It is not uncommon for the Ninth Circuit and the Board of Immigration Appeals (BIA) to disagree with one another about immigration matters.  As a result, a back and forth often develops, where the Ninth Circuit interprets BIA precedent, and the BIA responds by saying the Ninth Circuit incorrectly interpreted its precedent.  The definition of an obstruction of justice aggravated felony is a great example of this dialogue.

In May 2011, the Ninth Circuit issued an opinion in Trung Thanh Hoang v. Holder, a case that looked to two prior BIA decisions (Matter of Batista-Hernandez and Matter of Espinoza-Gonzalez) and held, under the agency’s interpretation, that a crime constitutes an obstruction of justice crime “when it interferes with an ongoing proceeding or investigation.”  The BIA responded with a published decision in Matter of Valenzuela Gallardo, holding that obstruction of justice requires only "the affirmative and intentional attempt, with specific intent, to interfere with the process of justice. While many crimes fitting this definition will involve interference with an ongoing criminal investigation or trial, we now clarify that the existence of such proceedings is not an essential element of an offense relating to obstruction of justice.”

On appeal, the Ninth Circuit invoked the doctrine of constitutional avoidance - that is, it found that deference typically owed to an agency interpreting the statute entrusted to it by Congress is limited if that interpretation would violate the Constitution.  With respect to the new definition laid out by the BIA in Valenzuela Gallardo, the Court observed that while "the BIA has said that not every crime that tends to obstruct justice qualifies as an obstruction of justice crime, and the critical factor is the interference with the process of justice—which does not require an ongoing investigation or proceeding—the BIA has not given an indication of what it does include in 'the process of justice,' or where that process begins and ends."  As such, its definition of an obstruction of justice crime raised serious concerns about unconstitutional vagueness.

"We do not hold that the BIA’s definition of 'obstruction of justice' must be tied to an ongoing proceeding; rather, we hold that the BIA’s new interpretation of obstruction of justice raises grave constitutional concerns because it uses an amorphous phrase—'process of justice'—without telling us what that phrase means. It is difficult to imagine a specific intent crime that could not be swept into the BIA’s expanded definition."

In light of this, the Ninth Circuit declined to defer to the BIA's decision in Valenzuela Gallardo.  

The full text of Valenzuela Gallardo v. Lynch can be found here: