Cordero-Garcia v. Garland

105 F.4th 1168

Fernando CORDERO-GARCIA, aka Fernando Cordero, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No.19-72779

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 6, 2024 San Diego, California

Filed June 27, 2024

On Remand from the United States Supreme Court, Agency No. AXXX-XX0-577

Jason F. Choy (argued), Blue Peak Law Group LLP, Santa Monica, California; Michael K. Mehr, Mehr & Soto LLP, Santa Cruz, California; for Petitioner.

Rebecca H. Phillips (argued), Senior Trial Attorney, Office of Immigration Litigation, Civil Division; Bryan S. Beier, Senior Litigation Counsel, Office of Immigration Litigation; John S. Hogan, Assistant Director, Office of Immigration Litigation; Brian M. Boynton, Acting Assistant Attorney General, Civil Division; United States Department of Justice, Washington, D.C.; for Respondent.

Before: Andrew D. Hurwitz and Lawrence VanDyke, Circuit Judges, and Barry Ted Moskowitz,^* District Judge.

OPINION

HURWITZ, Circuit Judge:

Noncitizens convicted of offenses "relating to obstruction of justice . . . for which the term of imprisonment is at least one year" are removable. See 8 U.S.C. § 1101(a)(43)(S). This case requires us to determine whether a conviction under California Penal Code ("CPC") § 136.1(b)(1) is such a crime. We conclude that it is.

I.

This case has a long procedural history. It begins in April 2009, when Fernando Cordero-Garcia, a lawful permanent resident, was convicted of two counts of violating CPC § 136.1(b)(1)¹ and sentenced to concurrent terms of two years of imprisonment on each count. He was later charged by the Department of Homeland Security as removable under 8 U.S.C. § 1101(a)(43)(S). An immigration judge ("IJ") found that Cordero-Garcia's convictions were for a crime relating to obstruction of justice. The Board of Immigration Appeals ("BIA") dismissed Cordero-Garcia's appeal.

Cordero-Garcia petitioned us for review. Cordero-Garcia v. Sessions, No. 12-74130, Dkt. 1 (9th Cir. Dec. 18, 2012). While that petition was pending, we held that the BIA's operative definition of obstruction of justice—"the affirmative and intentional attempt, with specific intent, to interfere with the process of justice"—raised "grave constitutional doubts" because "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 v. Lynch, 818 F.3d 808, 811, 813-819 (9th Cir. 2016).

Granting an unopposed motion from the government, we then remanded Cordero-Garcia's case to the BIA for further consideration in light of Valenzuela Gallardo. See Cordero-Garcia v. Sessions, No. 12-74130, Dkt. 57 (9th Cir. July 10, 2017). The BIA subsequently redefined obstruction of justice as "(1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant." Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449, 456 (BIA 2018) (cleaned up). Applying this definition in Cordero-Garcia's case, the BIA again held that a conviction under CPC § 136.1(b)(1) constituted § 1101(a)(43)(S) obstruction of justice. Matter of Cordero-Garcia, 27 I. & N. Dec. 652, 663 (BIA 2019).

Cordero-Garcia again petitioned for review. While that petition was pending, we held that § 1101(a)(43)(S) obstruction of justice "requires a nexus to an ongoing or pending proceeding." Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1067 (9th Cir. 2020). Applying that holding in Cordero-Garcia's case, we held that a violation of CPC § 136.1(b)(1) was not an offense related to obstruction of justice because the state statute of conviction did not require a "nexus to an ongoing or pending proceeding or investigation." Cordero-Garcia v. Garland, 44 F.4th 1181, 1185 (9th Cir. 2022).

The government then successfully petitioned for certiorari. See Garland v. Cordero-Garcia, — U.S. —, 143 S. Ct. 644, 214 L.Ed.2d 381 (2023). Resolving a Circuit split, the Supreme Court held that § 1101(a)(43)(S) obstruction of justice includes "threatening a witness to prevent the witness from reporting a crime to the police" and "does not require that an investigation or proceeding be pending." Pugin v. Garland, 599 U.S. 600, 602, 610, 143 S.Ct. 1833, 216 L.Ed.2d 572 (2023).² The Court reversed our opinion and remanded for reconsideration. Id. at 610-11, 143 S.Ct. 1833.

II.

A.

