PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20−1363

JEAN FRANCOIS PUGIN,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: March 9, 2021 Decided: November 30, 2021

Before GREGORY, Chief Judge, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Agee joined. Chief Judge Gregory wrote a dissenting opinion.

ARGUED: Martha Hutton, O’MELVENY & MYERS LLP, Washington, D.C., for Petitioner. Margot Pyne Kniffin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian D. Doyle, Julio Pereyra, O’MELVENY & MYERS LLP, Washington, D.C., for Petitioner. Jeffrey Bossert Clark, Acting Assistant Attorney General, Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. RICHARDSON, Circuit Judge:

Jean Francois Pugin is a lawful permanent resident facing deportation. The

government decided to deport Pugin after he was found guilty of being an accessory after

the fact under Virginia law. That conviction, the government contends, permits Pugin to

be deported under the Immigration and Nationality Act for having committed an

“aggravated felony,” namely one “relating to . . . the obstruction of justice.”

(a)(43)(S). Pugin disagrees, claiming that an accessory-after-the-fact conviction

under Virginia law does not categorically qualify under the Act as one “relating to

obstruction of justice.” We agree with the government that it does.

We first find that the Board of Immigration Appeals’ definition of “obstruction of

justice” under the Act is due Chevron deference. Finding Chevron deference must be

given, we then find that the Virginia offense of accessory after the fact categorically

matches the Board’s definition. So we affirm the Board’s finding that Pugin may be

deported under the Act.

I. Background

Jean Francois Pugin, a native and citizen of Mauritius, was admitted to the United

States in 1985 as a lawful permanent resident. In 2014, Pugin pleaded guilty in Virginia

to being an accessory after the fact to a felony. He was sentenced to twelve months

imprisonment with nine months suspended. Pugin was then issued a notice to appear

charging him with removability because he was convicted of an aggravated felony: “an

offense relating to obstruction of justice, perjury, or subornation of perjury.”

2 1101(a)(43)(S), 1227(a)(2)(A)(iii). 1 Pugin moved to terminate proceedings before the

immigration judge, asserting that he was not removable because his conviction was not an

aggravated felony.

The immigration judge explained that the categorical approach is the proper form

of analysis to determine whether Virginia accessory after the fact qualifies as obstruction

of justice. Employing that approach, the immigration judge noted that the Board had

previously decided that a federal conviction for accessory after the fact under Section 3 of

Title 18 2 is a crime relating to obstruction of justice. See In re Batista-Hernandez,

(B.I.A. 1997). Turning to whether Virginia’s version of that offense also

qualified, the immigration judge determined first that under Matter of Espinoza-Gonzalez,

, 894–95 (B.I.A. 1999), a state conviction falls under the obstruction-

of-justice designation if it requires a defendant to act with the “purpose of hindering the

process of justice.” A.R. 73–74. The immigration judge then held that Virginia accessory

after the fact is an offense relating to obstruction of justice because, like its federal

counterpart, the offense requires the defendant “act with the ‘specific purpose of hindering

the process of justice.’” A.R. 74. Because the elements categorically matched and Pugin

1 Virginia classifies accessory after the fact as a misdemeanor. Va. Code § 18.2-19. But Pugin does not contest that the “term of imprisonment” for this misdemeanor was “at least one year” as required to qualify as an aggravated felony under federal law.

(a)(43)(S); see also §1101(a)(48)(B) (“a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition . . .”). 2 Section 3 does not require an ongoing proceeding. It criminalizes certain actions done “in order to hinder or prevent” the “apprehension, trial or punishment” of one known to have committed certain offenses.

3 did not raise a reasonable possibility that Virginia would prosecute someone who lacked

specific intent, the immigration judge held that the Virginia law qualified as an aggravated

felony. A.R. 73–74. Pugin appealed, and the Board affirmed, largely adopting the

immigration judge’s analysis and relying on the generic definition of obstruction of justice

laid out in In re Valenzuela Gallardo II,

(B.I.A. 2018). The Board

ordered Pugin removed. A.R. 9–11.

Pugin timely appealed, and we have jurisdiction to review the legal decisions of the

Board.

(a)(47)(B)(i), 1252(a)(2)(D), 1252(b)(1).

II. Analysis

An alien is removable if he has been convicted of an aggravated felony.

(a)(2)(A)(iii). An aggravated felony includes, among other things, “an offense

relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness,

for which the term of imprisonment is at least one year.”

(a)(43)(S)

(emphasis added). In In re Valenzuela Gallardo II,

(B.I.A. 2018),

the Board defined “offenses relating to obstruction of justice” as requiring “(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.”

Pugin challenges the Board’s interpretation of “obstruction of justice” for several

reasons all based on his position that obstruction of justice requires an ongoing proceeding.

First, he contends that the phrase is a term of art that is not ambiguous and that requires a

connection to an ongoing or pending proceeding or investigation. As a result, he argues,

4 Chevron does not apply. And he argues that even if the phrase is ambiguous, the Board’s

interpretation is not reasonable. He also asserts that the rule of lenity should apply rather

than Chevron because the definition of obstruction of justice is used in criminal actions.

For the reasons below, we reject each of these challenges. And finding Chevron applies,

the phrase ambiguous, and the Board’s interpretation reasonable, we then must decide

whether Virginia accessory after the fact categorically matches the Board’s definition.

Mathis v. United States,

(2016). Virginia uses the common-law

definition of accessory after the fact. Commonwealth v. Dalton,

(2000).

At the very least, the parties agree that this requires: (1) a completed felony; (2) that the

person giving aid knows the felon is guilty; and (3) that the accused receives, relieves,

comforts, or assists the felon.

The parties disagree over whether Virginia law requires

the accused to act “with the view of enabling his principal to elude punishment,” Wren v.

Commonwealth,

,

, 957 (Va. 1875), or said another way, to act with

specific intent. We find that Virginia case law shows that specific intent is required to

obtain an accessory-after-the-fact conviction, creating a categorical match with the Board’s

definition. As a result, we find Pugin removable and affirm the Board.

A. The Board’s interpretation is due deference under Chevron

We give deference to an agency’s reasonable interpretation of an ambiguous statute

it administers because of its expertise and because of what is viewed as an implicit

congressional delegation of authority to interpret that ambiguity. Chevron, 467 U.S. at

865. Chevron applies with particular force in the immigration context as “judicial

deference to the Executive Branch is especially appropriate . . . where officials ‘exercise

5 especially sensitive political functions that implicate questions of foreign relations.’” I.N.S.

v. Aguirre-Aguirre,

, 424–25 (1999) (quoting I.N.S. v. Abudu,

(1988)). That is certainly true of the Immigration and Nationality Act, which “provides

that ‘[t]he Attorney General shall be charged with the administration and enforcement’ of

the statute and that the ‘determination and ruling by the Attorney General with respect to

all questions of law shall be controlling.’”

(quoting

(a)(1)). So we

generally afford deference to an interpretation of that Act by a three-person panel of the

Board. Nunez-Vasquez v. Barr,

(4th Cir. 2020).

Pugin argues that Chevron cannot apply to the Board’s decision in In re Valenzuela

Gallardo II,

(B.I.A. 2018), because the definition of “obstruction

of justice” has effect in criminal proceedings. See, e.g., Valenzuela Gallardo v. Barr,

, 1059–62 (9th Cir. 2020) (acknowledging the issue in this context but applying

Chevron because circuit precedent has given deference in similar situations). So we begin

at “Step Zero” by asking whether Chevron applies at all. See Cass R. Sunstein, Chevron

Step Zero,

, 209–10 (2006).

1. Step Zero: Chevron applies

There is a thoughtful and ongoing debate about whether Chevron can apply to

interpretations of criminal law, which implicates serious questions about expertise,

delegation, flexibility, notice, due process, separation of powers, and more. 3 But we need

3 Compare Gun Owners of America, Inc. v. Garland,

, 461–67 (6th Cir. 2021) (arguing against Chevron deference to interpretations of criminal law); Paul J. Larkin, Jr., Chevron and Federal Criminal Law, 32 J. L. & POL. 211, 222–28 (2017); (Continued)

6 not resolve that question here because the Immigration and Nationality Act is a civil statute,

and any collateral criminal consequences are too attenuated to change our analysis.

Pugin argues that Chevron deference cannot be given to the interpretation of an

immigration statute when the interpretation might impact a future criminal prosecution.

The Immigration and Nationality Act subjects aliens to removal if they commit certain

aggravated felonies, such as obstruction of justice.

(a)(2)(A)(iii),

1229b(a)(3). And if a removed alien later illegally reenters the United States and if that

alien is convicted of illegal reentry, then an increased criminal punishment applies.

§ 1326(b)(2); see also id. § 1327. It is because of this potential, indirect effect of the Act’s

aggravated-felon provision on a future criminal prosecution that Pugin contends lenity and

not Chevron must govern.

We disagree. The Immigration and Nationality Act is a civil statute that expressly

delegates rulemaking authority to the agency in a civil proceeding. And not every

interpretation that might impact the scope of criminal liability negates Chevron.

The type of statute being interpreted and the order of the proceedings matter. When

an otherwise civil statute is first interpreted when making a determination in a civil

Esquivel-Quintana v. Lynch,

(6th Cir. 2016) (Sutton, J., dissenting in part), rev’d sub nom. Esquivel-Quintana v. Sessions,

(2017); Aposhian v. Wilkinson, No. 19-4036,

, at *7–8 (10th Cir. Mar. 5, 2021) (Tymkovich, C.J., dissenting from vacating en banc); Gutierrez-Brizuela v. Lynch,

, 1155– 57 (10th Cir. 2016) (Gorsuch, J., concurring); Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

(2020) (Gorsuch, J., respecting the denial of certiorari), with Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 HARV. L. REV. 469, 469–70 (1996) (arguing for Chevron deference to interpretations of criminal law); Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,

, 23–27 (D.C. Cir. 2019).

7 proceeding, Chevron deference can be afforded even though the determination based on

that interpretation might indirectly impact future criminal liability. Precedent supports this

view. We have consistently held that “we are obliged to apply the principles of Chevron

to the [Board’s]” various definitions of aggravated felony. 4 So our precedent suggests that

we must apply Chevron to the Board’s interpretation of the definition of this aggravated

felony (obstruction of justice).

And in other contexts, we have provided Chevron deference for the Board’s

interpretations that might indirectly impact future criminal prosecutions. For example,

§ 1326(a) criminalizes any illegal reentry, so any Board interpretation of the Immigration

and Nationality Act affecting removal could indirectly impact future criminal liability

under § 1326(a). Yet the Board often receives Chevron deference for interpretations that

4 See Soliman v. Gonzales,

, 281–83 (4th Cir. 2005) (applying Chevron to theft or burglary, § 1101(a)(43)(G), but concluding that the Board’s definition contradicted congressional intent); Castillo v. Holder,

(4th Cir. 2015) (finding Chevron appropriate for the same section but deciding the case by finding no categorical match instead); Amos v. Lynch,

, 518–19 (4th Cir. 2015) (acknowledging that “we are required to accept the Board’s” reasonable construction of an ambiguous term and have done so in the aggravated felony context, but finding that there was no precedential interpretation on point); Larios-Reyes v. Lynch,

(4th Cir. 2016) (acknowledging the applicability of Chevron for “sexual abuse of a minor” in the same context as Esquivel-Quintana,

, but finding that there was no precedential decision to defer to). We have also applied Chevron to the Board’s interpretation of “moral turpitude,” which can render an immigrant ineligible for cancellation or withholding or removal. Ramirez v. Sessions,

, 701–02 (4th Cir. 2018) (holding that Chevron applies in this area but there was no precedential decision); Nunez-Vasquez v. Barr,

(4th Cir. 2020) (same). This definition indirectly impacts criminal liability because by changing the scope of moral turpitude the Board is changing the scope of cancelling or withholding removal. This in turn changes who is subject to removal and thus subject to criminal sanctions for reentering the country in the future, just like an aggravated-felony finding does here.

8 affect the scope of removal under the Immigration and Nationality Act. See, e.g., Sijapati

v. Boente,

(4th Cir. 2017); see also Aguirre-Aguirre, 526 U.S. at 424–

25.

Supreme Court cases also reflect that the order of the civil and criminal proceedings

and the type of statute matter. It is true that no Supreme Court case has afforded Chevron

deference in this situation. 5 It is also true that the Court did not mention Chevron and

indicated lenity would apply in a case in which immigration consequences depended on

interpreting a criminal statute, over which the Board has no authority. Leocal v. Ashcroft,

, 11 n.8 (2004); see also Carachuri-Rosendo v. Holder,

(2010)

(“ambiguities in criminal statutes referenced in immigration laws should be construed in

the noncitizen’s favor”). But Leocal applied to criminal statutes that were also directly

applied in civil contexts, not civil statutes that only indirectly might affect future criminal

prosecutions. And in a case much like this one, interpreting the term “controlled

substance” in the Immigration and Nationality Act, the Court applied Chevron and held

that the statute was unambiguous at Step One. Mellouli v. Lynch,

(2015); see also Esquivel-Quintana v. Sessions,

(2017).

5 Michael Kagan, Chevron’s Liberty Exception, 104 IOWA L. REV. 491, 522–31 (2019) (explaining cases on this point); see, e.g., Torres v. Lynch,

(2016) (determining the generic definition of an aggravated felony without reference to Chevron); Lopez v. Gonzales,

(2006) (same); Carachuri-Rosendo v. Holder,

(2010) (struck down the Board’s construction of an “aggravated felony” offense without referencing Chevron); Moncrieffe v. Holder,

(2013) (holding that sharing marijuana not an aggravated felony).

9 This case involves the Board interpreting a civil section of the Immigration and

Nationality Act, with no direct criminal application, over which they have been delegated

authority, in a civil administrative proceeding.

(a)(2)(A)(iii); § 1103(a)(1);

§ 1229b(a)(3); § 1101(a)(43). The interpretation occurs only at the civil stage. Criminal

sanctions can only potentially come later in a separate criminal proceeding where the

Immigration and Nationality Act is not interpreted anew. Id. § 1326(a), (b)(2). For

example, in a § 1326 illegal-reentry prosecution, that prosecution is a separate and distinct

crime. And a defendant generally may not relitigate the validity of an underlying removal

order. See United States v. Mendoza-Lopez,

, 834–39 (1987); see also

(d) (setting requirements for collateral attack of an underlying removal order

in § 1326 proceedings); see also United States v. Perez-Paz,

(4th Cir. 2021)

(“[Section] 1326 does not incorporate, as an element, the facts supporting the underlying”

aggravated-felony removal order so the underlying facts need not be decided by a jury).

Thus, the merits of the civil-administrative determination that a person has committed an

“aggravated felony” and thus was removable is not at issue in a later § 1326 illegal-reentry

prosecution. Instead, it is only the fact that the civil aggravated-felony determination was

previously made that may increase the maximum punishment. Because the potential

criminal consequence of this civil determination based on the interpretation of a civil

statute are too attenuated, they do not bar Chevron’s application at Step Zero.

Pugin’s reliance on the canon of lenity does not sway our conclusion. Lenity only

applies to criminal statutes or the functional equivalent. See Leocal,

n.8

(lenity applies to an immigration case when it is interpreting a criminal statute); Crandon

10 v. United States,

(1990) (same); United States v. Thompson/Ctr. Arms

Co.,

(1992) (plurality opinion) (applying the rule of lenity to tax statute with

direct “criminal applications that carry no additional requirement of willfulness”). It is not

enough that a determination under a civil statute might have future effect in a later criminal

action based on different conduct. This is a civil proceeding interpreting a civil statute.

Any ancillary criminal consequences are too attenuated. As a result, lenity cannot displace

Chevron here.

So Chevron applies. We next consider (1) whether the term “relating to obstruction

of justice” is ambiguous and (2) if so, whether the agency’s interpretation is a reasonable

construction of the language. Chevron, 467 U.S. at 843.

2. Step One: The phrase “relating to obstruction of justice” is ambiguous

Since Chevron applies, we must determine whether the term “relating to obstruction

of justice” is ambiguous about whether an ongoing proceeding or a reasonably foreseeable

proceeding must be obstructed. In Esquivel-Quintana, the Supreme Court considered the

generic definition of “sexual abuse of a minor” as provided in § 1101(a)(43)(A) but did not

give Chevron deference to the Board’s interpretation because the text, dictionaries, related

federal statutes, state statutes, and the Model Penal Code provided a clear answer. 137 S.

Ct. at 1569–73, 1571 n.3. Here, those same sources show that the term “relating to

obstruction of justice” is ambiguous.

We begin by addressing Pugin’s primary argument: that § 1101(a)(43)(S) uses

“obstruction of justice” as a term of art referencing Chapter 73 of Title 18 of the U.S. Code,

11 which is titled “Obstruction of Justice.” See Valenzuela Gallardo,

; Flores

v. Att’y Gen. United States,

(3d Cir. 2017).

The dissent endorses a

similar argument, suggesting that “obstruction of justice” is a term of art dating back to the

19th century that has always required a pending proceeding, Dissenting Op. at 38, and that

the 1946 Congress was aware of this rigid definition of “obstruction of justice” when it

enacted § 1101(a)(43)(S), effectively codifying that term of art in Chapter 73. Thus, the

reasoning goes, Chapter 73 is the full extent of “obstruction of justice” and because almost

all the crimes under that title require an ongoing proceeding, the phrase unambiguously

requires an ongoing proceeding. We disagree.

The phrase “obstruction of justice” in § 1101(a)(43)(S) is not an unambiguous

reference to Chapter 73. Other aggravated felonies within the Immigration and Nationality

Act expressly cross reference their definitions to parts of the criminal code. See

(a)(43)(B)–(F), (H)–(P); see also, e.g., § 1101(a)(43)(H) (designating as an

aggravated felony “an offense described in section 875, 876, 877, or 1202 of title 18”). But

§ 1101(a)(43)(S) does not. That it does not signifies that the term “obstruction of justice”

is not limited by an unreferenced chapter in the U.S. Code. See, e.g., Esquivel-Quintana,

(refusing to fully rely on another statute for this reason); Soliman,

. Pugin says the subsection does not cross reference Chapter 73 because

Congress wanted to include state laws that may not perfectly match the federal elements,

but that argument is not persuasive. In fact, it undermines Pugin’s argument by showing

that Congress wanted obstruction of justice to have a broader definition than what was in

12 Chapter 73. “Obstruction of justice” is not an unambiguous phrase limiting

§ 1101(a)(43)(S) to the narrow confines of Chapter 73.

This leads to the second reason that the term obstruction of justice is ambiguous:

State laws vary wildly and often do not require a connection to an ongoing proceeding.

When the Immigration and Nationality Act was passed, only seventeen states used the

phrase “obstruction of justice” or “obstructing justice” in their criminal codes. Valenzuela

Gallardo II,

n.4. Of those states, only three required an ongoing

proceeding while the fourteen others required only a reasonably foreseeable investigation.

6 The Model Penal Code similarly criminalizes the act of concealing a crime without a

pending proceeding. Model Penal Code § 242.3. That crime is listed in Article 242, which

is entitled “Obstructing Governmental Operations; Escapes.” Id. That the majority of

applicable states (fourteen of seventeen) and the Model Penal Code believed that an

ongoing proceeding was not required as a condition of obstructing justice when this section

was passed, counsels us to find that the phrase is ambiguous on this point.

Third, even some federal obstruction laws in Chapter 73 do not require an ongoing

proceeding. For example, § 1512, which criminalizes tampering with witnesses, defines a

proceeding as one that “need not be pending or about to be instituted at the time of the

6 The Board in Valenzuela Gallardo II explained: “Of these jurisdictions, three States limited the concept of obstruction of justice to offenses involving interference in a pending or ongoing investigation or judicial proceeding. The remaining jurisdictions extended this concept to offenses involving interference with a criminal investigation or a reasonably foreseeable proceeding.”

n.4 (citations omitted). See also People v. Jenkins,

, 1240–41 (Ill. App. Ct. 2012); Wilbourn v. State,

, 425–26 (Miss. 1964); State v. O’Neill,

(Vt. 1996); Turner v. Commonwealth,

(Va. Ct. App. 1995).

13 offense.”

(f)(1). Various subsections of that statute criminalize an array

of obstructive activity: from obstructing the reporting of a possible crime to preventing

witnesses from attending an ongoing judicial proceeding. See, e.g.,

(a)(1)(A), (a)(1)(C), (a)(2)(C), (b)(3), (d)(2).

Pugin, supported by the Third and Ninth Circuits, argues that some subsections in

§ 1512 explicitly do not require an ongoing proceeding because they are exceptions that

prove the rule. Valenzuela Gallardo,

; Flores, 856 F.3d at 288–89. But

during oral arguments Pugin admitted that § 1512 was not the only obstruction-of-justice

provision in Chapter 73 that does not require an ongoing proceeding. For example, Section

1510(a) criminalizes any use of bribery to stop someone from going to the police about a

federal criminal violation (thus applying even before an investigation is pending). See also

§ 1518 (criminalizing attempts to prevent or delay the communication of information to

law enforcement about health-care offenses); § 1519 (similar for bankruptcy); Yates v.

United States,

, 547–48 (2015) (finding that § 1519 covers proceedings not

“even on the verge of commencement” “no matter whether the investigation is pending or

merely contemplated”). So even if we were limited to Chapter 73 for defining obstruction

of justice, various crimes included in Chapter 73 reflect that obstruction of justice can

include crimes before an investigation has even begun.

The dissent somehow disagrees, suggesting that obstruction can never occur before

an investigation. Dissenting Op. at 47. This is wrong both in fact and as a matter of logic.

As just mentioned, some obstruction-of-justice offenses laid out in Chapter 73 can occur

even before an investigation. See §§ 1510, 1512, 1518 & 1519. But even without those

14 explicit counterexamples, the logical chain the dissent relies on won’t hold. The dissent

rightly points out that Fourth Circuit precedent requires a nexus to a proceeding and holds

that an investigation is not a proceeding. Dissenting Op. at 46–47. But the dissent then

incorrectly concludes that those two premises taken together prove that obstruction can

never occur before an investigation. But our precedent only requires a nexus to a

foreseeable proceeding under § 1512, which is to say a future proceeding that has not yet

started. See United States v. Young,

(4th Cir. 2019) (requiring a nexus

to a proceeding that was “either pending or was reasonably foreseeable”). So a criminal

may obstruct foreseeable proceedings before an investigation begins.

This distinction between a foreseeable proceeding and an existing proceeding is

crucial. In fact, it is the very ambiguity we are examining: whether “relating to obstruction

of justice” requires an existing proceeding or just a foreseeable proceeding. The dissent

conflates the two. First, the dissent concedes that “non-pending but reasonably foreseeable

official proceedings” can be obstructed under § 1512. See Dissenting Op. at 45 (citing

Arthur Andersen LLP v. United States,

, 707–08 (2005)); see also Marinello

v. United States,

(2018) (“the Government must show that the

proceeding was pending . . . or, at the least, was then reasonably foreseeable by the

defendant.”); Young,

(requiring that “the defendant contemplate[] a

particular, foreseeable proceeding”); United States v. Sutherland,

, 426–28

(4th Cir. 2019). But after conceding that the proceeding need only be foreseeable, the

dissent confusingly claims that non-pending, foreseeable proceedings “must be connected

15 to existing proceedings.” Dissenting Op. at 46 (emphasis added). That cannot be right.

Proceedings that are foreseeable but not yet pending are, by definition, not yet in existence.

Obstruction-of-justice crimes outside Chapter 73 can also be committed before a

proceeding or an investigation begins. For example, the crime of accessory after the fact

covers “[w]hoever, knowing that an offense against the United States has been committed,

receives, relieves, comforts or assists the offender in order to hinder or prevent his

apprehension, trial or punishment.”

(emphasis added). In United States v.

White,

, 232–34 (4th Cir. 2014), we sustained a conviction under § 3 when

the defendant lied to an insurance representative about the cause of an arson fire even

though there was no ongoing criminal proceeding because it was “common sense” that the

representative would tell the police about suspected arson and lying would help avoid

apprehension. So like §§ 1510, 1512, 1518, and 1519, accessory after the fact under § 3

does not require an ongoing proceeding.

