                     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 a nexus to an
ongoing or pending proceeding or investigation. The panel
rejected the Government’s assertion that the court had
already held that the statute is ambiguous in this regard.
Next, the panel explained that the ordinary meaning of the
term “obstruction of justice” when the statute was enacted in
1996 required a nexus to an extant investigation or
proceeding. Looking to the term’s relevant statutory context
– which the panel concluded to be Chapter 73 of Title 18,
entitled “Obstruction of Justice” – the panel further
explained that almost all of the substantive provisions in
Chapter 73 that existed in 1996 required a nexus to an
ongoing or pending proceeding or investigation.
4            VALENZUELA GALLARDO V. BARR

   Because the panel concluded that § 1101(a)(43)(S) was
unambiguous, it did not proceed to Chevron Step Two. The
panel also noted that it would reach the same conclusion
even if it were not to apply the Chevron framework.

    Finally, the panel concluded that the statute under which
Valenzuela Gallardo was convicted, California Penal Code
§ 32, is not a categorical match with obstruction of justice
under § 1101(a)(43)(S) because the text of § 32 and its
practical application demonstrate that it encompasses
interference with proceedings or investigations that are not
pending or ongoing. Accordingly, the panel vacated
Valenzuela Gallardo’s removal order.


                        COUNSEL

Frank Sprouls (argued) and John E. Ricci, Law Office of
Ricci & Sprouls, San Francisco, California, for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.
Hogan, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.

Amalia Wille and Judah Lakin, Van Der Hout Brigagliano
& Nightingale LLP, San Francisco, California, for Amici
Curiae American Immigration Lawyers Association, U.C.
Davis School of Law Immigration Law Clinic, and Asian
Americans Advancing Justice—Asian Law Caucus.
             VALENZUELA GALLARDO V. BARR                     5

                         OPINION

WARDLAW, Circuit Judge:

    “Any alien who is convicted of an aggravated felony at
any time after admission is deportable.”            8 U.S.C.
§ 1227(a)(2)(A)(iii). In 1996, Congress expanded the list of
crimes that the Immigration and Nationality Act (INA)
defines as an “aggravated felony” to include “an offense
relating to obstruction of justice, perjury or subornation of
perjury, or bribery of a witness, for which the term of
imprisonment is at least one year.” Id. § 1101(a)(43)(S)
(emphasis added); see Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, § 440(e)(8),
110 Stat. 1214, 1278; Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Div. C of Pub. L. No.
104-208, § 321(a)(11), 110 Stat. 3009-546, 3009-628. In an
en banc precedential decision issued over two decades ago,
the Board of Immigration Appeals (BIA) held that “an
offense relating to obstruction of justice” is defined by the
federal obstruction of justice offenses listed under that title
in 18 U.S.C. §§ 1501–18, almost all of which require a nexus
to an ongoing criminal proceeding or investigation. Matter
of Espinoza-Gonzalez, 22 I. & N. Dec. 889, 892–94 (BIA
1999) (en banc). Our court approved that definition as
applied to a state misdemeanor conviction for rendering
criminal assistance. Hoang v. Holder, 641 F.3d 1157, 1164–
65 (9th Cir. 2011).

    Since then, in this very case, the BIA has twice changed
that settled definition, each time expanding it in different
ways to encompass the crime for which Agustin Valenzuela
Gallardo was convicted: accessory to a felony in violation of
California Penal Code § 32. A prior panel of our court
vacated the BIA’s first redefinition because it raised “serious
constitutional concerns about whether the statute is
6           VALENZUELA GALLARDO V. BARR

unconstitutionally vague,” and remanded to the BIA so that
it could “either offer a new construction of
[§ 1101(a)(43)(S)] or, in the alternative, apply Espinoza-
Gonzalez’s interpretation” to this case. Valenzuela Gallardo
v. Lynch, 818 F.3d 808, 811, 824 (9th Cir. 2016) (Valenzuela
Gallardo I). The BIA took our court up on its invitation to
offer a new construction of § 1101(a)(43)(S), which again
deviated from Espinoza-Gonzalez’s requirement of a nexus
to an ongoing criminal proceeding or investigation.

    We hold that the BIA’s new construction is inconsistent
with the unambiguous meaning of the term “offense relating
to obstruction of justice” in the statute as enacted by
Congress and, therefore, is an unreasonable construction of
the statute. Accordingly, we grant the petition for review
and vacate the order of removal.

