CORDERO-GARCIA

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          Matter of Fernando CORDERO-GARCIA, Respondent
                               Decided October 18, 2019

                             U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

(1) The crime of dissuading a witness in violation of section 136.1(b)(1) of the California
  Penal Code is categorically an aggravated felony offense relating to obstruction of justice
  under section 101(a)(43)(S) of the Immigration and Nationality Act, 

(a)(43)(S) (2012). Matter of Valenzuela Gallardo, 

 (BIA 2018),
  followed.

(2) The holding in Matter of Valenzuela Gallardo, 

 (BIA 2018), may be
  applied retroactively.
FOR RESPONDENT: Michael K. Mehr, Esquire, Santa Cruz, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant
Chief Counsel
BEFORE: Board Panel: WENDTLAND, GREER, and O’CONNOR, Board Members.

WENDTLAND, Board Member:


    In a decision dated June 27, 2012, an Immigration Judge found the
respondent removable 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, denied his application for cancellation of removal
under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and ordered
him removed from the United States. 1 We dismissed the respondent’s appeal
on November 27, 2012, affirming the Immigration Judge’s conclusion that
the respondent was convicted of an aggravated felony because dissuading a
1
   The Immigration Judge also found that the respondent was removable under section
237(a)(2)(A)(ii) of the Act, as an alien convicted of more than one crime involving moral
turpitude. In light of our conclusion that the respondent is removable under section
237(a)(2)(A)(iii) based on our retroactive application of Matter of Valenzuela Gallardo,

 (BIA 2018), we need not address the other charge of removability. See
INS v. Bagamasbad, 

 (1976) (“As a general rule courts and agencies are
not required to make findings on issues the decision of which is unnecessary to the
results they reach.”). However, for purposes of our retroactivity analysis, we will assume
that the respondent is not deportable under section 237(a)(2)(A)(ii) of the Act and that his
removability turns solely on whether he is convicted of an aggravated felony.


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witness in violation of section 136.1(b)(1) of the California Penal Code is an
offense relating to obstruction of justice under section 101(a)(43)(S) of the
Act, 

(a)(43)(S) (2012). 2 In addition, we agreed with the
Immigration Judge that the respondent did not meet his burden of showing
that he merits a grant of cancellation of removal in the exercise of discretion.
We subsequently denied a motion filed by the Department of Homeland
Security (“DHS”) to reopen these removal proceedings.
    Pursuant to a motion by the Government, the United States Court of
Appeals for the Ninth Circuit has remanded this case for us to address
whether the crime of dissuading a witness in violation of section 136.1(b)(1)
of the California Penal Code is an aggravated felony offense relating to
obstruction of justice in light of its decision in Valenzuela Gallardo v. Lynch,

 (9th Cir. 2016). This question will determine the respondent’s
removability under section 237(a)(2)(A)(iii) of the Act and his eligibility for
cancellation of removal under section 240A(a)(3). The respondent’s appeal
will again be dismissed.

                           I. AGGRAVATED FELONY
    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 such an
offense, we apply the categorical approach by focusing on whether the
elements of section 136.1(b)(1) of the California Penal Code proscribe
conduct that categorically falls within the Federal generic definition of an
offense relating to obstruction of justice. See Mathis v. United States, 

 (2016).
    We outlined the generic definition of an offense relating to obstruction of
justice in Matter of Valenzuela Gallardo (“Valenzuela Gallardo I”), 

   At all relevant times, section 136.1(b)(1) of the California Penal Code has provided in
pertinent part:

      Except as provided in subdivision (c), every person who attempts to prevent or
      dissuade another person who has been the victim of a crime or who is witness to a
      crime from doing any of the following is guilty of a public offense and shall be
      punished by imprisonment in a county jail for not more than one year or in the state
      prison:
          (1) Making any report of that victimization to any peace officer or state or local
        law enforcement officer or probation or parole or correctional officer or prosecuting
        agency or to any judge.


