is not part of chapter 73, is also important for
discerning the commonly understood meaning of the phrase “obstruction of
justice” in the Act. In fact, the nature and elements of this crime are critical
to understanding the full contours of the phrase “obstruction of justice”
outside of chapter 73.
    According to § 3, “Whoever, knowing that an offense against the United
States has been committed, receives, relieves, comforts or assists the offender
in order to hinder or prevent his apprehension, trial or punishment, is an
accessory after the fact.” 11 An individual may be convicted of accessory
after the fact under § 3 if he acts with the specific intent to interfere in an
ongoing, pending, or reasonably foreseeable investigation or proceeding.
See United States v. Lopez, 

 (9th Cir. 2007) (interpreting
§ 3 as requiring the “specific intent to frustrate law enforcement” (emphasis
added)); see also 2 Wayne R. LaFave, Substantive Criminal Law § 13.6(a)
(3d ed. Oct. 2017) (same). The plain language of this provision also
encompasses knowingly assisting an individual convicted of a crime with the
specific intent to interfere in his punishment resulting from a completed
proceeding. See Matter of Batista-Hernandez, 

 (BIA
1997); see also United States v. Hobson, 

 (9th Cir. 1975)
(concluding that individuals who assisted a convict following his escape
from prison were guilty of accessory after the fact).
    For more than half a century, the crime of accessory after the fact under
Federal and State law has been regarded as a form of obstruction of justice.
See Virgin Islands v. Aquino, 

 (3d Cir. 1967); LaFave,
supra, § 13.1 (“[T]he accessory after the fact is . . . one who has obstructed
justice . . . .” (citing State v. Rundle, 

 (Wis. 1993)));
4 Wharton’s Criminal Law, § 570 (15th ed. Sept. 2017) (“This kind of
accessory is coming to be recognized for what he is: an ‘obstructer’ of
justice . . . .” (citing, inter alia, State v. Lynch, 

 (N.J. 1979))).


“bribery” (criminal offenses “tied to proceedings”) does not persuasively inform our
understanding of Congress’ intent for that phrase. Valenzuela Gallardo, 

.
11
   This provision has remained unchanged since it was added to the United States Code
by section 3 of Crimes and Criminal Procedure, ch. 645, 

, 684 (1948).

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    In fact, when section 101(a)(43)(S) was enacted, there was a consensus
among the Federal courts, and the drafters of the Federal Sentencing
Guidelines and the Model Penal Code, that accessory after the fact under
§ 3 was a form of obstruction of justice. For instance, it was well settled in
most Federal circuit courts in 1996 that “[t]he gist of being an accessory after
the fact” under § 3 “lies essentially in obstructing justice by rendering
assistance to hinder or prevent the arrest of the offender after he [or she] has
committed the crime.” United States v. Brown, 

 (8th Cir.
1994) (emphasis added) (citation omitted); see also United States v. Huppert,

 (11th Cir. 1990) (same), superseded by statute as
recognized by United States v. McQueen, 

 (11th Cir. 1996);
United States v. Balano, 

 (10th Cir. 1979) (same),
abrogated on other grounds by Richardson v. United States, 

 (1984); United States v. Willis, 

 (5th Cir. 1977)
(per curiam) (same); United States v. Barlow, 

, 1252–53
(D.C. Cir. 1972) (same); 12 Aquino, 

 (interpreting the Virgin
Islands accessory statute and concluding that “[a]n accessory after the fact is
one who, knowing that a crime has been committed, obstructs justice by
giving comfort or assistance to the offender in order to hinder or prevent his
apprehension or punishment” (emphasis added) (citation omitted)). 13
12
   We previously cited Barlow for the proposition that an offense under § 3 is an
aggravated felony under section 101(a)(43)(S) of the Act, observing that a conviction under
this section “clearly relates to obstruction of justice” since “the statute criminalizes actions
knowingly taken to ‘hinder or prevent [another’s] apprehension, trial or punishment.’”
Matter of Batista-Hernandez, 

 (alteration in original) (citation omitted).
13
   Of the 17 States that used “obstruction of justice” or “obstructing justice” in their
statutes to define certain crimes in 1996, only 4 explicitly proscribed conduct punishable
as accessory after the fact under § 3. See 

; 

(a)–(b); 

(A)(1), (3); 

