Law360 published this article on July 6, 2023.
The U.S. Supreme Court recently decided a pair of related cases, Pugin v. Garland and Garland v. Cordero-Garcia, which at first glance addressed a relatively narrow legal question under U.S. immigration law.[1] In a 6-3 decision, the court held that the government can deport noncitizens for committing an aggravated felony offense relating to obstruction of justice — even if the underlying state or federal statute of conviction does not require a pending investigation or proceeding.[2]
Nevertheless, Justice Sonia Sotomayor's forceful dissent raised some important questions, not just as to the specific outcome in Pugin, but also about some of its wider implications for noncitizens facing deportation.
This case involved the separate yet parallel fates of two men who each lived in the U.S. as green card-holding lawful permanent residents for decades.[3] After Pugin and Cordero- Garcia were convicted, in Virginia of accessory after the fact to a felony and in California of witness tampering, respectively, the government sought to deport them under the "obstruction of justice" aggravated felony removability ground.[4]
The men argued that for a conviction to encompass the minimum conduct to qualify under the categorical approach as an obstruction of justice aggravated felony, the underlying offense had to require a connection to a pending investigation or proceeding.
That limitation would mean that the Virginia or California offenses at issue were not aggravated felonies relating to obstruction of justice, as neither contained a pending investigation nor proceeding requirement. The U.S. Court of Appeals for the Ninth Circuit agreed with Cordero-Garcia's reasoning,[5] as did the U.S. Court of Appeals for the Third Circuit in the 2017 case, Flores v. Attorney General, U.S.[6]
The U.S. Court of Appeals for the Fourth Circuit, however, reached the opposite result, holding that no pending investigation or proceeding was needed for an offense to be an aggravated felony relating to obstruction of justice, and as such, Pugin's Virginia conviction made him removable.[7]
Writing for a six-justice Supreme Court majority, Justice Brett Kavanaugh resolved the circuit split by siding with the Fourth Circuit: Offenses need not require a connection to a pending investigation or proceeding to trigger the obstruction of justice aggravated felony deportability ground.[8]
In answering this question, the majority opinion looked to an "extensive body of authority," including dictionary definitions of "obstruction of justice," illustrative examples from the Model Penal Code, and the various obstruction-related state and federal statutes that had been in effect in 1996 — when Congress enacted the obstruction of justice aggravated felony removal ground.[9]
The majority concluded that because enough of these sources omitted a pending investigation or proceeding requirement, then so too did the generic definition of obstruction of justice and the related aggravated felony removal ground.[10] Otherwise, wrote the majority, "many common obstruction offenses would not qualify as aggravated felonies under that provision."[11]
In a passionate dissent, Justice Sotomayor decried how the majority opinion's circular reasoning "turns the categorical approach on its head" in order to force "through the conclusion that a pending investigation or proceeding is not required to qualify as generic obstruction of justice."[12] She emphasized the court's responsibility to "focus on discerning the trunk of obstruction of justice" to elicit the relevant generic definition.[13]
Instead, she noted that the majority's source-based inquiry "wander[ed] off into an array of obstruction-adjacent federal and state laws that do not require a pending investigation or proceeding," inducing the majority to announce "that those offenses are core obstruction of justice, even though the evidence it relies on, taken as a whole, reveals they are not."[14]
In her own detailed statutory analysis, Justice Sotomayor examined the various evidentiary sources relied upon by the majority — dictionary definitions, historical context, and federal and state heartland obstruction statutes, including those that were contemporaneous to the statute's 1996 enactment.[15]
She concluded that these sources definitively showed that Congress had intended an aggravated felony related to obstruction of justice to require a pending investigation or proceeding.[16]
Justice Sotomayor's dissent also addressed some deeper concerns about the broader ramifications of the majority's decision. In particular, she worried that an "expansive reading of 'in relation to' opens the door for the government to argue that many low-level offenses that fall outside of core obstruction of justice are aggravated felonies, even though the [Immigration and Nationality Act] reserves that label for especially egregious felonies."[17]
She expressed caution that without a pending investigation or proceeding requirement, the government would go on to treat low-level misdemeanor convictions such as "failing to report a crime, presenting false identification to an officer, refusing to aid a police officer, leaving the scene of a crime, or purchasing a fake ID" as obstruction of justice aggravated felonies, causing devastating immigration consequences for a broader array of noncitizens.[18]
Unfortunately, those concerns did not persuade the court to exercise restraint in this case. As a result, my colleagues and I are deeply alarmed that the government will now be further emboldened in seeking to deport noncitizens based on an ever-expanding range of offenses that it claims constitute aggravated felonies.
