Attempt to deter by threat or resist by force an executive officer in performing any duty
Aggravated Felony (AF)
Always try to avoid 1 yr or more on any single count, to avoid an AF. But arguably this is not an AF as obstruction of justice; see Advice.
Not an AF as a COV: minimum conduct is offensive touching.1See Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012) (minimum conduct for Pen C § 69 is offensive touching, so felony is not categorically a COV); U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) (after Descamps, supra, if minimum conduct of felony resisting arrest under Arizona law is not a COV, no conviction is a COV).
Crime Involving Moral Turpitude (CIMT)
Not CIMT because minimum conduct is offensive touching.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF as Obstruction. See case citations and further discussion here.2An offense relating to “obstruction of justice” is an AF if a sentence of a year or more is imposed. 8 USC 1101(a)(43)(S). Arguably PC 69 is not obstruction for this purpose, although there is no precedent. It is best to get 364 days or less, but where a year cannot be avoided this likely is a safer plea than, e.g., PC 32. For more background on the Ninth Circuit and BIA dueling definitions of obstruction, see PC 32 endnotes, above.
PC 69(a) is a wobbler offense that punishes a person who commits either of two prongs: “who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty…” PC 69 should not be held obstruction under the Ninth Circuit decision Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020) (“Valenzuela Gallardo II”). That defines obstruction to require interference with an ongoing proceeding or investigation, whereas PC 69 includes interference in any duty and includes an initial arrest, with no already-pending investigation or proceeding.
However, because at this writing Valenzuela Gallardo II could go to rehearing en banc, and it is possible the BIA definition would be used, we also should consider the BIA definition.
The BIA definition of obstruction includes interference in an ongoing or a “reasonably foreseeable” proceeding, which it held includes helping another person to avoid initial arrest under PC 32. See discussion of Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) at PC 32. Unlike PC 32, PC 69 arguably is outside of the BIA’s definition because it includes interference in any duty by the official. For example, it includes resistance to an officer who is trying to prevent a suicide. A person was convicted under the second prong (resisting by force) who had “threatened to jump off [a] railing and had to be physically restrained,” so that he “forcibly resisted the officers in pulling him off the area he was trying to jump from” and “[i]n that process [an] officer was injured.” United States v. Fowles, 225 F. App’x 713, 714 (9th Cir. 2007). Arguably in that case a proceeding or investigation is not necessarily foreseeable.
It may be best to plead to the second prong (resisting by force) as this is a general intent crime. People v. Rasmussen, 189 Cal.App.4th 1411, 1420 (Ct.App.1st Dist. 2010). The BIA’s current generic definition of obstruction is “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.” Matter of Valenzuela Gallardo, 27 I&N Dec. at 456 (emphasis altered and internal quotation marks omitted). The suicide case presents two possible defenses: an arrest was not reasonably foreseeable and there was no specific intent.
Even if the BIA’s definition were to be upheld, counsel can assert that this definition cannot be applied 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 held that this definition can be applied retroactively, and that decision is pending on appeal to the Ninth Circuit. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019) (PC 136.1(b)(1) is obstruction because an investigation or proceeding is reasonably foreseeable, and the BIA definition applies retroactively to convictions from before 9/1/2018). See also discussion at PC 32.
Obstruction of justice is an AF if a year or more is imposed. After some litigation, in 2020 the Ninth Circuit held that the definition of obstruction requires interference with an existing proceeding or investigation; it rejected the BIA’s definition that also included interference with a “reasonably foreseeable” proceeding or investigation. Valenzuela-Gallardo II. PC 69 is not obstruction under Valenzuela-Gallardo II. 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. For immigration advocates, best practice is to defer affirmative applications that rely on Valenzuela-Gallardo II, but of course advocates in removal proceedings should cite this decision and make all arguments.
Note that even the BIA definition, which includes interference in a “reasonably foreseeable” proceeding, might not include PC 69, because 69 prohibits interference in any duty, e.g., resisting an officer who tries to stop D from committing suicide, an event that might not “foreseeably” lead to proceedings. A plea to resisting by force (an offensive touching) may be better than to attempting to deter, because it lacks specific intent However, there is no on-point precedent and the law is unsettled. Finally, if the BIA definition became the rule, arguably it should not apply retroactively to convictions from before September 11, 2018.
COV / CIMT: As always, although this is not required under the categorical approach, the best practice is to give D extra protection by pleading specifically to offensive touching.