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Dec. 838 (BIA 2012). The Ninth Circuit declined to defer to our definition,
concluding that it was impermissibly vague. Valenzuela Gallardo, 818 F.3d
at 812–13, 823–24. While this appeal was pending, we clarified the generic
definition of an aggravated felony under section 101(a)(43)(S) of the Act,
stating that an offense relating to obstruction of justice
     consists of 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 (“Valenzuela Gallardo II”), 

 (BIA 2018).
    We further held that the crime of accessory to a felony under section 32 of
the California Penal Code is an aggravated felony offense relating to
obstruction of justice. 

. The California accessory statute required
“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.” 

 (citing People v. Nuckles, 

 (Cal. 2013)).
    To obtain a conviction under section 136.1(b)(1) of the California Penal
Code, the State must prove that “(1) the defendant has attempted to prevent
or dissuade a person (2) who is a victim or witness to a crime (3) from making
[a] report . . . to any peace officer or other designated officials.” People
v. Navarro, 

, 117–18 (Cal. Ct. App. 2013) (alteration
in original) (quoting People v. Upsher, 

 (Cal. Ct.
App. 2007)). “The prosecution must also establish that ‘the defendant’s acts
or statements [were] intended to affect or influence a potential witness’s or
victim’s testimony or acts.’” Id. at 118 (alteration in original) (quoting
People v. McDaniel, 

 (Cal. Ct. App. 1994)).
    According to this California case law, section 136.1(b)(1) requires a
specific intent to interfere in an investigation or proceeding. Where an
individual attempts to prevent or dissuade a victim or witness from making
a report of a crime to a peace officer or other designated official, an
investigation or proceeding would necessarily be either ongoing, pending, or
reasonably foreseeable. In other words, 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 unless there was an investigation in progress
or one was reasonably foreseeable. We therefore conclude that dissuading a
witness in violation of section 136.1(b)(1) of the California Penal Code is
categorically an aggravated felony offense relating to obstruction of justice


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under section 101(a)(43)(S) of the Act pursuant to the criteria that we
outlined in Matter of Valenzuela Gallardo II, 

. 3

                               II. RETROACTIVITY
    The respondent argues that the standard for obstruction of justice we set
forth in Valenzuela Gallardo II may not be applied retroactively to his
conviction, which occurred before our decisions in Valenzuela Gallardo I
and II were issued. Therefore, we must also determine whether the standard
for obstruction of justice we set forth in Matter of Valenzuela Gallardo II can
be retroactively applied to the respondent’s conviction. In this regard, we
recognize the well-established principle that agencies may adjudicate new
rules and apply them retroactively.

      [T]he choice made between proceeding by general rule or by individual, ad hoc
      litigation is one that lies primarily in the informed discretion of the administrative
      agency.
         . . . That [an agency] action might have a retroactive effect [i]s not necessarily fatal
      to its validity. Every case of first impression has a retroactive effect, whether the
      new principle is announced by a court or by an administrative agency. But such
      retroactivity must be balanced against the mischief of producing a result which is
      contrary to a statutory design or to legal and equitable principles. If that mischief is
      greater than the ill effect of the retroactive application of a new standard, it is not the
      type of retroactivity which is condemned by law.

SEC v. Chenery Corp., 

 (1947) (citation omitted).
      We acknowledge, however, that “[a]s a general rule, ‘[r]etroactivity is not
favored in the law.’” Velasquez-Garcia v. Holder, 

 (7th
Cir. 2014) (quoting Bowen v. Georgetown Univ. Hosp., 

(1988)). In this regard, at least one circuit has indicated that agency “rules
. . . should be presumed prospective in operation unless Congress has clearly
authorized retroactive application.” De Niz Robles v. Lynch, 

 (10th Cir. 2015) (emphasis added); see also Betansos v. Barr, 

, 1143–46 (9th Cir. 2019) (noting that a retroactivity analysis “should be
conducted with ‘the presumption of prospectivity’” where the court has given
deference to our decision pursuant to National Cable & Telecommunications
Association v. Brand X Internet Services, 

 (2005), but deciding

3
   The Immigration Judge found that a violation of section 136.1(b)(1) of the California
Penal Code was not a categorical aggravated felony offense relating to obstruction of
justice, but he applied the modified categorical approach to determine that the respondent’s
conviction was for an aggravated felony. In light of our holding that dissuading a witness
under California law is categorically an aggravated felony, we will not address the
Immigration Judge’s finding in this regard.

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to apply the decision retroactively (quoting Gutierrez-Brizuela v. Lynch, 

 (10th Cir. 2016))).
    However, Congress has “indicate[d] unambiguously its intention to apply
[the aggravated felony provisions] retroactively.” INS v. St. Cyr, 

, 318–19 & n.43 (2001) (stating that the aggravated felony definition
itself clearly provides that it applies retroactively). In enacting section
101(a)(43) of the Act, Congress expressly stated its intent that “the term
[aggravated felony] applies regardless of whether the conviction was entered
before, on, or after the date of enactment.” Accordingly, in our informed
discretion, we conclude that we may apply our decisions retroactively after
proper consideration of the relevant factors, consistent with SEC v. Chenery
Corp., 

 (upholding the agency’s determination, despite its
retroactive effect, and recognizing it as “the product of administrative
experience, appreciation of the complexities of the problem, realization of
the statutory policies, and responsible treatment of the uncontested facts”).

                              A. Change in Law

    Before we decide whether to apply Matter of Valenzuela Gallardo II
retroactively, we must consider whether our holding in that case is a change
in law, which the Ninth Circuit has stated is required before a retroactivity
analysis is necessary. See Olivas-Motta v. Whitaker, 

(9th Cir. 2018). A “retroactivity analysis is only applicable when ‘an agency
consciously overrules or otherwise alters its own rule or regulation,’ or
‘expressly considers and openly departs from a circuit court decision.’” 

at 1277 (quoting Garfias-Rodriguez v. Holder, 

, 518–19 (9th
Cir. 2012) (en banc)). The Ninth Circuit remanded Valenzuela Gallardo I
for “consideration of a new construction or application of the interpretation”
of obstruction of justice that we had outlined in Matter of Espinoza, 

 (BIA 1999), to which the court previously deferred in Trung Thanh
Hoang v. Holder, 

 (9th Cir. 2011). Valenzuela Gallardo, 818
F.3d at 812–13 (emphasis added).
    Not all Board precedents clarifying prior decisions are necessarily
changes in the law. The Ninth Circuit has rejected as “contrary to settled
law” the assertion that “the mere existence of a new published decision on
an issue would always trigger retroactivity analysis.” Olivas-Motta, 

. Moreover, a new Board precedent that resolves prior, potentially
inconsistent unpublished decisions is not a change in the law, because
“[u]npublished decisions are not precedential and ‘do not bind future
parties.’” 

 at 1278 (quoting Marmolejo-Campos v. Holder, 

 (9th Cir. 2009) (en banc)).


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    As we will discuss in greater detail below, our decision in Valenzuela
Gallardo II openly departed from the generic definition that the Ninth Circuit
previously approved. Our decision also clarified Valenzuela Gallardo I, but
the standard in Valenzuela Gallardo II differs in some respects from our prior
definition. We therefore conclude that a retroactivity analysis is appropriate
in this case.

                              B. Test for Retroactivity

    Next, we must determine the appropriate test for ascertaining whether
Matter of Valenzuela Gallardo II may be applied retroactively. The Ninth
Circuit applies the factors outlined in Montgomery Ward & Co. v. FTC
(“Montgomery Ward”), 

 (9th Cir. 1982). Garfias-Rodriguez,
702 F.3d at 514–23 (applying these factors in favor of retroactive
applicability). This test was first set forth in Retail, Wholesale & Dep’t Store
Union v. NLRB (“Retail Union”), 

, 390 (D.C. Cir. 1972)
(involving a labor dispute before the National Labor Relations Board
(“NLRB”) between a company and union workers).
    The Second, Third, Fourth, Sixth, Seventh, and Tenth Circuits also apply
this test. See Microcomputer Tech. Inst. v. Riley, 