There are 21 alphabetically delineated aggravated felony removal grounds between Title 8 of the U.S. Code, Section 1101(a)(43)(A) and (U), which run the gamut from murder and treason to forgery and unlawful possession of a firearm.
Of those aggravated felony grounds, a majority — 14, including obstruction of justice — include the same "relating to" language that Justice Sotomayor feared would lead to the government overcharging low-level and noncore offenses as obstruction of justice aggravated felonies.
The court's decision in Pugin gives the government even more incentive to push beyond boundaries that should limit these aggravated felony grounds to a narrow set of serious offenses.
As Justice Sotomayor acknowledged in her dissent, Congress adopted the aggravated felony removal grounds to create "a category of crimes singled out for the harshest deportation consequences."[19]
Noncitizens with aggravated felony convictions face not only removal from the U.S., but the loss of any legal immigration status, including green cards, and ineligibility for nearly all forms of immigration relief such as asylum or cancelation of removal, as well as a permanent bar on reentry.[20] And deportation ultimately causes prolonged family separation and lifelong consequences for families and communities.
In light of these draconian and life-altering outcomes, the government has a profound responsibility to ensure that only the most serious offenses — as Congress intended — are treated as aggravated felonies.
With such high stakes, it is equally important that noncitizens and their attorneys are able to know exactly which offenses are aggravated felonies.
In its 2010 decision, Padilla v. Kentucky, the U.S. Supreme Court held that under the Sixth Amendment's right to effective counsel, criminal defense attorneys must advise noncitizen defendants of any immigration consequences that may result from a conviction or guilty plea.[21]
To evaluate whether an offense is an aggravated felony, attorneys must navigate the ever-shifting labyrinth of the categorical approach and federal immigration jurisprudence — a task that is challenging enough for full-time immigration lawyers, let alone for criminal defense attorneys.
Adding another layer of complexity, even if an attorney correctly advises a client that the offense to which they are pleading guilty or going to trial is not an aggravated felony at the time of conviction, the government can later retroactively charge that offense as an aggravated felony anyway, based on subsequent changes in immigration law such as the court's decision in Pugin.
Justice Sotomayor criticized the Pugin majority's analysis for leaving "lower courts and the Board of Immigration Appeals without direction and [inviting] the Government to advance far-ranging constructions of § 1101(a)(43)(S) that bear little resemblance to core obstruction of justice."[22]
These concerns about ambiguity and overcharging underscore just how crucial it is for the immigration and criminal defense bars to collaborate and closely monitor any relevant developments that affect whether offenses will be considered aggravated felonies.
To the extent even possible under such an uncertain framework, attorneys must strive to provide clients facing criminal charges with the most up-to-date and accurate information available on the potential immigration consequences of any criminal offenses.
As much as the court's decision will directly harm Pugin and Cordero-Garcia, not to mention others charged under the obstruction of justice aggravated felony ground, its impact will likely and regrettably go even further. I can only hope that in future cases, the government and our courts will take these concerns — and their obligations to fairly and accurately interpret and apply our immigration laws — more seriously.
CAIR Coalition submitted a brief in support of the petition for writ of certiorari in this case.
[1] Pugin v. Garland, 22-23, 2023 WL 4110232 (U.S. June 22, 2023).
[2] Pugin, 22-23, 2023 WL 4110232, at *2.
[3] Cordero-Garcia became a lawful permanent resident in 1965 and Pugin became a lawful permanent resident in 1985.
[4] 8 U.S.C. § 1101(a)(43)(S).
[5] Cordero-Garcia v. Garland, 44 F.4th 1181, 1188–89 (CA9 2022).
[6] Flores v. Atty. Gen. U.S., 856 F.3d 280, 292 (CA3 2017).
[7] Pugin v. Garland, 19 F.4th 437, 450 (CA4 2021).
[8] Pugin, 22-23, 2023 WL 4110232, at *6.
[9] Id. at *3–4.
[10] Id. at *4.
[11] Id.
[12] Id. at *8, 9.
[13] Id. at *9.
[14] Id.
[15] Id. at *9–15.
[16] Id. at *15.
[17] Id. at *16.
[18] Pugin, 22-23, 2023 WL 4110232, at *16.
[19] Pugin, 22-23, 2023 WL 4110232, at *16.
[20] For more information on aggravated felonies and their consequences, see Aggravated Felonies: An Overview, American Immigration Council at 2–3 (Mar. 16, 2021).
[21] Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
[22] Pugin, 22-23, 2023 WL 4110232, at *18.
