Silva v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-1593
CARLOS MONTEIRO SILVA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Barron, Circuit Judges.
Kerry E. Doyle, with whom Graves and Doyle was on brief, for
petitioner.
Evan P. Schultz, Trial Attorney, Office of Immigration
Litigation, Civil Division, with whom Brian Boynton, Acting
Assistant Attorney General, Civil Division, and Stephen J. Flynn,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
February 28, 2022
LYNCH, Circuit Judge. Petitioner Carlos Monteiro Silva
seeks review of a final order of removal issued by the Board of
Immigration Appeals ("BIA") in May 2020. The BIA dismissed Silva's
appeal of a decision by the immigration judge ("IJ") holding that
Silva was removeable under the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an
"aggravated felony" as defined under 8 U.S.C. § 1101(a)(43). The
IJ determined and the BIA affirmed that Silva's Massachusetts state
conviction for accessory after the fact to the crime of murder was
categorically an aggravated felony for purposes of the INA because
it met the definition of "an offense relating to obstruction of
justice." Id. § 1101(a)(43)(S). The IJ and BIA held that Silva
was ineligible for withholding of removal because he had committed
a particularly serious crime and had not met his burden to
establish that he was eligible for asylum or relief under the
Convention Against Torture ("CAT").
Silva argues that the IJ and the BIA erred by applying
the categorical approach to determine that his state conviction
for accessory after the fact was "an offense relating to
obstruction of justice." Id. He argues that the BIA's
interpretation of "an offense relating to obstruction of justice"
as including offenses where an investigation or proceeding is only
"reasonably foreseeable" is an unreasonable interpretation of
§ 1101(a)(43)(S) and that the INA unambiguously requires that an
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obstruction of justice offense have some nexus to a pending or
ongoing investigation or judicial proceeding, which the
Massachusetts accessory-after-the-fact statute does not require.
For this and other reasons, Silva argues that deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), does not apply to the BIA's interpretation
and that Silva's conviction for accessory after the fact is not
categorically an obstruction of justice offense triggering the
INA's aggravated felony grounds for removal.1
We make two holdings, each of which provides a basis for
denying the petition. First, we follow the mode of analysis
employed by the Supreme Court in Esquivel-Quintana v. Sessions,
137 S. Ct. 1562 (2017), and so apply "the normal tools of statutory
interpretation," id. at 1569. We hold the generic federal
definition of "an offense relating to obstruction of justice"
unambiguously does not require a nexus to a pending or ongoing
investigation or judicial proceeding. Alternatively, we also
hold, employing Chevron analysis, that the BIA's interpretation
must be sustained. Consonant with these holdings, we conclude
that the IJ and BIA properly concluded that Silva's Massachusetts
conviction for accessory after the fact is categorically an offense
relating to obstruction of justice and so rendered him removable
1 We acknowledge and thank amici curiae for their brief in
support of the petitioner.
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as an aggravated felon. We deny Silva's petition using each mode
of analysis.
I.
A. Massachusetts State Conviction
Silva is a native and citizen of Cape Verde who was
admitted to the United States in 1989 as a lawful permanent
resident.
In September 2017, Silva pleaded guilty in Massachusetts
to accessory after the fact in violation of Mass. Gen. Laws ch.
274, § 4. That statute provides that,
[w]hoever, after the commission of a felony,
harbors, conceals, maintains or assists the
principal felon or accessory before the fact,
or gives such offender any other aid, knowing
that he has committed a felony or has been
accessory thereto before the fact, with intent
that he shall avoid or escape detention,
arrest, trial or punishment, shall be an
accessory after the fact.
Id. The offense to which Silva pleaded guilty occurred in 2003.
The September 2003 indictment that described the offense stated
that three men, not including Silva, "on April 28, 2003, did
assault and beat [the victim] with intent to murder him and by
such assault did kill and murder [the victim]." As to Silva, the
indictment charged that he, "well knowing . . . the [three men]
to have committed the felony . . . [,] did harbor, conceal,
maintain, assist or give any other aid to the said [three men],
with intent that the said [three men] should avoid and escape
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detention, arrest, trial and punishment" by driving those three
men away from the scene of the murder.2 Silva was sentenced to
between four and five years in Massachusetts state prison.
B. Removal Proceedings and BIA Decision
In January 2018, the U.S. Department of Homeland
Security ("DHS") initiated removal proceedings against Silva.3 In
March 2019, DHS amended the charges of removal against Silva.
Those amended charges stated that Silva was removable for, among
other things, having been convicted of an aggravated felony in the
form of "an offense relating to obstruction of justice . . . for
which the term of imprisonment was at least one year." See 8
U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(S).4 Silva objected to
those amended charges of removal.
2 Silva's plea leaves no doubt that he intended to obstruct
a reasonably foreseeable investigation. To the extent our
dissenting colleague argues to the contrary, the state court
conviction precludes such a holding.
3 This case has a long procedural history involving an
initial termination of removal proceedings against Silva and a
reinstatement of proceedings against him on different charges of
removal. We describe only those later proceedings which led to
this appeal.
4 The amended charges also stated that Silva was
removeable for having been convicted of two or more crimes
involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(ii). That
charge of removal was based on Silva's Massachusetts accessory-
after-the-fact conviction and an earlier Massachusetts state
conviction for receiving stolen property in violation of Mass.
Gen. Laws ch. 266, § 60. The IJ and the BIA ultimately did not
rely on this alternative ground for removal because of updated
criminal documents filed with the IJ by Silva reflecting that a
Massachusetts state court had allowed his motion to vacate his
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In a written decision in May 2019, the IJ held that
Silva's Massachusetts accessory-after-the-fact conviction was
categorically an offense relating to obstruction of justice under
the INA and so was a proper ground for removal as an aggravated
felony.5 The IJ relied on the BIA's decision in Matter of
Valenzuela Gallardo, 27 I. & N. Dec. 449, 452-60 (B.I.A. 2018),
underlying removal order vacated in Valenzuela-Gallardo v. Barr,
968 F.3d 1053 (9th Cir. 2020).6
plea for several prior convictions, including his conviction for
receiving stolen property. They declined to decide what effect,
if any, that state court decision would have on Silva's removal
proceedings. The only issue for our review is the IJ's and the
BIA's determination about the aggravated felony charge for
removal.
5 "[T]o determine whether an alien's conviction qualifies
as an aggravated felony under th[e INA], [courts and the agency]
'employ a categorical approach by looking to the statute . . . of
conviction, rather than to the specific facts underlying the
crime.'" Esquivel-Quintana, 137 S. Ct. at 1567-68 (ellipsis in
original) (quoting Kawashima v. Holder, 565 U.S. 478, 483 (2012));
see also De Lima v. Sessions, 867 F.3d 260, 262-63 (1st Cir. 2017).
"Under that approach, we ask whether 'the state statute defining
the crime of conviction categorically fits within the generic
federal definition of a corresponding aggravated felony.'"
Esquivel-Quintana, 137 S. Ct. at 1568 (some internal quotation
marks omitted) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190
(2013)); see also De Lima, 867 F.3d at 262-63. "[W]e presume that
the state conviction 'rested upon
. . . the least of th[e] acts' criminalized by the statute, and
then we determine whether that conduct would fall within the
[generic] federal definition of the crime." Esquivel-Quintana,
137 S. Ct. at 1568 (second and third alterations in original)
(quoting Johnson v. United States, 559 U.S. 133, 137 (2010)); see
also De Lima, 867 F.3d at 263.
6 Valenzuela Gallardo, applying the categorical approach,
held that the generic definition of obstruction of justice includes
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Silva then filed applications for asylum, withholding of
removal, and protection under the CAT. In a written decision in
December 2019, the IJ denied all three forms of relief from
removal. The IJ concluded that Silva's aggravated felony
conviction for accessory after the fact rendered him statutorily
ineligible for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii),
(b)(2)(B)(i), and that the conviction was a "particularly serious
crime" which barred his application for withholding of removal,
see id. § 1231(b)(3)(B)(ii). The IJ also concluded that Silva did
not provide sufficient evidence to support his application for CAT
protection.
Silva appealed to the BIA. In May 2020, the BIA denied
that appeal. The BIA, referencing Matter of Valenzuela Gallardo,
adopted and affirmed the IJ's decision, holding that Silva's
Massachusetts accessory-after-the-fact conviction was
categorically an aggravated felony relating to obstruction of
justice. The BIA also held that the IJ did not clearly err in
finding that Silva's Massachusetts accessory-after-the-fact
crimes involving: "(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.'" 27 I. & N. Dec. at
456 (emphasis added) (quoting Marinello v. United States, 138 S.
Ct. 1101, 1110 (2018)) (citing United States v. Aguilar, 515 U.S.
593, 599 (1995)). Applying that generic federal definition of
obstruction of justice, the IJ concluded that the elements of
Silva's Massachusetts accessory-after-the-fact conviction were a
categorical match.
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conviction was a particularly serious crime for purposes of
withholding of removal, and affirmed the denial of all forms of
relief.
This timely petition for review followed.
II.
Silva first argues that the Court should give no
deference to the BIA's interpretation in Matter of Valenzuela
Gallardo of "an offense relating to obstruction of justice" for
various reasons. He also argues that, even if his Massachusetts
accessory-after-the-fact conviction is an aggravated felony
relating to obstruction of justice, the BIA erred in determining
that the conviction is a "particularly serious crime" for purposes
of barring him from withholding of removal.7
Where, as here, "the BIA adopts and affirms an IJ's
decision, we review the IJ's decision 'to the extent of the
adoption, and the BIA's decision as to [any] additional ground.'"
Sunoto v. Gonzales, 504 F.3d 56, 59-60 (1st Cir. 2007) (alteration
in original) (quoting Berrio-Barrera v. Gonzales, 460 F.3d 163,
167 (1st Cir. 2006)). We review de novo the BIA's legal
7 Silva does not challenge the IJ's and BIA's
determination that his conviction for accessory after the fact, if
found to be an aggravated felony, would render him statutorily
ineligible for asylum. Nor does he challenge the IJ's and BIA's
denial of his application for deferral of removal under the CAT.
Any challenge to those two determinations has been waived. See
Bekele v. Lyft, Inc., 918 F.3d 181, 186 (1st Cir. 2019).
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conclusions, including its determination that Silva's
Massachusetts accessory-after-the-fact conviction is an aggravated
felony. See Lecky v. Holder, 723 F.3d 1, 4 (1st Cir. 2013). We
review the BIA's factual findings under a deferential standard,
upholding them "as long as they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Sanabria Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020)
(quoting Thapaliya v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)).
A. Applying the Tools of Statutory Interpretation as Applied by
the Supreme Court in Esquivel-Quintana, the Conviction for
Accessory After the Fact Is an Aggravated Felony "Relating to
Obstruction of Justice" Under the INA
We turn first to Silva's argument that his Massachusetts
accessory-after-the-fact conviction is not categorically "an
offense relating to obstruction of justice" because, he alleges,
it does not require a nexus to a pending or ongoing investigation
or judicial proceeding. In Esquivel-Quintana, the Supreme Court
addressed a similar issue of whether the petitioner's state
conviction for unlawful sexual intercourse with a minor was
categorically an offense for "sexual abuse of a minor" under 8
U.S.C. § 1101(a)(43)(A). 137 S. Ct. at 1567. Applying "the normal
tools of statutory interpretation," id. at 1569, the Court held
that "in the context of statutory rape offenses that criminalize
sexual intercourse based solely on the age of the participants,
the generic federal definition of sexual abuse of a minor requires
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that the victim be younger than 16," id. at 1568. It held that
"[b]ecause the California statute at issue in this case does not
categorically fall within that definition, a conviction pursuant
to it is not an aggravated felony under § 1101(a)(43)(A)." Id.8
The Court determined the meaning of the statutory definition based
on the text, the structure of the statute and closely related
federal statutes, the consensus of state criminal statutes, and
definitions from other sources, like the Model Penal Code. Id. at
1569-72. Because it determined the unambiguous meaning of the
statute, the Court held it was unnecessary to consider the Chevron
and rule of lenity issues. Id. at 1572.
We initially, as we said, follow the same analytical
path as the Supreme Court in Esquivel-Quintana and consider the
same factors to determine the generic federal definition of "an
offense relating to obstruction of justice."
8 In Esquivel-Quintana, the petitioner had been convicted
under a California statute criminalizing "unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator" in which the statute defined "minor" as "a person
under the age of 18 years." 137 S. Ct. at 1567 (quoting Cal. Penal
Code § 261.5(a), (c)). The petitioner was convicted under that
statute for having had "consensual sexual intercourse . . . [with]
a 17-year-old" when he was 21. Id.- 10 -
1. The Text of the Statute as a Whole Shows That the
Generic Federal Definition of "An Offense Relating
to Obstruction of Justice" Must Be Construed to
Include Accessory After the Fact
We begin with the text of the INA. See id. at 1568-69;
United States v. De la Cruz, 998 F.3d 508, 513 (1st Cir. 2021).
"[W]e accord the statutory text its ordinary meaning by reference
to the specific context in which that language is used, and the
broader context of the statute as a whole." De la Cruz, 998 F.3d
at 513 (internal quotation marks omitted) (quoting Recovery Grp.,
Inc. v. Comm'r, 652 F.3d 122, 125 (1st Cir. 2011)). When resolving
a dispute over the meaning of a statute, we "normally seek[] to
afford the law's terms their ordinary meaning at the time Congress
adopted them." Id. at 515 (quoting Niz-Chavez v. Garland, 141 S.
Ct. 1474, 1480 (2021)); see also Esquivel-Quintana, 137 S. Ct. at
1569-72 (interpreting 8 U.S.C. § 1101(a)(43)(A) according to what
its ordinary meaning was in 1996 when Congress added that provision
to the INA).
a. The Text of § 1101(a)(43)(S) Supports That
Accessory After the Fact Is "An Offense
Relating to Obstruction of Justice"
Section 1101(a)(43)(S), which provides that "an offense
relating to obstruction of justice" is an aggravated felony, was
added to the INA in 1996. See Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 440(e)(8), 110 Stat.
