Fernando Cordero-Garcia v. Merrick Garland

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO CORDERO-GARCIA, AKA No. 19-72779 Fernando Cordero, Petitioner, Agency No. A014-690-577 v. MERRICK B. GARLAND, Attorney OPINION General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2022 San Francisco, California Filed August 15, 2022 Before: Andrew D. Hurwitz and Lawrence VanDyke, Circuit Judges, and Barry Ted Moskowitz, * District Judge. Opinion by Judge Moskowitz; Dissent by Judge VanDyke * The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. 2 CORDERO-GARCIA V. GARLAND SUMMARY ** Immigration Granting Fernando Cordero-Garcia’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that dissuading or attempting to dissuade a witness from reporting a crime, in violation of California Penal Code (“CPC”) § 136.1(b)(1), is not a categorical match to “an offense relating to obstruction of justice” aggravated felony under 8 U.S.C. § 1101(a)(43)(S), and therefore, Cordero-Garcia’s CPC § 136.1(b)(1) convictions did not render him removable. In 2012, the BIA concluded that Cordero-Garcia’s CPC § 136.1(b)(1) convictions were offenses relating to obstruction of justice under § 1101(a)(43)(S). In 2016, this court decided Valenzuela Gallardo v. Lynch (“Valenzuela Gallardo I”), 818 F.3d 808 (9th Cir. 2016), holding that the BIA’s most recent definition of “an offense relating to obstruction of justice” raised grave constitutional concerns and remanding to the BIA. In light of Valenzuela Gallardo I, and after Cordero-Garcia filed a petition for review, this court granted an unopposed motion to remand. The BIA then decided Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (BIA 2018), modifying its definition of “an offense relating to obstruction of justice” to include: “offenses covered by chapter 73 of the Federal criminal code or any other Federal or State offense” involving certain conduct motivated by a specific intent—as relevant here—“to interfere either in an investigation or proceeding that is ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CORDERO-GARCIA V. GARLAND 3 ongoing, pending, or reasonably foreseeable by the defendant.” Applying Matter of Valenzuela Gallardo to Cordero- Garcia’s case on remand, the BIA concluded that CPC § 136.1(b)(1) was an aggravated felony offense relating to obstruction of justice. After Cordero-Garcia petitioned for review, this court decided Valenzuela Gallardo v. Barr (“Valenzuela Gallardo II”), 968 F.3d 1053 (9th Cir. 2020), holding that “obstruction of justice” under § 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings. In light of Valenzuela Gallardo II, the panel concluded that CPC § 136.1(b)(1) is not a categorical match to “an offense relating to obstruction of justice” because—as the parties agreed—the California statute is missing a nexus to an ongoing or pending proceeding or investigation. Before this court, the government argued for the first time that Valenzuela Gallardo II left untouched the first prong of the BIA’s definition from …

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