Pugin contends that federal accessory after the fact cannot be a form of obstruction

of justice since it is not codified under the obstruction-of-justice section. See Valenzuela

Gallardo,

. 7 But courts have long considered accessory after the fact to

7 While a section’s location in the Code can sometimes be a legitimate tool of interpretation, it is a weak one that does little work here. The placement of § 3 in one Chapter or another simply does not tell us much about the meaning of the phrase “obstruction of justice.” We cannot read Congress’s placement of § 3 accessory after the fact in Chapter 1 (“General Provisions”) instead of Chapter 73 (“Obstruction of Justice”) as a clear instruction that accessory after the fact isn’t a crime that obstructs justice. Nor can we read the heading of Chapter 73 as a clear instruction that every single crime that might obstruct justice is housed in that Chapter. The Code Chapters necessarily involve some overlap in themes and topics, compare 18 U.S.C. ch. 79 (“Perjury”) to 18 U.S.C. ch. (Continued)

16 be an obstruction of justice as a matter of plain meaning. 8 And thirteen of the seventeen

states that had obstruction-of-justice laws when the Immigration and Nationality Act was

passed included accessory after the fact as a crime obstructing justice either explicitly or

in their caselaw. 9 Moreover, several circuits have held that other sections in the U.S. Code

outside Chapter 73 qualify as aggravated felonies under the Immigration and Nationality

Act’s obstruction-of-justice provision. See Renteria-Morales v. Mukasey,

(9th Cir. 2008) (failure to appear under

(2006)); Alwan v. Ashcroft,

47 (“Fraud and False Statements”), so the placement of certain provisions in or out of Chapter 73 fails to establish the meaning of the phrase “obstruction of justice.” 8 See, e.g., United States v. Brown,

(8th Cir. 1994) (“The gist of being an accessory after the fact” under § 3 “lies essentially in obstructing justice by rendering assistance to hinder or prevent the arrest of the offender after he [or she] has committed the crime.”); United States v. Willis,

(5th Cir. 1977) (per curiam) (same); United States v. Barlow,

, 1252–53 (D.C. Cir. 1972) (same); Virgin Islands v. Aquino,

(3d Cir. 1967) (“An accessory after the fact is one who, knowing that a crime has been committed, obstructs justice by giving comfort or assistance to the offender in order to hinder or prevent his apprehension or punishment.”). The Ninth Circuit argued that these cases only refer to accessory after the fact as obstruction in dicta. Valenzuela Gallardo,

n.8. But this misses the point. That many federal courts have commonly referred to accessory after the fact as obstruction of justice gives us insight into the linguistic meaning of the term obstruction of justice and any ambiguity it encompasses. 9

;

(a)–(b);

(A)(1), (3);

(b), (e); Staten v. State,

(Fla. 1988) (“The accessory after the fact is no longer treated as a party to the crime but has come to be recognized as the actor in a separate and independent crime, obstruction of justice.”); Moore v. State,

, 69–70 (Ga. 1977) (same); People v. Jones,

(Ill. App. Ct. 1980) (same); State v. Chism,

, 467 n.2 (La. 1983) (same); Osborne v. State,

(Md. 1985) (same); State v. Brown,

, 649–50 & n.8 (Mo. Ct. App. 2018); State v. Lynch,

, 634–35 (N.J. 1979); State v. Sliger, No. 24,

, at *6–7 (Tenn. June 17, 1991) (same); State v. Petry,

(W. Va. 1980) (same); State v. Rundle,

(Wis. 1993) (same).

17

(5th Cir. 2004) (contempt of court under

(3) (2000)).

So there is no reason to think that obstruction of justice is limited to the offenses listed in

Chapter 73. At the very least, the fact that other federal obstruction laws do not require an

ongoing proceeding implies that the term obstruction of justice is ambiguous about the

timing of the obstructed proceeding.

Fourth, the Immigration and Nationality Act defines “aggravated felony” not just as

“obstruction of justice,” but as “relating to obstruction of justice.” We have repeatedly

read the term “relate to” expansively, requiring only some relation. See United States v.

Hardin,

(4th Cir. 2021) (citing United States v. Colson,

(4th Cir. 2012); United States v. Spence,

(4th Cir. 2011)); see also

Coventry Health Care of Mo., Inc. v. Nevils,

(2017) (under the

federal-officer-removal statutes “relate to” “expresses a broad pre-emptive purpose”). So

even if the term “obstruction of justice” standing alone required an ongoing proceeding,

the “relating to” clause would broaden that understanding, including crimes that hinder the

discovery or resolution of a crime even though a proceeding has yet to begin. At the least,

the potential scope of this phrase is ambiguous.

Pugin pushes back, arguing that because “relating to” refers to a list—“obstruction

of justice, perjury or subornation of perjury, or bribery of a witness”—the noscitur a sociis

canon means that whatever offenses are encompassed in the phrase “relating to” must be

similar to the ones in the list. Assuming the crimes in the list all require an ongoing

proceeding, he argues that any offenses “relating to” the obstruction of justice must as

18 well. 10 But the other crimes need not involve an ongoing proceeding. See Ho Sang Yim v.

Barr,

, 1080–82 (9th Cir. 2020) (giving Chevron deference to a Board

interpretation of “relating to . . . perjury” that did not require the statement to have been

made during a proceeding). “Relating to” expands; it does not limit. So we cannot read

Pugin’s limitation into the statute. See Morales v. Trans World Airlines, Inc.,

, 383–84 (1992).

Pugin relies on a few other sources, but none overcome the strong evidence that

obstruction of justice is an ambiguous phrase. First, Pugin argues that the Board and some

courts have long required an ongoing proceeding, and the Board’s current position is a

complete reversal. See In re Espinoza-Gonzalez,

; Trung Thanh

Hoang v. Holder,

(9th Cir. 2011) (deferring to In re Espinoza-

Gonzalez). But even under the prior regime, some courts found the phrase ambiguous,

which permitted them to defer to the Board’s then-current interpretation. 11 And agencies

10 The Ninth Circuit recently gave Chevron deference to a Board interpretation of “relating to . . . perjury” that did not require the statement to have been made during a proceeding. Ho Sang Yim v. Barr,

, 1080–82 (9th Cir. 2020) (deferring to Matter of Alvarado,

, 901 & n.11 (B.I.A. 2016) and noting that the federal perjury statute,

, does not require an ongoing proceeding). 11 Several courts have deferred to the Board’s interpretation in Espinoza-Gonzalez. See Alwan v. Ashcroft,

(5th Cir. 2004); Victoria-Faustino v. Sessions,

(7th Cir. 2017) (relying on Espinoza-Gonzalez not Valenzuela Gallardo since the Ninth Circuit remanded it). Even the Ninth Circuit used to defer to the Board under Espinoza-Gonzalez. See Trung Thanh Hoang v. Holder,

(9th Cir. 2011); Hoang v. Holder,

, 1160–61 (9th Cir. 2011); Renteria-Morales,

; Salazar-Luviano v. Mukasey,

(9th Cir. 2008). But Espinoza-Gonzalez required an ongoing proceeding, and no court has deferred to Valenzuela Gallardo. Still, the fact that multiple courts have deferred the Board’s definition of obstruction of justice reflects that the phrase is ambiguous generally.

19 may change their interpretation of federal law as long as the new definition is reasonable.

Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs.,

(2005).

Second, legal dictionaries somewhat favor Pugin’s position, but not clearly. And

they do not defeat the ambiguity created by other sources. Merriam Webster defines

“obstruction of justice” to include “the crime or act of willfully interfering with the process

of justice and law esp[ecially] by influencing, threatening, harming, or impeding a witness,

potential witness, juror, or judicial or legal officer or by furnishing false information in or

otherwise impeding an investigation or legal process.” Merriam-Webster’s Dictionary of

Law 337 (1996) (emphasis added); Valenzuela Gallardo,

(relying on this

definition to require a proceeding). This definition arguably requires some sort of process

(including an “investigation”), but it is not clear if the process must be ongoing or just

foreseeable. Black’s Dictionary defines obstruction in reference to the administration of

justice or a pending proceeding as well. Obstructing Justice, Black’s Law Dictionary 1077

(6th ed. 1990). But another dictionary defines “obstruction of justice” as “a broad phrase

that captures every willful act of corruption, intimidation, or force that tends somehow to

impair the machinery of the civil or criminal law.” B. Garner, A Dictionary of Modern

Legal Usage 611 (2d ed. 1995). Given the “broad” modifier, “impair[ing] the machinery

of . . . criminal law” could include trying to ensure the police never learn of a crime. See,

e.g.,

. These definitions do not render the phrase unambiguous.

Considering federal and state laws, the Model Penal Code, and dictionary

definitions, it is at least ambiguous as to whether the phrase “relating to obstruction of

20 justice” requires the obstruction of an ongoing proceeding. So we move to Chevron Step

Two to determine whether the Board’s generic definition is a reasonable interpretation of

the ambiguous phrase.

3. Step Two: The Board’s generic definition is reasonable

To receive deference, the Board’s generic definition of obstruction of justice must

be reasonable. It is. The Board relied on many of the sources mentioned above to come

to the reasonable conclusion that an element of “an offense relating to obstruction of

justice” is interference in an ongoing or reasonably foreseeable proceeding.

The Board began by noting that it was crafting a generic definition based on the

“contemporary meaning” of the phrase when the statute was passed. In re Valenzuela

Gallardo II, 27 I. & N. Dec. at 452–53. It acknowledged that most of the sections in

Chapter 73 of Title 18 (“Obstruction of Justice”) require an ongoing proceeding but § 1512

and § 1519 do not. Id. at 455. But the Board did not consider Chapter 73 to be the “sole

reference” under federal law of the meaning of obstruction of justice as

,

which provides liability for being an accessory after the fact, is also considered a form of

obstruction of justice.

at 457–59 (citing federal cases and state laws, the Sentencing

Guidelines, and the Model Penal Code to support this point). And as mentioned above,

that offense does not require an ongoing proceeding.

. So using Supreme Court

precedent, the Board limited the definition to reasonably foreseeable proceedings.

at

21 455. 12 So the Board concluded that an offense “relating to obstruction of justice” as used

in

(a)(43)(S) requires “(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.”

.

Given that some obstruction-of-justice offenses that existed at the time of the

Immigration and Nationality Act’s passage did not require an ongoing proceeding, we

cannot conclude that the Board’s definition was “arbitrary, capricious, or manifestly

contrary to the statute.” Mahmood v. Sessions,

(4th Cir. 2017). 13 We

therefore defer to the Board’s definition.

B. Virginia law requires specific intent and is a categorical match

We now must determine whether the Board’s definition of obstruction of justice

categorically matches the elements of Pugin’s crime of conviction—accessory after the

12 See Arthur Andersen LLP, 544 U.S. at 707–08 (requiring the Government to prove that a proceeding was “foreseen” to convict a defendant under § 1512); Marinello,

(the Government must show that the proceeding was, at least, “reasonably foreseeable by the defendant” at the time of the obstructive conduct); Young,

(holding that to convict under § 1512(c)(2) the government must prove “that there was a ‘nexus’ between the defendant’s conduct and the pending, or foreseeable, official proceeding”). 13 The dissent reads the Board’s opinion to say “that a formal nexus is not required by Chapter 73” and finds that unreasonable. Dissenting Op. at 54. But this again blurs the distinction between foreseeable and ongoing proceedings. The Board interpretation does require a nexus, but a nexus to a reasonably foreseeable proceeding, not an ongoing proceeding. That is the very interpretation that the Fourth Circuit has already adopted. Young,

; see also Sutherland,

.

22 fact under Virginia law. To do so, we employ the categorical approach. Mathis,

. The categorical approach requires us to judge whether the elements of the

state offense fall within the generic definition of an “offense relating to obstruction of

justice.” Gordon v. Barr,

(4th Cir. 2020). “[I]f the state offense ‘sweeps

more broadly,’ criminalizing more conduct than the federal offense, the prior conviction

does not qualify as a removable offense.”

But that is true only if there is a “‘realistic

probability,’ not a theoretical possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.” Castillo v. Holder,

, 267–

68 (4th Cir. 2015).

We give no deference to the Board’s construction of state law or determination of

its fit with federal law. Gordon,

. Instead, we look to state-court

interpretations of the state law and review the categorical fit between the state and federal

law de novo.

Pugin argues that Virginia law fails to include the specific intent element

of the Board’s definition. 14 We find it clear that Virginia accessory after the fact includes

a specific-intent requirement and is a categorical match with the Board’s generic definition

of obstruction of justice. So Pugin is removable.

Accessory after the fact under Virginia law requires that a “felony must be

completed”; the defendant “must know that the felon is guilty”; and the defendant “must

14 Recall that the Board defines “offenses relating to obstruction of justice” as generically requiring “(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.” In re Valenzuela Gallardo II,

(B.I.A. 2018) (emphasis added).

23 receive, relieve, comfort or assist him.” Wren v. Commonwealth,

, 956 (1875).

To Pugin, this crime does not categorically match because the generic offense requires the

specific intent to interfere while Virginia law only requires the lower mens rea of

knowledge. The problem with that argument is that it has been expressly rejected by the

Virginia Supreme Court: “The true test whether one is accessory after the fact, is to

consider whether what he did was done by way of personal help to his principal, with the

view of enabling his principal to elude punishment . . . .”

(emphasis added).

Acting with the view of enabling another to elude punishment is synonymous with acting

with the specific intent to enable another to elude punishment.

