FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AGUSTIN VALENZUELA GALLARDO, No. 18-72593 Petitioner, Agency No. v. A056-010-094 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 4, 2020 San Francisco, California Filed August 6, 2020 Before: Eugene E. Siler, * Kim McLane Wardlaw, and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Wardlaw * The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 VALENZUELA GALLARDO V. BARR SUMMARY ** Immigration The panel granted Agustin Valenzuela Gallardo’s petition for review of a decision of the Board of Immigration Appeals and vacated his order of removal, holding that 8 U.S.C. § 1101(a)(43)(S), which describes an aggravated felony “offense relating to obstruction of justice,” requires a nexus to an ongoing or pending proceeding or investigation and that, therefore, the BIA’s contrary construction of the statute was inconsistent with the statute’s unambiguous meaning. In a prior published opinion, the BIA found Valenzuela Gallardo removable on the ground that his conviction for being an accessory to a felony, in violation of California Penal Code § 32, was an obstruction of justice aggravated felony under 8 U.S.C. § 1101(a)(43)(S). Switching directions from its precedent, the BIA concluded that the existence of an ongoing proceeding was not an essential element of an offense relating to obstruction of justice. However, a prior panel of this court vacated the BIA’s redefinition because it raised serious questions about whether the statute is unconstitutionally vague. On remand, the BIA issued a published decision concluding that obstruction of justice offenses included not only offenses that interfered with ongoing or pending investigations or proceedings, but also those that interfered with investigations or proceedings that were reasonably ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. VALENZUELA GALLARDO V. BARR 3 foreseeable by the defendant. Valenzuela Gallardo again petitioned for review. The panel began at Chevron Step Zero, where the court determines whether the Chevron framework applies at all. The panel noted amici’s argument that the BIA’s interpretation of the term “aggravated felony,” which includes offenses related to obstruction of justice, is ineligible for Chevron deference because the term has dual application in both civil proceedings, including removal proceedings, and criminal proceedings, including increased maximum prison terms for illegal reentry. The panel explained that deferring to the BIA’s construction of statutes with criminal applications raises serious constitutional concerns because only Congress has the power to write new federal criminal laws. However, the panel concluded that it was bound by the law of the case doctrine because the panel that decided Valenzuela Gallardo’s prior petition for review had applied the Chevron framework, and no exceptions to the doctrine applied. At Chevron Step One, the panel concluded that 8 U.S.C. § 1101(a)(43)(S) is unambiguous in requiring ...
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