, 1050 n.4
(5th Cir. 1998) (collecting cases); see also De Niz Robles, 803 F.3d 1177–80
(following the “balancing” test the Tenth Circuit set forth in Stewart Capital
Corp. v. Andrus, 

 (10th Cir. 1983)). The Eighth Circuit
applies a similar test. Ryan Heating Co. v. NLRB, 942 F2d 1287, 1289 (8th
Cir. 1991). By contrast, the Fifth Circuit weighs “the disadvantages of
retroactivity—frustration of parties’ expectations—against the detrimental
effect of prospectivity—partial frustration of what we have now determined
is the proper statutory interpretation.” Microcomputer Tech. Inst., 139 F.3d
at 1051.
    In light of the courts’ overwhelming adoption of the test outlined in
Retail Union (known as the Montgomery Ward test in the Ninth Circuit), we
will employ that test, not only in cases arising in the Ninth Circuit, where we
are bound to use it, but throughout the country. See Matter of J-H-J-, 

 (BIA 2015) (acceding to the majority view of the circuits). 4
In addition to considering the desirability of applying the immigration
laws with nationwide uniformity, we must also recognize that the circuit
courts use this test in reviewing decisions from numerous other agencies.
In our opinion, it would therefore be incongruous for us to employ a
different test.
4
   To the extent that a court of appeals applies a different test, however, Immigration
Judges and the Board should follow the law of that circuit. See Matter of Anselmo, 

 (BIA 1989).

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                                    C. Application

   The test for retroactivity requires us to consider the following factors:

     (1) whether the particular case is one of first impression, (2) whether the new rule
     represents an abrupt departure from well established practice or merely attempts to
     fill a void in an unsettled area of law, (3) the extent to which the party against whom
     the new rule is applied relied on the former rule, (4) the degree of the burden which
     a retroactive order imposes on a party, and (5) the statutory interest in applying a
     new rule despite the reliance of a party on the old standard.

Montgomery Ward, 

 (quoting Retail Union, 466 F.2d at
390).
    The Ninth Circuit has recognized that the first factor may not be well
suited to the context of proceedings to remove an alien because Retail Union
involved litigation between private parties in labor disputes before the
NLRB. See Garfias-Rodriguez, 702 F.3d at 520–21 (noting that the first
factor often does not favor either side in removal proceedings, where the
Government is always a party); Miguel-Miguel v. Gonzales, 

 (9th Cir. 2007) (“[T]he first factor is directed towards maintaining an
incentive for litigants to raise novel claims by allowing a litigant who
successfully argues for a new rule to get the benefit of that rule.”). However,
the court has recognized that this factor favors the alien where the agency has
“confronted the problem before, ha[s] established an explicit standard of
conduct, and now attempts to punish conformity to that standard under a new
standard subsequently adopted.” Miguel-Miguel, 

 (alteration
in original) (emphasis added) (quoting Retail Union, 466 F.2d at 391).
    Those circumstances were not present in Valenzuela Gallardo II, which
was issued after decades of rulings by the Board and the Ninth Circuit
interpreting the aggravated felony ground of removal relating to obstruction
of justice. Moreover, the Ninth Circuit has noted in regard to the first
factor that “any question of unfairness in applying a new rule . . . , such as
surprise or detrimental reliance, is fully captured in the second and third
Montgomery Ward factors.” Garfias-Rodriguez, 

. Based on
the circumstances of this case, we agree.
    As the Ninth Circuit has stated regarding the question of unsettled law,
       The second and the third factors are closely intertwined. If a new rule “represents
     an abrupt departure from well established practice,” a party’s reliance on the prior
     rule is likely to be reasonable, whereas if the rule “merely attempts to fill a void in
     an unsettled area of law,” reliance is less likely to be reasonable. . . . [T]hese two
     factors will favor retroactivity if a party could reasonably have anticipated the change
     in the law such that the new “requirement would not be a complete surprise.”



