Pugin v. Garland

LII note: The U.S Supreme Court has now decided Pugin v. Garland

Issues

To be considered as “an offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S), must a predicate offense require a nexus with a pending or ongoing investigation or judicial proceeding?

Oral argument:
April 17, 2023
Court below:
United States Court of Appeals for the Fourth Circuit

This case asks the Supreme Court to clarify whether nexus to a pending or ongoing investigation or legal proceeding is necessary for an offense to be considered as “an offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S). Pugin argues that the phrase has historical meaning and that interpretation in favor of the noncitizen and the rule of lenity should apply. Attorney General Merrick Garland counters that the phrase has an ordinary meaning, and the Court should defer to the Board Immigration Appeals’s (“BIA”) interpretation following Chevron deference. This case has implications on how the BIA should apply the rule of lenity and how much deference the BIA should receive.

Questions as Framed for the Court by the Parties

Whether an offense can be considered as "an offense relating to obstruction of justice" under 8 U.S.C. § 1101(a)(43)(S) only when it has nexus to a pending or ongoing investigation or legal proceeding.

Facts

Jean Francois Pugin is a Mauritius citizen and lawful permanent resident of the United States. Pugin pled guilty to being an accessory after the fact to a felony under Virginia law in 2014. Pugin received a twelve-month imprisonment sentence with nine months suspended .

The Department of Homeland Security (“DHS”) commenced a removal proceeding against Pugin and sent Pugin a notice to appear . DHS alleged Pugin’s removal was proper because Pugil violated 8 U.S.C. § 1227(a)(2)(A)(iii) by committing an aggravated felony, defined under 8 U.S.C. § 1101(a)(43)(S) as “an offense relating to obstruction of justice, perjury, or subornation of perjury.” Pugin asserted removal was improper because his conviction was not an aggravated felony.

An immigration judge held Pugin’s offense qualified as an aggravated felony. The judge held a state law-based offense is “an offense relating to obstruction of justice” if the offender intends to “hinder the process of justice.” The judge held that Pugin’s offense under Virginia law was an aggravated felony because it required specific intent to hinder the process of justice and no argument was made that Virginia sentenced Pugin without finding such intent.

Pugin appealed to the Board of Immigration Appeals (“BIA”), which affirmed the immigration judge’s decision. Pugin next appealed to the United State Court of Appeals for the Fourth Circuit . The Fourth Circuit affirmed the Board of Immigration’s decision. The Supreme Court granted Pugin’s petition for a writ of certiorari on January 13, 2023.

The Supreme Court consolidated Pugin’s case with Garland v. Cordero-Garcia , for which it also granted certiorari on January 13, 2023. Brief for Respondent Fernando Cordero-Garcia is a Mexican citizen and lawful permanent resident of the United States. In 2009, Cordero-Garcia was convicted for witness tampering, sexual exploitation by a psychotherapist or drug abuse counselor, and sexual battery under California law and sentenced to two years’ imprisonment.

DHS commenced a removal proceeding against Cordero-Garcia for being convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(S), “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” DHS added additional charges against Cordero-Garcia for being convicted of crimes involving moral turpitude, a violation of 8 U.S.C. § 1227(b)(2)(A)(i) . Cordero-Garcia claimed he was not removable and asked to terminate removal proceedings or cancel the removal.

An immigration judge denied Cordero-Garcia’s requests. The judge held that Cordero-Garcia’s witness-tampering counts were offenses relating to obstruction of justice and his sexual battery and witness tampering counts were crimes of moral turpitude. The judge ordered Cordero-Garcia’s removal.

Cordero-Garcia appealed to the BIA, which upheld the immigration judge’s decision, then the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit had recently decided Valenzuela Gallardo v. Lynch , which invalidated the BIA’s old definition of “an offense relating to obstruction of justice.” The Ninth Circuit remanded Cordero-Garcia’s case to the BIA so the BIA could redecide the case with its modified definition. The BIA again dismissed Cordero-Garcia’s case. Cordero-Garcia again appealed to the Ninth Circuit, which remanded the case to the BIA. The Supreme Court granted the government’s petition for certiorari on January 13, 2023.

