Academic journal article Boston College Law Review

THE CONSTITUTIONALITY OF THE IMMIGRATION AND NATIONALITY ACT CALLED INTO QUESTION AGAIN: THE NINTH CIRCUIT CORRECTLY HOLDS "OBSTRUCTION OF JUSTICE" RAISES GRAVE CONSTITUTIONAL CONCERNS IN VALENZUELA GALLARDO V. LYNCH

Academic journal article Boston College Law Review

THE CONSTITUTIONALITY OF THE IMMIGRATION AND NATIONALITY ACT CALLED INTO QUESTION AGAIN: THE NINTH CIRCUIT CORRECTLY HOLDS "OBSTRUCTION OF JUSTICE" RAISES GRAVE CONSTITUTIONAL CONCERNS IN VALENZUELA GALLARDO V. LYNCH

Article excerpt

INTRODUCTION

For foreign nationals in the United States, the consequences of criminal activity can go far beyond fines or imprisonment.1 This is particularly true when a foreign national is convicted of an aggravated felony for which the consequence is removal.2 Section 1227 of the Immigration and Nationality Act ("INA") states that, if at any time after admission to the United States, a foreign national is convicted of an aggravated felony, he or she is removable.3 The INA defines aggravated felony by providing a list of qualifying criminal offenses.4 Because the consequences can be so severe, one would assume foreign nationals would be careful to avoid any criminal conduct that would result in an aggravated felony conviction.5 This becomes difficult, however, when foreign nationals are unable to distinguish which crimes are aggravated felonies and which are not.6

The INA states that any crime with a term of imprisonment that is at least one year and relating to obstruction of justice is considered an aggravated felony.7 The phrase obstruction of justice, however, is not defined in the INA.8 The lack of a clear definition for the phrase caused the U.S. Court of Appeals for the Ninth Circuit in 2016, in Valenzuela Gallardo v. Lynch, to hold that the phrase raises grave constitutional concerns.9

This Comment argues that the Ninth Circuit correctly raised the unconstitutional vagueness question, thereby assisting foreign nationals in protecting themselves from deportation.10 This Comment also argues that the Ninth Circuit's decision did not create a circuit split, as no other circuit has addressed the issue.11 Part I of this Comment discusses the categorical approach, the various definitions provided for obstruction of justice in the immigration context, the unconstitutional vagueness doctrine, and the factual history of Gallardo.12 Part II explains the Board of Immigration Appeals' ("BIA") decision in In re Valenzuela Gallardo, and the appeal from the BIA's decision to the Ninth Circuit in Gallardo.13 Finally, Part III argues that the Ninth Circuit correctly raised the unconstitutional vagueness question and by doing so, did not create a circuit split.14

I. THE VOID FOR VAGUENESS DOCTRINE: WHY CLARITY IN THE LAW IS EVEN MORE IMPORTANT FOR VALENZUELA GALLARDO AND OTHER FOREIGN NATIONALS

Clarity in the INA is of the utmost importance to foreign nationals, who need notice of what conduct can lead to deportation.15 Section A of this Part examines the categorical approach and how obstruction of justice has been defined under the INA.16 Section B provides an overview of the unconstitutional vagueness doctrine.17 Finally, Section C discusses the factual background of Gallardo.18

A. The Categorical Approach and the Attempted Definitions of Obstruction of Justice

The qualifying crimes amounting to an aggravated felony are listed in generic terms, requiring courts and adjudicative bodies to determine whether a prior conviction under state law is a qualifying crime.19 When making this determination, courts use the categorical approach, looking to the elements of the penal statute as opposed to the individual foreign national's conduct.20 Thus, in order for the crime at issue to be considered an aggravated felony, every set of facts violating the statute at issue must satisfy the criteria of an aggravated felony.21 The BIA, which is the administrative appellate body that reviews immigration decisions and determines which crimes result in removal, may not distinguish crimes by the facts underlying the individual crime.22 If the past conviction includes all of the elements of the generic crime, the past conviction qualifies as an aggravated felony, allowing removal.23

Among the generic crimes is any crime that has a term of imprisonment of at least one year and relates to the obstruction of justice, perjury, subornation of perjury, or bribery of a witness.24 In 1999, in In re Espinoza- Gonzalez, the BIA made one of many attempts to define obstruction of justice and held two elements required for a prior offense to qualify under the categorical approach: (1) the foreign national must have either actively interfered with an ongoing judicial proceeding or must have acted against or threatened to act against someone cooperating in the process of justice; and (2) the foreign national must have had the specific intent of interfering with a judicial process. …

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