9th Circuit Rejects Board of Immigration Appeals’ Interpretation, Creates Circuit Split

By Amy Luong
Production Editor, Vol. 22

The Board of Immigration Appeals (BIA) recently clarified its interpretation of “obstruction of justice,” as part of the Immigration and Nationality Act (INA) § 101(a)(43)(S) to mean “affirmative and intentional attempt, with specific intent, to interfere with the process of justice.” The BIA also emphasized that an “ongoing criminal investigation or trial . . . is not an essential element of ‘an offense related to obstruction of justice.’”[1] Prior to this clarification, “obstruction of justice” was interpreted by the BIA to require a nexus to an ongoing investigation or proceeding.[2] The new interpretation adversely affects immigrants, because without the nexus requirement it is easier for the agency to turn a non-deportable criminal offense into an aggravated felony—a deportable offense— by claiming that the crime was an obstruction of justice.

The BIA’s recent interpretation arose when Augustin Valenzuela Gallardo, a citizen of Mexico, pled guilty to being an accessory to a felony.[3] An immigration judge concluded that his conviction was an “offense relating to obstruction of justice,” which turned his felony conviction into an aggravated felony under the INA, and thus ordered his deportation.[4] Gallardo first appealed the immigration judge’s decision to the BIA, but his case was dismissed and the BIA’s decision announced a new interpretation of “obstruction of justice.”[5] Gallardo then appealed to the Ninth Circuit, and claimed that the BIA’s interpretation was unconstitutionally vague.

The Ninth Circuit rejected the BIA’s interpretation of “obstruction of justice.” The court stated that the recent interpretation of the phrase deviated from the BIA’s prior interpretation.  Despite the BIA’s argument that the specific intent element is the focus of whether or not someone obstructed justice, the Court explained that the revised interpretation was vague, and because “there is no indication of what it is that must be interfered with in order to ‘obstruct justice.’”[6]

Courts normally apply the Chevron framework when reviewing agency decisions. Step One of Chevron analysis starts with the court asking “whether Congress has directly spoken to the precise question at issue.”[7]  Statutory tools of interpretation are then applied to determine whether the statute unambiguously bars the agency’s interpretation. If the statute is still ambiguous, then courts proceed to Step Two and determine whether the agency’s interpretation is a permissible construction of the statute. Very often at Chevron Step Two, courts will defer to an agency’s interpretation.

The Ninth Circuit at Chevron Step One invoked the doctrine of constitutional avoidance to strike down the BIA’s revised interpretation, stating “if an agency’s statutory interpretation invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.”[8] Since no such clear indication of Congress’ intention existed, the Court remanded the case back to BIA for a “formulation of a construction that doesn’t raise grave constitutional doubts.”[9]

The Ninth Circuit’s opinion is “inconsistent with the Second, Fifth and Eighth circuits, which finds nothing uncertain about the BIA’s formulation—and has created a circuit split.”[10] The dissent in this case makes several clear points that the majority is mistaken in its holding. First, by explaining that the agency clarified, but did not revise its interpretation from prior cases, and that it is the Court that has changed its position in the interpretation of BIA precedent.[11] Second, the dissent criticizes the majority’s application of the constitutional avoidance doctrine.[12] The dissent argues that if the BIA’s formulation raises serious questions as to vagueness, then the Court should construe the agency’s precedent in a way that is constitutional. By invoking the constitutional avoidance doctrine at Step One, the majority was not required to ask whether the agency’s interpretation was a permissible construction of the statute, thus avoiding the deferential nature of Chevron Step Two.

How would the Supreme Court resolve this circuit split?

On June, 21, 2016, the United States Supreme Court (SCOTUS) decided Encino Motorcars, LLC v. Navarro,[13] holding that the Department of Labor’s (DOL) “lack of reasoned explication for a regulation that is inconsistent with the [DOL’s] longstanding earlier position results in a rule that cannot carry the force of law.…It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.”[14] The Ninth Circuit appears to have more support in its decision after Encino, since the Court maintains that the agency changed its position from its prior interpretation. However, the Ninth Circuit’s reasoning was that of constitutional avoidance at Chevron Step One, and not because the agency’s change was arbitrary and capricious, which would be a rejection of the agency’s interpretation at Chevron Step Two. Thus, if SCOTUS granted cert, most likely SCOTUS would affirm the decision, but rationalize the ruling based on the arbitrary and capricious change in the agency’s change of position.

By affirming the Ninth Circuit’s decision, immigrants would benefit, because an immigration judge must prove that the defendant was being investigated by police or was on trial for criminal actions in order to deport them. Moreover, such a decision would remove the possibility of an explosion of unnecessary deportations of immigrants convicted of low-level crimes.


[1] Gallardo v. Lynch, 2016 BL 100930, 4 (9th Cir. 2016).

[2] Id. at 1.

[3] Cal. Penal Code § 32.

[4] INA § 101(a)(43)(S).

[5] See, supra n.1.

[6] Valenzuela Gallardo v. Lynch, 818 F.3d 808, 822 (9th Cir. 2016).

[7] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

[8] Gallardo v. Lynch, 2016 BL 100930, 6 (9th Cir. 2016).

[9] Id.

[10] Emerging Circuit Split After Ninth Cir. Immigration Case?, United States Law Week (Apr. 4, 2016), http://www.bna.com/emerging-circuit-split-n57982069578/

[11] Valenzuela Gallardo v. Lynch, 818 F.3d 808, 825 (9th Cir. 2016).

[12] Id.

[13] Encino MotorCars LLC v. Navarro, No. 15-415 (Jun. 20, 2016).

[14] SCOTUS: Agency Must Explain Changed Position or Lose Chevron Deference, Federal Regulations Advisor (Jun. 21, 2016), http://www.fedregsadvisor.com/2016/06/21/scotus-agency-must-explain-changed-position-or-lose-chevron-deference/.

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