Second Circuit Holds Conspiracy to Retaliate Against a Witness Is a Crime Involving Moral Turpitude

The Second Circuit has denied a petition for review filed by a Polish lawful permanent resident convicted of conspiring to retaliate against employees who sued his construction company for wage violations, holding that the offense is categorically a crime involving moral turpitude and that the moral turpitude removability ground is not unconstitutionally vague as applied to him.

The Court held that even the least culpable conduct covered by the statute, threatening property damage in retaliation for someone's participation in official proceedings, involves both the requisite culpable intent and reprehensible conduct because it strikes at the administration of justice itself. The Court also rejected the petitioner's argument that the removability ground does not reach inchoate conspiracy offenses, and declined to revisit several other arguments already rejected in an earlier petition under the law of the case doctrine.

The full text of Dziedziach v. Blanche can be found here: https://ww3.ca2.uscourts.gov/decisions/OPN/23-6837_opn.pdf

First Circuit Holds Witness-Tampering Conviction Is Not an Aggravated Felony Obstruction Offense

The First Circuit has granted a petition for review filed by a Liberian citizen and former Sierra Leonean child soldier found removable for a New Hampshire witness-retaliation conviction, holding that the offense does not qualify as an aggravated felony "relating to obstruction of justice" because it can be committed through pure revenge without any intent to interfere with a legal proceeding.

The Court held that the generic federal offense requires a specific intent to interfere with the legal process, consistent with the Supreme Court's reasoning in Pugin v. Garland, and that New Hampshire's highest court has upheld convictions under the statute based solely on a desire for personal payback. Because the least culpable conduct covered by the New Hampshire statute sweeps more broadly than the generic offense, the Court vacated the BIA's removability finding and did not reach the petitioner's separate challenge to the agency's reversal of his grant of CAT deferral.

The full text of Bangs v. Blanche can be found here: https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/25-1820P-01A.pdf

BIA Finds that CA Witness Tampering Conviction is an Aggravated Felony

The Board of Immigration Appeals (Board) has determined that a California conviction for witness tampering categorically matches the definition of an obstruction of justice aggravated felony because it requires interference with an ongoing or reasonably foreseeable future investigation. The Board also determined that it could permissibly apply its definition of an obstruction of justice offense from Matter of Valenzuela Gallardo II retroactively because the definition of an obstruction of justice offense has remained uncertain throughout the years of litigation between the Board and the Ninth Circuit, and as such, do not represent an abrupt departure from well-settled policy.

The full text of Matter of Cordero-Garcia can be found here:

https://www.justice.gov/eoir/page/file/1210991/download

Ninth Circuit finds Oregon Witness Tampering not Categorically CIMT

The Ninth Circuit has determined that Oregon's witness tampering statute is not a categorical match to the definition of a crime involving moral turpitude.  The plain text of the statute permits conviction if (1) a person induces or attempts to induce a person who is or may be called as a witness in official proceeding to offer false testimony; (2) a person induces or attempts to induce a person who is or may be called as a witness to unlawfully withhold any testimony; or (3) a person knowingly induces or attempts to induce a person to be absent from an official proceeding when the person was legally summoned. 

The statute does not suggest fraud, which the Court has defined as requiring that an individual employ false statements to obtain something tangible.  Neither impeding law enforcement nor wrongfully interfering with the administration of justice constitutes a tangible “benefit” for purposes of determining whether a crime involves fraudulent intent.  In addition, the statute does not involve an intent to injure another, an actual injury to another, or a protected class of victim.  Thus, the statute is overbroad.

"We conclude that the statute is divisible. Although both subsections (a) and (b) define the offense of witness tampering in Oregon, the subsections criminalize different conduct and require different elements for conviction."  It is thus clear from the face of the indictment and the plea agreement that Vasquez-Valle’s conviction tracked subsection (b) (inducing a person to be absent from an official proceeding).  The Court deemed this subsection not to be a crime involving moral turpitude.

The full text of Vasquez-Valle v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/10/13-74213.pdf

Ninth Circuit Finds that a California Conviction for Witness Tampering is not a Categorical Crime Involving Moral Turpitude

The Ninth Circuit has held that a conviction under section 136.1(a) of the California Penal Code (witness tampering) is not categorically a crime involving moral turpitude.  The court noted that "the statute does not require the intent to 'injure someone, an actual injury, or a protected class of victims,' such as children."  In addition, it "does not require that an individual make false statements nor procure anything of value," and as such, is not a fraud-type crime involving moral turpitude.  The court remanded the case to the Board of Immigration Appeals to determine in the first instance if the statute is divisible.

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

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/20/12-70930.pdf