Pugin v. Garland, USSC Nos. 22-23 & 22-331, 2023 WL 4110232 (June 22, 2023), affirming Pugin v. Garland, 19 F.4th 437 (4th Cir. 2021) and reversing Garland v. Cordero-Garcia, 44 F.4th 1181 (9th Cir. 2022); Scotusblog page (including links to briefs and commentary
Noncitizens convicted of an “aggravated felony” may be deported from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U. S. C. §1101(a)(43)(S). The question in these consolidate cases is whether an offense “relat[es] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending at the time of the defendant’s acts. In a 6 to 3 ruling, the Supreme Court holds that an investigation or proceeding need not be pending for the offense to be an aggravated felony.
This question the Court addresses in these cases arises because, depending on how the relevant statutes read, some obstruction offenses can occur before an investigation or proceeding is even pending, such as when the offense threatening a witness to prevent the witness from reporting a crime to the police. Pugin was convicted of being an accessory to a felony after the fact, though an investigation into the felony wasn’t yet pending; in the consolidated case, Garland v. Cordero-Garcia, the defendant was convicted of dissuading a witness from reporting a crime, so no investigation or proceeding had begun when he acted. The Fourth Circuit concluded Pugin’s conviction related to obstruction of justice, while the Ninth Circuit concluded Cordero-Garcia’s did not. (Slip op. 2).
The Court holds the Fourth Circuit was right:
This Court has generally used the “categorical approach” to determine whether a prior conviction qualifies as an “aggravated felony” under § 1101(a)(43). Esquivel-Quintana v. Sessions, 581 U.S. 385, 389 (2017); Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). Under that approach, courts look to “the elements of the statute of conviction, not to the facts of each defendant’s conduct.” Taylor v. United States, 495 U.S. 575, 601 (1990). The Court’s role here is not to fashion a separate federal obstruction offense, but rather to determine which federal or state offenses “relat[e] to obstruction of justice.”
The question in this case is whether an offense “relat[es] to obstruction of justice” under § 1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending. Dictionary definitions, federal laws, state laws, and the Model Penal Code show that the answer is yes: An offense “relat[es] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending.
(Slip op. 3).
A dissent (Sotomayor, joined by Gorsuch and, for the most part, Kagan) has an utterly different view, noting that the question presented in these cases is a question about the “basic elements” of “generic” obstruction of justice, and answering that question requires focusing on the core, “generally accepted contemporary meaning” of obstruction of justice, rather than on more unusual “nongeneric” variants that are “define[d] … more broadly.” Taylor, 495 U.S. at 596, 599.
The Court loses sight of this fundamental point. Instead of focusing on whether a pending investigation or proceeding is part of the heartland of obstruction of justice, it wanders off into an array of obstruction-adjacent federal and state laws that do not require a pending investigation or proceeding. The Court then announces that those offenses are core obstruction of justice, even though the evidence it relies on, taken as a whole, reveals they are not. The result is predictable. By defining offenses that do not require a pending investigation or proceeding as core obstruction of justice, the majority forces through the conclusion that a pending investigation or proceeding is not required to qualify as generic obstruction of justice.
(Dissent 3).
The Seventh Circuit has held that the meaning of obstruction under § 1101(a)(43)(S) is ambiguous, leading it to defer to the Board of Immigration Appeals’ conclusion that obstruction must “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.” Victoria-Faustino v. Sessions, 865 F.3d 869, 874-75 (7th Cir. 2017), citing In re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc). The court thus held that the Illinois statute under which Victoria-Faustino was convicted did not require interference with the proceedings of a tribunal, so it did not categorically fit within the meaning of obstruction of justice. Pugin effectively undoes Victoria-Faustino and seemingly turns a slew of obstruction convictions into aggravated felonies that will be grounds for removal.
