A recent Ninth Circuit decision, Valenzuela Gallardo v. Lynch, has created a three-pronged circuit split over the proper interpretation of statutory language in the Immigration and Nationality Act (INA). In Gallardo, the government initiated a deportation action against a Mexican alien residing in the U.S. due to his conviction as an accessory after the fact under California law. 11 Valenzula Gallardo v. Lynch, 818 F.3d 808, 811 (9th Cir. 2016).
The INA provides that any alien convicted of an “aggravated felony” is “deportable.” 22 8 U.S.C. § 1227(a)(2)(A)(iii) (2012). The Act does not statutorily define the term aggravated felony, but instead provides a list of various types of criminal activities that would qualify an alien for deportation. 33 See 8 U.S.C. § 1101(a)(43) (2012). One of the provisions in the statute states that a crime “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” makes an alien deportable. 44 Id. at § 1101(a)(43)(S). The precise meaning of this language, particularly “relating to obstruction of justice,” is arguably vague.
The Board of Immigration Appeals (BIA or Board), the agency tasked with hearing appeals of decisions to begin deportation hearings under the INA, has found the phrase “relating to obstruction of justice” to be ambiguous and thus open for interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 55 See In re Valenzuela Gallardo, 25 I.&N. Dec. 838, 839-40 (B.I.A. 2012); Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The Board has interpreted the phrase to refer to an “affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice, irrespective of the existence of an ongoing criminal investigation or proceeding.” 66 Chevron, 467 U.S. at 838.
The Fifth Circuit has deferred to this interpretation as reasonable under the Chevron doctrine. 77 See United States v. Gamboa-Garcia, 620 F.3d 546, 549-50 (5th Cir. 2010). The Ninth Circuit in Gallardo, however, refused to defer to the BIA’s interpretation. Instead, they applied the doctrine of “constitutional avoidance” to hold that Congress had no intention of allowing the Board to interpret the statute as stretching to the limits of the Constitution, and remanded the case back to the BIA. 88 See Valenzuela Gallardo v. Lynch, 818 F.3d 808, 823, 825 (9th Cir. 2016).
In contrast, the Third Circuit has read § 110 1(a)(43)(S) of the INA as unambiguous and thus closed to agency interpretation. 99 See Denis v. Att’y Gen. of the United States, 633 F.3d 201, 209-10 (3d Cir. 2011). This is the optimal answer from a statutory interpretation perspective. The distinct phrases “relating to” and “obstruction of justice” can be easily defined by looking to Supreme Court precedent and other statutes. “Relating to” requires a causal or logical connection between the crime committed and the crime enumerated in the statute. 1010 See id. at 210-11. “Obstruction of justice” is a heading in the U.S. Code, which contains a list of federal crimes that are considered “obstruction of justice” crimes. 1111 See id. at 209. Thus, there is no reason to allow the BIA to interpret the statute.
Further, a broader interpretation of § 1101(a)(43)(S), as this Note’s straightforward textual analysis suggests, gives the government greater discretion to deport dangerous or otherwise undesirable aliens: a key concern of the drafters of the INA. 1212 The legislative history and the INA itself supports my view that the drafters of the INA were concerned with allowing greater government power to deport dangerous immigrants. This will be discussed further in Part I. At the same time, the fact that the statute does not require deportation, but rather only makes an alien “deportable,” acts as an important safety valve to prevent deportation for comparatively minor offenses.
Section I of this Note details the purpose and provisions of the INA. Section II provides a brief overview of the legal doctrine used to determine the appropriate level of judicial review of federal agency decisions. Section III provides an in-depth analysis of each of the varying approaches that circuit courts have employed in analyzing the issue of the “relating to obstruction of justice” language in § 1101(a)(43)(S). Finally, Section IV discusses which approach is best, from both a statutory interpretation and a public policy standpoint.
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|↑1||1 Valenzula Gallardo v. Lynch, 818 F.3d 808, 811 (9th Cir. 2016).|
|↑2||2 8 U.S.C. § 1227(a)(2)(A)(iii) (2012).|
|↑3||3 See 8 U.S.C. § 1101(a)(43) (2012).|
|↑4||4 Id. at § 1101(a)(43)(S).|
|↑5||5 See In re Valenzuela Gallardo, 25 I.&N. Dec. 838, 839-40 (B.I.A. 2012); Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).|
|↑6||6 Chevron, 467 U.S. at 838.|
|↑7||7 See United States v. Gamboa-Garcia, 620 F.3d 546, 549-50 (5th Cir. 2010).|
|↑8||8 See Valenzuela Gallardo v. Lynch, 818 F.3d 808, 823, 825 (9th Cir. 2016).|
|↑9||9 See Denis v. Att’y Gen. of the United States, 633 F.3d 201, 209-10 (3d Cir. 2011).|
|↑10||10 See id. at 210-11.|
|↑11||11 See id. at 209.|
|↑12||12 The legislative history and the INA itself supports my view that the drafters of the INA were concerned with allowing greater government power to deport dangerous immigrants. This will be discussed further in Part I.|