Emerging Circuit Split After 9th Cir. Immigration Case?

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By Melissa Stanzione

April 4 — A circuit split may be emerging over the Board of Immigration Appeals's interpretation of “obstruction of justice” for removal purposes, an immigration scholar told Bloomberg BNA.

The BIA's holding that “obstruction of justice” requires intent to interfere with the “process of justice” is unconstitutionally vague because the BIA uses the amorphous phrase “process of justice” without explaining what it means, a divided U.S. Court of Appeals for the Ninth Circuit held March 31 (Gallardo v. Lynch, 2016 BL 100930, 9th Cir., No. 12-72326, 3/31/16).

The majority declined to defer to the BIA's meaning because under a Chevron analysis, it found there is “no clear indication that Congress intended to delegate authority to the agency to push the constitutional boundary.”

But the dissent said this ruling is inconsistent with approaches taken by three other circuits.

According to Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), courts are to defer to agencies' reasonable interpretations of ambiguous statutes.

BIA ‘Overreaching.'

The majority has a “very solid argument” that the interpretation doesn't warrant deference, Kevin R. Johnson, Dean of the University of California, Davis, law school and contributor to the ImmigrationProf Blog, told Bloomberg BNA.

Some other circuits, however, have deferred to the interpretation, Johnson said.

The agency's interpretation in this case “is so broad it's arguably unconstitutional,” Johnson said.

The BIA is “overreaching” and “expansively interpreting” obstruction of justice, he said.

“It gives you the sense they're trying to rig the game to deport anybody they can who's got a criminal conviction,” Johnson said.

This interpretation contrasts with the BIA's earlier, more “limited” one in In re Espinoza-Gonzalez, 22 I & N Dec. 889 (B.I.A. 1999), Johnson said.

In that case, the BIA determined that a crime is an “obstruction of justice” when it interferes with an ongoing proceeding. This is a “plausible construction,” the Ninth Circuit said.

It remanded for the BIA to consider a new construction or to apply its earlier interpretation from Espinoza-Gonzalez.

“Contrary to the dissent's assertion, our decision does not create or exacerbate a circuit split,” Judge Morgan Christen's majority opinion said.

Dissent: Circuit Split

The majority's approach of denying deference is inconsistent with the Second, Fifth and Eighth circuits—which have found nothing uncertain about the BIA's formulation—and has created or perpetuated a circuit split, Judge J. Michael Seabright, sitting by designation from the U.S. District Court for the District of Hawaii, said in his dissent.

“The court should defer to the BIA's reasonable, permissible and plausible interpretation” of “obstruction of justice,” Seabright said.

Judge Sidney R. Thomas joined in the majority opinion.

The Law Office of Ricci & Sprouls represented Gallardo. The Department of Justice represented the government.

To contact the reporter on this story: Melissa Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com