United States Court of Appeals For the First Circuit No. 20-1593 CARLOS MONTEIRO SILVA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Chief Judge, Lynch and Barron, Circuit Judges. Kerry E. Doyle, with whom Graves and Doyle was on brief, for petitioner. Evan P. Schultz, Trial Attorney, Office of Immigration Litigation, Civil Division, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. February 28, 2022 LYNCH, Circuit Judge. Petitioner Carlos Monteiro Silva seeks review of a final order of removal issued by the Board of Immigration Appeals ("BIA") in May 2020. The BIA dismissed Silva's appeal of a decision by the immigration judge ("IJ") holding that Silva was removeable under the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), for having committed an "aggravated felony" as defined under 8 U.S.C. § 1101(a)(43). The IJ determined and the BIA affirmed that Silva's Massachusetts state conviction for accessory after the fact to the crime of murder was categorically an aggravated felony for purposes of the INA because it met the definition of "an offense relating to obstruction of justice." Id. § 1101(a)(43)(S). The IJ and BIA held that Silva was ineligible for withholding of removal because he had committed a particularly serious crime and had not met his burden to establish that he was eligible for asylum or relief under the Convention Against Torture ("CAT"). Silva argues that the IJ and the BIA erred by applying the categorical approach to determine that his state conviction for accessory after the fact was "an offense relating to obstruction of justice." Id. He argues that the BIA's interpretation of "an offense relating to obstruction of justice" as including offenses where an investigation or proceeding is only "reasonably foreseeable" is an unreasonable interpretation of § 1101(a)(43)(S) and that the INA unambiguously requires that an - 2 - obstruction of justice offense have some nexus to a pending or ongoing investigation or judicial proceeding, which the Massachusetts accessory-after-the-fact statute does not require. For this and other reasons, Silva argues that deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), does not apply to the BIA's interpretation and that Silva's conviction for accessory after the fact is not categorically an obstruction of justice offense triggering the INA's aggravated felony grounds for removal.1 We make two holdings, each of which provides a basis for denying the petition. First, we follow the mode of analysis employed by the Supreme Court in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), and so apply "the normal tools of statutory interpretation," id. at 1569. We hold the generic federal definition of "an offense relating to obstruction of justice" unambiguously does not require a nexus to a pending or ongoing investigation or judicial proceeding. Alternatively, we also hold, employing Chevron analysis, that the BIA's interpretation must be …
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