                             I.

                             A.

    Agustin Valenzuela Gallardo, a Mexican citizen, was
admitted to the United States as a lawful permanent resident
in 2002. In 2007, he pleaded guilty to being an accessory to
a felony in violation of California Penal Code § 32, which
reads:

       Every person who, after a felony has been
       committed, harbors, conceals or aids a
       principal in such felony, with the intent that
       said principal may avoid or escape from
       arrest, trial, conviction or punishment, having
       knowledge that said principal has committed
       such felony or has been charged with such
       felony or convicted thereof, is an accessory
       to such felony.
             VALENZUELA GALLARDO V. BARR                   7

Cal. Penal Code § 32. Although Valenzuela Gallardo was
initially placed on parole, he was later sentenced to sixteen
months in prison after he violated his parole conditions.

                             B.

    The Government subsequently placed Valenzuela
Gallardo in removal proceedings and charged him as an
aggravated felon for having committed an “offense relating
to obstruction of justice” under § 1101(a)(43)(S).
Valenzuela Gallardo moved to terminate the proceedings,
arguing that his accessory conviction under California Penal
Code § 32 was not an obstruction of justice offense within
the meaning of the statute.

    The Immigration Judge (IJ) denied the motion to
terminate and ordered Valenzuela Gallardo removed. The IJ
relied primarily on the BIA’s decision in Matter of Batista-
Hernandez, 21 I. & N. Dec. 955, 961 (BIA 1997), which held
that the federal accessory after the fact offense, 18 U.S.C.
§ 3, is an obstruction of justice aggravated felony under
§ 1101(a)(43)(S) if a sentence of one year or more is
imposed. The IJ reasoned that there was “no material
difference” between California Penal Code § 32 and
18 U.S.C. § 3, so Valenzuela Gallardo’s state accessory after
the fact conviction also qualified as an aggravated felony
under the INA.

     The BIA dismissed Valenzuela Gallardo’s ensuing
appeal, finding that “the elements of 18 U.S.C. § 3 are
substantially the same as the elements of California Penal
Code § 32,” and, thus, his crime constituted an obstruction
of justice offense under Espinoza-Gonzalez and Batista-
Hernandez. The BIA explained that based upon “the crimes
listed in 18 U.S.C. chapter 73, entitled ‘Obstruction of
Justice,’” an “offense relating to obstruction of justice”
8              VALENZUELA GALLARDO V. BARR

includes “active interference with proceedings of a tribunal
or investigation” or “action or threat of action” against
individuals cooperating in these processes. It affirmed the
removal order and later denied a motion for reconsideration.
Valenzuela Gallardo petitioned this court for review.

    While his petition for review was pending, we published
our decision in Hoang v. Holder, which construed Espinoza-
Gonzalez and Batista-Hernandez together to determine that
the BIA had concluded that “accessory after the fact is an
obstruction of justice crime when it interferes with an
ongoing proceeding or investigation.” 1 641 F.3d at 1164
(emphasis altered). The BIA then sua sponte ordered
Valenzuela Gallardo’s case reopened for reconsideration in
light of Hoang. Accordingly, we dismissed the petition for
review for lack of jurisdiction. See Lopez-Ruiz v. Ashcroft,
298 F.3d 886, 887 (9th Cir. 2002) (“The BIA’s granting of
[a] motion to reopen means there is no longer a final decision
to review.”).

    With Valenzuela Gallardo’s case now back before it, the
BIA switched directions, concluding for the first time in its
consideration of the question that “the existence of [an
ongoing criminal] proceeding[] is not an essential element of
an offense relating to obstruction of justice.” Matter of
Valenzuela Gallardo, 25 I. & N. Dec. 838, 841 (BIA 2012)
(internal quotation marks omitted). Instead, it defined
obstruction of justice to mean an “affirmative and intentional
attempt, motivated by a specific intent, to interfere with the
    1
      Hoang explicitly declined to defer to the BIA’s conclusion in
Batista-Hernandez that 18 U.S.C. § 3 was a categorical match with
§ 1101(a)(43)(S) because “[w]hile we defer to the BIA’s definitions of
ambiguous terms in the INA, we do not defer to the BIA’s every
conclusion that a particular crime is a removable offense.” 641 F.3d
at 1163.
             VALENZUELA GALLARDO V. BARR                    9

process of justice.” Id. at 842 (quoting Espinoza-Gonzalez,
22 I. & N. Dec. at 894). Applying this definition, it
concluded that Valenzuela Gallardo’s accessory after the
fact conviction was an aggravated felony under the INA, and
once again dismissed his appeal. Id. at 844. Valenzuela
Gallardo petitioned for a second time.