1214, 1278; Illegal Immigration Reform and Immigrant
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Responsibility Act of 1996, Pub. L. No. 104-208, § 321(a)(11), 110
Stat. 3009, 3009-628. The INA does not define "obstruction of
justice." So we turn to reliable contemporaneous dictionaries to
determine that term's ordinary meaning. See Esquivel-Quintana,
137 S. Ct. at 1569-70; De la Cruz, 998 F.3d at 515.
Black's Law Dictionary defined "obstructing justice" as
"[i]mpeding or obstructing those who seek justice in a court, or
those who have duties or powers of administering justice therein,"
"attempt[ing] to prevent, or . . . prevent[ing], the execution of
lawful process," or "obstructing the administration of justice in
any way -- as by hindering witnesses from appearing, assaulting
process servers, influencing jurors, obstructing court orders or
criminal investigations." Obstructing Justice, Black's Law
Dictionary 1077 (6th ed. 1990). Another dictionary at that time
defined "obstruction of justice" as "the crime or act of willfully
interfering with the process of justice and law esp. by
influencing, threatening, harming, or impeding a witness,
potential witness, juror, or judicial officer or legal officer or
by furnishing false information in or otherwise impeding an
investigation or legal process." Obstruction of Justice, Merriam-
Webster's Dictionary of Law 337 (1996).
Indeed, Bryan Garner, a noted legal commentator often
cited by the Supreme Court, see, e.g., Esquivel-Quintana, 137 S.
Ct. at 1569; Van Buren v. United States, 141 S. Ct. 1648, 1657
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(2021); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1749 (2020);
Lockhart v. United States, 577 U.S. 347, 351 (2016), defined
"obstruction of justice" as "interference with the orderly
administration of law" and stated that it was "a broad phrase that
captures every willful act of corruption, intimidation, or force
that tends somehow to impair the machinery of the civil or criminal
law," Obstruction of Justice, B. Garner, A Dictionary of Modern
Legal Usage 611 (2d ed. 1995). These definitions did not
explicitly require that the obstructive conduct be committed in
relation to a pending or ongoing investigation or judicial
proceeding. Acting as an accessory to a crime after the fact by
providing some sort of aid to the principal with the intent that
the principal evade capture, trial, or punishment, even if there
is not then a pending or ongoing investigation or proceeding,
certainly fits within these definitions of "obstruction of
justice."
Furthermore, the relevant statutory term to be
interpreted is not just "obstruction of justice"; rather, it is
"an offense relating to obstruction of justice." 8 U.S.C.
§ 1101(a)(43)(S) (emphasis added). The Supreme Court has stated
in other contexts that the ordinary meaning of the phrase "relating
to" is "a broad one," holding that it normally means "connection
with or reference to" something else. Morales v. Trans World
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Airlines, Inc., 504 U.S. 374, 383-84 (1992).9 The generic federal
definition of § 1101(a)(43)(S) must necessarily encompass more
than the definition of "obstruction of justice" itself, including
offenses connected with or in reference to that concept. Indeed,
we "must give effect, if possible, to every clause and word of a
statute." Loughrin v. United States, 573 U.S. 351, 358 (2014)
(quoting Williams v. Taylor, 529 U.S. 362, 404 (2000)). To limit
the scope of § 1101(a)(43)(S) to only the narrowest possible
reading of obstruction of justice would violate that core tenet of
statutory interpretation. Accordingly, even if we read the
dictionary detentions more narrowly, we would still conclude that
Congress intended to cover offenses like Massachusetts accessory-
after-the-fact.
9 Silva relies on the Supreme Court's decision in Mellouli
v. Lynch, 575 U.S. 798 (2015), for the proposition that the
"relating to" language in § 1101(a)(43)(S) must be given a more
restrictive reading. Mellouli is distinguishable. There, the
Supreme Court concluded that the "relating to" language in a
different provision of the INA had to be given a narrower reading
within the context of the statute because that provision included
a cross-reference to another specific statute further defining the
statute of conviction for purposes of removal. See id. at 801-
02, 808-12, 808 n.9. Here, there is no cross-reference to another
statute which defines "obstruction of justice" or requires a nexus
to a pending or ongoing investigation or judicial proceeding.
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b. The Text and Structure of Surrounding
Provisions of the INA Support That Accessory
After the Fact Is "An Offense Relating to
Obstruction of Justice"
In addition to the text of the specific provision at
issue, we also consider the text and structure of the INA as a
whole. See Esquivel-Quintana, 137 S. Ct. at 1571 (considering the
INA's disparate use of cross-references to other statutes in
interpreting a particular provision). Most of the offenses listed
as "aggravated felon[ies]" under § 1101(a)(43) specifically
include cross-references to other federal statutes which define
those offenses, while no such cross-reference is included to define
"an offense relating to obstruction of justice." Compare 8 U.S.C.
§ 1101(a)(43)(B)-(F), (H)-(J), (K)(ii)-(iii), (L), (M)(ii), (N)-
(P) (all containing cross-references to other statutes), with id.§ 1101(a)(43)(S) (containing none). See also id. § 1101(a)(43)(A),
(G), (K)(i), (M)(i), (Q)-(R), (T) (also containing no cross-
references to other statutes). Moreover, § 1101(a)(43)(S) is
among only a few of the aggravated felonies under the INA in which
Congress deliberately used the expansive qualifier "relating to"
to describe the aggravated felony. Compare 8 U.S.C.
§ 1101(a)(43)(B)-(F), (H)-(J), (K)(ii)-(iii), (L), (M)(ii), (N)-
(P) (all using instead something like "defined in" or "described
in" followed by a cross-reference to another statute defining the
offense), with id. § 1101(a)(43)(S). See also id.
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§ 1101(a)(43)(K)(i), (Q)-(R), (T) (using "relates to" or "relating
to" without a cross-reference to another statute).
Congress easily could have included cross-references in
§ 1101(a)(43)(S) to other statutes to define "an offense relating
to obstruction of justice," but it chose not to do so. This shows
that Congress did not intend for "an offense relating to
obstruction of justice" to be read restrictively to apply only to
offenses defined by specific federal obstruction of justice
statutes. See Russello v. United States, 464 U.S. 16, 23 (1983)
("[W]here Congress includes particular language in one section of
a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion." (alteration in original)
(quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.
1972))); De la Cruz, 998 F.3d at 517-18.
2. The Statute's Relationship to Other Federal
Statutes Confirms That Accessory After the Fact Is
"An Offense Relating to Obstruction of Justice"
In addition to the text of § 1101(a)(43)(S) and the other
text of the INA, we consider "closely related federal statute[s]"
in determining the generic federal definition of an aggravated
felony offense. Esquivel-Quintana, 137 S. Ct. at 1570-71; cf. De
la Cruz, 998 F.3d at 517-18.
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a. The Federal Accessory-After-The-Fact Statute
and the Federal Bribery Statute Support That
the Generic Federal Definition Does Not
Require a Nexus to a Pending or Ongoing
Investigation or Judicial Proceeding
The federal accessory-after-the-fact statute, 18 U.S.C.
§ 3, is relevant to determining the generic federal definition of
"an offense relating to obstruction of justice." That statute
provides that "[w]hoever, knowing that an offense against the
United States has been committed, receives, relieves, comforts or
assists the offender in order to hinder or prevent his
apprehension, trial or punishment, is an accessory after the fact."
Id. "[H]inder[ing] or prevent[ing]" is a type of obstructive
conduct and "apprehension, trial or punishment" are all different
stages in the process of "justice." In that way, the federal
accessory-after-the-fact statute relates to "obstruction of
justice."10 That statute does not require a nexus to a pending or
ongoing investigation or judicial proceeding and reaches conduct
preceding an investigation or proceeding. See, e.g., United States
v. Neal, 36 F.3d 1190, 1195, 1211 (1st Cir. 1994) (affirming the
10 The Massachusetts accessory-after-the-fact statute
prohibits "harbor[ing], conceal[ing], maintain[ing] or assist[ing]
the principal felon or accessory before the fact, or giv[ing] such
offender any other aid, knowing that he has committed a felony or
has been accessory thereto before the fact, with intent that he
shall avoid or escape detention, arrest, trial or punishment."
Mass. Gen. Laws ch. 274, § 4. That statute covers substantially
the same conduct as that proscribed by the federal accessory-
after-the-fact statute.
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defendant's conviction for accessory after the fact where he
provided aid to his co-defendants immediately after they robbed a
bank and helped them to escape apprehension).
This understanding of the federal accessory-after-the-
fact statute as relating to obstruction of justice is bolstered by
case law from the federal circuit courts of appeal before 1996.
See United States v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994)
(stating that "[t]he gist of being an accessory after the fact
lies essentially in obstructing justice by rendering assistance to
hinder or prevent the arrest of the offender after he [or she] has
committed the crime" (alteration in original) (emphasis added)
(quoting United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C.
Cir. 1972))); United States v. Huppert, 917 F.2d 507, 510 (11th
Cir. 1990) (same), superseded by statute in other part, U.S. Sent'g
Guidelines Manual § 2J1.2(c)(1), cmt. (U.S. Sent'g Comm'n 1991);
United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979) (same),
abrogated in other part by Richardson v. United States, 468 U.S.
317 (1984); United States v. Willis, 559 F.2d 443, 444 (5th Cir.
1977) (same); Gov't of V.I. v. Aquino, 378 F.2d 540, 553 & n.19
(3d Cir. 1967) (same); see also Pugin v. Garland, 19 F. 4th 437,
447 n.8 (4th Cir. 2021) (collecting cases). This consistent
interpretation of the federal accessory-after-the-fact statute
when § 1101(a)(43)(S) was enacted supports interpreting "an
offense relating to obstruction of justice" to include accessory
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after the fact. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062,
1072 (2020) ("We normally assume that Congress is 'aware of
relevant judicial precedent' when it enacts a new statute."
(quoting Merck & Co. v. Reynolds, 559 U.S. 633, 648 (2010))).
Another federal statute we consider is the statute
related to bribery of a witness.11 See 18 U.S.C. § 201. The
federal witness bribery statute includes the giving or offering of
bribes to witnesses who give testimony at a hearing before a
congressional committee. Id. § 201(b)(3), (c)(2). The witness
bribery statute also supports our reading of § 1101(a)(43)(S) as
not requiring a nexus to a pending or ongoing investigation or
judicial proceeding.
b. Several Obstruction of Justice Offenses Under
18 U.S.C. Chapter 73 Do Not Require a Nexus to
a Pending or Ongoing Investigation or Judicial
Proceeding
Silva argues that we should look exclusively to Chapter
73 of Title 18 of the U.S. Code, which is titled "Obstruction of
Justice," to determine the generic federal definition of
"obstruction of justice." He asserts that Chapter 73 cannot be
11 Amici argue that, because the phrase "obstruction of
justice" appears next to "perjury or subornation of perjury" and
"bribery of a witness" in § 1101(a)(43)(S), all three must be read
to share the common characteristic of a nexus to a pending or
ongoing investigation or judicial proceeding. We do not agree
that the federal witness bribery statute requires a nexus to a
pending or ongoing judicial proceeding and so this cannot be a
common characteristic to all three offenses listed.
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reviewed for its components but must be read as a whole to require
a nexus to a pending or ongoing investigation or judicial
proceeding. We disagree. Chapter 73 contains many offenses and
cannot be read as a whole.
Section 1512, which is titled "[t]ampering with a
witness, victim, or an informant," specifically provided in 1996
that "[f]or the purposes of this section . . . an official
proceeding need not be pending or about to be instituted at the
time of the offense."12 18 U.S.C. § 1512(e)(1) (1996); see Pugin,
19 F.4th at 445.13 Nor does the text of § 1511, which prohibited
the "[o]bstruction of State or local law enforcement,"14 require
12 The Ninth Circuit reads § 1512 as "underscor[ing] that
the common understanding at the time § 1101(a)(43)(S) was enacted
into law was that an obstruction offense referred only to offenses
committed while proceedings were ongoing or pending. [For] [i]f
that were not the case, it would not have been necessary for
Congress to make clear that § 1512 operates differently than the
other provisions in Chapter 73." Valenzuela-Gallardo, 968 F.3d at
1065-66. Not so. A proceeding that is about to be instituted is
not pending or ongoing, but it could be reasonably foreseeable.
The "about to be instituted" language thus suggests that Congress
believed that obstruction of justice could encompass the
frustration of official proceedings that are not yet in place.
13 In Pugin, the Fourth Circuit relied on Chevron deference
to conclude that Virginia accessory after the fact is "an offense
relating to obstruction of justice" for purposes of
§ 1101(a)(43)(S). 19 F.4th at 439. We find much of the Fourth
Circuit's analysis persuasive.
14 In any event, as to those Chapter 73 offenses which do
require a nexus to a pending or ongoing investigation or judicial
proceeding, it is clear that Congress did not intend for those
specific offenses to define "an offense relating to obstruction of
justice" for purposes of § 1101(a)(43)(S). For that same reason,
we reject Silva's argument that we cannot consider the federal
- 20 -
that an investigation or judicial proceeding be pending or ongoing.
Id. § 1511 (1996).
Indeed, as the Fourth Circuit recently held, obstruction
of justice for the purposes of § 1101(a)(43) is not limited to
"the narrow confines of Chapter 73." Pugin, 19 F.4th at 445.
c. Congress Intended Obstruction of Justice to be
Read More Broadly Than Other Aggravated
Felonies
Congress specifically included cross-references to other
federal statutes in defining other offenses that constitute
aggravated felonies under § 1101(a)(43), but it included no cross-
reference to Chapter 73 or any particular offense under that
chapter to define "an offense relating to obstruction of justice."
Congress also deliberately used the qualifier "relating to" in
conjunction with "obstruction of justice" in § 1101(a)(43)(S),
even though it did not do so for most of the other offenses listed
as aggravated felonies under the INA. This shows that Congress
clearly did not intend for "an offense relating to obstruction of
justice" to be restricted only to the obstruction of justice
offenses listed under Chapter 73, let alone to any particular
Chapter 73 offense that requires a nexus to a pending or ongoing
accessory-after-the-fact statute, 18 U.S.C. § 3, because it is not
located under Chapter 73.
- 21 -
investigation or judicial proceeding.15 See Pugin, 19 F.4th at
448; Russello, 464 U.S. at 23; De la Cruz, 998 F.3d at 517-18; see
also Esquivel-Quintana, 137 S. Ct. at 1571 (noting that "many other
aggravated felonies in the INA are defined by cross-reference to
other provisions of the United States Code," and relying on a
related federal statute "for evidence of the meaning of [the
aggravated felony offense], but not as providing the complete or
exclusive definition" where there was no such cross-reference);
cf. Mellouli, 575 U.S. at 808 n.9, 811 n.11 (noting the importance
of the relationship between the language "relating to" in the
15 For this reason, the Supreme Court's decision in United
States v. Aguilar, 515 U.S. 593 (1995), also does not support
Silva's reading of § 1101(a)(43)(S). Aguilar held that, for
purposes of the "catchall" provision of 18 U.S.C. § 1503, which
criminalizes "[i]nfluencing or injuring [an] officer or [a] juror
generally," "[t]he action taken by the accused must be with an
intent to influence judicial or grand jury proceedings; it is not
enough that there be an intent to influence some ancillary
proceeding, such as an investigation independent of the court's or
grand jury's authority." 515 U.S. at 599 (emphasis added); see
also id. at 600-01 (holding that making false statements to an
investigating officer "who might or might not testify before a
grand jury" was insufficient to violate the catchall provision of
§ 1503); 18 U.S.C. § 1503(a) (1996) (prohibiting "corruptly or by
threats or force, or by any threatening letter or communication,
influenc[ing], obstruct[ing], or imped[ing], or endeavor[ing] to
influence, obstruct, or impede, the due administration of
justice").
That decision addressed only the specific statute at issue
and did not establish the requirements of "obstruction of justice"
more generally. Nor does § 1101(a)(43)(S) incorporate § 1503's
particular definition of "obstruction of justice" through cross-
reference. Even Silva acknowledges that a nexus to a pending or
ongoing investigation would be enough to satisfy his purported
nexus requirement.
- 22 -
statute and a specific statutory cross-reference in applying the
categorical approach).16
3. Other Sources of the Statute's Meaning Support That
Accessory After the Fact Is "An Offense Relating to
Obstruction of Justice"
In addition to the text and structure of the statute and
closely related federal statutes, we also consider other indicia
identified in Esquivel-Quintana in determining the generic federal
definition of "an offense relating to obstruction of justice."
a. A Consensus of State Obstruction of Justice
Statutes Confirm That "An Offense Relating to
Obstruction of Justice" Does Not Require a
Nexus to a Pending or Ongoing Investigation or
Judicial Proceeding
One of those other sources we consider is a consensus of
"state criminal codes" which "we look to . . . for additional
evidence about the generic meaning of" an offense. Esquivel-
16 Silva relies on the Third Circuit decision in Flores v.
Attorney General, 856 F.3d 280, 292-96 (3d Cir. 2017), and the
Ninth Circuit decision in Valenzuela Gallardo, which held that
state convictions for accessory after the fact were not offenses
relating to obstruction of justice because they lacked a nexus
requirement. We find neither persuasive. Both Flores and
Valenzuela Gallardo relied exclusively on offenses listed under
Chapter 73 in defining the generic federal definition of §
1101(a)(43)(S) and discounted or did not consider other evidence
of the statute's meaning. See Flores, 856 F.3d at 287-96; id. at
297-301 (Shwartz, J., concurring, in part, and dissenting, in part)
(disagreeing with the majority that the court was limited to
consideration of only Chapter 73 offenses to determine the generic
federal definition of "an offense relating to obstruction of
justice" and concluding that a South Carolina accessory-after-the-
fact conviction related to obstruction of justice); Valenzuela
Gallardo, 968 F.3d at 1062-69.
- 23 -
Quintana, 137 S. Ct. at 1571; see also id. at 1571 n.3 (noting
that a multijurisdictional analysis of state criminal codes can
aid interpretation by providing "useful context"). When
§ 1101(a)(43)(S) was added to the INA, seventeen states used
phrases like "obstruction of justice" or "obstructing justice" to
define certain crimes. See Colo. Rev. Stat. §§ 18-8-101 to -116
(1996); Fla. Stat. §§ 843.01 to .19 (1996); Haw. Rev. Stat. § 710-
1072.5 (1996); 720 Ill. Comp. Stat. 5/31-4 (1996); Ind. Code § 35-
44-3-4 (1996); Iowa Code §§ 719.1 to .8 (1996); La. Stat. Ann.
§ 14:130.1 (1996); Miss. Code Ann. § 97-9-55 (1996); Mont. Code
Ann. § 45-7-303 (1996); N.C. Gen. Stat. §§ 14-221 to -227 (1996);
Ohio Rev. Code Ann. § 2921.32 (1996); R.I. Gen. Laws §§ 11-32-1 to
-7 (1996); Tenn. Code Ann. §§ 39-16-601 to -609 (1996); Utah Code
Ann. § 76-8-306 (1996); Vt. Stat. Ann. tit. 13, § 3015 (1996); Va.
Code Ann. § 18.2-460 (1996); Wis. Stat. § 946.65 (1996). Of these,
only three may have limited the obstruction of justice offenses to
those involving a pending or ongoing investigation or judicial
proceeding. See Haw. Rev. Stat. § 710-1072.5 (1996); Ind. Code
§ 35-44-3-4 (1996); Wis. Stat. § 946.65 (1996); see also Pugin, 19
F.4th at 445. Of the other fourteen, at least thirteen did not
have such a requirement. See Colo. Rev. Stat. § 18-8-105 (1996);
Fla. Stat. §§ 843.01 to .02, .08 (1996); 720 Ill. Comp. Stat. 5/31-
4 (1996); Iowa Code §§ 719.1 to .2 (1996); La. Stat. Ann.
§ 14:130.1 (1996); Mont. Code Ann. § 45-7-303(2)(a)-(b) (1996);
- 24 -
N.C. Gen. Stat. §§ 14-223, -225 (1996); Ohio Rev. Code Ann.
§ 2921.32(A)(1), (3) (1996); R.I. Gen. Laws §§ 11-32-1 to -2
(1996); Tenn. Code Ann. § 39-16-603 (1996); Utah Code Ann. § 76-
8-306(b), (e) (1996); Va. Code Ann. § 18.2-460(A) (1996); Vt. Stat.
Ann. tit. 13, § 3015 (1996).
And the obstruction of justice statutes in four of these
latter states proscribed conduct which would have been punishable
under the federal accessory-after-the-fact statute. See Colo.
Rev. Stat. § 18-8-105 (1996); Mont. Code Ann. § 45-7-303(2)(a)-
(b) (1996); Ohio Rev. Code Ann. § 2921.32(A)(1), (3) (1996); Utah
Code Ann. § 76-8-306(b), (e) (1996). That the vast majority of
jurisdictions with obstruction of justice offenses did not limit
that concept to only offenses with a nexus to a pending or ongoing
investigation or judicial proceeding further confirms our reading
of the generic federal definition. See Esquivel-Quintana, 137 S.
Ct. at 1571-72.
b. The Model Penal Code and Federal Sentencing
Guidelines Further Support That Accessory
After the Fact Is "An Offense Relating to
Obstruction of Justice"
The Model Penal Code and Federal Sentencing Guidelines
also support that "an offense relating to obstruction of justice"
includes accessory after the fact. See id. at 1571 (citing the
Model Penal Code as evidence of the generic meaning of a term in
the INA). When § 1101(a)(43)(S) was enacted, the Model Penal Code
- 25 -
listed "Hindering Apprehension or Prosecution," which proscribes
conduct like that proscribed in the federal accessory-after-the-
fact statute, under the article for "Obstructing Governmental
Operations; Escapes." Model Penal Code § 242.3 (Am. L. Inst.
1985). In describing the offense of hindering apprehension or
prosecution of another, the explanatory notes to the Model Penal
Code states that the "offense covers the common law category of
accessory after the fact but breaks decisively with the traditional
concept that the accessory's liability derives from that of his
principal . . . [and instead provides that the accessory] is
convicted . . . for an independent offense of obstruction of
justice." Id. § 242.1 explanatory note; see also Pugin, 19 F.4th
at 445.
The Federal Sentencing Guideline for "Obstruction of
Justice" in effect in 1996 cross-referenced the guideline for
"Accessory After the Fact." See U.S. Sent'g Guidelines Manual
§ 2J1.2(c) (U.S. Sent'g Comm'n 1995). The commentary to the
"Obstruction of Justice" guideline stated that "[b]ecause the
conduct covered by this guideline is frequently part of an effort
to avoid punishment for an offense that the defendant has committed
or to assist another person to escape punishment for an offense,
a cross reference to [the Accessory After the Fact guideline] is
provided." Id. § 2J1.2 cmt. background (emphasis added). The
commentary and cross-reference are further support that there was
- 26 -
an understood connection between accessory after the fact and
obstruction of justice when § 1101(a)(43)(S) was adopted.
4. Even Assuming Arguendo That There Must Be a Nexus
to an Investigation for the Normal Accessory-After-
the-Fact Crime, That Nexus Is Satisfied
Assuming arguendo that § 1101(a)(43)(S) requires any
nexus to an investigation, whether actually pending or in the
offing, the Massachusetts accessory-after-the-fact crime and
conviction easily satisfies it.17
Mass. Gen. Laws ch. 274, § 4 provides:
[w]hoever, after the commission of a felony,
harbors, conceals, maintains or assists the
principal felon or accessory before the fact,
or gives such offender any other aid, knowing
that he has committed a felony or has been
accessory thereto before the fact, with intent
that he shall avoid or escape detention,
arrest, trial or punishment, shall be an
accessory after the fact.
17 Our dissenting colleague overreads our assumption in
this section that a nexus is required. We find in the statutory
text no requirement for a nexus, see supra Part II.A.1, and so in
our de novo review under Esquivel-Quintana we do not graft a nexus
requirement on to the statute. The BIA, however, interpreted the
statute to mean that an offender must "interfere with an
investigation or proceeding that is ongoing, pending, or
'reasonably foreseeable'" Matter of Valenzuela Gallardo, 27 I. &
N. Dec. at 456 (quoting Marinello, 138 S. Ct. at 1110). To the
extent the statute is ambiguous, the BIA's interpretation of the
nexus requirement is certainly reasonable and due deference. See
infra Part II.B. Our de novo analysis makes clear, though, that
the BIA could also dispense with its nexus requirement. Either
construction would "fill the statutory gap in reasonable fashion."
Negusie v. Holder, 555 U.S. 511, 523 (2009)
- 27 -
To be convicted under that statute, the accessory must act with
specific intent to enable a felon to "avoid or escape detention,
arrest, trial, or punishment." Absent an investigation, there can
be no prosecution and no detention, arrest, trial, or punishment
to avoid or escape.
In determining the least culpable conduct that violates
the statue, Moncrieffe v. Holder directs us to "focus on the
minimum conduct criminalized by the state statue," rather than
"apply 'legal imagination' to the state offense." 569 U.S. 184,
191 (2013). Unlike the dissent, we look not to hypothetical
conduct but to the "the least serious conduct for which there is
a 'realistic probability' of charge and conviction." United States
v. Starks, 861 F.3d 306, 315 (1st Cir. 2017) (quoting id.).
Looking at the mine run of prosecutions, we see none for aiding
and abetting less serious felonies. When we look at the seventy
Massachusetts state court opinions on Westlaw that cite § 4, the
overwhelming majority are convictions for accessory after the fact
to homicide. Those that do not involve homicide, involve other
serious offenses: armed robbery, e.g., Commonwealth v. Ayoub, 32
N.E.3d 369 (Mass. App. Ct. 2015) (table); assault with a dangerous
weapon, e.g., Commonwealth v. Nick N., 952 N.E.2d 991 (Mass. App.
Ct. 2011) (table); arson, Commonwealth v. Sokorelis, 150 N.E. 197(Mass. 1926); kidnapping, Commonwealth v. Eagan, 259 N.E.2d 548(Mass. 1970); escape from prison, e.g., Commonwealth v. Holiday,
- 28 -
206 N.E.2d 691 (Mass. 1965); extortion, Commonwealth v. Cachopa,
18 N.E.3d 1137 (Mass. App. Ct. 2014) (table); dealing cocaine,
Commonwealth v. St. Pierre, 786 N.E.2d 438 (Mass. App. Ct. 2003)
(table); and larceny, e.g., Commonwealth v. Kudrya, 843 N.E.2d
1117 (Mass. App. Ct. 2006) (table). Indeed, the serious nature of
the crimes actually prosecuted under § 4 supports our holding that
the least culpable conduct likely to be charged under the provision
includes a fair probability of criminal investigation.18 In fact,
the serious crimes for which accessory-after-the-fact prosecutions
have been brought by their nature would inform any person acting
as an accessory that there will be an investigation resulting in
"escape detention, arrest, trial or punishment."19 Further, the
18 Our dissenting colleague relies on Marinello v. United
States, 138 S. Ct. 1101 (2018), to support his contention that a
felonious money launderer in Massachusetts must have more than
mere awareness that the authorities might catch on to his illegal
financial scheme. Dissenting Op. at 46-50 (citing Marinello, 138
S. Ct. at 1110). In the dissenting opinion's telling, the
government failed to establish that its investigation of Marinello
was "reasonably foreseeable," because it could show no more than
that mere awareness. Id. at 8 (quoting Marinello, 131 S. Ct. at
1110). But in Marinello, the Court had no opportunity to weigh in
on whether the government had presented evidence of
foreseeability; the trial judge did not instruct the jury on
foreseeability as Marinello requested, Marinello, 138 S. Ct. at
1105, and the Court vacated and remanded, id. at 1110. Thus, the
opinion cannot be read -- as our dissenting colleague does -- to
support a categorical rule for financial criminals.
19 We note that on the facts here, an investigation to quote
the dissent and "[t]o use a maritime analogy" is easily thought to
be "in the offing," Dissenting Op. at 46 (quoting Marinello, 138
S. Ct. at 1110). While the dissent seems to treat the offing as
a term of proximity, it refers, in the maritime sense, to "[t]he
- 29 -
statute requires a specific intent to do so, buttressing our
analysis.
These offenses are also markedly different from the tax
fraud scheme in United States v. Marinello, on which our dissenting
colleague puts so much weight, in another key way. Persons are
often able to skirt tax laws and go undetected for some time.
Indeed, by definition, a person who commits tax evasion attempts
to conceal his acts and evade detection. United States v.
Stierhoff, 549 F.3d 19, 25 (1st Cir. 2008) (elements of tax evasion
include "an affirmative act of evasion or attempted evasion");
see, e.g., United States v. Marek, 548 F.3d 147, 150–51 (1st Cir.
2008) (defendant falsified invoices); United States v. Lavoie, 433
F.3d 95, 98-100 (1st Cir. 2005) (defendant intentionally
underreported revenue). An investigation of a tax offense would
not be in the offing upon the commission of the offense. By
contrast, consider murder, the underlying crime here. Following
a homicide, more often than not the murder is reported, or a body
is found, or a person is reported missing. A law enforcement
investigation is reasonably foreseeable. Also consider robbery or
part of the sea visible from the shore that is very distant or
beyond anchoring ground." Offing, The American Heritage
Dictionary of the English Language 1223 (5th ed. 2018); accord
offing, The New Oxford American Dictionary 1181 (2d ed. 2005)
("[T]he more distant part of the sea in view."). For this crime
and for any of the serious crimes that have actually triggered an
accessory-after-the-fact investigation in Massachusetts, the
investigation could be spotted on the horizon.
- 30 -
extortion, crimes which underlie other actual Massachusetts
accessory-after-the-fact prosecutions. These crimes involve
immediate harm to a victim, unlike with tax crimes, where the
government must uncover an offense against the fisc. In such
situations, it is more likely that a law enforcement investigation
is in the offing.
For the reasons stated above, it is clear that Silva's
Massachusetts accessory-after-the-fact conviction is an aggravated
felony under § 1101(a)(43)(S) because it is categorically "an
offense relating to obstruction of justice."20
5. The Dissent Misreads the BIA's Analysis
There is no basis to conclude that we have adopted a
much looser nexus requirement than the BIA. Our dissenting
colleague overreads the BIA's analysis in Matter of Valenzuela
Gallardo to create a far tighter nexus requirement than the agency
did.
20 We need not determine the precise boundaries of what
constitutes "an offense relating to obstruction of justice" under
§ 1101(a)(43)(S). Cf. Esquivel-Quintana, 137 S. Ct. at 1572. It
is enough that the various sources show that accessory after the
fact, as defined under the Massachusetts statute, clearly relates
to obstruction of justice for purposes of the INA. For that same
reason, Silva's argument that the statute is void for vagueness is
also meritless. See United States v. Zhen Zhou Wu, 711 F.3d 1, 16
(1st Cir. 2013) ("[W]e consider 'whether a statute is vague as
applied to the particular facts at issue,' for a defendant 'who
engages in some conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the conduct of others.'"
(quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 18-19
(2010)) (emphasis in original)).
- 31 -
The BIA held that generic obstruction of justice
"cover[s] crimes involving (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. at 456 (quoting Marinello, 138 S. Ct. at
1110); see also id. at 456 n.9. The BIA identified three types of
investigations covered by the offense: ongoing, pending, and
reasonably foreseeable. But our dissenting colleague takes such
a narrow view of "reasonably foreseeable" that it essentially
merges into ongoing and pending investigations. He errs, in part,
by interpreting the BIA's quotation of the reasonably foreseeable
language in Marinello to require an identical nexus in both the
statute at issue there, 26 U.S.C. § 7212(a), and the statute at
issue here, § 1101(a)(43)(S). The BIA, however, expressly rejected
that false equivalence, explaining that "Congress intended section
101(a)(43)(S) of the Act to apply more broadly than the provisions
at issue in . . . Marinello." 27 I. & N. Dec. at 454 n.6.21
21 In our view, our dissenting colleague is also incorrect
when he argues that Chenery I requires us to interpret Marinello
identically to the BIA. Dissenting Op. at 60-62; see SEC v.
Chenery Corp., 318 U.S. 80, 95 (1943). Chenery I "merely hold[s]
that an administrative order cannot be upheld unless the grounds
upon which the agency acted in exercising its powers were those
upon which its action can be sustained." 318 U.S. at 95. To be
sure we cannot substitute a new rationale when the agency
"misconceive[s] the law," id., but when the agency clearly states
- 32 -
To confirm that the dissent misconstrues the BIA's
decision, we need look no further than the BIA implementation of
Matter of Valenzuela Gallardo. In Matter of Cordero-Garcia, the
BIA held that the California offense of dissuading a witness is
categorically an offense related to obstruction of justice. 27 I.
& N. 652, 653-54 (2019) (citing Cal. Penal Code § 136.1(b)(1)),
petition for review filed sub nom. Cordero-Garcia v. Garland, No.
19-72779 (9th Cir. argued Feb. 11, 2022). The BIA held that the
statute's specific intent requirement implied that " an
investigation or proceeding would necessarily be either ongoing,
pending, or reasonably foreseeable." Id. at 654. "In other
words," it concluded, "there would be little reason for a person
to try to prevent or dissuade a victim or witness from reporting
the crime to appropriate authorities unless there was an
investigation in progress[,] or one was reasonably foreseeable."
its legal basis for acting, Chenery I does not require that we
follow the exact same interpretative path in sustaining the
agency's actions, see H.J. Friendly, Chenery Revisited:
Reflections on Reversal and Remand of Administrative Orders, 1969
Duke L.J. 199, 211. The BIA determined that Massachusetts
accessory-after-the-fact is categorically an offense related to
obstruction of justice, that Silva was convicted of that offense,
and that he was therefore ineligible for withholding of removal.
We deny Silva's petition on the same grounds. To the extent that
we read the INA to authorize the BIA to act through a potentially
different pathway is of no moment. To hold otherwise would be
perilous, with the Supreme Court indicating growing disfavor
towards deference to administrative agencies, see, e.g., Kisor v.
Wilkie, 139 S. Ct. 2400, 2424-2425 (Roberts, C.J., concurring);
id. at 2425-2449 (Gorsuch, J., dissenting).
- 33 -
Id. The BIA's interpretation of that California statute is on all
fours with our interpretation of the Massachusetts statute at issue
in this case. It cannot, however, be squared with our dissenting
colleague's reading of the nexus requirement articulated in Matter
of Valenzuela Gallardo. Nor can it be reconciled with our
dissenting colleague's mens rea\actus reus analysis, because like
Matter of Valenzuela Gallardo, Matter of Cordero-Garcia relies
solely on a specific intent requirement.
B. Alternatively, If § 1101(a)(43)(S) Were Ambiguous, the BIA
Would Prevail Under Chevron deference
Assuming, arguendo, that the statute is ambiguous and
thus subject to Chevron deference,22 we must defer to the BIA's
interpretation. See Scialabba v. Cuellar de Osorio, 573 U.S. 41,
56 (2014); Chevron, 467 U.S. at 844.
Chevron deference applies where an agency has followed
suitably formal procedures, see United States v. Mead Corp., 533
U.S. 218, 229-30 (2001), to interpret a civil statute it
administers, see Gonzales v. Oregon, 546 U.S. 243, 265 (2006). In
applying Chevron, we follow a familiar two-step pathway. First,
we determine whether the statute is ambiguous. Second, if it is,
we defer to the responsible agency's reasonable interpretation of
the ambiguous text. See Chevron, 467 U.S. at 842-43.
22 In light of Esqiuvel-Quintana, it is not clear which
interpretive approach we should employ, so we use both.
- 34 -
1. At "Step Zero," the BIA's Interpretation Is
Eligible for Chevron Deference
The BIA's administration of the INA falls within Mead's
safe harbor for formal adjudications. See Mead, 533 U.S. at 226-
27; see also Negusie v. Holder, 555 U.S. 511, 517 (2009). Its
interpretation of § 1101(a)(43)(S) carries the force of law and
thus falls within Chevron's domain. See Mead, 533 U.S. at 226-
27; see also T.W. Merrill & K.E. Hickman, Chevron's Domain, 89
Geo. L.J. 833 (2001). Silva attempts to avoid that inexorable
conclusion, arguing that the decision in his case was unpublished
and thus not binding on future parties. That contention, however,
looks to the wrong decision. The BIA established its
interpretation in a published decision issued by a three-member
panel in Matter of Valenzuela Gallardo. See 27 I. & N. Dec. at
449. Once the BIA formally interprets a statue, we may defer to
subsequent informal applications of the interpretation. Garcia-
Mendez v. Lynch, 788 F.3d 1058, 1061 (9th Cir. 2015) (citing
Neguise, 555 U.S. at 516). To require each decision to be
published by a three-member panel would be to require more
procedural safeguards than Congress intended. Cf. Vt. Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 524
(1978).
Additionally, Silva's contention that we cannot defer to
the BIA's interpretation of a statute with criminal implications
- 35 -
is misguided. We have previously deferred to the BIA's
interpretation of the definition of aggravated felonies,23 see,
e.g., Soto-Hernandez v. Holder, 729 F.3d 1, 5 (1st Cir. 2013);
Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013), and continue to do
so here.24
To hold otherwise would be flatly inconsistent with
precedents both of this Court and the Supreme Court. In Chevron
itself, the Supreme Court deferred to the EPA's interpretation of
the Clean Air Act, even though knowing violation of an
implementation plan under that act carried criminal penalties.
See Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives,
920 F.3d 1, 24 (D.C. Cir. 2019) (citing 42 U.S.C. § 7413(c)(1)
(1982)). Similarly, in Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, the Supreme Court expressly
considered the potential criminal penalties for a violation of the
Endangered Species Act and deferred to the Secretary of the
Interior's interpretation of that law. 515 U.S. 687, 702-704 &
704 n.18. We regularly defer to interpretations of the IRS
Commissioner even though violating tax regulations can result in
23 Silva and amici also argue that our previous decisions
did not expressly address his proposed "dual-application statute"
exception to Chevron. We now hold that no such exception exists.
24 Our holding certainly does not run afoul of the Supreme
Court's observation in United States v. Appel that it has "never
held that the Government's reading of a criminal statutes is
entitled to any deference." 571 U.S. 359, 369 (2014).
- 36 -
criminal penalties. See, e.g., Dikow v. United States, 654 F.3d
144, 149-51 (1st Cir. 2011); see also United States v. O'Hagan,
521 U.S. 642, 647 (1997). Indeed, regulatory offenses carrying
criminal penalties are legion in the Code of Federal Regulations,
see generally M. Chase, How to Become a Federal Criminal (2019),
but we continue to defer to agencies' interpretations of the
underlying statutes.
2. Assuming § 1101(a)(43)(S) Is Ambiguous, the BIA's
Interpretation of it Is Reasonable
We explained earlier why interpreting § 1101(a)(43)(S)
to encompass Massachusetts accessory after the fact is reasonable.
See supra Part II.A. The BIA's understanding of the statute cannot
be said to be beyond the "bounds of reasonable interpretation."
Michigan v. EPA, 576 U.S. 743 (2015) (quoting Util. Air Regul.
Grp. v. EPA, 573 U.S. 302, 321 (2014)).
In the realm of immigration, "Congressional powers are
at their apex and judicial powers are at their nadir." Hernandez-
Lara v. Lyons, 10 F.4th 19, 54 (Lynch, J., dissenting). Congress
has used that broad power to "charge[] the Attorney General with
administering the INA." Neguise, 555 U.S. at 516-17. Thus,
"[j]udicial deference in the immigration context is of special
importance, for executive officials 'exercise especially sensitive
political functions that implicate questions of foreign
relations.'" Id. at 517 (quoting INS v. Abudu, 485 U.S. 94, 110
- 37 -
(1988)). Compared to the executive, "[t]he judiciary is not well
positioned to shoulder primary responsibility for assessing the
. . . diplomatic repercussions" of sensitive immigration
decisions. INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999); see
Griffiths v. INS, 243 F.3d 45, 49 (1st Cir. 2001). The BIA's
exercise of its Congressionally assigned functions certainly was
not unreasonable.
C. The IJ and BIA Did Not Err in Determining That Silva's
Massachusetts Accessory-After-the-Fact Conviction Was a
"Particularly Serious Crime" for Purposes of Denying
Withholding of Removal
Silva also argues that even if his Massachusetts
conviction is an aggravated felony under § 1101(a)(43)(S), it is
not a particularly serious crime that bars him from withholding of
removal. The parties dispute whether the appropriate standard of
review of the BIA's particularly-serious-crime determination is de
novo or only for substantial evidence. We need not decide this
issue because we conclude that there was no error under either
standard of review.
Under Matter of N-A-M-, 24 I. & N. Dec. 336 (B.I.A.
2007), overruled in part on other grounds by Blandino-Medina v.
Holder, 712 F.3d 1338, 1347-48 (9th Cir. 2013), which Silva does
not challenge, the BIA "examine[s] the nature of the conviction,
the type of sentence imposed, and the circumstances and underlying
facts of the conviction" in determining whether it is a
- 38 -
particularly serious crime. Id. at 342. "[A]n offense is more
likely to be considered particularly serious if it is against a
person . . . ." Matter of R-A-M-, 25 I. & N. Dec. 657, 662 (B.I.A.
2012) (citing Matter of N-A-M-, 24 I. & N. Dec. at 343). And
factual findings made by the BIA in determining whether a
conviction is for "a particularly serious crime" are "conclusive
unless any reasonable adjudicator would be compelled to conclude
to the contrary," which "is a 'highly deferential' standard."
Garland v. Ming Dai, 141 S. Ct. 1669, 1674, 1677 (2021) (first
quoting 8 U.S.C. § 1252(b)(4)(B); and then quoting Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020)).
The record supports the BIA's determination that, based
on his guilty plea to the Massachusetts indictment, Silva admitted
to knowing that the individuals whom he assisted had committed a
murder. Based on that finding and Silva's conduct in aiding known
murderers to avoid or escape apprehension and punishment, the BIA
did not commit any legal or other error in determining that the
accessory-after-the-fact conviction was a particularly serious
crime which rendered him ineligible for withholding of removal.
III.
Silva's petition for review of the BIA's final order of
removal is denied.
-DISSENTING OPINION FOLLOWS-
- 39 -
BARRON, Circuit Judge, dissenting. Is the crime of being
an accessory after the fact to a "felony" under Massachusetts law,
see Mass. Gen. Laws ch. 274, § 4, an "offense relating to
obstruction of justice" under the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1101(a)(43)(S), such that this state-law
accessorial crime constitutes an "aggravated felony" and thus
makes the lawful permanent resident convicted of committing it
removable and ineligible for asylum, see 8 U.S.C. §§ 1158(b)(2),
1227(a)(2)(A)(iii)? In concluding in this case that this state-
law accessorial crime is "an offense relating to obstruction of
justice" under § 1101(a)(43)(S), the majority rejects the
reasoning of the Third Circuit in Flores v. Attorney General, 856
F.3d 280 (3d Cir. 2017), and the Ninth Circuit in Valenzuela
Gallardo v. Barr (Valenzuela Gallardo IV), 968 F.3d 1053 (9th Cir.
2020). But, even accepting that the majority is right to reject
the reasoning of those courts, it is wrong to uphold the ruling of
the Board of Immigration Appeals ("BIA") that the Massachusetts
accessory-after-the-fact offense of which Carlos Monteiro Silva
was convicted is an "obstruction of justice"-related offense
within the meaning of § 1101(a)(43)(S).
I.
It helps first to explain exactly how the majority's
construction of § 1101(a)(43)(S) differs from that of the Third
Circuit in Flores and the Ninth Circuit in Valenzuela Gallardo IV.
- 40 -
Each of those cases rejected the construction of the phrase "an
offense relating to obstruction of justice" in § 1101(a)(43)(S)
that the BIA had adopted in Matter of Valenzuela Gallardo
(Valenzuela Gallardo III), 27 I. & N. Dec. 449 (BIA 2018).
The Third and Ninth Circuits held that the "obstruction
of justice"-related offense referred to in that federal statute
requires proof of a much tighter nexus than the BIA in Valenzuela
Gallardo III had held that the offense requires between an official
investigation or proceeding and the obstructive conduct.
Specifically, those courts held that the required nexus needs to
be between the obstructive conduct and an official investigation
or proceeding that, at the time of that conduct, was at least
pending and not, for example, merely reasonably foreseeable.
Valenzuela Gallardo IV, 968 F.3d at 1068; Flores, 856 F.3d at 292-
294.
Moreover, on that basis, the Third and Ninth Circuits
rejected the BIA's determination in each of the cases before them
that an accessory after the fact offense that did not require proof
of such a tight nexus could be "an offense relating to obstruction
of justice" within the meaning of § 1101(a)(43)(S). Valenzuela
Gallardo IV, 968 F.3d at 1069; Flores, 856 F.3d at 293-96. And,
the Third and Ninth Circuits further held, persuasively in my view,
that the words "relating to" in § 1101(a)(43)(S) -- though words
of inclusion -- do not bring within the scope of the offense
- 41 -
referred to in that provision an offense that is not itself an
"obstruction of justice" offense at all. Valenzuela Gallardo IV,
968 F.3d at 1068; Flores, 856 F.3d at 290-91, 296.
In Silva's case, the BIA embraced the same looser
description of the nexus requirement that the BIA had embraced in
Valenzuela Gallardo III and that the Third and Ninth Circuits
rejected for not being tight enough. The BIA then ruled based on
that understanding of the nexus requirement that Silva's state-
law accessorial offense is an "offense relating to obstruction of
justice" under § 1101(a)(43)(S).
Silva now contends that we must reject the BIA's ruling
in his case for essentially the reasons that Flores and Valenzuela
Gallardo IV gave in ruling as they did in those cases. But, Silva
does not ask us to overturn the BIA's ruling only by asking us to
endorse the tighter nexus that the Third and Ninth Circuits
described. He also contends, as a fallback argument, that even if
we were to accept that the BIA has correctly described the nexus
requirement to be looser than the Third and Ninth Circuits held it
to be, the Massachusetts accessory-after-the-fact offense of which
he was convicted would not be an "offense relating to obstruction
of justice" under § 1101(a)(43)(S) because the least of the conduct
that this accessorial offense criminalizes would still not be
encompassed by that generic, federal "obstruction of justice"-
- 42 -
related offense. See Moncrieffe v. Holder, 569 U.S. 184, 190-91
(2013).
As I will explain, Silva's fallback argument for
granting his petition for review is a winning one. For that
reason, the majority's holding that the BIA's construction of the
nexus requirement for "an offense relating to obstruction of
justice" is a reasonable one under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), provides no
basis for me to conclude otherwise. In that holding, the majority
just endorses -- after drawing on the approach for interpreting
§ 1101(a)(43) that the Supreme Court set forth in Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562 (2017) -- the reasonableness
of construing the "obstruction of justice"-related offense
referred to in § 1101(a)(43)(S) to be constrained only by a nexus
requirement that is as loose as the one that the BIA has described.
For, as Silva persuasively contends, the BIA's construction of "an
offense relating to obstruction of justice" -- given the looseness
of that construction's understanding of the nexus requirement --
still defines that offense to encompass more conduct than the least
of the conduct that Silva's accessorial offense of conviction
encompasses.
But, I emphasize, I also can see no reason to reject
Silva's fallback argument insofar as the majority independently
means to hold -- again pursuant to Esquivel-Quintana but this time
- 43 -
without purporting to afford any deference under Chevron -- that
the generic, federal "obstruction of justice"-related offense to
which § 1101(a)(43)(S) refers is not constrained by any nexus
requirement at all. For, under SEC v. Chenery Corp., 318 U.S. 80,
94 (1943), we cannot sustain the BIA's ruling in Silva's case based
on such a nexus-less construction of that offense unless we are
bound to adopt that construction to the exclusion of the nexus-
based one that the BIA has set forth and that the majority itself
agrees is reasonable. And, as I will explain, the majority offers
no persuasive reason to conclude that a nexus-less construction
must be adopted over the nexus-based one that the BIA has set
forth.
II.
Before turning to the majority's independent holding
endorsing a nexus-less construction of the offense referred to in
§ 1101(a)(43)(S), it makes sense to start with the majority's more
modest one. True, the majority concludes in that holding that the
offense requires some such nexus to be shown and that the BIA's
operative description of that nexus requirement is a reasonable
one. But, as I will explain, that holding provides no basis for
rejecting Silva's petition for review, despite being nexus-based.
To show why, it is necessary, as an initial matter, to explain in
more detail just what the BIA's operative understanding of that
nexus requirement is. I thus now turn to that task.
- 44 -
A.
In Valenzuela Gallardo III, the BIA was attempting to
address a Ninth Circuit ruling that had rejected a prior BIA
construction of § 1101(a)(43)(S). See 27 I. & N. Dec. at 451-52.
The Ninth Circuit had held that the BIA's earlier construction
rendered the "obstruction of justice"-related offense to which
§ 1101(a)(43)(S) refers too vague. See Valenzuela Gallardo v.
Lynch (Valenzuela Gallardo II), 818 F.3d 808, 812, 824 (9th Cir.
2016), vacating and remanding Matter of Valenzuela Gallardo
(Valenzuela Gallardo I), 25 I. & N. 838 (BIA 2012). That was so,
the Ninth Circuit explained, because that construction did not
require as an element of that offense any nexus between the
defendant's obstructive conduct and an official investigation or
proceeding and so left unclear the kind of conduct that would
qualify as obstructive. Id.To address that concern, the BIA explained in Valenzuela
Gallardo III that, in accord with Esquivel-Quintana, it would draw
its revised understanding of the offense referred to in
§ 1101(a)(43)(S) from "Federal and State law, Federal sentencing
guidelines, the Model Penal Code, and scholarly commentary." 27
I. & N. Dec. at 452-53 (citing Esquivel-Quintana, 137 S. Ct. at
1570-72). The BIA then focused heavily, though not exclusively,
on the offenses set forth in Chapter 73 of the federal criminal
code, which is entitled "Obstruction of Justice." Id. at 453-56.
- 45 -
In canvassing those materials, the BIA in Valenzuela
Gallardo III acknowledged that most of the offenses in Chapter 73
contained a quite tight nexus requirement; the provisions in that
chapter that set forth those offenses made clear that they could
be committed only if the defendant obstructed an investigation or
proceeding that was in fact pending. Id. at 454. But, the BIA
also noted that the "Obstruction of Justice" offense set forth in
18 U.S.C. § 1512 was different. Id.At the time that § 1101(a)(43)(S) was enacted, the BIA
pointed out, § 1512 provided in relevant part that it was a crime
knowingly to use "intimidation, physical force, threats, corrupt
persuasion, or misleading conduct toward another person with the
intent to . . . 'hinder, delay, or prevent the communication to a
law enforcement officer or judge of the United States of
information relating to the commission or possible commission of
a Federal offense.'" Id. (emphasis omitted) (quoting 18 U.S.C.
§ 1512(b) (1994)). The BIA then also explained that the Supreme
Court in Marinello v. United States, 138 S. Ct. 1101 (2018), had
offered a "synthesi[s]" of the cases that had construed § 1512's
nexus requirement and that the Court in Marinello had relied on
that body of precedent to define the nexus required under the
Internal Revenue Code provision that was there at issue, which
made it a crime to interfere with investigations into tax crimes,
see 26 U.S.C. § 7212(a). 27 I. & N. Dec. at 455.
- 46 -
The BIA explained that, in setting forth the synthesis
of the case law that concerned § 1512's nexus requirement,
Marinello made clear that § 1512 required proof of a nexus between
the defendant's obstructive conduct and an official investigation
that was merely "'reasonably foreseeable by the defendant' at the
time of the obstructive conduct" rather than pending as of that
time. Valenzuela Gallardo III, 27 I. & N. Dec. at 455 (quoting
Marinello, 138 S. Ct. at 1110). The BIA also explained that
Congress would have been aware of that Marinello-based
understanding of § 1512's nexus requirement in enacting
§ 1101(a)(43)(S). Id. at 455-56. Based on that conclusion about
what Congress would have known, the BIA then relied on the
Marinello-based understanding of the required nexus in § 1512 to
define "an offense relating to obstruction of justice" in a way
that encompassed obstructive conduct so long as it was connected
to "reasonably foreseeable" proceedings or investigations.
It is thus clear that Valenzuela Gallardo III was relying
on Marinello's understanding of the "reasonably foreseeable"
standard for defining the required nexus to address the vagueness
concern that had led the Ninth Circuit to reject the BIA's prior
nexus-less construction of § 1101(a)(43)(S). And, that is notable
for present purposes because Marinello explained that the
"reasonably foreseeable" standard, though more expansive than a
- 47 -
pending-investigation-or-proceeding standard such as the Third and
Ninth Circuits had embraced, is still importantly constrained.
Specifically, the Court in Marinello made a point of
explaining that to demonstrate that a "proceeding" or
"investigation" was "reasonably foreseeable" at the time of the
obstructive conduct, "[i]t is not enough for the Government to
claim that the defendant knew [law enforcement] may catch on to
his unlawful scheme eventually. To use a maritime analogy, the
proceeding must at least be in the offing." Marinello, 138 S. Ct.
at 1110. Thus, Marinello clearly rejected the notion that evidence
that a defendant had engaged in a tax scheme that was unlawful
could suffice in and of itself to prove that the "reasonably
foreseeable"-based nexus requirement had been met under the
federal tax crime there at issue for "obstruct[ing] or imped[ing]
. . . the due administration" of Title 26. See id. (discussing 26
U.S.C. § 7212(a)).
Indeed, were that not so, the Court could have just said
that proof of the defendant's predicate unlawful tax scheme would
suffice to satisfy that nexus requirement for the offense defined
in 26 U.S.C. § 7212 rather than that proof that law enforcement
"may catch on to" that scheme "eventually" would not be enough to
satisfy that requirement. After all, proof of the existence of
the predicate unlawful tax scheme, in and of itself, would
necessarily constitute proof that at least such a mere eventuality
- 48 -
was possible. And, indeed, our own precedent accords with this
same understanding of the narrowing import of Marinello's "in the
offing" gloss on the "reasonably foreseeable" standard that the
Court there described as constraining the nexus requirement not
only for the offense at issue in that case but also for those like
it, such as the one set forth in § 1512. See United States v.
Takesian, 945 F.3d 553, 566-67 (1st Cir. 2019) (concluding a
proceeding was reasonably foreseeable to the defendant under the
Marinello standard because he knew that "the [Internal Revenue
Service] was investigating the money trail that could lead to him"
and because he testified that "he believed investigators put the
screws on him").25
There is, of course, a separate question regarding the
element or elements of the "obstruction of justice"-related
offense referred to in § 1101(a)(43)(S) that the BIA understood to
be constrained by the nexus requirement to which this "reasonably
25The majority notes that the phrase "in the offing" "refers,
in the maritime sense, to '[t]he part of the sea visible from the
shore that is very distant or beyond anchoring ground.'" Maj. Op.
at 29 n.19 (quoting Offing, The American Heritage Dictionary of
the English Language 1223 (5th ed. 2018)). The majority emphasizes
the "very distant" portion of this definition; to me, the most
important part for present purposes is the "visible" part. But,
we need not parse the dictionary entry too finely because Marinello
makes clear that it used the phrase "in the offing" to establish
that the government has not proven an investigation to have been
"reasonably foreseeable" when all it has shown is that "the
defendant knew [law enforcement] may catch on to his unlawful
scheme eventually," 138 S. Ct. at 1110.
- 49 -
foreseeable" standard applies. I have thus far described the nexus
requirement as if it constrains the elements of that offense that
define its actus reus and not merely its mens rea. And, that is
for good reason.
The BIA, after having canvassed Chapter 73, Marinello,
and other aspects of federal and state law, as well as other
materials, expressly laid out the elements of the "obstruction of
justice"-related offense in § 1101(a)(43)(S) as follows: "(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.'" Valenzuela Gallardo III, 27 I. & N. Dec. at 460
(emphasis added). Given the BIA's use of the word "attempt" in
"(1)," and the word "is" in "(3)," the BIA must be read here to be
describing the nexus requirement as a constraint on -- at least --
the scope of the offense's actus reus and not only on its mens
rea.26
26 Nor should we be surprised that the BIA in Valenzuela
Gallardo III chose to treat the "reasonably foreseeable" standard
as a constraint that limited -- at least -- the actus reus of the
generic, federal "obstruction of justice"-related offense. As we
have seen, the BIA there was borrowing the "reasonably foreseeable"
standard from the one that the Court had announced in Marinello.
And, Marinello clearly treated that standard as if it were a
constraint on the actus reus of the offense there at issue rather
than only on the offense's mens rea. Specifically, in articulating
the "reasonably foreseeable" constraint on the scope of the offense
set forth in § 7212 of Title 26, Marinello focused its interpretive
- 50 -
As a result, I understand the BIA in Valenzuela Gallardo
III to describe the offense referred to in § 1101(a)(43)(S) as one
that requires proof of a nexus between the obstructive conduct and
an investigation or proceeding that is in fact reasonably
foreseeable at the time of that conduct. I thus understand the
BIA to describe that offense in a manner that is at odds with the
notion that proof that the defendant merely believed at that time
(even if mistakenly) that an investigation was reasonably
foreseeable could be enough.
That said, I am aware that the BIA in Valenzuela Gallardo
III did assert that Congress intended § 1101(a)(43)(S) to
encompass both the federal accessory-after-the-fact offense, 18
U.S.C. § 3, and the California accessory-after-the-fact offense at
issue in that case, too. 27 I. & N. Dec. at 459, 461 & n.17. I
am also aware that the BIA in that case explained that each of
these accessorial offenses is encompassed by § 1101(a)(43)(S)
because of its mens rea element -- in the case of the federal one,
the specific intent "to hinder or prevent [an offender's]
lens on the phrases "obstructs or impedes" and "due administration"
in that statute. 138 S. Ct. at 1106. Each of those phrases
concerns the actus reus of the offense that the statute sets forth.
By contrast, the consensus among lower courts at the time was that
"the statute's mens rea requirement" was embodied in the word
"corruptly" in that statute, United States v. Miner, 774 F.3d 336,
347 (6th Cir. 2014) (collecting cases); see also United States v.
Sorensen, 801 F.3d 1217, 1229-30 (10th Cir. 2015), which is a word
that was not at issue in Marinello.
- 51 -
apprehension, trial or punishment," 18 U.S.C. § 3, and in the case
of the California one, the specific intent "to interfere either in
an ongoing, pending, or reasonably foreseeable investigation or
proceeding," 27 I. & N. Dec. at 461. Finally, I am aware that in
theory such an intent could be proved without there being proof
that any such investigation or proceeding was in fact reasonably
foreseeable at the time of the defendant's accessorial conduct.
See People v. Rizo, 996 P.2d 27, 30-31 (Cal. 2000) (holding that
"a specific intent crime" that "focuses solely on the acts and
intent of the violator" may be committed even if the defendant's
intent is based on a mistaken understanding).
Nonetheless, as I have explained, the BIA, after
completing its analysis of § 1101(a)(43)(S) in accord with
Esquivel-Quintana, quite clearly described the actus reus of the
offense to be "an affirmative and intentional attempt . . . to
interfere with an investigation or proceeding that is ongoing,
pending, or 'reasonably foreseeable by the defendant.'"
Valenzuela Gallardo III, 27 I. & N. Dec. at 460 (emphasis added).
And, the government in its briefing to us cites to that same
description in describing the BIA's understanding of the nexus
requirement just as I have. Thus, in light of the BIA's express
description of the elements of the offense in § 1101(a)(43)(S), I
see no basis for concluding that the BIA has set forth a reasoned
basis for construing that offense's actus reus to be unconstrained
- 52 -
by the "reasonably foreseeable"-based nexus requirement. Cf.
Pugin v. Garland, 19 F.4th 437, 450 (4th Cir. 2021) (noting that
courts "give no deference to the Board's construction of state law
or determination of its fit with federal law," despite the court's
finding that deference was due to the BIA's interpretation of
§ 1101(a)(43)(S)); Higgins v. Holder, 677 F.3d 97, 109 (2d Cir.
2012) (Katzmann, J., concurring) (same).27
27 In the same "Application" section of Valenzuela Gallardo
III in which the BIA discussed the California statute, it explained
that the Marinello-informed, "reasonably foreseeable"-based
construction of the nexus requirement for the actus reus of "an
offense relating to obstruction of justice" that it was adopting
was "consistent with [its] prior holdings." Valenzuela Gallardo
III, 27 I. & N. Dec. at 460. It then pointed to cases in which it
had held that although the offense set forth by the federal
accessory-after-the-fact statute, 18 U.S.C. § 3, is an "offense
relating to obstruction of justice" under the INA, the offense set
forth in the federal misprision of felony statute, id. § 4, is
not. Valenzuela Gallardo III, 27 I. & N. Dec. at 460 (citing
Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 894 (BIA 1999)
and In re Batista-Hernandez, 21 I. & N. Dec. 955, 962 (BIA 1997)).
And, the BIA did so with reference to the specific intent element
of the federal accessory-after-the-fact offense. Id. at 461. But,
Valenzuela Gallardo III did not explain in discussing Espinoza --
which pre-dated Marinello itself -- how an element of an
accessorial offense that requires proof of merely a purpose to
interfere with an investigation in and of itself could suffice to
make an offense one "relating to obstruction of justice," given
Valenzuela Gallardo III's Marinello-based rationale for expressly
holding that Congress must be understood to have intended the actus
reus of an offense "relating to obstruction of justice" to require
proof of a nexus between the obstructive conduct and a reasonably
foreseeable investigation or proceeding. I thus also see no basis
for concluding from Valenzuela Gallardo III's discussion of
Espinoza that Valenzuela Gallardo III's Marinello-informed, actus
reus-based definition of the nexus requirement is not the operative
one. Nor does the government suggest otherwise, given that it
describes the BIA's operative understanding of the elements of the
- 53 -
B.
There is one hanging thread. The majority asserts that
it is wrong to read the BIA as "requir[ing] an identical nexus in
both the statute at issue [in Marinello], 26 U.S.C. § 7212, and
the statute at issue here, § 1101(a)(43)(S)." Maj. Op. at 32.
In support of this assertion, the majority first points
to a statement by the BIA in Valenzuela Gallardo III in which it
supposedly "expressly rejected that false equivalence." Id. The
statement from Valenzuela Gallardo III that the majority has in
mind is the one in which the BIA observes that Congress intended
§ 1101(a)(43)(S) "to apply more broadly than" 26 U.S.C. § 7212 and
18 U.S.C. § 1503, the section of Chapter 73 that defines the
"catch-all" "obstruction of justice" offense. Maj. Op. at 32
(quoting Valenzuela Gallardo III, 27 I. & N. Dec. at 454 n.6).
But, a closer examination of the BIA's decision reveals
that the purported "express[] reject[ion]" that statement makes
has nothing to do with the scope of the nexus requirement for "an
offense relating to obstruction of justice" under
§ 1101(a)(43)(S). Read in context, the footnoted statement aims
only to make the simple point that the generic, federal
"obstruction of justice"-related offense that Congress there
referred to encompasses crimes other than the two specific federal
actus reus of the "obstruction of justice"-related offense
referred to it § 1101(a)(43)(S) just as I do.
- 54 -
offenses set forth respectively in 18 U.S.C. § 1503 and 26 U.S.C.
§ 7212 -- as it plainly does. See Valenzuela Gallardo III, 27 I.
& N. Dec. at 454 & n.6. The footnoted statement thus clarifies
that § 1101(a)(43)(S) is referring to a crime that encompasses
even, for example, state-law crimes that criminalize the same swath
of conduct as the generic, federal "obstruction of justice" offense
to which § 1101(a)(43)(S) refers.
In performing that clarifying function, the footnoted
statement in no way purports to be defining anew the scope of the
nexus requirement for the generic, federal "obstruction of
justice"-related offense or the meaning of the "reasonably
foreseeable" standard that constrains the nexus requirement of
that offense's actus reus. The BIA in the main body of its opinion
relied heavily on Marinello, as I have described, and then
expressly cited Marinello and United States v. Aguilar, 515 U.S.
593 (1995), which construed the nexus requirement in § 1503, see
id. at 599-600, when it set forth the elements of "an offense
relating to obstruction of justice," see Valenzuela Gallardo III,
27 I. & N. Dec. at 456. It would be strange for the BIA to then
redefine a portion of those elements in a footnote without
addressing why.
The majority also points to a BIA case decided after
Valenzuela Gallardo III that, the majority contends, demonstrates
that the BIA did not intend to rely on Marinello to define the
- 55 -
actus reus of "an offense relating to obstruction of justice."
Maj. Op. at 33-34 (discussing Matter of Cordero-Garcia, 27 I. & N.
Dec. 652 (BIA 2019)). But, the BIA there did not purport to reject
its earlier clear statement of the actus reus of the offense as
being subject to a "reasonably foreseeable" standard. Nor do I
read the BIA in Cordero-Garcia to have suggested that the
"reasonably foreseeable" standard that constrains the actus reus
of "an offense relating to obstruction of justice" is not itself
constrained by the "in the offing" gloss that Marinello placed on
it. Rather, I read Cordero-Garcia to have accepted Valenzuela
Gallardo III's description of the actus reus of that offense as
being subject to such a "reasonably foreseeable"-constrained --
and Marinello-informed -- nexus requirement and then to have
concluded that, even still, the state law offense at issue there
qualified as "an offense relating to obstruction of justice" under
§ 1101(a)(43)(S). See Cordero-Garcia, 27 I. & N. Dec. at 654
(relying on the "specific intent" element of a California criminal
offense to find that the offense was a categorical match to the
generic, federal offense set out in § 1101(a)(43)(S)).
In other words, I read Cordero-Garcia to be no different
from Valenzuela Gallardo III or the BIA decision in Silva's case.
It, too, embraces an understanding of the actus reus of "an offense
relating to obstruction of justice" that is nexus-based and
constrained by the reasonably foreseeable standard that Marinello
- 56 -
sets forth. And, it, too, does so notwithstanding that it
concludes that a state-law accessorial offense is such an
"obstruction of justice"-related offense even though that state-
law accessorial offense has no similarly constrained actus reus.
I also emphasize that, in concluding that the BIA has not yet
backed away from Valenzuela Gallardo III's quite clear description
of the offense's actus reus, I am taking a position that the
government itself appears to share, given the way that the
government's briefing to us describes the understanding of actus
reus of the offense that the BIA embraced in Valenzuela Gallardo
III and re-embraced yet again in the case before us.
III.
With the BIA's operative understanding of the nexus
requirement for "an offense relating to obstruction of justice"
now in view, I am almost ready to address whether Silva's offense
of conviction is such an offense. But, before taking up that
question -- which, as I will explain, is the dispositive one in
this case -- there remains one more task to complete. It concerns
the majority's independent, Chevron-free holding that I mentioned
at the outset.
In that holding, the majority appears to conclude that,
insofar as we are not bound to defer under Chevron to the BIA's
nexus-based construction of the offense referred to in
§ 1101(a)(43)(S), that offense may reasonably be construed under
- 57 -
the interpretive approach set forth in Esquivel-Quintana not to be
subject to a nexus requirement at all. And, the majority then
appears to go on to conclude in that holding that Silva's petition
must be rejected for this reason, too.
But, notably, the majority does not explain in so holding
what basis there is for not applying Chevron here. It does not
suggest, for example, that the BIA's nexus-based construction of
the "obstruction of justice"-related offense referred to in
§ 1101(a)(43)(S) is an unreasonable one, such that the BIA's
construction would not be entitled to deference for that reason.
In fact, the majority holds the opposite.
Nor does the majority suggest that Chevron deference is
not available to the interpretive question at hand, even if the
BIA's construction is a reasonable one. Rather, the majority
rejects each of Silva's arguments to that effect as well as those
of the amici and even explains why our precedents leave us, as a
panel, with no basis for rejecting Chevron's application to the
extent that the BIA's nexus-based construction is a reasonable
one.28
I note in this regard that I agree with the majority that
28
there is no basis for this panel to hold that Chevron has no
application at all, given that we have three times before upheld
BIA constructions of other provisions of this same part of the INA
under Chevron. See De Lima v. Sessions, 867 F.3d 260, 264-65 (1st
Cir. 2017); Soto-Hernandez v. Holder, 729 F.3d 1, 3-5 (1st Cir.
2013); Lecky v. Holder, 723 F.3d 1, 5 (1st Cir. 2013). I also
- 58 -
There is, though, still one more problem with holding
that Silva's petition must be rejected under Esquivel-Quintana
based on a nexus-less construction of the "obstruction of justice"-
related offense referred to in § 1101(a)(43)(S). And, that problem
stems from the fact that the majority does not explain at any point
how, insofar as Chevron somehow does not apply here, the Esquivel-
Quintana factors favor the adoption of a nexus-less construction
of that offense to the exclusion of the nexus-based one that the
BIA describes.
The majority does, in applying those factors, advance
reasons to reject the strict, pending-investigation-or-proceeding
nexus requirement that the Third and Ninth Circuits have adopted.29
emphasize, as the majority does as well, that the BIA here is not
construing a provision of the federal criminal code. It is
construing a provision of the INA that determines the type of
predicate offense that makes a lawful permanent resident removable
and disqualifies a noncitizen from being eligible for asylum.
29 I note in this regard that the majority invokes a series
of dictionary definitions to support its contention that the Third
and Ninth Circuits are wrong to hold that "an offense relating to
obstruction of justice" requires proof of a nexus between
obstructive conduct and an investigation or proceeding that, at
the time of that conduct, is at least pending. But, even if those
definitions support that conclusion, they do not themselves
support a no-nexus understanding of the actus reus of "an offense
relating to obstruction of justice." And, in fact, the majority
does not attempt to explain how those definitions do. Nor, I
should add, do any of the provisions in Chapter 73 to which the
majority refers provide support for a non-nexus understanding, as
one of the two that the BIA might be read to suggest does so is 18
U.S.C. § 1512 itself while the other one is expressly restricted
to conduct committed "with the intent to facilitate an illegal
gambling business," 18 U.S.C. § 1511(a) (1996).
- 59 -
And, I suppose, the majority could be understood in doing so also
to be offering reasons that could explain why such a nexus-less
construction is itself a permissible one. I suppose as well that,
The majority does identify some state law criminal codes that
have grouped disparate offenses, some of which lack a nexus
requirement, within a chapter or section and given the entire
assortment the label of "obstruction of justice" or something
similar. But, the majority understandably does not go on to
suggest on that basis that § 1101(a)(43)(S) is better read -- let
alone best read even if the BIA reads the relevant materials
otherwise -- to be referring to a nexus-less "obstruction of
justice" offense. Cf. Jerome v. United States, 318 U.S. 101, 104
(1943) ("[W]e must generally assume, in the absence of a plain
indication to the contrary, that Congress when it enacts a statute
is not making the application of the federal act dependent on state
law.").
The majority also points to the fact that the Model Penal
Code identifies an accessory after the fact offense as "an
independent offense of obstruction of justice." Maj. Op. at 26
(quoting Model Penal Code § 242.1 explanatory note (Am. L. Inst.
1985) [hereinafter MPC]). But, the majority does not hold that
the only reasonable construction of § 1101(a)(43)(S) is one that
tracks that understanding. That may be because the Model Penal
Code did not even contain an offense labeled "obstruction of
justice" at the time that § 1101(a)(43)(S) was enacted, see MPC
§§ 242.1-.8, and because the Model Penal Code itself acknowledges
that, under the "traditional concept" of "common law . . .
accessory after the fact," a crime of that type was not "an
independent offense of obstruction of justice," id. § 242.1
explanatory note. Thus, here, too, the majority fails to offer a
basis for favoring a nexus-less construction over the BIA's nexus-
based one.
Finally, although the majority relies on some precedent to
assert that the federal accessory-after-the-fact statute, 18
U.S.C. § 3, has a "gist" of "essentially . . . obstructing
justice," Maj. Op. at 18, it does not explain why one may conclude
from that precedent alone that such a nexus-less construction is
to be preferred to the BIA's nexus-based construction of the actus
reus of "an offense relating to obstruction of justice." I also
note in that regard that Congress itself saw fit to put that
accessory-after-the-fact statute in a chapter other than Chapter
73, which is the only chapter on which Congress chose to bestow
the title, "Obstruction of Justice."
- 60 -
if we are not permitted to afford Chevron deference to the BIA's
nexus-based construction despite its reasonableness, then we must
adopt the nexus-less construction if it is superior to the BIA's.
See H.J. Friendly, Chenery Revisited: Reflections on Reversal and
Remand of Administrative Orders, 1969 Duke L.J. 199, 210.
But, in light of Chenery, to justify the rejection of
Silva's petition based on a nexus-less construction of the
"obstruction of justice"-related offense referred to in
§ 1101(a)(43)(S), the majority must do more than explain merely
why that nexus-less construction is as permissible as the nexus-
based one that the BIA describes. For, without a reason to
conclude that the nexus-less construction is superior, there is no
reason to conclude that the nexus-based construction that the BIA
has adopted and that it relied on in Silva's case is not a
permissible one for it to have applied. Yet, the majority at no
point explains why (nor, for that matter, does the government) the
nexus-less rather than the nexus-based construction is the one
that the BIA would be bound to apply insofar as Chevron is not
applicable.
Thus, because I see no basis under Chenery for
attributing to the BIA the nexus-less understanding of
§ 1101(a)(43)(S) to which the majority adverts, I also see no basis
for denying Silva's petition for review based on that
understanding. And so, unless the BIA's own understanding of the
- 61 -
nexus requirement for the "obstruction of justice"-related offense
to which that provision refers encompasses the accessorial offense
that Silva was convicted of under Massachusetts law, his petition
must be granted. All of which is to say that -- at last -- I can
now move on to an assessment of the portion of the majority's
opinion in which it holds pursuant to the BIA's nexus-based
construction of the "obstruction of justice"-related offense
referred to in § 1101(a)(43)(S) that Silva's conviction for being
an accessory after the fact under Massachusetts law is an offense
of that kind.
IV.
The majority draws in this portion of its opinion on the
approach -- commonly referred to as the "categorical approach" --
that the Court relied on in Moncrieffe to construe § 1101(a)(43).
See 569 U.S. at 190-91. Under that approach, the critical question
is whether a comparison of the elements of the generic, federal
"obstruction of justice"-related offense referred to in
§ 1101(a)(43)(S) and the elements of the state-law accessorial
offense of which Silva was convicted reveals that the least of the
conduct criminalized by that accessorial offense is encompassed by
the generic, federal offense. For, under the categorical approach,
unless that comparison does reveal such a match arising from the
elements of the two offenses, Silva's accessorial offense of
conviction is not "an offense relating to obstruction of justice."
- 62 -
I have explained how the BIA defines the elements of the
"offense relating to obstruction of justice" to which
§ 1101(a)(43)(S) refers. There remains to address, then, only
whether that offense -- so understood -- encompasses the least of
the conduct encompassed by the elements of the Massachusetts
accessory-after-the-fact offense of which Silva was convicted.
That accessorial offense contains the following four
elements: that the defendant (1) "harbors, conceals, maintains, or
assists the principal felon or accessory before the fact, or gives
such offender any other aid," (2) does so "after the commission of
a felony," (3) does so "knowing that [the person being assisted]
has committed a felony or has been accessory thereto before the
fact," and (4) does so with the specific intent that the defendant
"avoid or escape arrest, detention, trial, or punishment." Mass.
Gen. Laws ch. 274, § 4; see also Commonwealth v. Watson, 165 N.E.3d
1015, 1025 (Mass. 2021); Commonwealth v. Iacoviello, 58 N.E.3d
1032, 1047 (Mass. App. Ct. 2016); Commonwealth v. Clipp, No. 10-
0296, 2011 WL 5182244, at *2 (Mass. Super. Ct. Aug. 26, 2011).
None of the elements purports on its face to require that an
official judicial proceeding or investigation be reasonably
foreseeable -- let alone pending -- at the time of the alleged
accessorial conduct by the defendant. Nor, as I will next explain,
may any of them be read impliedly to so require.
- 63 -
A.
The first element (though I suppose it could be
understood to be a compendium of elements in its own right) defines
part of the actus reus of the offense. It provides that the
government must prove that the defendant engaged in conduct that
could qualify as obstructive conduct of the kind that
§ 1101(a)(43)(S) encompasses.
But, nothing in the element requires there to be proof
of a linkage of any kind between that conduct and an official
investigation or proceeding into any crime. Thus, this element
cannot ensure the required categorical match between the two
offenses. Nor does the BIA -- or, for that matter, the majority
-- suggest otherwise.
B.
The second element requires proof that the recipient of
the defendant's aid committed a felony or was an accessory before
the fact to that felony. This element also defines part of the
actus reus of the offense. But, it requires no more of a showing
than that the defendant lent the requisite type of aid to the
recipient of it after that recipient had in fact committed a felony
or been an accessory before the fact to it. Thus, it would appear
that, just like the first element, this element also does not on
its face require proof of what the BIA by its own account
understands the generic, federal "obstruction of justice"-related
- 64 -
offense to demand: proof that an official investigation is
reasonably foreseeable at the time of the obstructive conduct and
thus that there is a nexus of at least that sort between the
defendant's obstructive conduct and an official investigation.
In addition, the accessorial offense cannot be
understood to be impliedly subject to a "reasonably foreseeable"-
based nexus requirement as an element, because it applies to being
an accessory after the fact to Massachusetts felonies that are in
their nature no more likely to be detected than the offense at
issue in Marinello. See, e.g., Mass. Gen. Laws ch. 62C, § 73(a)-
(b), (f) (defining several tax-related felonies, such as the
willful evasion of or "failure to collect or truthfully account"
for a tax); id. ch. 266, § 67C (making it a felony to knowingly
and willfully make a false entry in a book or record of a public
contract); id. § 111C (making certain variations of insurance
fraud a felony); id. ch. 267, § 8 (making it a felony to counterfeit
certain bank bills); id. ch. 267A, § 2 (making it a felony to
launder any amount of money or property); id. ch. 271, § 49(a)
(making it a felony to charge more than twenty percent annual
interest on a loan). See generally id. ch. 274, § 1 (defining
felonies to include any crime punishable by "imprisonment in the
state prison"). Indeed, one of the tax-related felonies in Mass.
Gen. Laws ch. 62C, § 73, such as willfully evading a tax or
concealing goods on which a tax is to be imposed, seems to me to
- 65 -
be the same as the offense at issue in Marinello, as there is no
reason to presume from the fact that such an offense has been
committed more than that authorities "may eventually catch on" to
the commission of that offense.
The only potential complication that I can see with this
conclusion is that the underlying "felony" in Silva's case is
murder, which as a general matter is a crime more likely to trigger
an investigation upon its occurrence than a tax offense. But,
Silva asserts, without dispute from the government or the
expression of any contrary view by the BIA, that the Massachusetts
accessory-after-the-fact statute is not divisible. Nor did the
BIA suggest here that Silva's offense of conviction qualifies as
"an offense relating to obstruction of justice" because of the
nature of the predicate felony that the principal committed.
C.
The third element does require proof that the defendant
accused of the accessorial conduct lent aid to the one who
committed the felony or was an accessory before the fact to it
"knowing that [the person being assisted] ha[d] committed a felony
or has been accessory thereto before the fact." Mass. Gen. Laws
ch. 274, § 4. But, proof of such knowledge -- which is all that
this element requires -- cannot demonstrate the kind of nexus that
the BIA's Marinello-based "in the offing" standard requires
between obstructive conduct and an investigation: that an
- 66 -
investigation into that felony was in fact reasonably foreseeable
at the time of the accessorial conduct. Nor did the BIA suggest
that, given the principal's predicate crime in Silva's case, proof
of such a nexus was necessarily required to convict Silva of this
accessorial crime.
D.
That leaves the fourth element, which requires proof
that the defendant engaged in the alleged accessorial conduct "with
intent that [the principal or accessory before the fact] shall
avoid or escape detention, arrest, trial or punishment," Mass.
Gen. Laws ch. 274, § 4. The majority rightly notes that "[a]bsent
an investigation, there can be no prosecution and no detention,
arrest, trial, or punishment to avoid or escape." Maj. Op. at 28.
But, this element does not require proof that detention, arrest,
trial or punishment is reasonably foreseeable. Rather, it is a
classic mens rea element that does not concern the actus reus at
all.
Nor does the element require proof -- as a means of
proving the defendant's mental state -- that an investigation was
in fact in the offing (or, for that matter, was even reasonably
foreseeable under any understanding of that constraint). The
element requires proof merely that the defendant lent certain kinds
of aid to the one who committed a felony or was an accessory before
the fact to that felony with the intent to help that recipient
- 67 -
evade arrest, trial, punishment, or detention. See Watson, 165
N.E.3d at 1025.
In fact, it appears that under this Massachusetts
offense the defendant need not even have been shown to have
reasonably but mistakenly believed that an official investigation
was in the offing when he lent such aid. It instead appears that
he need only be shown to have subjectively believed -- even if
unreasonably -- that such an investigation was in the offing when
he did so. Cf. Commonwealth v. Liebenow, 20 N.E.3d 242, 250 (Mass.
2014) (holding that a defendant's honest but unreasonable belief
that property was abandoned was sufficient to establish a defense
that turned on that honest belief); Commonwealth v. Lahens, 177
N.E.3d 935, 942 (Mass. App. Ct. 2021) ("Specific intent crimes are
commonly identified by the presence of a subjective intent to cause
a result that is separate from the crime's actus reus." (citing 1
W.R. LaFave, Substantive Criminal Law § 5.2(e) (3d ed. 2018)));
Commonwealth v. Cachopa, No. 09-P-2337, 2014 WL 5461490, at *2
(Mass. App. Ct. Oct. 29, 2014) (inquiring into the defendant's
state of mind to determine if evidence was sufficient to support
a conviction under the accessory after the fact statute); Clipp,
2011 WL 5182244, at *2 (same for an indictment).
Proof of no more than that the defendant held a belief
(and not necessarily even an objectively reasonable one) about the
investigation being reasonably foreseeable as of the time of his
- 68 -
accessorial conduct is not proof of the investigation being
reasonably foreseeable in fact as of that time. As such, proof of
that sort is not proof of what the BIA -- and thus the majority --
agrees the generic, federal offense in § 1101(a)(43)(S) requires.
See Uppal v. Holder, 605 F.3d 712, 718 (9th Cir. 2010) (finding a
Canadian criminal offense not to be a categorical match to a crime
involving moral turpitude because the Canadian statute "require[d]
only that the risk of harm resulting from the assault be
'objective[ly] fores[eeable],'" while the relevant crime of moral
turpitude required "subjective knowledge of a factor indicating
risk to another").
To be sure, in finding here that the Massachusetts
accessorial offense at issue is a categorical match for the
generic, federal offense referred to in § 1101(a)(43)(S), the BIA
does rely on this fourth element and does state that "[t]here would
be little reason for a defendant to be an accessory after the fact
in this manner unless an investigation or proceedings [sic] was
reasonably foreseeable" (internal quotation marks omitted).30 But,
the BIA ignores the obvious point that a defendant can have an
intention to lend aid for such a purpose without there being any
proof that, in fact, the purpose could be accomplished. Cf. United
The Fourth Circuit also rested its decision on a similar
30
specific intent element in interpreting a Virginia statute. Pugin,
19 F.4th at 454.
- 69 -
States v. Zhen Zhou Wu, 711 F.3d 1, 18 (1st Cir. 2013) ("[E]ven
where the evidence is sufficient to show the necessary mens rea,
the government still must always 'meet its burden of proving the
actus reus of the offense.'" (quoting United States v. Whiteside,
285 F.3d 1345, 1353 (11th Cir. 2002))).
One need only consider the case in which the felon tells
the accessory that he, the felon, is sure to be arrested as a means
of inducing the accessory to lend assistance. If, in fact, there
is no evidence to show that it was reasonably foreseeable at the
time the assistance was provided by the accessory that authorities
would investigate the felon's unlawful conduct -- and there was
instead at most evidence at that time that authorities "may" do so
"eventually" -- the BIA's own articulated standard for proving the
nexus would not be met even though the specific intent requirement
of the Massachusetts accessory-after-the-fact offense would be
satisfied. Cf., e.g., United States v. De Leon, 270 F.3d 90, 92
(1st Cir. 2001) (recognizing that an offense "is a specific intent
crime" because it "requires a subjective intent" to achieve a
specific end); Cachopa, 2014 WL 5461490, at *2; Clipp, 2011 WL
5182244, at *2.
E.
In sum, careful attention to the elements of the
Massachusetts accessorial offense of which Silva was convicted and
the elements of the generic, federal "obstruction of justice"-
- 70 -
related offense referred to in § 1101(a)(43)(S) -- as described by
the BIA -- shows that the two offenses (so understood) are not a
categorical match. And that is so, even if the generic, federal
offense requires no more of a nexus between the defendant's
obstructive conduct and an investigation or proceeding than the
BIA has determined that offense to require, given both the
Marinello-informed "in the offing" gloss on the "reasonably
foreseeable" standard that the BIA holds defines that offense's
nexus requirement and the fact that this nexus requirement
constrains the actus reus of that offense. Thus, there is no basis
for us to uphold the BIA's conclusion that Silva's offense of
conviction is a categorical match for it.31
V.
The majority contends that I am mistaken in reaching
this conclusion. It does so in part by emphasizing that in
applying the categorical approach we may not imagine "fanciful,
hypothetical scenarios." United States v. Fish, 758 F.3d 1, 6
(1st Cir. 2014) (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007)); see also United States v. Starks, 861 F.3d 306, 315
(1st Cir. 2017). The majority points in this regard to the absence
of any reported cases in Massachusetts of prosecutions for the
The "relating to" words in § 1101(a)(43)(S) still retain a
31
function: they pick up inchoate versions of an offense that is for
"obstruction of justice."
- 71 -
accessory after the fact offense that is at issue in circumstances
in which the defendant's obstructive conduct did not have a nexus
to a reasonably foreseeable investigation or proceeding.
But, the categorical approach has never been understood
to make the test of a state law's legally operative scope wholly
dependent on the presence of reported cases of actual prosecutions
for such conduct, in part because reported cases may not be
representative of charging practices. Da Graca v. Garland, 23
F.4th 106, 113-14 (1st Cir. 2022); Swaby v. Yates, 847 F.3d 62,
65-66 (1st Cir. 2017) (noting that the Duenas-Alvarez limitation
"has no relevance" to a case where the text of a state law clearly
prohibited certain conduct but the petitioner "had failed to show
that there was a realistic probability that [the state] would
actually prosecute offenses" derived from that conduct). Nor would
such a test make sense.
The outcome under the categorical approach depends on
what the statute setting forth the offense at issue is fairly read
to require the government to prove. It does not depend on how
aggressively prosecutors choose to enforce that offense or the
actual conduct of defendants in committing it. See Swaby, 847
F.3d at 65-66.32
32 For this reason, the majority's point that "Silva's plea
leaves no doubt that he intended to obstruct a reasonably
foreseeable investigation," Maj. Op. at 5 n.2, is irrelevant to
- 72 -
I agree that we may not stretch the text of a criminal
statute to cover conduct that we have no good reason to conclude
that the statute in fact reaches. But, we must construe such a
statute to reach the conduct that its text plainly does reach.
And, that is so regardless of whether any case involving such
conduct has been prosecuted and then resulted in a published
opinion. See United States v. Burghardt, 939 F.3d 397, 409 (1st
Cir. 2019) (reaffirming that we should "avoid treating the state
offense as if it is narrower than it plainly is." (internal
quotation marks and alterations omitted) (quoting Swaby, 847 F.3d
at 66)).
Thus, what matters here is what is clear from the text
of the state-law statute that sets forth the accessorial offense
at issue. And, what is clear from that text is both that the
offense may be committed under Massachusetts law with respect to
tax evasion and that the state may prove the commission of that
accessorial offense in relation to that type of felony without
proving that any investigation into that felony was "in the
this case. The categorical approach demands that "we look 'not to
the facts of the particular prior case,' but instead to whether
'the state statute defining the crime of conviction' categorically
fits within the 'generic' federal definition of a corresponding
aggravated felony." Moncrieffe, 569 U.S. at 190 (quoting Duenas-
Alvarez, 549 U.S. at 186). A defendant's plea in an individual
case cannot define the elements of a state law offense to be other
than what the statutory text that sets forth that offense -- and
the state's highest court's interpretation of it -- defines those
elements to be.
- 73 -
offing." Thus, it is clear that there is no requirement to prove
a nexus of the "in the offing"-constrained sort that the BIA has
determined must be proved as part of the actus reus of an "offense
relating to obstruction of justice."
The majority does attempt to respond to this line of
argument. It does so by asserting that the state law accessorial
offense at issue here is a categorical match for the "obstruction
of justice"-related offense referred to in § 1101(a)(43)(S) only
so long as the underlying "felony" for that accessorial offense is
one that the majority understands to be a "serious" felony. The
majority then goes on to hold that the accessorial offense of which
Silva was convicted is such a categorical match precisely because
Silva was convicted of being an accessory after the fact to such
a "serious" felony -- namely, murder.
But, no party to the case or the BIA has indicated that
the accessorial offense at issue either is divisible or is
indivisible but, contrary to its plain text, has an implicit
"seriousness" limitation that makes it just fine to be an accessory
after the fact to a tax crime. Nor is the accessorial offense in
Silva's case one for which the BIA's "reasonably foreseeable"-
based nexus had to be proved as part of its actus reus. I thus do
not understand how the basis on which the majority purports to be
explaining away Marinello's significance to this case -- which, I
note, is not the bass on which the BIA itself relied -- comports
- 74 -
with the categorical approach to which the majority purports to be
faithful.
I would add only in this connection that the "traditional
concept" of accessory after the fact offenses is that "the
accessory's liability derives from that of his principal." Model
Penal Code § 242.3 (Am. L. Inst. 1985); see also 5 Tucker's
Blackstone *35 (defining an accessory as "he who is not the chief
actor in the offense . . . but is someway concerned therein").
For that reason, there was no need at common law to require proof
for such a crime that the aid to the felon that the accessory
provided in fact interfered with an investigation that was "in the
offing." It was enough to require proof that the accessory shared
some culpability for the principal's crime, which could be proved
through evidence of his culpable mental state at the time that he
lent the aid.
By contrast, offenses of the kind that Blackstone
labeled as ones against "public justice" -- which are the kinds of
offenses that we now usually call "obstruction of justice"
offenses, see Maldonado v. Commonwealth, 829 S.E.2d 570, 575 (Va.
Ct. App. 2019) (looking to Blackstone's list of offenses against
public justice to determine the meaning of obstruction of justice
at common law); People v. Jenkins, 624 N.W.2d 457, 465 (Mich. Ct.
App. 2000) (same) -- were different. The criminal liability of
the one who committed the offense against public justice was
- 75 -
understood to be derived from his conduct as a principal in his
own right based on his having done something criminal in and of
itself -- impeding the administration of justice. See, e.g.,
5 Tucker's Blackstone *127-41; Wharton's Criminal Law §§ 562, 570
(15th ed. 1996).
As a result, it is not "fanciful" to conclude that
Silva's offense of conviction requires no proof of the kind of
nexus between obstructive conduct and an investigation or
proceeding that the majority and the BIA acknowledge Congress did
require for the generic, federal "obstruction of justice"-related
offense referred to in § 1101(a)(43)(S). Rather, such a
construction of Silva's offense of conviction merely results in
that offense being different from an "obstruction of justice"
offense in a way that even Blackstone would recognize. 5 Tucker's
Blackstone *37-39, *127-41 (treating those types of offenses
separately in distinct chapters of his treatise).
The majority separately takes issue with my invocation
of Marinello, to the extent that I take the view that the BIA
relied on Marinello's understanding of the "reasonably
foreseeable" standard to define the required nexus for an "offense
relating to obstruction of justice" under § 1101(a)(43)(S). The
majority focuses in doing so on the fact -- which I do not dispute
-- that the Court there did not have occasion to decide whether
the evidence in that specific case could suffice to satisfy the
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"in the offing"-based nexus requirement that the Court there
described.
But, as I have already explained, proof of the commission
of a predicate crime -- or the awareness of its commission by the
one guilty of the accessorial offense -- is not proof that an
investigation into that predicate crime was in fact reasonably
foreseeable at the time of the accessorial conduct in the "in the
offing" sense. It is at most proof that authorities "may" (or of
the defendant's knowledge that the authorities may) "eventually"
catch on to that predicate crime's commission. But, that is
exactly the sort of proof that Marinello clearly deemed inadequate
to satisfy the "reasonably foreseeable" standard that the Court
described in that case.
Thus, because the state law accessorial offense of which
Silva was convicted requires, as to its actus reus, no more than
proof of the defendant's mere awareness of the predicate crime's
commission -- which, as best I can tell, is also a point that the
majority does not dispute -- that state law accessorial offense
cannot be a categorical match for the "obstruction of justice"-
related offense set forth in § 1101(a)(43)(S) as the BIA has
described that offense's elements. For, while the BIA does point
to the specific intent element of the Massachusetts accessory-
after-the-fact offense in concluding otherwise, the majority
overlooks the way that the BIA itself defines the actus reus of an
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"offense relating to obstruction of justice" and so mixes up actus
reus and mens rea elements in a way that the elements-based
categorical approach simply does not permit.
VI.
I have explained before why I do not agree with the
criticism that the categorical approach permits technical
inquiries to yield the conclusion that objectively concerning
criminal conduct is of no concern to the Congress that enacted the
measure that imposes the special, adverse consequence at issue.
See United States v. Faust, 853 F.3d 39, 61-66 (1st Cir. 2017)
(Barron, J., concurring). But, the objection that such a
technical, elements-based inquiry misses the forest for the trees
is especially misplaced here, given the history that I have just
recounted about how accessorial offenses historically were
understood to be conceptually distinct from offenses for impeding
the administration of public justice. And, indeed, the
organization of modern criminal codes still reflects such an
understanding of those two types of offenses being distinct. See,
e.g., 18 U.S.C. § 3, ch. 73; Mass. Gen. Laws ch. 268, ch. 274,
§ 4; cf. Da Graca, 23 F.4th at 112 (determining the scope of a
state criminal statute in part by looking to certain of the state's
other criminal statutes, and approvingly noting that the BIA
"interpreted the existence of a separate California joyriding
statute to cabin the breadth of the California unauthorized use
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[of a motor vehicle] statute"). Thus, if history is our guide,
there is quite good reason to think that the Congress that singled
out offenses "relating to obstruction of justice" -- even accepting
as the majority does that the BIA is right in how expansively it
has defined that category of offenses -- was not a Congress that
had in view the kind of accessorial crime of which Silva was
convicted.
I do not mean to suggest that anything would prevent a
state from defining the elements of an offense that it labels as
an accessorial one in a way that would make that offense a match
for "an offense relating to obstruction of justice," as the BIA
understands that offense. But, as I have explained, there is no
indication that Massachusetts has done so here.
Accordingly, I conclude that although Silva was
convicted of being an accessory after the fact to a felony, neither
the BIA nor the majority has established that he has been convicted
of an "offense relating to obstruction of justice," such that he
may be deemed to have committed an "aggravated felony" within the
meaning of the INA. I therefore would grant Silva's petition for
review and so, respectfully, dissent.
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