The facts of Wren confirm that specific intent is needed to convict someone of being

an accessory after the fact. Wren was a private detective who tried to help a man, Fowlkes,

get money back from a swindler named Dull.

at 961–62. Wren brought Dull to meet

with Fowlkes and his attorney. Although Wren knew that the attorney intended to get a

warrant for Dull’s arrest, he did not mention that fact to Dull.

All he did was caution

the attorney against procuring the warrant before the money was recovered.

The court

made clear why this was not sufficient to find him guilty of being an accessory after the

fact to the fraud because: “His object . . . was to get the money of which Fowlkes had been

swindled. But there is no evidence to show that his design was to enable Dull to elude or

escape punishment.”

(emphasis added). The court made clear that mere knowledge of

another’s felony and an attempt to conceal it or to frustrate an arrest could make Wren

guilty of other crimes, but not accessory after the fact.

That comparison shows that the

key to accessory after the fact under Virginia law is the specific intent to help the felon

24 avoid punishment. See

at 95–67 (stating that “taking money to allow [a felon] to escape”

or “supplyi[ng] him with money, a horse or other necessaries, in order to enable him to

escape . . . would constitute a man accessory after the fact” (emphasis added)); Buck v.

Commonwealth,

(1914) (“[I]t is not proven that plaintiff in error did

anything whatever, by way of personal help to [the person avoiding capture], with the view

to enabling him to elude punishment” nor was there any “evidence whatever in the record

tending to prove a motive.” (emphasis added)); Suter v. Commonwealth,

(2017) (“Finally, the aid must have been given to the felon personally for the purpose

of hindering the felon’s apprehension, conviction, or punishment.” (citations omitted)); see

also Schmitt v. True,

(E.D. Va. 2005) (holding that the defendant

did not have the “requisite mens rea to have been charged, or convicted, as an accessory

after the fact” under Virginia law when he purposefully helped a felon under the mistaken

belief that he was a different person).

Other sources also reveal that Virginia accessory after the fact requires specific

intent. Most importantly, the commonly used Virginia model jury instructions require

intent to help a known felon escape capture or punishment. See Mathis,

(acknowledging the usefulness of jury instructions when the state law is not clear in a

similar context); Bah v. Barr,

(4th Cir. 2020) (relying on Virginia model

jury instructions). The Virginia Pattern Jury Instructions requires the Commonwealth to

“prove beyond a reasonable doubt each of the following elements of that crime” including

“(4) That the defendant comforted, relieved, hid, or in any other way assisted the person

who committed the (name of crime) with the intent of helping that person escape or delay

25 capture, prosecution or punishment.” 1 Va. Model Crim. Jury Instr. No. 3.300, Accessory

After the Fact (emphasis added). Similarly, the Virginia Practice Series says, “there are

two mental states which must be proven [for accessary after the fact]: knowledge (that the

felony had been committed) and intent (that apprehension, etc., be hindered).” Principal

and Accessory, Va. Prac. Criminal Offenses & Defenses P31 (emphasis added) (citing

Wren, 67 Va. at 956); see also Wayne R. LaFave, Criminal Law § 13.6, at 753–54 (5th ed.

2010) (stating that general common law requires specific intent); William Blackstone,

Commentaries on the Laws of England, Volume 4, page 38, note 1 (Oxford 1765–1769)

(same); MPC 242.3 (1985) (same).

Faced with this overwhelming evidence, Pugin argues that the two most recent

Virginia Supreme Court cases discussing accessory after the fact do not discuss specific

intent, so that element must no longer exist (if it ever did). But those cases do not stand

for the proposition that specific intent is no longer required. In the first case, a man drove

some friends around while they drank and stopped at several stores where, unbeknownst

to the driver, his friends robbed the stores. Manley v. Commonwealth,

(1981). The court listed the three elements from Wren and then concluded that there was

no evidence the defendant knew his friends had committed a felony, so his conviction could

not be sustained.

Specific intent was not raised since the defendant did not even know

the felony was committed.

The second case did not involve a sufficiency-of-the-evidence claim. Instead, it

reviewed a trial court’s denial of an instruction on accessory after the fact as a lesser

included offense of murder. Commonwealth v. Dalton,

, 252–53 (2000). The

26 Virginia Supreme Court rejected the defendant’s argument that accessory after the fact was

a lesser included offense of murder because accessory after the fact requires knowledge

that the person committed a felony.

at 253–54. But that holding tells us little about

whether specific intent is an element of the crime. Pugin argues that if specific intent was

required, the court would have mentioned this difference as well. True, neither the Virginia

Supreme Court nor the lower courts mentioned specific intent as a difference between the

two crimes. But we refuse to read too much into the fact that the court did not include that

alternative argument when it already had sufficient grounds to decide the case.

Pugin then marshals a handful of Virginia appellate court decisions to argue that

someone could be convicted of being an accessory after the fact without specific intent.

But specific intent was not raised as an issue in any of those cases. See, e.g., Dunn v.

Commonwealth, No. 1231-96-2,

, at *1 (Va. Ct. App. Apr. 1, 1997)

(unpublished) (While specific intent was not analyzed, the court did say that “[i]t must be

shown that the alleged accomplice intended to encourage or help the person committing

the crime to commit it.” (emphasis added)); 15 Powell v. Commonwealth,

(1999) (reversing a conviction because no evidence showed that the underlying offense

15 In Dunn, the court framed intent as helping the person “commit” the crime. Yet the accessory-after-the-fact offense necessarily requires the offense to have already been committed when aid is provided. Dunn,

, at *1 (“In order to convict as an accessory after the fact, the felony must be completed”); see also Suter,

(holding that one cannot be an accessory after the fact for murder before the victim dies because the felony was not completed).

27 was committed). 16 And in each case, the jury could have made reasonable inferences that

the defendant’s conduct was done with the specific intent to help the principal avoid

criminal punishments even though the perpetrators had yet to fall under police scrutiny.

So sufficiency cases may not discuss specific intent because it is easily inferred from

another element: helping a known felon after they committed a felony. See White,

(evidence was sufficient to sustain accessory-after-the-fact conviction under

when defendant lied to insurance agent about how a fire at his building was

started because “the jury could make a couple of obvious common-sense inferences” that

White knew that the insurance representative would turn over evidence of an arson to police

and that lying to them would help him and his co-conspirator avoid apprehension). So

none of the cited cases imply, much less show, a realistic possibility that the law would

apply without specific intent. 17

16 The dissent adds another opinion to the list, Johnson v. Commonwealth, No. 1216- 01-1,

, at *1–2 (Va. Ct. App. Apr. 9, 2002) (unpublished). Dissenting Op. at 62. It is conceivable that Johnson is a case in which the jury would have had some trouble finding the specific intent to help the principal evade justice. Maybe Johnson was like Wren: just in it for the money. But specific intent was not raised to the court by the defendant, not addressed in the opinion, and even if it were, an unpublished, intermediate- court opinion—especially one with such scant legal analysis—cannot overrule Wren. 17 Pugin makes two other arguments worth a brief response. First, he argues that Virginia has codified the punishment for accessory after the fact within the accessory section of its criminal code, not the “Crimes Against The Administration of Justice” section. See

.2–19;

§§ 18.2–460 to 18.2–472. This argument might bear on the Chevron inquiry but does not affect whether the law is a categorical match to the generic definition. That is a question of federal law, so only the elements matter. Shular v. United States,

(2020) (noting that the label a state gives a crime is irrelevant because the elements are what matters). Pugin’s next argument is that the limiting clause in the punishment statute implies that an accessory-after-the-fact must act with an intent to avoid punishment: (Continued)

28 State caselaw and other sources make clear that a conviction for being an accessory

after the fact under Virginia law requires specific intent to help a known felon avoid

punishment. And there is no realistic possibility that the law would be applied when the

defendant did not have the specific intent to interfere with the process of justice. So

Virginia accessory after the fact categorically matches the Board’s generic definition of

obstruction of justice. 18

* * *

This case sits at the intersection of tricky issues of statutory interpretation and

deference to the executive in a realm where his authority is near its zenith. At least in this

case, the executive branch’s reasonable interpretation of the ambiguous phrase “relating to

However, no person in the relation of spouse, parent or grandparent, child or grandchild, or sibling, by consanguinity or affinity, or servant to the offender, who, after the commission of a felony, aids or assists a principal felon or accessory before the fact to avoid or escape from prosecution or punishment, shall be deemed an accessory after the fact.

. Pugin contends that if the law limited liability to those who acted intending to help another avoid criminal punishment, then the statute would not need to explicitly limit punishment to those who assist someone in “avoid[ing] or escap[ing] from prosecution or punishment.” But this section only eliminates liability for a certain class of people—family members and servants—not from a certain class of assistance as Pugin claims. The law is merely making the nature of the crime clear before explicitly exempting a small class of people. That the law expressly mentions the specific-intent requirement in fact bolsters the conclusion that such intent is a required element. 18 Even if Virginia law requires specific intent, Pugin argues that it does not necessarily require a specific intent to reduce the likelihood of a criminal punishment resulting from an ongoing or reasonably foreseeable proceeding. But Pugin did not exhaust that argument in the proceedings before the immigration judge or the Board, see A.R. 28– 33, 168–70, so we lack jurisdiction to address it, Massis v. Mukasey,

(4th Cir. 2008).

29 obstruction of justice” is due Chevron deference. The text, federal laws, state laws, and

other sources show that obstruction of justice is ambiguous, and the Board’s interpretation

was reasonable.

But this case is not just about deference. It is also about the interaction between

federal and state laws. After reviewing Virginia state court decisions, jury instructions,

and other sources, we have determined that Virginia accessory after the fact requires

specific intent to assist a known felon in avoiding criminal consequences. As a result,

Virginia accessory after the fact categorically matches the Board’s generic definition of

obstruction of justice. So Pugin committed an aggravated felony, and the Board’s decision

finding Pugin removable is

AFFIRMED.

30 GREGORY, Chief Judge, dissenting:

The majority concludes that because the phrase “in relation to obstruction of justice”

in § 1101(a)(43)(S) is ambiguous, the Board of Immigration Appeals’ (“BIA”) renewed

interpretation of this provision is due Chevron deference. The majority also concludes that

the BIA’s interpretation of “reasonably foreseeable”—in the context of before an

investigation or proceeding—is reasonable. Because, in my view, the phrase is not

ambiguous, the BIA is not due Chevron deference. However, even if § 1101(a)(43)(S) is

ambiguous, the BIA’s conclusion that a formal nexus to an ongoing investigation is not

required—based solely on the express exception in § 1512 and the catchall provision that

it wrongly interpreted—is unreasonable. Thus, I disagree that Petitioner’s conviction of

“Accessory After the Fact to a Felony,” under § 18.2–19 of the Virginia Code, is a

categorical match with the generic offense of § 1101(a)(43)(S). For these reasons, I

respectfully dissent.

I.

While I agree that the BIA is due deference at step zero of Chevron, I disagree with

the majority’s holding that the BIA is due deference at steps one and two.

A.

At step zero, the majority concludes that because the Immigration and Nationality

Act (“INA”) is a civil statute, and since any collateral criminal consequences are “too

attenuated,” the BIA is afforded Chevron deference. Maj. Op. at 7. While I agree that the

BIA is due deference at step zero, I have some reservations.

31 Although the INA is a civil statute, it has criminal application because a noncitizen

who is removed under § 1101(a)(43) and later reenters will face increased criminal

punishment which they would not have faced otherwise.

(a)(2)(A)(iii),

1326(b)(2); 1327. When a statutory interpretation “involves a statute, whose provisions

have both civil and criminal application, our task merits special attention because our

interpretation applies uniformly in both contexts.” WEC Carolina Energy Sols. LLC v.

Miller,

(4th Cir. 2012). In such instances, “we follow ‘the canon of

strict construction of criminal statutes, or rule of lenity.’”

(quoting United States v.

Lanier,

(1997)).

Of note, two sister circuits have discussed § 1101(a)(43)’s dual-application in the

context of the INA’s “aggravated felony” definition. 1 Valenzuela Gallardo v. Barr,

, 1059–61 (9th Cir. 2020) (“Valenzuela Gallardo II”); Esquivel-Quintana v.

Lynch,

(6th Cir. 2016) (Sutton, J., dissenting in part), rev’d sub nom.,

(2017). In both cases, the statute had both criminal and civil applications

and the circuits examined whether an application of Chevron in one context and the rule of

lenity in another context would result in conflicting interpretations. Judge Sutton reasoned

that because statutes may only have a single meaning, and the rule of lenity—which

1 Both the Ninth Circuit and Sixth Circuit agreed without much discussion that § 1101(a)(43) is a dual-application statute. For example, the “aggravated felony” definition is used in a criminal provision of the INA at

(codifying the federal offense of assisting with unlawful entry to the United States as to an alien inadmissible for having committed an aggravated felony); and

(a)(1) (codifying the federal offense of failure to leave the United States upon a final order of removal based on commission of an aggravated felony). 32 requires that the criminal definition controls—Chevron cannot be applied to such statutes.