Analysis

OBSTRUCTION OF JUSTICE: HISTORICAL OR ORDINARY MEANING

Petitioner Jean Francois Pugin (“Pugin”) argues that the Court should give the specialized legal “obstruction of justice” its technical meaning under a categorical approach. Brief for Petitioner The categorical approach, according to Pugin, “turns on the elements of the ‘generic’ definition of the aggravated felony.” Pugin explains that at the time Congress adopted the term “obstruction of justice,” there was an understanding that it required a pending proceeding. Pugin views the historical root of the requirement as the Act of March 2, 1831, a federal statute governing the obstruction of justice. Pugin argues that under the Act, administration and obstruction of justice were conventionally perceived to occur within the framework of legal proceedings. Pugin claims that in United States v. Aguilar , the Court reaffirmed that a pending proceeding is an essential element, and foreseeability is merely a restricted exception. Pugin adds that Congress presumably considers court precedent when it uses historical legal terms and that Congress enacts legislation in light of that knowledge; thus, Congress intended to imply a temporal “nexus” requirement. Pugin argues that the Court has narrowly read the phrase “relating to” as excluding offenses with no pending proceeding.

Respondent Merrick B. Garland, Attorney General (“Garland”), argues that because the Immigration and Nationality Act (“INA”) did not specify a definition for “obstruction of justice,” the Court should consider the ordinary meaning of the phrase when Congress adopted the INA in 1996. Brief for Respondent Garland explains that, in a prior case that interpreted a different part of the INA’s “aggravated felony” definition, the Court referred to Merriam-Webster’s Law Dictionary to interpret the definition of “aggravated felony” as enacted in 1996. Thus, Garland asserts, the Court should refer to Merriam-Webster’s Dictionary in this case. According to the Merriam-Webster’s Dictionary definition, Garland argues that obstruction of justice could occur without a pending investigation or proceeding. Additionally, Garland emphasizes that preventing an investigation or proceeding from happening is also an obstruction of justice, and thus the nexus requirement need not be based on time but rather could be based on logic. Garland further refutes that because the obstruction provision encompasses any offense “relating to” obstruction of justice, it should broadly include crimes with the goal of hindering the administration of justice.

SOURCES OF INTERPRETATION

Pugin contends that the codification of criminal offenses in Chapter 73 , which governs obstruction and other criminal offenses, supports his argument that the obstruction provision has a historical meaning. For instance, Pugin explains that while Section 1511 and 1518 offenses under Chapter 73 lack pending proceeding requirements, these are exceptions for specific circumstances and the sections’ lack of a pending proceeding requirement should not be understood as creating a general rule. Additionally, Pugin states that the Court need not consider state law under the categorical approach. Pugin further criticizes Garland’s approach as inconsistent with the categorical approach because it considers separate crimes like witness-tampering before determining the generic offense first. Pugin points out that the Model Penal Code (“MPC”) adopted a radical reading of the “obstruction of justice” and thus is not controlling because the federal government or states did not have “discernible” agreements on MPC’s interpretation. Pugin argues that definitions in legal dictionaries are consistent with and do not supersede the historical meaning of the terms. For instance, Pugin explains that Black’s Law Dictionary emphasizes the administration of justice, which is strongly connected to legal proceedings. Pugin criticizes that Garland’s reliance on Merriam-Webster’s Dictionary of Law is unwarranted because its definition does not cast doubt on the pending proceeding requirement. Pugin further states that the Sentencing Guidelines are not controlling because its definition of obstruction of justice refers to an overbroad category of offenses that are not equivalent to the generic definition that is relevant in this case.

Garland counters that Chapter 73 criminal offenses support the ordinary meaning of the obstruction provision and do not require a temporal nexus. For instance, Garland points out that offenses described in Section 1512 can be committed without pending proceedings. Garland adds that certain Chapter 73 offenses such as retaliation against the witness under Section 1513 can be committed after the proceeding has ended. In opposition to Pugin, Garland notes that state criminal codes can be beneficial in terms of providing context. Garland argues that in 1996, 29 states did not require a temporal nexus for witness tampering and intimidation offenses, which were considered to constitute obstruction of justice. In addition, Garland explains that the MPC is relevant to the meaning of the obstruction provision because it was adopted around when Congress enacted 8 U.S.C. § 1101(a)(43)(S). Garland focuses on the provision of witness tampering and accessory after the fact, both of which do not require pending investigations. Furthermore, Garland notes that dictionaries such as Black’s Law Dictionary contain similar definitions of obstruction of justice, without pending proceeding requirements. Garland adds that when the obstruction provision was enacted, the Sentencing Guidelines did not require a pending proceeding for offenses addressed under the obstruction of justice provision.

CHEVRON DEFERENCE AND STATUTORY INTERPRETATION

Pugin argues that if there is any ambiguity in the interpretation of the INA, the Court should not defer to the BIA’s interpretation. Pugin states that the interpretation of a statute is a primary duty of the Court, and the Court has never relinquished such duty to the Attorney General. Pugin claims that the Court should apply conventional principles of statutory interpretation before applying Chevron deference . Pugin emphasizes two principles: interpretation in favor of the noncitizen and the rule of lenity . Pugin first argues the statute should be interpreted in favor of the noncitizen because the resulting deportation significantly limits the freedom of the noncitizen. Pugin adds that the rule of lenity applies here because the definition of obstruction of justice affects criminal liability. Pugin criticizes Garland’s argument that a phrase in the INA is distinct from criminal law, arguing that the meaning of a statute remains identical regardless of the context. Furthermore, Pugin argues that applying Chevron deference will violate separation of powers and due process principles. Pugin emphasizes that defining crime is a duty of Congress, not courts, and Chevron deference is only appropriate when the BIA’s interpretations of the INA do not involve criminal consequences.

Garland claims that the Court should defer to the BIA’s reasonable interpretation of the statute when there is any ambiguity, and the BIA concludes here that there is no temporal nexus requirement. Garland asserts that since 1997, the BIA has consistently read the INA to encompass offenses without a pending investigation or proceeding and has reaffirmed this interpretation in multiple precedents. Garland adds that the BIA is entitled to Chevron deference. Garland refutes Pugin’s claim that the rule of lenity canon should apply. Garland argues that Congress intended that the Attorney General has the interpretive authority to resolve the ambiguity of the INA, and the Attorney General vested such authority in the BIA. By extension, Garland maintains that Chevron deference applies to the BIA. Garland also highlights that judicial deference plays a crucial role in immigration matters because executive officials perform highly sensitive political duties. Garland concludes that because the BIA interprets the INA to hold that the obstruction of justice does not require a temporal nexus to a pending proceeding, there is no ambiguity as to apply the principle of lenity.

Discussion

DEFERENCE GIVEN TO THE BOARD OF IMMIGRATION APPEALS

The National Association of Federal Defenders (“NAFD”), in support of Pugin, argues that the BIA’s interpretation should not be given any deference because this case deals with criminal law. The NAFD establishes that the aggravated felony statute is a criminal law because the statute directly affects a large percentage of federal criminal cases. The NAFD highlights that agencies are not given Chevron deference for criminal statute interpretations. The Pacific Legal Foundation adds that the Board of Immigration Appeals lacks the legal interpretation expertise, public accountability, and track record to justify Chevron deference. West Virginia and eight other states claim no separation of powers would exist if the Board was given Chevron deference for this statute since the Board would be prosecutor, legislature, and court.

The Immigration Reform Law Institute , in support of Garland, contends that courts should defer to the BIA’s interpretations. The Immigration Reform Law Institute emphasizes that Congress expressly delegated power to the Attorney General to interpret the Immigration and Nationality Act and that the Attorney General delegated his authority to the Board of Immigration Appeals. The Immigration Reform Law Institute concludes that the BIA should receive Chevron deference like other federal agencies. The Immigration Reform Law Institute further argues that the aggravated felony statute in question here, “offense relating to obstruction of justice,” is clearly ambiguous and needs the BIA’s interpretation. Garland explains that the Board’s interpretation is reasonable and should be afforded full deference.

ADHERING TO THE RULE OF LENITY

The Immigrant Defense Project , in support of Pugin, posits that lenity should clearly be applied to criminal law-related statutes like the aggravated felony statute. The Immigrant Defense Project criticizes the BIA’s failure to apply lenity to applicable immigration statutes, claiming that the BIA has only applied lenity in one of its past 41 decisions regarding the aggravated felony statute. The Pacific Legal Foundation pushes the courts to apply the rule of lenity and rejects the idea that the Board’s interpretations already incorporate lenity. The National Immigration Justice Center’s criticism that the BIA’s interpretation of the aggravated felony statute is too broad and excessively punitive supports the sentiment that the BIA has not been consistent with the rule of lenity.

The Immigration Reform Law Institute, in support of Garland, maintains that the rule of lenity is inapplicable to the aggravated felony statute in this case. The Immigration Reform Law Institute posits that Congress has been unambiguous, clearly seeking to deport aliens that have committed “an offense relating to obstruction of justice,” so the rule of lenity does not apply due to the lack of ambiguity. The Immigration Reform Law Institute adds the Board’s interpretation already reflects lenity since the Board does not evaluate the convicted alien’s conduct but rather the least culpable conduct under the state law that the alien violated. The Immigration Reform Law Institute concludes that the Board has already taken all steps to favorably view the defendant, so the rule of lenity should not apply.

Conclusion

Written by:

Andrew Kim

Jade Lee

Edited by:

Victoria Quilty

Additional Resources