Board of Immigration Appeals Finds Accessory to a Felony Charge Constitutes Aggravated Felony
Agustin Valenzuela Gallardo, a native and citizen of Mexico, was admitted to the United States on May 23, 2002 as a lawful permanent resident. A December 28, 2007 conviction of accessory to a felony resulted in his 16-month prison sentence and his placement into removal proceedings as an alien convicted of an aggravated felony offense relating to obstruction of justice. Valenzuela Gallardo contested this removability, arguing that his conviction was not an offense related to obstruction of justice, as it was unrelated to an ongoing judicial proceeding. He subsequently filed a motion to terminate the removal proceedings, which was denied by the Immigration Judge (IJ) after determining the definition of an offense relating to obstruction of justice was not limited to obstruction offenses relating to ongoing judicial proceedings. The IJ, therefore, denied the motion, ordering the respondent’s removal to Mexico. Valenzuela Gallardo appealed this decision, an appeal which was denied by the Board of Immigration Appeals (BIA). A May 17, 2011 decision made by the Ninth Circuit Court of Appeals examined the precedents established by the BIA’s decision regarding when an offense is considered obstruction of justice, specifically holding that provision when, “it interferes with an ongoing proceeding or investigation.”
The BIA reopened the respondent’s appeal, upon hearing of the Ninth Circuit’s decision, with consideration given to Valenzuela Gallardo’s removability, publishing a decision clarifying the previous interpretation and holding that an element of “affirmative and intentional attempt, with specific intent, to interfere with the process of justice,” and that whether an ongoing criminal investigation or trial, “is not an essential element of ‘an offense relating to obstruction of justice.’” The BIA therefore concluded that since an individual who violates section 32 of the California Penal Code must act with the intent to aid a principal in avoiding arrest, trial, conviction, or punishment, and Valenzuela Gallardo’s State crime contains an element of affirmative an intentional attempt, with specific intent to interfere with the process of justice, his conviction constituted an offense relating to obstruction of justice.
Valenzuela Gallardo did not fundamentally argue that the crime for which he was convicted held s punishment of at least one-year imprisonment, which categorically adheres to the definition of aggravated felony. The BIA accordingly determined that conviction to be one for an aggravated felony offense related to obstruction of justice, which rendered him removable, dismissing his appeal.
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