See Esquivel-Quintana, 810 F.3d at 1027–32 (Sutton, J.). “Statutes are not chameleons

that mean one thing in one setting and something else is another. . . . Because a single law

should have a single meaning, the ‘lowest common denominator’ . . . governs all of its

applications.”

(quoting Clark v. Martinez,

(2005)) (“Since the

founding, it has been the job of Article III courts, not Article II executive-branch agencies,

to have the final say over what criminal laws mean.”).

Despite this concern, neither circuit ultimately adopted this argument. The Ninth

Circuit briefly considered § 1101(a)(43)’s dual-application in a footnote, and

acknowledged there was less reason to defer, but still granted Chevron deference at step

zero to an on-point precedential BIA decision. Valenzuela Gallardo II, 968 F.3d at 1061–

62. It also pointed to two Supreme Court decisions where Chevron deference was

available, but the Court declined to apply it. See id. at 1059–62 (citing Leocal v. Ashcroft,

(2004); Carachuri-Rosendo v. Holder,

(2010)). In a footnote in

Leocal, the Supreme Court appeared to address the issue explicitly, albeit without

mentioning Chevron: “Although here we deal with § 16 in the deportation context, § 16 is

a criminal statute, and it has both criminal and noncriminal applications. Because we must

interpret the statute consistently, whether we encounter its application in a criminal or

noncriminal context, the rule of lenity applies.” 543 U.S. at 11 n.8.

33 In Esquivel-Quintana, the Sixth Circuit identified most of the same concerns as

Judge Sutton’s concurrence. 2

(the majority stated that “left unchecked,

deference to agency interpretations of laws with criminal applications threatens a complete

undermining of the Constitution’s separation of powers.”). However, while agreeing that

“this view is increasing in prominence,” the majority concluded that the Supreme Court

previously declined to apply the rule of lenity to a civil act that contained criminal penalties,

and that decision continued to control despite Leocal’s footnote.

(citing Babbitt v. Sweet

Home Chapter of Cmtys. for a Great Or.,

, 703–04 (1995)); see Babbitt,

n.18. However, as Judge Sutton explained, reliance on Babbitt as controlling

this issue was unpersuasive. See Esquivel-Quintana, 810 F.3d at 1030–32 (Sutton, J.,

concurring and dissenting). 3

2 The government states that the Supreme Court’s reversal of Esquivel-Quintana on appeal “impliedly rejected” Petitioner’s argument that the rule of lenity applies here to the exclusion of Chevron deference. Resp. Br. at 36 n.14. That is incorrect. Instead, the Court expressly declined to reach the issue. Esquivel-Quintana,

. In so doing, the Court preserved the argument’s availability—it did not implicitly reject it. 3 Babbitt concerned a facial challenge to an administrative interpretation of a term in a provision of the Endangered Species Act; and, that provision included both civil and criminal penalties. 515 U.S. 690–91. Citing Chevron, the Supreme Court stated that it “owe[d] some degree of deference to the [agency’s] reasonable interpretation.”

at 703– 04. Then, in a footnote, the Court addressed the rule of lenity: “We have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement.”

at 704 n.18. That single sentence in a footnote—carefully referring only to “facial challenges to administrative regulations” that “authorize [] criminal enforcement”—does not preclude the possibility that the rule of lenity trumps Chevron in other dual-application contexts. That is especially so because precedents before and after Babbitt tend to support the contrary conclusion. See, e.g., Leocal,

n.8 (discussed above); Touby v. United States,

, 165–67 (1991) (discussing how (Continued) 34 In the case at bar, the majority maintains that “the potential criminal consequence

of this civil determination based on the interpretation of a civil statute are too attenuated.”

Maj. Op. at 10. Yet, we need not look at a noncitizen’s possible reentry to find the criminal

consequences of the INA civil statute. As many justices and sister courts have concluded,

and as is the case here, “‘deportation as a consequence of a criminal conviction’ has a ‘close

connection to the criminal process,’ and is ‘uniquely difficult to classify as either a direct

or a collateral consequence.’” Chaidez v. United States,

(2013)

(Sotomayor, J. dissenting with Ginsburg, J, joining) (quoting Padilla v. Kentucky,

(2010)). Indeed, “[o]ur law has enmeshed criminal convictions and the penalty

of deportation for nearly a century, and we had long recognized that deportation is

particularly severe.”

(internal quotes omitted). 4

delegating authority to an Executive agency to define crimes would raise a nondelegation doctrine concern); see also Guedes v. Bureau of ATF,

(2020) (Gorsuch, J., statement regarding denial of certiorari) (concluding that Chevron may never apply to an interpretation of a criminal statute). Indeed, two justices once expressly argued for distinguishing the Babbitt footnote on this basis. Whitman v. United States,

, 353–54 (2014) (Scalia, J., statement regarding denial of certiorari, joined by Thomas, J.). “In [Babbitt], we deferred, with scarcely any explanation, . . . brush[ing] the rule of lenity aside in a footnote,” but “[t]hat statement contradicts the many cases before and since holding that, if a law has both criminal and civil applications, the rule of lenity governs its interpretation in both settings.”

(citing Leocal,

n.8; United States v. Thompson/Ctr. Arms Co.,

, 518 n.10 (1992)). Likewise, this Court has similarly recognized the interpretive issues posed by dual-application statutes and held that the rule of lenity applies, albeit without addressing the conflict with Chevron. WEC Carolina Energy,

. 4 See Chaidez v. United States,

, 364 n.3 (2013) (citing multiple cases showing that deportation has been treated similarly as a criminal consequence). See, e.g., Jordan v. De George,

(1951) (Jackson, J., dissenting) (deportation proceedings “practically . . . are [criminal] for they extend the criminal process of (Continued) 35 Despite these reservations and growing acceptance of the contrary view, I agree

with the majority that current case precedent counsels us to grant the BIA Chevron

deference at step zero.

B.

At Chevron steps one and two, the majority concludes that the statute is ambiguous

and that the BIA’s interpretation of § 1101(a)(43)(S)’s phrase, “an offense relating to the

obstruction of justice,” is reasonable. 5 Specifically, the BIA concluded that the phrase does

not require a nexus to an ongoing proceeding or investigation. According to the BIA, to

“obstruct justice” only requires a connection to the “process of justice,” which includes

circumstances where an investigation or proceeding was merely “reasonably foreseeable.”

In re Valenzuela Gallardo,

(B.I.A. 2018) (“In re Valenzuela

Gallardo II”). I disagree. See Valenzuela Gallardo II,

(9th Cir. 2020)

sentencing to include on the same convictions an additional punishment”); Fong Haw Tan v. Phelan,

(1948) (“[D]eportation is a drastic measure and at times the equivalent of banishment or exile”); Ng Fung Ho v. White,

(1922) (deportation may result in “loss of both property and life; or of all that makes life worth living”); Fong Yue Ting v. United States,

(1893) (Brewer, J., dissenting) (“Everyone knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel”). 5 The BIA is generally only entitled to deference when interpreting the INA—as opposed to federal criminal statutes, which are beyond its expertise—and this Court extends that rule to “the BIA’s precedential interpretation of generic federal crimes listed in the aggravated felony statute.” Amos v. Lynch,

(4th Cir. 2015). That deference does not extend to BIA interpretations of state statutes, which are beyond its expertise.

at 518 n.5. That is why the Chevron issue in this case concerns only the BIA’s construction of the generic offense definition, not its construction of the state offense, which Petitioner also contends was erroneous. 36 (finding that “obstruction of justice” “unambiguously requires a nexus to ongoing or

pending proceedings” and vacating removal order from In re Valenzuela Gallardo II).

1. The Statute is Unambiguous

At the first step, we “examine the statute’s plain language; if Congress has spoken

clearly on the precise question at issue, the statutory language controls.” Barahona v.

Holder,

(4th Cir. 2012) (internal quotation marks omitted). If Congress

has not so spoken, in that “the statute is silent or ambiguous, we defer to the agency’s

interpretation if it is reasonable.”

(internal quotation marks omitted); Soliman v.

Gonzales,

, 281–82 (4th Cir. 2005); Mylan Pharm., Inc. v. FDA,

(4th Cir. 2006) (deferring “purely on statutory construction without according

any weight to the agency’s position.”). The issue here is whether § 1101(a)(43)(S) requires

a nexus to an ongoing or pending proceeding or investigation.

a. Plain Reading

As noted by the majority, Congress did not define “relating to obstruction of justice”

in the INA. Thus, the majority reasons that because § 1101(a)(43)(S) does not explicitly

cross reference to the federal code at Chapter 73, which defines the federal “obstruction of

justice” offense, then Congress wanted the INA statute to have a broader definition. Maj.

Op. at 12. However, the majority sidesteps established canons of statutory interpretation

37 to construct ambiguity which does not exist. 6 “The short answer is that Congress did not

write the statute that way.” United States v. Naftalin,

(1979).

The term “obstruction of justice” is a term of art dating back to the 19th century that

federal courts have consistently interpreted for over one-hundred years as requiring a

specific intent to impede a pending or ongoing proceeding. See, e.g., Pettibone v. United

States,

(1893) (holding that obstruction is a criminal act that “can only

arise when justice is being administered”); United States v. Aguilar,

(1995) (stating, as to a federal obstruction of justice offense, that the conduct “must be

[taken] with an intent to influence judicial or grand jury proceedings,” which “[s]ome

courts have phrased . . . as a ‘nexus’ requirement.”); Arthur Andersen LLP v. United States,

(2005) (holding that a conviction for obstruction of justice requires

“requires proof of nexus between corrupt persuasion and particular proceeding.”).

As a matter of statutory construction, federal courts “presume that Congress is

knowledgeable about existing law pertinent to the legislation it enacts.” Goodyear Atomic

Corporation v. Miller,

, 184–85 (1988); see also Strawn v. AT&T Mobility,

6 See Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom,

, 817–18 (1983) (“I suggest that the task for the judge called upon to interpret a statute is best described as one of imaginative reconstruction. The judge should try to think his way as best he can into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar. . . . The judge who follows this approach will be looking at the usual things that the intelligent literature on statutory construction tells him to look at—such as the language and apparent purpose of the statute, its background and structure, its legislative history (especially the committee reports and the floor statements of the sponsors), and the bearing of related statutes. But he will also be looking at two slightly less obvious factors. One is the values and attitudes.”). 38 LLC,

(4th Cir. 2008) (recognizing that “in the absence of statutory text

reversing the burden of proof, we presume that Congress legislated consistently with

existing law.”); United States v. Langley,

(4th Cir. 1995) (en banc)

(explaining that “it is firmly entrenched that Congress is presumed to enact legislation with

knowledge of the law; that is with the knowledge of the interpretation that courts have

given to an existing statute.”) (referencing Holmes v. Sec. Inv. Prot. Corp.,

,

267–68 (1992)). Accordingly, “‘absent a clear manifestation of contrary intent, a newly-

enacted or revised statute is presumed to be harmonious with existing law and its judicial

construction.’”

(quoting Est. of Wood v. Comm’r,

(8th Cir. 1990).

The same principle applies here. When Congress enacted § 1101(a)(43)(S), 7 we

must presume that it did so with the consistent federal definition of “obstruction of justice”

established by law since 1946—requiring a nexus to an ongoing and pending proceeding.

As detailed below, in 1982, Congress delineated some limited exceptions to capture, inter

alia, tampering with witnesses. See

. However, Congress did not directly

overturn the long-established definition of “obstruction of justice” as defined by federal

law and the courts. Therefore, § 1101(a)(43)(S)’s use of “obstruction of justice” is cabined

by the offenses enumerated by Chapter 73. Chevron, 467 U.S. at 843 n. 9.

Additionally, the plain dictionary definition of “obstruction of justice” establishes a

nexus requirement to an ongoing or pending proceeding. For example, as noted by the

7 Section 1101(a)(43)(S) defines “aggravated felony” to encompass “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.”

(a)(43)(S) (emphasis added). 39 majority, Merriam Webster defines “obstruction of justice” as “impeding an investigation

or legal process.”

(quoting Merriam-Webster’s Dictionary of Law 337 (1996))

(emphasis added); see also Maj. Op. at 18. The majority also used Black’s dictionary and

determined that obstruction of justice was in “reference to administration of justice or a

pending proceeding as well.”

(citing Obstructing Justice, Black’s Law Dictionary 1077

(6th ed. 1990) (emphasis added)). The majority also relied on another dictionary to find

that obstruction of justice refers to the impairment of “the machinery of the civil or criminal

law.”