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 (citations omitted).
    The Ninth Circuit has acknowledged that Congress did not clearly define
the generic elements of an aggravated felony offense relating to obstruction
of justice. Renteria-Morales v. Mukasey, 

 (9th Cir.
2008). Since 1997, both the Ninth Circuit and the Board have issued
decisions defining the outer limits of offenses relating to obstruction of
justice. See, e.g., Valenzuela Gallardo, 

; Trung Thanh Hoang,

; Matter of Espinoza, 

; Matter of
Batista-Hernandez, 

 (BIA 1997). Recently, the Ninth
Circuit emphasized that “an ongoing conversation or a back-and-forth
between this Court and the [Board] about the proper interpretation” is an
important consideration in a retroactivity analysis. Betansos, 

. A brief review of these decisions reflects that the discussion between
the Board and the Ninth Circuit regarding this aggravated felony ground has
been ongoing, and the process of defining it has been unsettled, for several
decades.
    In Matter of Batista-Hernandez, 

, we concluded that
the offense of accessory after the fact in violation of 

 (Supp.
V 1993) “clearly relates to obstruction of justice,” notwithstanding the fact
that the statute lacked an element of an ongoing investigation or proceeding.
Two years later, in Matter of Espinoza, we held that misprision of felony
in violation of 

 (1994) was not an offense relating to
obstruction of justice. The Ninth Circuit has repeatedly deferred to a generic
definition that it drew from Matter of Espinoza, which, according to the
court, required interference with an ongoing proceeding or investigation,
although the decision did not itself articulate such a requirement and
Batista-Hernandez clearly did not apply one. 5 See Trung Thanh Hoang, 

; Renteria-Morales, 551 F.3d at 1086–87; Salazar-Luviano
v. Mukasey, 

, 861–63 (9th Cir. 2008). 6 However, one judge in

5
   We did note the absence of an ongoing criminal investigation or trial in Matter of
Espinoza. However, we made the more general observation that misprision of felony does
not constitute “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.” Matter of Espinoza, 

. In identifying the critical
element of specific intent, we did not state that an ongoing criminal investigation or trial
was always required, but we subsequently clarified the matter in Valenzuela Gallardo I,
25 I&N Dec. at 841–42.
6
   If we were to assess the generic definition of an aggravated felony offense relating to
obstruction of justice when the respondent entered his guilty plea in 2009, we would still
conclude that the law was unsettled at that time. The Ninth Circuit precedent had not yet
analyzed our 1997 decision in Matter of Batista-Hernandez, so a respondent who
potentially faced this aggravated felony charge in 2009 would have had to address Matter
of Batista-Hernandez and could not merely rely on Renteria-Morales and Salazar-Luviano.

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Trung Thanh Hoang dissented from the majority’s use of that definition,
contending that the court was not limited to applying the definition that it had
derived from Matter of Espinoza and should, instead, have followed Matter
of Bastista-Hernandez. Trung Thanh Hoang, 641 F.3d at 1165–68 (Bybee,
J., dissenting).
     We subsequently clarified our prior precedents interpreting section
101(a)(43)(S) of the Act and held 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.’” Valenzuela Gallardo I, 25 I&N
Dec. at 841 (emphasis added). Concerned that this definition might be
impermissibly vague, a divided panel of the Ninth Circuit applied the
doctrine of constitutional avoidance and remanded for us to consider a new
construction of section 101(a)(43)(S) of the Act or to apply our previous
interpretation in Matter of Espinoza. See Valenzuela Gallardo, 

, 813–24. We clarified our definition again in Valenzuela Gallardo II.
    The unsettled nature of defining the term “relating to obstruction of
justice” in section 101(a)(43)(S) of the Act is evidenced by the continuing
discussion in these administrative and judicial decisions for more than
20 years. That the question has been unsettled becomes more apparent
in light of the reasoning underpinning the Ninth Circuit’s opinion in
Valenzuela Gallardo, where the court had serious constitutional doubts about
the vagueness of the definition we set forth in Valenzuela Gallardo I. As the
court noted, “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.” Valenzuela
Gallardo, 