Determining whether a conviction under CPC § 136.1(b)(1) is a "an offense relating to obstruction of justice" under 8 U.S.C. § 1101(a)(43)(S) requires that we once again plumb the murky waters of the "categorical approach." See Cordero-Garcia, 44 F.4th at 1187. We must first identify the elements of the generic federal offense. See Renteria-Morales v. Mukasey, 551 F.3d 1076, 1081 (9th Cir. 2008). We next identify the elements of the crime of conviction. See id. Then, "we compare the statute of conviction to the generic federal offense to determine whether the specific crime of conviction meets the definition of an aggravated felony." Ho Sang Yim v. Barr, 972 F.3d 1069, 1077 (9th Cir. 2020) (cleaned up).

"[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). "It requires 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." Id. This "realistic probability" may be shown in two ways: "if a state statute expressly defines a crime more broadly than the generic offense," or "if the petitioner can point to at least one case in which the state courts applied the statute in a situation that does not fit under the generic definition." Lopez-Aguilar v. Barr, 948 F.3d 1143, 1147 (9th Cir. 2020) (cleaned up).

B.

After Pugin, Cordero-Garcia no longer claims that the actus reus prohibited by CPC § 136.1(b)(1)—"conduct geared toward impeding a person from reporting a crime," People v. Navarro, 212 Cal. App. 4th 1336, 1350, 152 Cal.Rptr.3d 109 (2013)—is not a categorical match for conduct covered by 8 U.S.C. § 1101(a)(43)(S).³ Rather, he only contends that the mens rea required for conviction under the California statute differs materially from that required under § 1101(a)(43)(S). We address this question of statutory construction de novo. Lopez-Aguilar, 948 F.3d at 1146.

The parties agree that § 1101(a)(43)(S) describes a specific intent crime. See Valenzuela Gallardo, 27 I. & N. Dec. at 456 (defining the offenses in § 1101(a)(43)(S) as requiring specific intent). Because Pugin confirms that "threatening a witness to prevent the witness from reporting a crime to the police" can constitute § 1101(a)(43)(S) obstruction, 599 U.S. at 602, 143 S.Ct. 1833, there can be no dispute that the specific intent covered by § 1101(a)(43)(S) includes the intent to prevent the report.

The parties also agree that CPC § 136.1(b)(1) is a specific intent offense. The California case law makes the scope of that intent clear, stating that the statute requires a showing of the "inten[t] to prevent a crime from even being reported by a victim or witness," People v. Brackins, 37 Cal. App. 5th 56, 67, 249 Cal.Rptr.3d 261 (2019), or the "inten[t] to induce a witness or victim to withhold evidence of a crime from law enforcement officials," Navarro, 212 Cal. App. 4th at 1352, 152 Cal.Rptr.3d 109.

There thus appears to be no facial distinction between the mens rea required under CPC § 136.1(b)(1) and 8 U.S.C. § 1101(a)(43)(S). Any defendant who specifically intends "that his acts would prevent or dissuade the victim or witness from making the report," People v. Cook, 59 Cal. App. 5th 586, 590, 273 Cal.Rptr.3d 684 (2021), plainly has the specific intent to "prevent the witness from reporting a crime." See Pugin, 599 U.S. at 602, 143 S.Ct. 1833.

But Cordero-Garcia nonetheless argues that CPC § 136.1(b)(1) can be violated without the intent required under the federal law. His argument rests on subsections of CPC § 136.1 that he was not convicted of violating: § 136.1(a), which criminalizes "maliciously" dissuading or preventing a witness from attending a court proceeding or giving testimony, and § 136.1(c), which provides that certain violations of subsections (a) and (b) are aggravated offenses when committed "maliciously." "Malice," as used in these subsections, is defined as "an intent to vex, annoy, harm, or injure in any way another person, or to thwart or interfere in any manner with the orderly administration of justice." CPC § 136(1).

Cordero-Garcia argues that because a conviction under CPC § 136.1(b)(1) does not require proof of "malice," see Cook, 59 Cal. App. 5th at 590, 273 Cal.Rptr.3d at 687, the mens rea required for conviction under that subsection is not as narrow as that required under the federal statute. He posits that a defendant might violate § 136.1(b)(1) if he merely intends to prevent a report of a crime but has no specific intent to interfere with the ultimate disposition of a matter. For example, Cordero-Garcia suggests a defendant might merely intend to protect a witness or victim from prejudicial publicity or retaliation by the perpetrator, not to interfere with the process of justice.

We reject that argument. As an initial matter, CPC §§ 136.1(a) and (c) are not at issue in this case. We therefore need not parse the difference between the mens rea required to violate those subsections and that required to violate subsection (b)(1).⁴ Rather, we need only determine whether the mens rea required for conviction under CPC § 136.1(b)(1) is broader than that required to establish a violation of § 1101(a)(43)(S). California case law, which confirms that the state statute requires a specific intent to "to induce a witness or...