(b), (e). However, a survey of relevant State case law reflects that, prior to the
enactment of section 101(a)(43)(S), another 10 States viewed conduct punishable under
§ 3 as a form of obstruction of justice. See Staten v. State, 

 (Fla. 1988)
(“The accessory after the fact is no longer treated as a party to the crime but has come to
be recognized as the actor in a separate and independent crime, obstruction of justice.”
(emphasis added) (citation omitted)), superseded by statute as stated in Bowen v. State,

 (Fla. Dist. Ct. App. 2001); Moore v. State, 

, 69–70
(Ga. 1977) (same), overruled on other grounds by Jarrett v. State, 

(Ga. 1995); People v. Jones, 

 (Ill. App. Ct. 1980) (same); State
v. Chism, 

, 467 n.2 (La. 1983) (same); Osborne v. State, 

(Md. 1985) (same), abrogated on other grounds by State v. Hawkins, 

(Md. 1992); State v. Brown, 

, 649–50 & n.8 (Mo. Ct. App. 2018) (noting
that, in 1979, the Missouri Legislature enacted a statute proscribing harboring, concealing,
or warning an offender of impending discovery or apprehension, which based liability on
a theory of “obstruction of justice”), reh’g denied (Feb. 13, 2018); Lynch, 

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    Looking to the United States Sentencing Guidelines Manual that was in
effect at the time Congress enacted section 101(a)(43)(S), the commentary
to section 2J1.2 of those guidelines, titled “Obstruction of Justice,” further
illustrates that accessory after the fact was regarded as a form of obstruction
of justice in 1996. Specifically, the drafters of section 2J1.2 cross-referenced
the guideline for “Accessory After the Fact” in that section because “the
conduct covered by [this section] is frequently part of an effort to avoid
punishment for an offense that the defendant has committed or to assist
another person to escape punishment for an offense.” U.S. Sentencing
Guidelines Manual § 2J1.2 cmt. background (U.S. Sentencing Comm’n
1995) (emphasis added).
    The Model Penal Code also supports our conclusion that an accessory
after the fact was commonly understood to have obstructed justice in 1996.
Notably, when section 101(a)(43)(S) was added to the Act, the Model Penal
Code listed “Hindering Apprehension or Prosecution”—a crime proscribing
conduct identical to accessory after the fact under § 3 in all relevant
respects—under Article 242, which is titled “Obstructing Governmental
Operations; Escapes.” Model Penal Code § 242.3 (1985). The Model Penal
Code additionally stated that one who hinders the apprehension or
prosecution of another is not treated as a principal to the underlying crime,
“but is convicted . . . for an independent offense of obstruction of justice.”
Model Penal Code art. 242 (emphasis added).
    Under these circumstances, it is highly unlikely that Congress intended
to exclude the crime of accessory after the fact under § 3 from the phrase
“obstruction of justice” in section 101(a)(43)(S) when it enacted that
provision. Limiting our analysis to chapter 73 in discerning the common
understanding of that phrase would therefore be unreasonably restrictive. 14
While we recognize that chapter 73 is titled “Obstruction of Justice,” that fact
alone does not conclusively settle what “obstruction of justice” offenses
Congress had in mind when it enacted section 101(a)(43)(S). See Trainmen
v. Baltimore & O. R. Co., 

 (1947) (explaining that, while a
heading within a statute may be instructive, it does not conclusively settle
that statute’s meaning); see also Matter of Alvarado, 26 I&N Dec. at 897
(holding that 

 (2012), which is titled “Perjury generally,”
at 634–35 (viewing an accessory after the fact as an obstructer of justice); State v. Sliger,
No. 24, 

, at *6–7 (Tenn. June 17, 1991) (same); State v. Petry, 

 (W. Va. 1980) (same); Rundle, 

 (same).
14
   We note that the Ninth Circuit has concluded that failure to appear under 

 (2006) is an offense relating to obstruction of justice under section 101(a)(43)(S),
even though it is not explicitly listed in chapter 73. See Renteria-Morales v. Mukasey, 

 (9th Cir. 2008); see also Alwan v. Ashcroft, 

(5th Cir. 2004) (holding that contempt of court under of 

(3) (2000) is an
aggravated felony offense relating to obstruction of justice).