(citing B. Garner, A Dictionary of Modern Legal Usage 611 (2d ed. 1995)). Yet,

the majority reasoned that the “‘broad’ modifier, ‘impair[ing] the machinery of . . . criminal

law’ could include trying to ensure the police never learn of a crime.”

However, a

plain reading of this definition leads to the conclusion that obstruction occurs once the

“machinery” learns of the crime, i.e., there are pending proceedings, and someone impairs

the machinery. In other words, if the “machinery” never learns of the crime, it cannot be

said that its machinery was hindered. On the other hand, if the machinery did learn of the

crime and then was intentionally hindered from operating, then this would be an

impairment. Finally, according to the Oxford English Dictionary, “obstruction of justice”

is defined as “the action of preventing or hindering a police officer, etc., in the course of

his or her duty. [T]he [U.S.] common-law offence of intentionally preventing or impeding

the administration of justice.” Obstruction, Law, Oxford English Dictionary (3rd ed.

2004). The Oxford English Dictionary suggests that the impediment must occur once an

officer is “in the course” of carrying out their legal duty.

40 Still, the majority reasons that Congress’ use of the phrase “relating to obstruction

of justice” adds further ambiguity to the § 1101(a)(43)(S) definition. Maj. Op. at 11, 15–

18. However, the phrase “relating to” does not render ambiguous the phrase “obstruction

of justice.” Indeed, the statutory canons of interpretation guide us to read “relating to” as

accommodating the variance in state offenses, which have developed differently since

common law. See In re Valenzuela Gallardo II, 27 I. & N. at 452 n.4 (noting that “there

is no discernible pattern in how the States treated the concept of obstruction of justice in

their criminal statutes in 1996” and “only 17 states used phrases like ‘obstruction of justice’

and ‘obstructing justice’ to define certain crimes”). 8 It has long been held that the fact that

a statute “has been applied in situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.” Sedima, S.P.R.L. v. Imrex Co.,

(1985) (internal quotes omitted). Thus, unless the words “relating to” are of

no effect, they must be construed to encompass crimes other than those specifically listed

in the federal statutes, but which are a categorical match with the nexus requirement. See

Kamagate v. Ashcroft,

(2d Cir. 2004) (observing that the Supreme Court

previously rejected a narrow construction of the phrase and defined “relating to” as follows:

“to stand in some relation; to have bearing or concern; to pertain; refer; to bring into

8 The Majority argues that Congress’ consideration of state law concedes that the phrase “obstruction of justice” is ambiguous. See Maj. Op. at 13. It does not. Rather, it acknowledges variance among the state offenses that relate to “obstruction of justice,” just as the federal “obstruction of justice” chapter features several distinct crimes. “‘Obstruction of justice’ means the offenses listed in Chapter 73, and the modifier ‘relating to’ works to encompass other crimes that share essential characteristics . . . with those offenses,” Reply Br. at 10, meaning, in other words, the state offenses that are a categorical match. 41 association with or connection with”) (quoting Morales v. Trans World Airlines, Inc.,

, (1992)).

The BIA previously concluded that the term “relating to obstruction of justice” was

not ambiguous because it was cabined by Chapter 73 of Title 18. See In re Espinoza-

Gonzalez, 22 I. & N. 889, 892-93 (B.I.A. 1999) (en banc) (holding that “obstruction of

justice” is a term of art and applying Chapter 73 to define it in the INA context). For

example, in In re Espinoza-Gonzalez, the BIA considered whether a state’s misprision of

a felony offense “relates to” obstruction of justice. Id. at 896. The BIA explained that,

under the phrase “relate to,” “the issue [is] whether the specific conviction”—misprision

of a felony—“[is] so closely related to the underlying offense”—obstruction of justice—

“that it could not be considered separate or distinct from that crime.” Id. (internal

quotations and alterations omitted). As here, the BIA “conclude[d] that it [was] not,

precisely because misprision is considered separate and distinct from the crimes

categorized as ‘obstruction of justice []’ . . . because it lacks the critical element of an

affirmative and intentional attempt, motivated by a specific intent, to interfere with the

process of justice.” Id. (emphasis added). The BIA clarified that the phrase “relates to”

did not expand the definition of the “underlying offense” of obstruction of justice, so much

as it allowed for consideration of state offenses that match as a matter of analogy, as

opposed to identicality. See id.; see also Flores v. Att’y Gen. United States,

(3d Cir. 2017) (“So while the New York statute . . . and [the federal obstruction

offense] are not a perfect match in terms of prohibited conduct, . . . [i]t is enough that the

42 two crimes target the same, core criminal conduct such that they are directly analogous.”)

(internal quotations omitted).

Since In re Espinoza-Gonzalez, sister courts have uniformly agreed with the BIA’s

previous interpretation requiring a nexus element to an ongoing formal proceeding or

investigation. See, e.g., Valenzuela Gallardo II,

(recognizing that “of the

substantive provisions in Chapter 73 that existed when § 1101(a)(43)(S) was enacted,

almost all of them required a nexus to an ongoing or pending proceeding or

investigation.”); see id. at 1062 (“We conclude that Congress has clearly answered this

question in the affirmative.”). 9

In Victoria-Faustino v. Sessions, for example, the Seventh Circuit, like the Ninth

Circuit, did not defer to BIA’s new interpretation of § 1101(a)(43)(S) because the BIA used

the “amorphous phrase ‘process of justice—without telling us what that phrase means.’”

(7th Cir. 2017), as amended (Oct. 10, 2017). Thus, the Seventh Circuit

found that there was no categorical match because an Illinois obstruction of justice statute

9 See, e.g., Denis v. Att’y Gen. United States,

(3d Cir. 2011) (holding that the question “does not present an obscure ambiguity or a matter committed to agency discretion” because Chapter 73 “permit[s] us to easily determine the types of conduct Congress intended the phrase to encompass”); Higgins v. Holder,

(2d Cir. 2012) (holding that a Connecticut conviction for tampering with witness was an “offense relating to obstruction of justice,” because the state conviction required “active interference with proceedings of a tribunal or investigation”); Cruz v. Sessions,

(5th Cir. 2017) (per curiam) (declining to defer to the BIA’s 2012 definition of § 1101(a)(43)(S) on the basis that it was “vacated” by Valenzuela Gallardo I); Armenta-Lagunas v. Holder,

(8th Cir. 2013) (holding that the INA statute requires an active interference with proceedings of a tribunal or investigation); see also Valenzuela Gallardo v. Lynch,

(9th Cir. 2016) (“Valenzuela Gallardo I”). 43 did not require interference with the proceedings of a tribunal and, thus, was broad.

.

Despite this consensus, the BIA later reversed its conclusion from In re Espinoza-

Gonzalez in the In re Valenzuela Gallardo I and II cases. See In re Valenzuela Gallardo,

(B.I.A. 2012) (“In re Valenzuela Gallardo I”) (holding that

“while many crimes fitting this definition [of obstruction of justice] will involve

interference with an ongoing criminal investigation or trial, we now clarify that the

existence of such proceedings is not an essential element.”); In re Valenzuela Gallardo II,

at 452–56 (same); but see Valenzuela Gallardo v. Lynch,

(9th Cir. 2016) (“Valenzuela Gallardo I”) (rejecting the BIA’s new interpretation

in In re Valenzuela Gallardo I on constitutional avoidance grounds because it raised a

vagueness issue). Accordingly, the BIA stated that only a “reasonably foreseeable”

investigation or proceeding is required. In re Valenzuela Gallardo I, 25 I. & N. at 842; In

re Valenzuela Gallardo II, 27 I. & N. at 460. For the reasons mentioned above, the BIA’s

interpretation was incorrect.

b. Statutory Framework

Second, the statutory framework provides further clarity. See King v. Burwell,

(2015) (“the meaning—or ambiguity—of certain words or phrases may

only become evident when placed in context”) (internal quotation marks omitted). We

must “read the words in their context and with a view to their place in the overall statutory

scheme.”

(internal quotation marks omitted). The harmonious-reading canon also

provides that a court should “interpret [a] statute as a symmetrical and coherent regulatory

44 scheme, and fit, if possible, all parts into a harmonious whole.” FDA v. Brown &

Williamson Tobacco Corp.,

(2000).

The majority primarily relies on

, 1512, and 1519 to find

ambiguity at Chevron step one and to find that the BIA’s interpretation is reasonable at

step two. However, based on Supreme Court and Fourth Circuit precedent these sections

and others like them are not sources of ambiguity and the BIA’s reliance on them to expand

the meaning of “obstruction of justice” is incorrect.

i.

As noted by the majority, the BIA was partially correct: one section of the

obstruction of justice chapter applies outside of formal proceedings. The Victim and

Witness Protection Act,

, penalizes witness intimidation and whoever

kills, uses physical force, or threat of physical force against a person with the intent to

prevent their attendance or delay in “an official proceeding.” Section 1512 also states that

“an official proceeding need not be pending” at the time of the offense. Accordingly, the

BIA and the majority rely on § 1512 to broaden the meaning of obstruction of justice and

hold that it does not require a nexus element to an “ongoing proceeding.” Maj. Op. at 1.

Thus, a proceeding only needs to be reasonably foreseeable. The majority takes it a step

further by holding that “obstruction of justice can include crimes before an investigation

has even begun.” Maj. Op. at 14 (emphasis added).

However, in interpreting § 1512, the Supreme Court has found that while

obstruction of justice can include non-pending but reasonably foreseeable official

proceedings, these proceedings must be more than mere fear of investigation and the

45 obstruction must be connected to existing proceedings. See Aguilar,

(1995)

(holding that to convict a defendant under § 1512(c) “it is not enough that there be an intent

to influence some ancillary proceeding, such as an investigation independent of the courts

or grand jury’s authority.”); Arthur Andersen LLP, 544 U.S. at 707–08 (2005) (in

interpreting § 1512(e)(1), Justice Rehnquist clarified that “it is [] one thing to say that a

proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and

quite another to say a proceeding need not even be foreseen. A ‘knowingly . . . corrup[t]

persuade[r]’ cannot be someone who persuades others to shred documents under a

document retention policy when he does not have in contemplation any particular official

proceeding in which those documents might be material.”) (internal citation omitted).

Based on our own precedent, Ҥ 1512 does require that (1) the obstructive conduct

be connected to a specific official proceeding (the “nexus” requirement) that was (2) either

pending or was reasonably foreseeable [] when [] engaged in the conduct.” United States

v. Young,

(4th Cir. 2019), cert. denied,

(2019). The

Fourth Circuit further clarified that an “official proceeding,” as defined by

(a)(1), “include[s], inter alia, ‘a Federal grand jury’ or ‘a proceeding before a

Federal Government agency which is authorized by law.’” United States v. Sutherland,

, 425–26 (4th Cir. 2019), cert. denied,

,

(2020). Thus, “FBI investigations, for example, are not official proceedings because . . .

§ 1515(a)(1)(C) [] ‘implies some formal convocation of the agency in which parties are

directed to appear, instead of any informal investigation conducted by any member of the

46 agency.’” Id. (quoting Young,

) (internal quotes omitted). 10 Accordingly,

an “official proceeding” is something more formal than a mere investigation. See

(“Providing materially false documents with an intent only to influence

the U.S. Attorney’s investigation, therefore, would not amount to a violation of

§ 1512(c)(2).”). Certainly, then, obstruction cannot occur before an investigation begins.

Moreover, the statutory history shows that Congress explicitly drafted § 1512 to

“protect [] against the rare type of conduct that is the product of the inventive criminal

mind, and which also thwarts justice.” S. REP. 97-532, 18, 1982 U.S.C.C.A.N. 2515, 2524.

As noted by Congress, it was trying to address the issue of “retaliation against friends,

relatives, or associates of an individual who [] provided information concerning criminal

investigations.” S. REP. 97-532, 20, 1982 U.S.C.C.A.N. 2515, 2526.

The BIA knew of this legislative history when it interpreted the provision in 1999

in In re Espinoza-Gonzalez, 22 I. & N. 889 (en banc). Indeed, the BIA’s own analysis at

the time recognized that Congress was aware that “obstruction of justice” required a nexus

element to a pending proceeding and, thus, intended to delineate a specific exception. Here,

the exception does not define the statute. That is, “obstruction of justice” is defined by its

plain meaning and not by § 1512, which was meant to deal with rare circumstances. As

the Ninth Circuit explained, “Congress’s explicit instruction that § 1512 reach proceedings

that are not pending . . . only underscores that the common understanding at the time

10 The Fourth Circuit agreed that an FBI and Border Patrol Investigation was not an official proceeding. Id. (referencing United States v. Ermoian,

(9th Cir. 2013) (FBI investigation)); United States v. Ramos,

, 460–64 (5th Cir. 2008) (Border Patrol investigation)). 47 § 1101(a)(43)(S) was enacted into law was that an obstruction offense referred only to

offenses committed while proceedings were ongoing or pending.” Id.

