Pugin v. Garland: Noncitizens are removable for felony obstruction offenses that don’t require a “pending” investigation or proceeding
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
Noncitizens convicted of an “aggravated felony” “relating to obstruction of justice” are removable even if their obstruction offense did not require that an investigation or proceeding be pending, the U.S. Supreme Court held June 22 in Pugin v. Garland.
Jean Francois Pugin, a citizen of Mauritius, was convicted in Virginia of being an accessory after the fact to a felony.
Fernando Cordero-Garcia, a citizen of Mexico, was convicted in California of dissuading a witness from reporting a crime.
The Immigration and Nationality Act, 8 U.S.C. Sec. 1101(a)(43)(S), makes noncitizens removable from the country for an “aggravated felony” “relating to obstruction of justice.”
The Government sought to remove Pugin and Cordero-Garcia on this basis.
The Immigration Judges ruled for the Government in both cases, and the Board of Immigration Appeals affirmed.
The Ninth and Fourth Circuits then reached opposite conclusions whether their obstruction offenses required that an investigation or proceeding be “pending.”
The Supreme Court granted cert. to resolve the circuit split.
The Court held the obstruction offenses did not require a “pending” investigation or proceeding, in an opinion joined by five justices, with a sixth justice concurring.
The Court began by noting that a “categorical approach” is used to determine whether a prior conviction constitutes an “aggravated felony.”
Under that approach, the Court reviews only the “elements of the statute of conviction” not “the facts of each defendant’s conduct.”
The provision at issue here “relating to obstruction of justice” was enacted by Congress in 1996, the Court said.
Dictionary definitions, federal laws, state laws and the Model Penal Code from that time all show that an investigation or proceeding did not need to be “pending” to constitute obstruction of justice, the Court said.
Dictionary definitions included offenses such as threatening or harming a witness, the Court said.
“Notably missing from those dictionary definitions is a requirement that an investigation or proceeding be pending,” the Court said.
Similarly, the U.S. Code criminalized various obstruction offenses in Chapter 73 of Title 18 that did not require a pending investigation or proceeding, such as killing or threatening a witness with the intent to prevent them from testifying, the Court said.
“Many state obstruction offenses as of 1996 similarly did not require that an investigation or proceeding be pending”, the Court said.
“The Model Penal Code also generally does not require that an investigation or proceeding be pending,” the Court said.
The phrase “relating to obstruction of justice” resolves “any doubt”, the Court said. “The phrase ‘relating to’ ensures that this statute covers offenses that have ‘a connection with’ obstruction of justice – which surely covers common obstruction offenses that can occur when an investigation or proceeding is not pending”, the Court concluded.
Concurring Opinion Raises Question of Congress’ Intent
Justice Jackson concurred in the result, but suggested the Court should look only to offenses contained in Chapter 73 to determine the intent of Congress.
“I believe that hewing closely to Congress’s will in this regard is especially important where (as here) making the determination of which offenses qualify implicates the ‘drastic’ deportation sanction”, Jackson said.
She said Congress expressed its intent in the Chapter 73 offenses, rather than “leave the category without form for future judicial refinement.”
But the “issue of whether such an approach best tracks Congress’ intent can be reserved for future consideration in a case where the parties joust in earnest on the question”, she said.
Justice Sotomayor, joined by Justices Gorsuch and Kagan, dissented.