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 BIA held it is never a CIMT in at least one unpublished decision, but not in precedent opinion. 1The Ninth Circuit held that the minimum conduct to commit § 136.1(a), “knowingly and maliciously” preventing or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 See also, e.g., unpublished decision holding 136.1(b)(1) is categorically not a CIMT.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
PC 136.1 (b)(1)
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 April 2021, 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) and in the alternative on its holding that its definition can be applied retroactively to pre-9/11/2018 convictions.
The Ninth Circuit has 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”); petition for rehearing denied. That decision abrogates part of Matter of Cordero-Garcia, which held § 136.1(b)(1) to be obstruction on that very basis.
However, there is a second argument. 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 punishes 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 issue of whether 136.1(b)(1) is an AF as obstruction currently is pending before the Ninth Circuit. Therefore, best practice is to get 364 days or less on each count. The Ninth Circuit has held that an offense that includes interference in an initial arrest, as opposed to an existing investigation or proceeding, is not obstruction of justice, and 136.1(b)(1) meets that test. However, DHS is arguing that 136.1(b)(1) is obstruction under a different standard, as an offense analogous to a federal obstruction offense. See Matter of Cordero-Garcia (2019), currently pending on appeal at the Ninth Circuit, and discussion in endnote above.
Therefore, defenders should continue to act conservatively and seek 364 days or less, in case the Ninth Circuit rules the wrong way on 136.1(b)(1), or the person ends up in removal proceedings outside the Ninth Circuit, where there also could be a bad standard. 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. If that loses, they can argue that 136.1(b)(1) convictions from before 9/11/2018 (the date that the BIA set out a new definition) are not obstruction. That issue also is before the Ninth Circuit in Cordero Garcia.