Congress has added other sections to Chapter 73, consistent with existing law,

requiring a nexus to a pending or ongoing proceeding. See, e.g., § 1507 (prohibiting, inter

alia, picketing a court or a “residence occupied by such judge, juror, witness or court

officer” “with the intent of interfering with, obstructing, or impeding the administration of

justice”); § 1509 (obstruction of court orders); § 1510(a) (criminalizing attempt to stop

someone from going to the police); § 1513 (prohibiting retaliation against a witness, and

contemplating that a proceeding or investigation is either ongoing or has already been

completed); see also Palisades Collections LLC v. Shorts,

(4th Cir.

2008) (“[W]e presume that Congress legislated consistently with existing law and with the

knowledge of the interpretation that courts have given to the existing statute.”). The BIA

itself has recognized Congress’ nexus requirement. See In re Espinoza-Gonzalez, 22 I. &

N. Dec 889, at 892 (1999) (“The obstruction of justice offenses listed in 18 U.S.C.

§§ 1501–1518 have as an element interference with the proceedings of a tribunal or require

an intent to harm or retaliate against others who cooperate in the process of justice or might

otherwise so cooperate.”).

Both the BIA and the majority also point to

, which postdates the

passage of § 1101(a)(43)(S), as evidence that “some obstruction-of-justice offenses laid

out in Chapter 73 can occur even before an investigation.” Maj. Op. at 14; see also In re

Valenzuela Gallardo II,

(B.I.A. 2018). However, the majority and

the BIA again sidestep the relevant statutory history and purpose of § 1519 to find

48 ambiguity where there is none and to impermissibly broaden the reach of the INA statute.

Congress meant § 1519 to “apply broadly to any acts to destroy or fabricate physical

evidence so long as they are done with the intent to obstruct, impeded, or influence the

investigation or proper administration of any matter.” S. REP. 107-146, 14, at 14–15

(2002),

, at *12–13. In doing so, Congress was solving a particular

problem that arose from the Enron corporate fraud scandal. Specifically, after Enron

announced a $618 million net loss, and immediately after the Securities and Exchange

Commission (“SEC”) began investigating, partners launched an intentional campaign to

shred “tons” of documents to thwart the SEC investigation and other potential civil actions.

S. REP. 107-146, 4. In the wake of this debacle, Congress crafted § 1519 to provide

“prosecutors with all the tools they need to ensure that individuals who destroy evidence

with the intent to impede a pending or future criminal investigation are punished.” S. REP.

107-146, 27. 11 Notably, Congress stated though “Section 1519 overlaps with a number of

existing obstruction of justice statutes, [] we also believe it captures a small category of

criminal acts which are not currently covered under existing laws. . . .” Id. Thus, Congress

intended for § 1519 to be narrowly used to:

prosecute only those individuals who destroy evidence with the specific intent to impede or obstruct a pending or future criminal investigation, a formal administrative proceeding, or bankruptcy case. It should not cover the destruction of documents in the ordinary course of business, even where

11 Congress clarified that its goal was to “provide for criminal prosecution and enhanced penalties of persons who defraud investors in publicly traded securities or alter or destroy evidence in certain Federal investigations, to disallow debts incurred in violation of securities fraud laws from being discharged in bankruptcy, to protect whistleblowers who report fraud against retaliation by their employers, and for other purposes.” S. REP. 107-146, 2. 49 the individual may have reason to believe that the documents may tangentially relate to some future matter within the conceivable jurisdiction of an arm of the federal bureaucracy.

S. REP. 107-146, 27 (emphasis added).

As noted by our sister circuit, “though [the BIA’s new interpretation] ostensibly

defines the required mens rea—intent to interfere with the ‘process of justice’—it provides

little instruction on the equally important actus reus. Valenzuela Gallardo I,

. That is, the BIA’s new interpretation, which the majority accepts as reasonable, goes

further than Congress intended because it punishes any act that could seemingly interfere

with a not yet-existing investigation so long as it could “tangentially relate to” the “process

of justice.” This goes far beyond the purpose of § 1519. Thus, even if the BIA’s new

interpretation includes the mens rea element, “. . . there is no indication of what it is that

must be interfered with in order to ‘obstruct justice.’” Id. at 822. Accordingly, even if

§ 1519 renders the INA statute ambiguous, which I believe it does not, the BIA’s new

interpretation, as detailed further below, is still unreasonable and vague.

ii.

The BIA also relies on

, the “catchall provision,” which

criminalizes any conduct that interferes with the “administration of justice,” as a source of

ambiguity. See In re Valenzuela Gallardo I, 25 I. & N. at 842 (B.I.A. 2012); In re

Valenzuela Gallardo II, 27 I. & N. at 460. While the BIA in In re Valenzuela Gallardo II

pointed to this provision as undermining a formal nexus requirement, the Supreme Court

rejected that reading of the phrase over a hundred years ago, and again in 1995, and courts

have continued to reject it since. See Pettibone, 148 U.S. at 203–04 (1893) (“The

50 obstruction of the due administration of justice in any court of the United States . . . is

indeed made criminal, but such obstruction can only arise when justice is being

administered.”); Aguilar,

(1995) (“Although respondent urges various

broader grounds for affirmance, we find it unnecessary to address them because we think

the ‘nexus’ requirement developed in the decisions of the Courts of Appeals is a correct

construction of § 1503.”). 12

Similarly, the Fourth Circuit has consistently held that to prove a violation of

§ 1503, the government must establish that the defendant obstructed a “pending

proceeding.” United States v. Seriani,

(4th Cir. 1997) (quoting United States

v. Grubb,

(4th Cir. 1993)). “To be guilty of obstructing justice under

§ 1503, a defendant must have knowledge or notice of a pending judicial proceeding, and

must have acted with the intent to influence, obstruct, or impede that proceeding in its due

12 See, e.g., United States v. Brown,

(9th Cir. 1982) (“No case interpreting [§ 1503] has extended it to conduct which was not aimed at interfering with a pending judicial proceeding.”) (referencing United States v. Shoup,

(3d Cir. 1979); United States v. Simmons,

(3d Cir. 1979)); United States v. Smith,

(D.D.C. 1990) (The most critical limitation on [§ 1503] for purposes of defendant’s present motion, however, is that the conduct relate to a “pending judicial proceeding.”); United States v. Capo,

(2d Cir. 1986) (“To obtain a conviction under this section, the government must show that there was a pending judicial proceeding, such as a grand jury proceeding, . . . and the defendant knew of and sought to influence, impede, or obstruct the judicial proceeding. . . .”) (citations omitted), reh’g granted on other grounds,

(2d Cir. 1987) (en banc); United States v. Davis,

(3d Cir.), amended,

(3d Cir. 1999) (“[t]o violate § 1503, a defendant must have notice or knowledge of the pendency of some judicial proceeding constituting the administration of justice.”) (internal quotes omitted); United States v. Vesich,

(5th Cir. 1984) (“A prerequisite to any violation of section 1503 is the existence of a pending judicial proceeding known to the violator.”); United States v. Risken,

(8th Cir.) (same), cert. denied,

,

,

(1986). 51 administration of justice.” United States v. Littleton,

(4th Cir. 1996);

United States v. Brooks,

(4th Cir. 1997) (explaining that “a defendant

may be found culpable where the reasonable and foreseeable consequences of his acts are

the obstruction of justice” related to the pending proceeding); United States v. Edlind,

(4th Cir. 2018) (finding obstruction of justice because there was “no dispute”

that there was a “pending judicial proceeding” that the defendant knew about and that he

acted with intent to disrupt these proceedings).

iii.

Finally, both the BIA and majority incorrectly point to

as an example

of Congress expanding the scope of “obstruction of justice” to include crimes enumerated

outside Chapter 73. See Maj. Op. at 16. However, Congress clearly spoke by placing § 3

outside of Chapter 73 and, thus, instructed courts that it was different from “obstruction of

justice.” See Flores,

& n.38 (explaining that where Congress chose to

codify § 3 is particularly relevant “because Title 18 was enacted as positive law and

accordingly approved by Congress.”). Still, the majority points to United States v. White,

(4th Cir. 2014) to argue that this Court has found that § 3 qualifies as an

obstruction of justice offense. However, in White, the Fourth Circuit addressed, inter alia,

whether the Government provided sufficient evidence to sustain a conviction for accessory

after the fact to arson and whether the district court erred in denying the defendant’s Rule

29 motion. Id. at 232. In White, the government argued that the defendant violated § 3

“when he knowingly made a false and misleading statement to an insurance representative

for the purpose of helping” his co-defendant and himself “avoid apprehension.” Id. at 233.

52 The Fourth Circuit never addressed the question of whether § 3 qualified as “obstruction

of justice” or whether§ 3 expanded Chapter 73’s definition to include offenses related to

evading capture, punishment, or detection before an investigation.

* * *

Although the BIA may re-interpret § 1101(a)(43)(S), it must do so reasonably and

correctly. Here, the BIA’s In re Valenzuela Gallardo II decision was wrongly decided.

The Ninth Circuit rejected the BIA’s interpretation on appeal in both cases, instead

affirming the BIA’s prior interpretation in In re Espinoza-Gonzalez. See Valenzuela

Gallardo I,

(9th Cir. 2016); Valenzuela Gallardo II, 968 F.3d at 1062–68

(“[T]he BIA’s proffered reasonably foreseeable standard cannot stand . . . . [W]hen

Congress enacted § 1101(a)(43)(S) into law, an offense relating to obstruction of justice

unambiguously required a nexus to an ongoing or pending proceeding or investigation.”).

Critically, no other court has deferred to the BIA’s new interpretation, instead deferring to

the Ninth Circuit’s decisions. See, e.g., Victoria-Faustino v. Sessions,

(7th Cir. 2017); Cruz v. Sessions,

(5th Cir. 2017).

Because Congress spoke and federal courts have consistently interpreted

“obstruction of justice” as requiring a nexus requirement to a pending or ongoing

proceeding, it is not ambiguous under Chevron’s first step. See Ramirez,

(explaining that Chevron deference only applies when Congress has not directly answered

the question); see also Ojo v. Lynch,

(4th Cir. 2016) (declining to apply

Chevron deference where the “plain meaning” of a “simple phrase,” used elsewhere in the

federal code, precluded the BIA’s finding of ambiguity and application of a different

53 definition for that phrase in the immigration context). 13 Accordingly, I disagree with the

majority’s deference to the BIA’s new interpretation.

2. The BIA’s Definition is Unreasonable

However, even if § 1101(a)(43)(S) is regarded as ambiguous at Chevron step one,

the outcome is the same at Chevron’s second step. The BIA’s conclusion that a formal

nexus is not required by Chapter 73—based solely on the express exception in § 1512 and

the catchall provision that it wrongly interpreted—is unreasonable.

As noted above, the majority’s holding is out of step with sister circuits and, thus,

stands alone in finding the BIA’s interpretation as reasonable. For example, the Fifth

Circuit regarded the term as ambiguous, given that § 1101(a)(43)(S) does not include a

definitional cross-reference to the U.S. Code. Alwan v. Ashcroft,

(5th

Cir. 2004). Nevertheless, at the second step, Alwan agreed with In re Espinoza-Gonzalez’s

application of Chapter 73 to define the phrase and found a formal nexus requirement.

(“Title 18 of the United States Code, however, provides a listing of crimes that are

collectively labeled, ‘obstruction of justice.’”) (citing In re Espinoza-Gonzalez, 22 I. & N.

13 The government states that “the majority of courts that have clearly addressed the issue” have concluded that “§ 1101(a)(43)(S) is ambiguous.” Resp. Br. at 14. It is arguable whether this position is really a majority one; but, regardless, the government declines to mention that the cases it pointed to still endorsed the In re Espinoza-Gonzalez definition, the same position Petitioner argues for here. See, e.g., Victoria-Faustino v. Sessions,

(7th Cir. 2017) (“[W]e will not defer to the In re Valenzuela Gallardo articulation of what constitutes a crime relating to the obstruction of justice under the INA. This leaves us with the definition as articulated in In re Espinoza-Gonzalez.”); Alwan v. Ashcroft,

(5th Cir. 2004) (same). No court has deferred to the BIA’s reversed definition from the Valenzuela Gallardo cases. 54 at 889);

(concluding that the § 1503 “catchall” provision includes a “nexus

requirement”).

Similarly, the Ninth Circuit found that the BIA’s interpretation was

unconstitutionally vague because “though 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.” Valenzuela Gallardo I,

(9th Cir. 2016).

