Offense
Accessory after the fact
Aggravated Felony (AF)
Yes, AF as obstruction of justice if a year or more is imposed.
See § N.4 Sentence. for suggestions on how to avoid one year while accepting significant custody time.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT per Ninth Cir. But because BIA holds it is a CIMT if principal’s offense is a CIMT,1Pen C § 32 as a CIMT. The Ninth Circuit held that Pen C § 32 is categorically not a CIMT (never is one), because it lacks the element of depravity required by the generic definition of moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc). In a case arising outside of the Ninth Circuit, however, the Board of Immigration Appeals held that accessory after the fact is divisible: it is a CIMT only if the principal’s offense is one. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (regarding federal accessory, 18 USC § 3).
Because of this conflict between the BIA and the Ninth Circuit, criminal defenders should try to act conservatively and follow the BIA’s rule: identify in the record a specific non-CIMT that the principal committed, or at least keep the record vague as to the principal’s offense.
Immigration advocates will point out that the BIA’s opinion in Rivens is not controlling in cases arising within the Ninth Circuit, and within the Ninth Circuit no conviction of Pen C § 32 is a CIMT regardless of the principal’s offense. Note that in Rivens the BIA acknowledged that Navarro-Lopez holds that Pen C § 32 never is a CIMT, and specifically did not rule on how it would treat cases within the Ninth Circuit. Id. at 629. (Even if the BIA ever holds otherwise, the Ninth Circuit then will have to decide whether or not to defer to the BIA and withdraw Navarro-Lopez). In addition, immigration advocates can investigate arguments that § 32 is not “divisible” as to the principal’s felony, on the grounds that a jury is not required to agree unanimously in every case as to which felony the principal committed. As always with unproved arguments, counsel should consider other defense strategies, including obtaining post-conviction relief, at the same time. Immigration advocates should also be aware of the discussion of the similar offense misprision of felony. See Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), holding that this is never a CIMT and declining to follow Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), which held that misprision always is a CIMT. The BIA declined to apply the Ninth Circuit’s Robles-Urrea decision outside of the Ninth Circuit, in Matter of Mendez 27 I&N Dec. 219 (BIA 2018).
(Note that Navarro-Lopez, supra, was overruled on other grounds (regarding the application of the categorical approach), but that decision was in turn overruled by the Supreme Court. See Descamps v. United States, 570 U.S. 254 (2013), overruling U.S. v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). Navarro-Lopez also was partially overruled along with several other cases, to the extent that they relied on prior precedent regarding Pen C § 245. See Ceron v. Holder, 747 F.3d 773, 782 (9th Cir. 2014) (en banc).)the best practice where possible is to name in the ROC a specific non-CIMT committed by the principal. See Advice for suggestions. Imm advocates should cite Ninth Cir law that PC 32 is never a CIMT, regardless of the principal’s offense. See above endnote
Other Removal Grounds
No other removal ground.
PC 32 is excellent plea to avoid many removal grounds, e.g., a conviction relating to CS, DV, violence, firearms, AFs (other than maybe obstruction outside the Ninth Cir.) etc., because it does not take on the character of the principal’s offense (except perhaps for CIMT purposes). For example, accessory to CS offense or a COV is not itself a CS offense or COV.2Pen C § 32 and other removal grounds. This is where Pen C § 32 is tremendously useful. Accessory and the similar offense misprision of felony are not drug convictions even where the principal offense involves drugs. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (federal accessory after the fact), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977). See also Matter of Carrillo, 16 I&N Dec. 625, 626 (BIA 1978) (conviction of unlawful carrying of firearm during commission of a felony under a former federal statute was not a drug offense even where felony was identified as drug offense). The Ninth Circuit held that accessory after the fact is not a crime of violence under 18 USC § 16 even where the principal offense involved violence. United States v. Innie, 7 F.3d 840 (9th Cir. 1993).
See also 136.1(b)(1).
But get 364 days or less to avoid an AF.
Advice and Comments
AF. See further discussion at ILRC, Obstruction of Justice: Pugin and California Offenses (July 2023). For history leading to Pugin and additional resources, see endnote.3Pen § 32 as the AF Obstruction of Justice. The Supreme Court addressed the definition of obstruction of justice in Pugin v. Garland, 22-23 (June 22, 2023). For more in-depth discussion of Pugin, see, e.g., Merle D. Kahn, “Obstruction of Justice and ‘Obstruction-Adjacent’ Offenses” (July 9, 2023) in Top of the Ninth: A Review of Ninth Circuit and BIA Decisions at https://topoftheninth.com/, and the SCOTUS Blog analysis at https://www.scotusblog.com/case-files/cases/pugin-v-garland/. Check for a forthcoming Advisory by the National Immigration Project at https://nipnlg.org/work/resources.
The rest of this endnote discusses Ninth Circuit and BIA history leading up to the Supreme Court’s decision in Pugin, and what issues still exist.
Before Pugin, the Ninth Circuit and the BIA set out conflicting generic definitions of obstruction of justice, which led the BIA to find that California PC § 32 is obstruction and the Ninth Circuit to find that it is not. See history of the decisions in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020) (“Valenzuela Gallardo II”). The main issue was whether the generic definition of obstruction requires interference with a pending (already existing) proceeding or investigation. The Ninth Circuit asserted that the definition of obstruction does require this. It found PC § 32 not to be obstruction because it includes, e.g., helping a person avoid an initial arrest before any investigation has started. The BIA found that obstruction does not require an existing proceeding but only a “reasonably foreseeable” one. It held that PC § 32 is obstruction.
In Pugin, the Supreme Court rejected the Ninth Circuit’s requirement of a “pending” investigation or proceeding, and did not even appear to adopt the BIA’s definition of a “foreseeable” one. It affirmed the Fourth Circuit’s ruling in the Pugin case that accessory after the fact under Virginia law is obstruction. In a companion case, Supreme Court considered the Ninth Circuit’s obstruction definition as applied to California PC § 136.1(b)(1), witness dissuasion. See Cordero-Garcia v. Garland, 44 F.4th 1181 (9th Cir. 2022). The Supreme Court remanded Cordero-Garcia to the Ninth Circuit to be decided in accord with its decision in Pugin.
One issue on remand of 136.1(b)(1) to the Ninth Circuit will be whether the adverse definition of obstruction (that does not require a pending investigation or proceeding) applies retroactively to convictions from before Sept. 11, 2018, which was the date the BIA set out this definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018). The BIA has held that its definition in Valenzuela Gallardo does apply retroactively (Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019)), but the Ninth Circuit ultimately will decide that. Defenders and advocates must act conservatively and assume that the non-retroactivity argument will fail; they should attempt to vacate any prior conviction with a sentence of a year or more, including convictions from before September 11, 2018, if they are likely to be held an AF as obstruction under Pugin.
Cordero-Garcia and Pugin presented a more general issue, which was whether federal courts should give Chevron deference to the BIA’s generic definition of an aggravated felony, given that the aggravated felony category has “dual application” in both immigration and federal criminal proceedings (where it is a basis for sentence enhancement). The Ninth Circuit in Valenzuela Gallardo II noted that there are strong arguments that courts should not defer to the BIA in a dual application context, under Chevron Step Zero. But the Supreme Court did not address the Chevron issue in Pugin. For a basic introduction to Chevron, see ILRC, Who Decides: Overview of Chevron, Brand X, and Mead Principles (2011) at https://www.ilrc.org/who-decides-overview-chevron-brand-x-and-mead-principles.
An offense “relating to obstruction of justice” is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S).
In Pugin v. Garland, 22-23 (June 22, 2023) the Supreme Court held that accessory after the fact (a Virginia statute) is obstruction of justice. It specifically rejected the Ninth Circuit’s definition that limited obstruction to an offense that interferes with a pending (already existing) investigation or proceeding. The Ninth Circuit had found PC 32 is not obstruction, because the conduct can occur before an investigation has begun. It is highly likely that the Ninth Circuit will find that PC 32 is obstruction.
The Supreme Court did not provide a clear definition of obstruction. It rejected the Ninth Circuit’s limit, and stated that that ‘corruption’ or intent to interfere with legal proceedings is obstruction.
Based on the majority’s vague definition, ICE may overcharge offenses as obstruction. Removal defense advocates may contest this for various offenses, but in criminal proceedings we should act conservatively and assume that PC 32, as well as PC 69, several offenses between PC 92-183 including 136.1, 140, 148, 167; VC 10851; and perhaps offenses such as PC 4532, VC 2800.2, or even VC 20001 maybe charged as an AF as obstruction – if a sentence of a year or more is imposed. Without that sentence, several of these offenses, including PC 32, are immigration-neutral and can be valuable alternative pleas.
Alternative pleas. If a year or more is needed, consider safer pleas such as PC 236/237, 487, 530.5, 459/460(a) or (b), 591, 594, and probably 207. See also ways to structure sentences to avoid a year or more for immigration purposes, at § N.4 Sentence.
If a client has a prior conviction of one of the above offenses with a year or more imposed, try to vacate the conviction. On remand, the Ninth Circuit will consider whether the adverse Pugin obstruction definition will apply retroactively to convictions from before Sept. 11, 2018. But advocates should assume conservatively that the argument will not prevail, and attempt to vacate risky convictions from before that date.
CIMT: Within the Ninth Circuit PC 32 is not a CIMT.
However, if the client is taken elsewhere, the BIA’s test (that PC 32 is a CIMT if the principals’ offense is) may prevail. So, best practice is to identify a principal’s specific felony that is not a CIMT, such as 136.1(b)(1), 236/237, 459/460, or 594 for a violent offense, or 530.5, 496, 459, or 10851 for a theft or fraud offense. If that is not possible, an inconclusive (vague) ROC that does not ID the principal’s offense might help protect a permanent resident contesting deportability, but will not help anyone applying for relief under Pereida. See discussion of Pereida and an inconclusive ROC at 11377, above. Again, if the person is in immigration proceedings within the Ninth Circuit, the offense automatically is not a CIMT.
SB 54. This is one of a few wobblers that does not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory at www.ilrc.org/crimes.