PC 136.1 (b)(1)

PC 136.1 (b)(1)

Offense

Nonviolently try to persuade a witness or victim not to file a police report

Aggravated Felony (AF)

To securely avoid AF as obstruction, obtain 364 days or less imposed on each count, but see Advice.

Not an AF as a COV.

Crime Involving Moral Turpitude (CIMT)

Probably not a CIMT. Ninth Cir held it is overbroad as a CIMT. It appears not to be divisible. BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion. 1The Ninth Circuit held that the minimum conduct to commit § 136.1(a), “knowingly and maliciously” preventing or dissuading a witness or victim from participating in a trial, proceeding, or inquiry, is not a CIMT. Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017), citing cases like People v. Wahidi (2013) 222 Cal App 4th 802.

Section 136.1(b)(1) also is not a CIMT, but with an even stronger argument. Section 136.1(a) is not a CIMT despite the fact that it requires knowing and malicious action. Section 136.1(b)(1) has no requirement of knowing or malicious conduct, unless a provision of § 136.1(c) also applies. See, e.g., People v. Usher (2007) 144 Cal.App.4th 1311, 1321 and discussion at CALCRIM No. 2622. But even when malice does apply, § 136.1(b) uses the same definition as § 136.1(a) and so is not a CIMT.

The BIA has not held in a precedent opinion that § 136.1(b)(1) is not a CIMT, which means that there is always the chance that the Board would do this, and the Ninth Circuit would defer to that. That seems unlikely, however. See also, e.g., unpublished decision holding 136.1(b)(1) is categorically not a CIMT. Matter of C-E-P-G– (BIA Dec. 18, 2018).

Therefore, while 136.1(b)(1) is a very reasonable plea to avoid a CIMT, it remains possible that in future the BIA will find this to be a CIMT, and Ninth Circuit might defer.

Other Removal Grounds

No other removal grounds.
Great substitute plea for drug, DV, fraud, firearms, etc. because it does not take on those elements. See also PC 32.
Because a felony is a strike with high exposure, it can substitute for more serious charges. But get 364 days or less, either with felony probation or as a consecutive prison sentence of eight months.

Advice and Comments

See further discussion and case citations in this endnote2An offense that meets the generic definition of obstruction of justice is an aggravated felony under 8 USC § 1101(a)(43)(S), if a sentence of a year or more is imposed. The BIA held that Pen C § 136.1(b)(1) meets this definition. Matter of Cordero-Garcia, 27 I&N Dec. 652 (BIA 2019). In Cordero-Garcia at 657-663, the BIA also held that its definition can be applied retroactively to convictions from before Sept. 11, 2018, which was the date the BIA set out the definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018).

As of October 2020, Cordero-Garcia is pending on appeal before the Ninth Circuit. Immigration advocates have argued that Cordero-Garcia was wrongly decided, on both the substance (the BIA’s generic definition of obstruction is invalid; see discussion of Valenzuela Gallardo II, below) and in the alternative on its holding that its definition can be applied retroactively to pre-9/11/2018 convictions.

In August 2020, the Ninth Circuit held that the BIA’s generic definition of obstruction is invalid to the extent it includes interference with a not yet existing but “reasonably foreseeable” proceeding. See Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”). This overrules Cordero-Garcia, which held § 136.1(b)(1) to be obstruction on that very basis. But the risk is that at this writing, it still is possible that Valenzuela Gallardo II could go en banc; therefore defenders should act conservatively and seek 364 days or less on each count. See discussion in Advice and endnotes to PC 32.

The BIA’s definition of obstruction also includes federal offenses at 18 U.S.C. §§ 1501-1521 and state analogues. The BIA pointed out that 18 USC § 1512 does punish persuading a witness not to provide evidence that a crime occurred. There are two responses to this argument. First, the Ninth Circuit rejected it, pointing out that this aspect of § 1512 is “the exception that proves the rule” that the generic definition requires an existing proceeding. See Valenzuela Gallardo II, 968 F.3d at 1065-66. Second, even if 18 USC § 1512 were used as a generic definition, PC 136.1(b)(1) does not match it. 18 USC § 1512 it requires “knowing use of intimidation, physical force, threats, corrupt persuasion, or misleading conduct” and intentional harassment. See Matter of Valenzuela Gallardo, 27 I&N Dec. at 454. Section 136.1(b)(1) entirely lacks the elements of either “corrupt persuasion” or intentional harassment. It does not even require malice. Compare § 136.1(b)(1) with (a) and (c), which do require malice, and see, e.g., People v. Brackins (2019) 37 Cal.App.5th 56, 64-67; see also discussion in Escobar v. Lynch, 846 F.3d 1019 (9th Cir 2017) (holding that even 136.1(a) is not a CIMT). Thanks to Mike Mehr, counsel on Cordero-Garcia, for his insights.
and see PC 32.

AF: Obstruction of justice is an AF if a year or more is imposed. The BIA held that 136.1(b)(1) is obstruction under its own definition, which includes interference in an existing or “reasonably foreseeable” investigation or proceeding, or an offense analogous to certain federal obstruction offenses. See Matter of Cordero-Garcia (2019), currently pending on appeal at the Ninth Circuit.

In August 2020, in a case involving PC 32, the Ninth Circuit held that the BIA’s definition is invalid, and that obstruction requires interference with an existing, not a foreseeable, investigation or proceeding. Valenzuela Gallardo II. PC 136.1(b)(1) is not obstruction under that definition, because it can involve an initial police report with no pending investigation or proceeding. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less. If 1 yr or more is required, consider, e.g., 459 (1st or 2nd degree), 487, 530.5, 591, 594, possess weapon, and probably 236/237, 207(a) as an alternative. If a prison sentence is required, 136.1(b)(1) can be a ‘consecutive’ offense with an 8-month sentence imposed. A felony is a strike.

Imm advocates will cite Valenzuela-Gallardo II, and assert that Matter of Cordero Garcia cannot be applied to find 136.1(b)(1) to be obstruction — unless Valenzuela-Gallardo II is taken up en banc. If it is overruled and the BIA definition is imposed, they can argue that 136.1(b)(1) convictions from before 9/11/2018 are not obstruction.

2020-10-22T18:14:19+00:00Updated January 29th, 2020|