. It would be questionable to conclude that an area
of law is settled when a court has expressed such concerns about the
vagueness of an agency’s interpretation of the relevant statute.
    Moreover, a construction that requires interference with an ongoing
proceeding or investigation brings its own uncertainty. Some of the
obstruction of justice crimes that Congress placed in Chapter 73 of the
Federal criminal code do not require interference with an ongoing tribunal or
investigation. See Valenzuela Gallardo, 

 (citing 

(b)(3) (2012) (“prohibition on tampering with a witness with the intent
to hinder or prevent ‘communication to a law enforcement officer’ regarding
a Federal offense”); § 1512(d)(2) (“prohibition on harassing someone with
the intent to prevent that person from ‘reporting [a federal crime] to a law
enforcement officer or judge’”); and § 1519 (2012) (“prohibition on
falsifying or destroying a record ‘with the intent to impede, obstruct, or

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influence the investigation or proper administration of any matter’ within the
jurisdiction of the United States”)). An Immigration Judge, practicing
attorney, or alien could reasonably question whether these offenses—placed
by Congress in a chapter expressly dedicated to obstruction of justice—
would qualify as an aggravated felony offense relating to obstruction of
justice under the definition previously applied by the Ninth Circuit.
Although case-by-case adjudication would likely resolve this issue over time,
it is further evidence of unsettled law.
     We also look beyond the interplay between Board precedent and Ninth
Circuit decisions to determine whether the definition of the term “relating to
obstruction of justice” is unsettled. The Ninth Circuit’s inquiry has been
whether and to what extent it would defer to the Board’s definition under
step two of the analysis in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 

, 842–43 (1984) (stating that deference
to an agency’s decision depends on whether its statutory interpretation is
“based on a permissible construction of the statute”). A court can only reach
this second step if the statute is “silent or ambiguous.” 

. Finding
that the Act did not define the phrase “offense relating to obstruction of
justice,” the Ninth Circuit has thus addressed this statutory term in the
context of Chevron’s step two. 7 See Renteria-Morales, 

.
     By contrast, the Third Circuit has concluded that the phrase “relating to
obstruction of justice” is unambiguous. See Denis v. Att’y Gen. of U.S., 

 (3d Cir. 2011). Applying de novo review, the Third Circuit
found our definition of the phrase in Espinoza to be unnecessarily restrictive,
and it adopted a broader definition. 

 at 211–13; see also Matter of
Valenzuela Gallardo I, 25 I&N Dec. at 843. Judicial disagreement over
whether a phrase is plain or ambiguous further demonstrates how unsettled
the issue of defining “relating to obstruction of justice” has been.
     Additionally, we consider significant the contrast between the circuit
courts’ assessment of our decisions defining an offense relating to
obstruction of justice and those addressing the circumstances under
which a theft offense is a crime involving moral turpitude. In Matter of
Diaz-Lizarraga, 

 (BIA 2016), we revisited the standard by
which we assessed whether a theft offense is turpitudinous. Previously, from
our “earliest days,” we had held that “a theft categorically involves moral
turpitude if—and only if—it is committed with the intent to permanently
deprive an owner of property.” 

. Finding it appropriate to “update
our existing jurisprudence,” we determined that “a theft offense is a crime
involving moral turpitude if it involves an intent to deprive the owner of his
7
   In Valenzuela Gallardo, 818 F.3d at 815–18, the Ninth Circuit applied the constitutional
avoidance doctrine at Chevron’s step one. However, the court also noted that section
101(a)(43)(S) was an “ambiguous statute.” Id. at 824.

