The Board of Immigration Appeals had determined that an “offense relating to obstruction of justice” under section 101(a)(43)(S) of the Immigration and Nationality Act,, encompasses offenses covered by chapter 73 of the Federal criminal code, 18 U.S.C. §§ 1501–1521 (2012), or any other Federal or State offense that involves (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere either in an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant, or in another’s punishment resulting from a completed proceeding. Therefore, a conviction for accessory to a felony under section 32 of the California Penal Code that results in a term of imprisonment of at least 1 year is a conviction for an aggravated felony offense relating to obstruction of justice.
The Board specifically noted that an ongoing investigation is not necessary. For example, acts of witness intimidation before an investigation has begun designed to prevent the reporting of a crime, would still qualify under the generic definition of obstruction of justice.
The full text of Matter of Valenzuela Gallardo can be found here: