Fernando Cordero-Garcia v. Merrick Garland

                     FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

FERNANDO CORDERO-GARCIA,                          No. 19-72779
AKA Fernando Cordero,
                                                  Agency No.
                              Petitioner,        A014-690-577

    v.
                                                    OPINION
MERRICK B. GARLAND, Attorney
General,

                              Respondent.

         On Remand from the United States Supreme Court

               Argued and Submitted May 6, 2024
                     San Diego, California

                       Filed June 27, 2024

  Before: Andrew D. Hurwitz and Lawrence VanDyke,
Circuit Judges, and Barry Ted Moskowitz, * District Judge.

                    Opinion by Judge Hurwitz


*
  The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
2                  CORDERO-GARCIA V. GARLAND


                          SUMMARY **


                           Immigration

    On remand from the United States Supreme Court, Pugin
v. Garland, 

 (2023), the panel denied a petition
for review by Fernando Cordero-Garcia and held that a
conviction under 

(b)(1) qualifies as
an aggravated felony—an offense “relating to obstruction of
justice” for which the term of imprisonment is at least one
year under 

(a)(43)(S).
    An immigration judge found that Cordero-Garcia’s
convictions of two counts of violating § 136.1(b)(1) were for
a crime relating to obstruction of justice, and the Board of
Immigration Appeals (“BIA”) dismissed Cordero-Garcia’s
appeal. This court remanded Cordero-Garcia’s first petition
for review due to intervening law regarding the definition of
“obstruction of justice.” The BIA again held that
§ 136.1(b)(1) constituted obstruction of justice. This court
granted the petition for review in light of Valenzuela
Gallardo v. Barr, 

 (9th Cir. 2020),
which held that obstruction of justice requires a nexus to an
ongoing or pending proceeding. The government then
petitioned for certiorari. Resolving a Circuit split, the
Supreme Court held that obstruction of justice under
§ 1101(a)(43)(S) includes “threatening a witness to prevent
the witness from reporting a crime to the police” and does
not require a pending investigation or proceeding. Pugin v.
Garland, 

 (2023) (consolidating Cordero-

**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                CORDERO-GARCIA V. GARLAND                  3


Garcia’s appeal with that of Jean Francois Pugin). The
Supreme Court reversed this Court’s opinion and remanded
for reconsideration.
    On remand, the panel held that § 136.1(b)(1) qualifies as
an aggravated felony, rejecting Cordero-Garcia’s argument
that the mens rea required for conviction differs materially
from that required under § 1101(a)(43)(S).


                        COUNSEL

Jason F. Choy (argued), Blue Peak Law Group LLP, Santa
Monica, California; Michael K. Mehr, Mehr & Soto LLP,
Santa Cruz, California; for Petitioner.
Rebecca H. Phillips (argued), Senior Trial Attorney, Office
of Immigration Litigation, Civil Division; Bryan S. Beier,
Senior Litigation Counsel, Office of Immigration Litigation;
John S. Hogan, Assistant Director, Office of Immigration
Litigation; Brian M. Boynton, Acting Assistant Attorney
General, Civil Division; United States Department of
Justice, Washington, D.C.; for Respondent.
4                     CORDERO-GARCIA V. GARLAND


                               OPINION

HURWITZ, Circuit Judge:

   Noncitizens convicted of offenses “relating to
obstruction of justice . . . for which the term of
imprisonment is at least one year” are removable. See 

(a)(43)(S). This case requires us to determine
whether a conviction under California Penal Code (“CPC”)
§ 136.1(b)(1) is such a crime. We conclude that it is.
                                      I.
   This case has a long procedural history. It begins in
April 2009, when Fernando Cordero-Garcia, a lawful
permanent resident, was convicted of two counts of violating
CPC § 136.1(b)(1) 1 and sentenced to concurrent terms of
two years of imprisonment on each count. He was later
charged by the Department of Homeland Security as
removable under 

(a)(43)(S).               An
immigration judge (“IJ”) found that Cordero-Garcia’s
convictions were for a crime relating to obstruction of


1
    CPC § 136.1(b)(1) provides that

           [E]very person who attempts to prevent or dissuade
           another person who has been the victim of a crime or
           who is witness to a crime from doing any of the
           following is guilty of a public offense and shall be
           punished by imprisonment in a county jail for not more
           than one year or in the state prison:
           (1) Making any report of that victimization to any
           peace officer or state or local law enforcement officer
           or probation or parole or correctional officer or
           prosecuting agency or to any judge.
                 CORDERO-GARCIA V. GARLAND                   5


justice. The Board of Immigration Appeals (“BIA”)
dismissed Cordero-Garcia’s appeal.
    Cordero-Garcia petitioned us for review. Cordero-
Garcia v. Sessions, No. 12-74130, Dkt. 1 (9th Cir. Dec. 18,
2012). While that petition was pending, we held that the
BIA’s operative definition of obstruction of justice—“the
affirmative and intentional attempt, with specific intent, to
interfere with the process of justice”—raised “grave
constitutional doubts” because “the BIA has not given an
indication of what it does include in ‘the process of justice,’
or where that process begins and ends.” Valenzuela
Gallardo v. Lynch, 

, 813–819 (9th Cir.
2016).
    Granting an unopposed motion from the government, we
then remanded Cordero-Garcia’s case to the BIA for further
consideration in light of Valenzuela Gallardo. See Cordero-
Garcia v. Sessions, No. 12-74130, Dkt. 57 (9th Cir. July 10,
2017). The BIA subsequently redefined obstruction of
justice as “(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, 

 (BIA 2018)
(cleaned up). Applying this definition in Cordero-Garcia’s
case, the BIA again held that a conviction under CPC
§ 136.1(b)(1) constituted § 1101(a)(43)(S) obstruction of
justice. Matter of Cordero-Garcia, 

(BIA 2019).
    Cordero-Garcia again petitioned for review. While that
petition was pending, we held that § 1101(a)(43)(S)
obstruction of justice “requires a nexus to an ongoing or
pending proceeding.” Valenzuela Gallardo v. Barr, 968
6                  CORDERO-GARCIA V. GARLAND


F.3d 1053, 1067 (9th Cir. 2020). Applying that holding in
Cordero-Garcia’s case, we held that a violation of CPC
§ 136.1(b)(1) was not an offense related to obstruction of
justice because the state statute of conviction did not require
a “nexus to an ongoing or pending proceeding or
investigation.” Cordero-Garcia v. Garland, 

 (9th Cir. 2022).
    The government then successfully petitioned for
certiorari. See Garland v. Cordero-Garcia, 

(2023). Resolving a Circuit split, the Supreme Court held
that § 1101(a)(43)(S) obstruction of justice includes
“threatening a witness to prevent the witness from reporting
a crime to the police” and “does not require that an
investigation or proceeding be pending.” Pugin v. Garland,

 (2023). 2 The Court reversed our
opinion and remanded for reconsideration. 

 at 610–11.
                                  II.
                                  A.
     Determining whether a conviction under CPC
§ 136.1(b)(1) is a “an offense relating to obstruction of
justice” under 

(a)(43)(S) requires that we
once again plumb the murky waters of the “categorical
approach.” See Cordero-Garcia, 

. We must
first identify the elements of the generic federal offense. See
Renteria-Morales v. Mukasey, 

 (9th Cir.
2008). We next identify the elements of the crime of
conviction. See 

 Then, “we compare the statute of
conviction to the generic federal offense to determine

2
 The Court consolidated Cordero-Garcia’s case with Pugin v. Garland,

 (4th Cir. 2021), cert. granted, 

 (2023). See
Garland v. Cordero-Garcia, 

 (2023).
                    CORDERO-GARCIA V. GARLAND                         7


whether the specific crime of conviction meets the definition
of an aggravated felony.” Ho Sang Yim v. Barr, 

 (9th Cir. 2020) (cleaned up).
    “[T]o find that a state statute creates a crime outside the
generic definition of a listed crime in a federal statute
requires more than the application of legal imagination to a
state statute’s language.” Gonzales v. Duenas-Alvarez, 

 (2007). “It requires a realistic probability, not
a theoretical possibility, that the State would apply its statute
to conduct that falls outside the generic definition of a
crime.” 

 This “realistic probability” may be shown in two
ways: “if a state statute expressly defines a crime more
broadly than the generic offense,” or “if the petitioner can
point to at least one case in which the state courts applied the
statute in a situation that does not fit under the generic
definition.” Lopez-Aguilar v. Barr, 

(9th Cir. 2020) (cleaned up).
                                  B.
    After Pugin, Cordero-Garcia no longer claims that the
actus reus prohibited by CPC § 136.1(b)(1)—“conduct
geared toward impeding a person from reporting a crime,”
People v. Navarro, 

 (2013)—
is not a categorical match for conduct covered by 

(a)(43)(S). 3 Rather, he only contends that the mens

3
  Cordero-Garcia does not argue that the state statute’s prohibition of
“dissuad[ing]” a witness or victim from reporting a crime renders it
broader than § 1101(a)(43)(S). In any event, such an argument would be
unavailing. One who intends to “dissuade” a witness or victim from
reporting a crime necessarily intends to “prevent” that report. And,
because the “relating to” language in § 1101(a)(43)(S) “indicates that
Congress intended to cover a range of activities beyond just the generic
8                   CORDERO-GARCIA V. GARLAND


rea required for conviction under the California statute
differs materially from that required under § 1101(a)(43)(S).
We address this question of statutory construction de novo.
Lopez-Aguilar, 

.
    The parties agree that § 1101(a)(43)(S) describes a
specific intent crime. See Valenzuela Gallardo, 27 I. & N.
Dec. at 456 (defining the offenses in § 1101(a)(43)(S) as
requiring specific intent). Because Pugin confirms that
“threatening a witness to prevent the witness from reporting
a crime to the police” can constitute § 1101(a)(43)(S)
obstruction, 

, there can be no dispute that the
specific intent covered by § 1101(a)(43)(S) includes the
intent to prevent the report.
   The parties also agree that CPC § 136.1(b)(1) is a
specific intent offense. The California case law makes the
scope of that intent clear, stating that the statute requires a
showing of the “inten[t] to prevent a crime from even being
reported by a victim or witness,” People v. Brackins, 

 (2019), or the “inten[t] to induce a witness
or victim to withhold evidence of a crime from law
enforcement officials,” Navarro, 

.
    There thus appears to be no facial distinction between the
mens rea required under CPC § 136.1(b)(1) and 

(a)(43)(S). Any defendant who specifically intends
“that his acts would prevent or dissuade the victim or witness
from making the report,” People v. Cook, 

, 590 (2021), plainly has the specific intent to “prevent


offense” of obstruction of justice, Ho Sang Yim, 

(cleaned up), a defendant who dissuades a witness or victim of a crime
from reporting it has clearly committed an offense relating to obstruction
of justice.
                  CORDERO-GARCIA V. GARLAND                    9


the witness from reporting a crime.” See Pugin, 

.
    But Cordero-Garcia nonetheless argues that CPC
§ 136.1(b)(1) can be violated without the intent required
under the federal law. His argument rests on subsections of
CPC § 136.1 that he was not convicted of violating:
§ 136.1(a), which criminalizes “maliciously” dissuading or
preventing a witness from attending a court proceeding or
giving testimony, and § 136.1(c), which provides that certain
violations of subsections (a) and (b) are aggravated offenses
when committed “maliciously.” “Malice,” as used in these
subsections, is defined as “an intent to vex, annoy, harm, or
injure in any way another person, or to thwart or interfere in
any manner with the orderly administration of justice.” CPC
§ 136(1).
    Cordero-Garcia argues that because a conviction under
CPC § 136.1(b)(1) does not require proof of “malice,” see
Cook, 59 Cal. App. 5th at 687, the mens rea required for
conviction under that subsection is not as narrow as that
required under the federal statute. He posits that a defendant
might violate § 136.1(b)(1) if he merely intends to prevent a
report of a crime but has no specific intent to interfere with
the ultimate disposition of a matter. For example, Cordero-
Garcia suggests a defendant might merely intend to protect
a witness or victim from prejudicial publicity or retaliation
by the perpetrator, not to interfere with the process of justice.
    We reject that argument. As an initial matter, CPC
§§ 136.1(a) and (c) are not at issue in this case. We therefore
need not parse the difference between the mens rea required
to violate those subsections and that required to violate
10                  CORDERO-GARCIA V. GARLAND


subsection (b)(1). 4 Rather, we need only determine whether
the mens rea required for conviction under CPC
§ 136.1(b)(1) is broader than that required to establish a
violation of § 1101(a)(43)(S). California case law, which
confirms that the state statute requires a specific intent to “to
induce a witness or victim to withhold evidence of a crime
from law enforcement officials,” see Navarro, 

, squarely answers that question.
    Moreover, Cordero-Garcia has identified no California
case holding that a defendant who specifically intends to
prevent a witness or victim from reporting a crime to the
police does not violate § 136.1(b)(1) simply because he does
not otherwise intend to interfere in the administration of
justice. Absent identification of “cases in which the state
courts in fact did apply the statute in the special (nongeneric)
manner” asserted, we are not free to imagine such
circumstances. Duenas-Alvarez, 

.
    In any event, we reject Cordero-Garcia’s assumption that
a defendant with the motivation he describes would not have
committed a crime covered by § 1101(a)(43)(S). The
“relating to” language in § 1101(a)(43)(S) “indicates that
Congress intended to cover a range of activities beyond just
the generic offense” of obstruction of justice. Ho Sang Yim,

 (cleaned up); see also Morales v. Trans
World Airlines, Inc., 

 (1992) (“The
ordinary meaning of these words is a broad one—‘to stand
in some relation; to have bearing or concern; to pertain;

4
  See People v. Lopez, No. F083388, 

, at *14 (Cal. Ct.
App. Apr. 17, 2023) (stating that the specific intent required to violate
CPC § 136.1(b)(1), an intent to prevent or dissuade the report of a crime,
does not necessarily equate to the “malice” required to violate
§ 136.1(c)(1)).
                    CORDERO-GARCIA V. GARLAND                         11


refer; to bring into association with or connection with[.]’”
(citing Black’s Law Dictionary 1158 (5th ed. 1979))). A
defendant who specifically intends to engage in the actus
reus prohibited by CPC § 136.1(b)(1)—“any conduct geared
toward impeding a person from reporting a crime,” Navarro,
212 Cal. App. 4th at 1350—has exactly the specific intent
“to prevent the witness from reporting a crime to the police”
that § 1101(a)(43)(S) includes, regardless of whether his
ultimate goal is to entirely thwart investigation of the crime,
Pugin, 

. Because both the California statute
and the offenses encompassed in § 1101(a)(43)(S)
criminalize the same conduct—preventing or attempting to
prevent a witness from reporting a crime to the police—
anyone who specifically intends to prevent the report
necessarily commits an offense relating to obstruction of
justice. 5
                                  III.
    We deny the petition for review.




5
  We reject Cordero-Garcia’s retroactivity argument. Our holding is
based on Pugin, which in turn relied on the plain language of
§ 1101(a)(43)(S), and thus raises no retroactivity concerns as applied to
our direct review of the BIA decision. See Harper v. Virginia Dep’t of
Tax’n, 

 (1993).