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property either permanently or under circumstances where the owner’s
property rights are substantially eroded.” Id. at 853. Recently, the Fifth
Circuit joined the Second, Ninth, and Tenth Circuits in declining to apply our
decision retroactively, concluding that our new definition “drastically
chang[ed] the landscape.” Monteon-Camargo v. Barr, 

(5th Cir. 2019); see also Garcia-Martinez v. Sessions, 

(9th Cir. 2018); Obeya v. Sessions, 

 (2d Cir. 2018);
Lucio-Rayos v. Sessions, 

 (10th Cir. 2017). We discern no
comparable “departure from well established practice” in the context of
interpreting the ambiguous phrase “relating to obstruction of justice” in
section 101(a)(43)(S) of the Act. Montgomery Ward, 

(citation omitted).
    The Immigration Courts and the Board routinely encounter a diverse
range of criminal statutes containing distinct elements that might relate to
obstruction of justice. We must therefore determine whether these State and
Federal offenses categorically relate to obstruction of justice. Our prior
determinations, such as our holding in Matter of Espinoza that misprision of
felony under 

 does not relate to obstruction of justice, are
relevant but not dispositive when examining these other statutes. It was in
this context that we made our conclusions in Valenzuela Gallardo I and II
that accessory to a felony in violation of section 32 of the California Penal
Code is categorically an obstruction of justice offense under section
10l(a)(43)(S) of the Act.
    Applying the second factor of the Montgomery Ward test, we conclude
that these decisions were merely attempts to fill a void in an unsettled area
of law and do not represent an abrupt departure from well-established
practice. See, e.g., Valenzuela Gallardo I, 25 I&N Dec. at 842 (noting that
our prior precedent had not gone “so far as to hold that obstruction offenses
must involve interference with an ongoing investigation or proceeding”);
Matter of Batista-Hernandez, 

 (holding that “accessory after
the fact” under 

 qualifies as an offense relating to obstruction
of justice, without requiring a pending or ongoing proceeding). Likewise,
we cannot discern a settled “former rule” on which the respondent may
reasonably have relied under the third factor of the Montgomery Ward test.
    We will assume that Montgomery Ward’s fourth factor “strongly favors”
the respondent. Garfias-Rodriguez, 

. Removal of an alien
from the United States is a “substantial burden that weighs against retroactive
application of an agency adjudication.” 

 (citation omitted). We do not
diminish this factor or the hardship that might result from an alien’s removal.
    “The fifth factor—the statutory interest in applying a new rule—points in
favor of the government because non-retroactivity impairs the uniformity of
a statutory scheme, and the importance of uniformity in immigration law is

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well established.” 

 “[T]he Federal immigration laws are intended to have
uniform nationwide application and to implement a unitary Federal policy.”
Matter of Velazquez-Herrera, 

 (BIA 2008) (citing
Kahn v. INS, 

 (9th Cir. 1994)). As noted, Congress
expressly indicated its intention that the aggravated felony definitions in
section 101(a)(43) of the Act should apply retroactively. See St. Cyr, 533
U.S. at 318–19. This congressional action further cuts in favor of retroactive
application here, although it is not dispositive.
    Having weighed the factors in the Montgomery Ward test in their totality,
we conclude that Valenzuela Gallardo II may be applied retroactively. Our
decision has filled a void in what was an unsettled area of law, and while
we acknowledge the hardship that retroactive application might cause to
the respondent, the national uniformity of our immigration laws is a
strong countervailing interest. We reach this conclusion based on the
circumstances of this case and the provision of the Act at issue. We do not
decide whether or how to apply decisions retroactively in other contexts,
including those involving other grounds for removal and discretionary or
mandatory relief.

                                III. CONCLUSION
   In sum, the respondent was convicted of dissuading a witness in violation
of section 136.1(b)(1) of the California Penal Code, an offense that is
categorically an aggravated felony offense relating to the obstruction of
justice. We reject his argument that the standard we set forth for defining
obstruction of justice in Valenzuela Gallardo II may not be applied
retroactively to his conviction, and we conclude that he is removable under
section 237(a)(2)(A)(iii) of the Act. Consequently, he is also ineligible for
cancellation of removal under section 240A(a)(3) of the Act. 8 Accordingly,
the respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.




8
   The respondent summarily argues that both we and the Immigration Judge erred by
denying his application for cancellation of removal. This claim, which addresses no new
arguments on remand, does not merit any further consideration.

                                         663