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does not provide the sole reference for discerning the common understanding
of the term “perjury” in 1996 for purposes of section 101(a)(43)(S)).
    Furthermore, if Congress intended to limit the phrase “obstruction
of justice” to the crimes listed in chapter 73, it could have done so by listing
the relevant sections of the United States Code in section 101(a)(43)(S) of
the Act, as it did in other parts of section 101(a)(43) of the Act. See sections
101(a)(43)(B)–(F), (H)–(P) of the Act; Keene Corp. v. United States, 

 (1993) (“[W]here Congress includes particular language in one
section of a statute but omits it in another . . . , it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion
or exclusion.” (citation omitted)). Significantly, the Supreme Court recently
declined to use 

 (2012), which criminalizes “[s]exual abuse
of a minor or ward,” as “the complete or exclusive definition” of “sexual
abuse of a minor” under section 101(a)(43)(A) because that provision of the
Act “does not cross-reference § 2243(a), whereas many other aggravated
felonies in the [Act] are defined by cross-reference to other provisions of the
United States Code.” Esquivel-Quintana, 

.

                                C. Application

   In light of the foregoing, we respectfully clarify our definition
of “an offense relating to obstruction of justice” in Matter of Valenzuela
Gallardo. See Chevron, 

; see also Brand X, 

. This
definition consists of offenses covered by chapter 73 of the Federal criminal
code or 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.
   This definition is consistent with our prior holdings regarding the limited
contours of the phrase “obstruction of justice.” For example, it does not
cover “every offense that, by its nature, would tend to ‘obstruct justice.’”
Matter of Espinoza, 

; see also Matter of
Batista-Hernandez, 

. 15 Rather, it is limited to crimes
involving the generic definition articulated above. Consistent with our
holding in Espinoza, misprision of a felony under 

 (2012),
which proscribes concealing a known felony from authorities, would not
qualify as an aggravated felony under this definition because, although that
crime “has as an element the affirmative concealment of the felony, . . .
15
   To the extent that Espinoza and Batista-Hernandez contain language suggesting
otherwise, that language is dicta.


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nothing in § 4 . . . references the specific purpose for which the concealment
must be undertaken,” and thus it lacks the requisite specific intent. Matter of
Espinoza, 

. 16
    By contrast, the respondent’s offense of accessory to a felony under
section 32 of the California Penal Code is clearly an offense relating
to obstruction of justice under this definition. Like accessory after the fact
under § 3, which we held in Batista-Hernandez qualifies as an offense
relating to obstruction of justice under the Act, 17 the respondent’s State
statute of conviction requires a violator to aid the principal, with knowledge
that the principal has committed a crime, and with the specific intent
to interfere in the principal’s arrest, trial, conviction, or punishment. 18 See
People v. Nuckles, 

 (Cal. 2013) (outlining the elements
of accessory to a felony under section 32). In other words, a violator must
have the specific intent to interfere either in an ongoing, pending,
or reasonably foreseeable investigation or proceeding, or in another’s
punishment resulting from a completed proceeding. 19
    The respondent does not dispute that his State crime is one “for which the
term of imprisonment is at least one year” as required by section
101(a)(43)(S) of the Act. See Matter of Valenzuela Gallardo, 

 n.1. We therefore conclude that his conviction is categorically one for
an aggravated felony offense relating to obstruction of justice that renders
him removable under section 237(a)(2)(A)(iii) of the Act. Accordingly, the
respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.




16
   Unlike § 4, contempt of court under 

(3) and failure to appear under

 satisfy the elements of our clarified definition because they require that
one act with the specific intent to interfere in an ongoing proceeding. See Renteria-Morales,

; Alwan, 

.
17
   Because § 3 satisfies the elements of our clarified definition, we reaffirm our holding in
Batista-Hernandez that it is an aggravated felony under 101(a)(43)(S).
18
   In fact, the respondent’s State statute of conviction proscribes a narrower range of
conduct than § 3 because the former only reaches those who aid a felon, while the latter
reaches aiding a principal who has committed “any offense” against the United States,
including a misdemeanor. United States v. Chapman, 

 (S.D. Ala. 1931)
(analyzing the predecessor to § 3).
19
   In Nuckles, 

, the California Supreme Court concluded that “a person
who intentionally aids a parolee in absconding from parole supervision qualifies as an
accessory” under section 32. Therefore, § 3 and section 32 reach offenses involving
interference in another’s punishment resulting from a completed proceeding. See Matter
of Batista-Hernandez, 

; see also Hobson, 

.

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