Here, the BIA stated to “obstruct justice” only requires a connection to the “process

of justice,” which includes circumstances where an investigation or proceeding was merely

“reasonably foreseeable.” In re Valenzuela Gallardo, 27 I. & N. at 460 (BIA 2018).

However, what does it mean for a proceeding or investigation to be “reasonably

foreseeable”? Does foreseeability depend on where someone lives or their likelihood of

interacting with police or the criminal legal system? Simply stated, if the “machinery of

criminal law” historically focuses primarily on certain people, areas, or crimes, then an

investigation might always be reasonably foreseeable and, thus, following the majority’s

reasoning, any act (even an innocent one) could be seen as “obstructing” or impeding the

“process of justice.” For example, if a person who witnessed a crime decides to remain

silent from questioning by police because they know the alleged suspect, would this silence

be sufficient to “obstruct justice” under the BIA’s new definition? Indeed, the majority

and the BIA do not define what “process of justice” means—a phrase that the BIA itself

55 created. Though “process” may be used to limit “justice,” the latter is an ideal, and the

former does not instruct what specific actions are required to obstruct justice. Even the

exceptions that the majority point to, §§ 1512 and 1519, show that Congress instructed

specifically what acts, like destroying evidence, are required to obstruct justice.

The BIA and majority reason that the key factor is that the interference must be

somewhere in the “process of justice,” which extends before the investigation begins.

Though the majority agrees with broadening the scope of “obstruction of justice,” it did

not address this issue of vagueness or provide any limiting principle to the BIA’s broad

reach. As the Ninth Circuit cautioned, “the BIA has not given an indication of what it does

include in ‘the process of justice,’ or where that process begins and ends.” Valenzuela

Gallardo I,

. Thus, the BIA’s interpretation is not only unreasonable for

the reasons mentioned above, but also raises the issue of being unconstitutionally vague.

See United States v. Williams,

(2008) (explaining that amorphous terms

“without statutory definitions, narrowing context, or settled legal meanings” raise

vagueness concerns.)

Ultimately, there are multiple grounds for reaching the same conclusion, be it

Chevron step zero, one, or two: the government’s core argument—that this Court must

grant Chevron deference to the BIA’s reliance on the In re Valenzuela Gallardo I and II

cases—fails.

56 II.

The majority concluded that the BIA’s definition of obstruction of justice is a

categorical match with the elements of Petitioner’s crime of conviction—accessory after

the fact under Virginia law. I disagree because the nexus element in the Virginia statute is

broader, and it is unclear whether the Virginia statute requires a specific intent element.

First, the Virginia requirement that a defendant act with the intent of helping that

person escape or delay capture, prosecution, or punishment is broader than the “specific

intent to interfere” with a pending or ongoing proceeding in the INA. The Virginia statute

could reach instances where the offender knowingly assists the principal prior to discovery

of the crime. See, e.g., Valenzuela Gallardo II,

(finding overbreadth in

California’s accessory offense because “a defendant can be found guilty for helping a

principal to a felony escape . . . regardless of whether a proceeding or investigation has in

fact been initiated”); Flores, 856 F.3d at 292–95 (holding that South Carolina accessory

“is not ‘related to obstruction of justice’” because “there are infinite actions a defendant

may undertake with the intent to aid the principal after the commission of a crime, but

before the commencement of judicial proceedings, none of which would constitute a

[generic] violation”).

Second, while the majority found that the Virginia statute requires a specific intent

to help a known felon escape capture or punishment, I find that it is not clear that it does.

As an initial matter, I recognize that the Virginia Pattern Jury Instructions require

the Commonwealth to “prove beyond a reasonable doubt each of the following elements

of that crime,” including “[t]hat the defendant comforted, relieved, hid, or in any other way

57 assisted the person who committed the (name of crime) with the intent of helping that

person escape or delay capture, prosecution or punishment.” 1 Va. Model Crim. Jury

Instr. No. 3.300, Accessory After the Fact (emphasis added). However, Virginia Supreme

Court law has not adopted this specific intent requirement.

The BIA avoided this issue by citing a different definition of the third element of

the Virginia offense. In Commonwealth v. Dalton, the Virginia Supreme Court stated only

that “the accused must receive, relieve, comfort, or assist the felon.”

(Va. 2000). However, BIA—citing a Virginia Court of Appeals case, Suter v.

Commonwealth,

(Ct. App. Va. 2017)—provided instead: “the aid must

have been given to the felon personally for the purpose of hindering the felon’s

apprehension, conviction, or punishment.” A.R. 3 (emphasis added). After this quote from

Suter, the BIA included a “see also” citation to Dalton with no further explanation. See

The BIA then concluded: “Although a ‘specific intent’ is not required by statute,” the

requirement “to hinder a felon’s apprehension, conviction or punishment necessarily

requires a specific intent.” A.R. 4. And the Petitioner “ha[d] not presented evidence that

Virginia applied the statute to him or to other defendants under the respondent’s

construction, i.e., without specific intent.”

The BIA’s construction of the state offense was in error. Dalton is the most recent

Supreme Court of Virginia accessory decision and never discusses the defendant’s

“purpose” in providing assistance. 524 S.E.2d at 862–63. It expressly listed the “three

elements to the crime of being an accessory after the fact,” without referencing any

“purpose” requirement. See

The only other contemporary State Supreme Court

58 decision regarding the crime, Manley v. Commonwealth, listed the exact same three

elements.

(1981). Indeed, Manley quoted the elements from a 19th

century Virginia case, Wren v. Commonwealth, noting that “[t]he definition of an accessory

after the fact is one of ancient origin.”

(citing Wren v. Commonwealth,

,

, 956 (1875)). Authority from the state’s highest court controls this Court’s

application of the categorical approach. See United States v. Aparicio-Soria,

(4th Cir. 2014) (en banc) (“To the extent that the statutory definition of the prior

offense has been interpreted by the state’s highest court, that interpretation constrains our

analysis of the elements of state law.”).

In response, the majority points to language in that 1875 case, Wren, and another

from 1914, Buck v. Commonwealth. Both of those cases refer to an 1850s-era criminal law

treatise: “The true test (says Bishop, § 634) whether one is accessory after the fact, is to

consider whether what he did was done by way of personal help to his principal, with the

view of enabling his principal to elude punishment; the kind of help rendered appearing to

be unimportant.” Wren, 67 Va. at 957 (emphasis added); Buck v. Commonwealth,

(1914). The majority reasons that the language “with the view of enabling”

amounts to a specific intent requirement. But both Wren and Buck turned on whether the

evidence showed that the defendant had actually “assisted” the principal. Wren, 67 Va. at

957–62; Buck, 83 S.E. at 390–93. 14 And, both cases concerned only one type of assistance:

14 In Wren, the defendant was a detective who purposefully neglected his duty to arrest a suspected thief. 67 Va. At 958–62. The court explained that the defendant may have committed some other crime, like “misprision of a felony,” but he did not commit (Continued) 59 escaping punishment. Therefore, the “test” from the Bishop treatise was used in Wren and

Buck to determine whether one specific type of “assistance” occurred as a matter of fact—

not as a distinct element requiring specific intent. In other words, the “test” referred to in

these cases—which is the only authority supporting the BIA’s construction—goes to the

actus reus of the offense, as opposed to being a separate intent element. As mentioned

above, Wren expressly identified the same three “elements” of the offense that Dalton

referred to 125 years later. Wren, 67 Va. at 956; Dalton,

. The court

only referred to “the view” with which the defendant acted when applying the law to the

facts at hand. See Wren, 67 Va. at 957–62. Even if Virginia accessory required that the

defendant acted “with the view” of helping the principal “elude punishment,” that intent

requirement would still be broader than that of the generic offense. An individual could

act with the purpose of helping the principal elude punishment without acting with the

specific intent to interfere with an investigation or proceeding—for example, if the

defendant acted with the understanding that their assistance would prevent anyone from

discovering the felony was committed in the first place.

Nor does the intermediate case the BIA relied on, Suter, support its construction of

the statute. Like Wren and Buck, Suter quotes a treatise for the proposition that “the aid

must have been given to the felon personally for the purpose of hindering the felon’s

accessory because he took no affirmative act assisting the principal with avoiding punishment.

In Buck, the defendant was merely present while others helped the principal escape. 83 S.E. at 390–93. The court vacated the accessory conviction because the evidence did not show the defendant “did anything whatever . . . with the view to enabl[e] [the principal] to elude punishment.”

. 60 apprehension.” Suter,

(citing Wayne R. LaFave, Criminal Law § 13.6,

at 753–54 (5th ed. 2010)) (emphasis added). But, immediately afterwards, Suter quotes

the same three elements from Dalton as “[a] summary of the common-law definition of

accessory after the fact to a felony.” Id. This hardly supports the BIA’s reliance on Suter

to support that “purpose” is an element of the offense, when Suter then quoted the Virginia

Supreme Court’s list of elements, featuring no such requirement. 15 As noted above,

authority from a state’s highest court controls, and the two most recent Virginia Supreme

Court decisions never consider whether the defendant acted with a particular purpose. See

Aparicio-Soria,

.

Finally, while the BIA noted that Petitioner “ha[d] not presented evidence that

Virginia applied the statute . . . without specific intent,” such evidence does exist. 16

Petitioner identified two Virginia Court of Appeals cases discussing prosecutions of

accessory offenses absent evidence of specific intent or an ongoing proceeding or

investigation. Opening Br. at 32–33.

15 Moreover, Suter turned on a different element: whether a felony had, in fact, been completed. See

The defendant’s mindset was irrelevant to the determination and, therefore, the quote from the treatise referring to “purpose” arguably amounts to non- binding dicta. See

16 In the Fourth Circuit, a petitioner is not required to present such evidence to prove overbreadth, though it is often persuasive. See Gordon, 965 F.3d at 259–61 (holding, where a petitioner established statute was overbroad based on plain language, statutory scheme, and state court opinions, he was not “require[d] . . . to ‘find a case’ in which the state successfully prosecuted a defendant for the overbroad conduct”); see also

at 260 n.8 (rejecting government’s argument that the Fourth Circuit mandates application of the “reasonable possibility” test). 61 First, in Powell v. Commonwealth, the defendant was convicted of accessory to

grand larceny for exchanging a $100 bill with a co-worker whom the defendant knew was

stealing from their employer.

, 788–89 (Va. Ct. App. 1999) (explaining

that the defendant understood that larger bills facilitated the scheme). The court of appeals

reversed because the evidence was insufficient to prove that the principal completed the

grand larceny felony.

at 789–90. However, the court held that the mens rea element

was satisfied because “[the defendant] knew that [the principal] was stealing money from

[the employer].” Id. at 789. In other words, the court construed the offense as requiring

only knowledge, which is broader than the specific intent to obstruct. See id.; see also

Valdivia-Flores,

(finding no categorical match with federal specific

intent element because the state offense “requires merely knowledge”).

Second, in Johnson v. Commonwealth, the defendant helped the principal load and

unload stolen goods acquired from burglarizing a home. No. 1216-01-1,

,

at *1–2 (Va. Ct. App. Apr. 9, 2002). The appeals court affirmed the defendant’s conviction

for accessory to burglary because the evidence “established beyond a reasonable doubt that

defendant assisted [the principal] following the burglary, with knowledge of the offense

and [the principal’s] involvement in it.”

Thus, as in Powell, the court resolved the case

based on evidence of knowledge, not the defendant’s purpose in assisting. See

Moreover, the BIA referred to the specific intent required as acting “for the purpose of

hindering the felon’s apprehension, conviction, or punishment,” but in Johnson, the

assistance provided had little to do with eluding detection or punishment, and the court

never considered the purpose of the defendant’s actions. See

Rather, the defendant was

62 guilty because he “assisted” with “loading and secreting much of [the stolen] property,”

which constituted receiving, relieving, comforting, or assisting a known felon. See

(citing Manley,

). Thus, Johnson and Powell establish that Virginia does

prosecute conduct broader than the federal generic offense, and the BIA’s contrary reading

of the case law erroneously extrapolated from dicta or from discussion of the actus reus.

Indeed, both cases quote the same list of three elements provided above from Dalton and

Manley, without mention of any specific intent or purpose requirement. See id.; Powell,

521 S.E.2d at 788–90.

In sum, there are several indications that the Virginia statute is broader than the

federal definition: it does not require an ongoing investigation or proceeding; authority

from the state’s highest court refers only to a “knowledge” requirement, not specific intent;

and Virginia has prosecuted conduct under the offense that proves those two differences.

Therefore, the BIA erred in concluding that Petitioner’s state conviction is an “aggravated

felony.” Because the majority disagrees, I respectfully dissent.

63