    In our decision on that petition, Valenzuela Gallardo I,
818 F.3d at 816, we applied “the doctrines of constitutional
avoidance and constitutional narrowing” at Chevron Step
One. We held that the BIA’s new construction of
§ 1101(a)(43)(S) “raise[d] grave constitutional concerns
because it use[d] an amorphous phrase—‘process of
justice’—without telling us what that phrase means.” Id.
at 822. We explained that absent some “narrowing context,”
such as a nexus to an ongoing judicial proceeding, the BIA’s
definition of an offense relating to obstruction of justice
raised serious vagueness concerns. Id. (citing the Supreme
Court’s then-recent decision in Johnson v. United States,
135 S. Ct. 2551 (2015), which struck down the residual
clause of the Armed Career Criminal Act as
unconstitutionally vague). Because Congress had not made
clear    that    § 1101(a)(43)(S)      permitted     such    a
“constitutionally doubtful interpretation,” we did not afford
Chevron deference to the BIA’s construction of the
obstruction of justice provision. Id. at 823 (quoting Williams
v. Babbit, 115 F.3d 657, 663 (9th Cir. 1997)). Accordingly,
we remanded the case to the BIA to provide a definition that
was not “unworkably vague,” or to apply the existing
precedent of Espinoza-Gonzalez. Id. at 822, 824. In dissent,
Judge Seabright noted that he would not apply the doctrine
of constitutional avoidance, and concluded that because the
BIA’s definition of obstruction of justice was not
impermissibly vague, he would “defer to the BIA’s
10           VALENZUELA GALLARDO V. BARR

reasonable, permissible, and plausible interpretation of
§ 1101(a)(43)(S).” Id. at 831 (Seabright, J., dissenting).

    On remand, the BIA published its second opinion in this
case, Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449
(BIA 2018), in which it announced its third definition of “an
offense relating to obstruction of justice.” This time it
concluded that obstruction crimes include those “crimes
involving (1) an affirmative and intentional attempt (2) that
is motivated by a specific intent (3) to interfere with an
investigation or proceeding that is ongoing, pending, or
reasonably foreseeable by the defendant.” Id. at 456
(emphasis altered and internal quotation marks omitted).
Applying this new definition, the BIA once again concluded
that Valenzuela Gallardo’s California conviction was
“categorically one for an aggravated felony offense relating
to obstruction of justice,” and dismissed the appeal. Id.
at 461. Valenzuela Gallardo petitions for review for a third
time.

                             II.

    We have jurisdiction under 8 U.S.C. § 1252(a). “[W]e
review de novo both purely legal questions and mixed
questions of law and fact.” Xochihua-Jaimes v. Barr,
962 F.3d 1175, 1183 (9th Cir. 2020) (quoting Cordoba v.
Holder, 726 F.3d 1106, 1113 (9th Cir. 2013)). Only the
“BIA’s findings of fact [are reviewed] for substantial
evidence.” Padilla-Martinez v. Holder, 770 F.3d 825, 830
(9th Cir. 2014).

                             III.

   This is a case at the interplay of our doctrines on Chevron
deference and the application of the categorical approach.
Valenzuela Gallardo is removable as charged only if his state
             VALENZUELA GALLARDO V. BARR                     11

conviction under California Penal Code § 32 is a categorical
match with “an offense relating to obstruction of justice”
under § 1101(a)(43)(S). To determine whether that is the
case, we must “focus solely on whether the elements of
[Valenzuela Gallardo’s] crime of conviction sufficiently
match the elements of [a] generic” obstruction of justice
offense under the INA. Mathis v. United States, 136 S. Ct.
2243, 2248 (2016).

    Ordinarily, the BIA’s reasonable “construction of
ambiguous statutory terms in precedential decisions is
entitled to deference” under Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
Thus, to define the elements of a generic “offense relating to
obstruction of justice” under § 1101(a)(43)(S), we must first
determine how, if at all, to apply Chevron deference to the
BIA’s most recent definition of this term that includes, in
addition to interference with ongoing proceedings or
investigations, interference with those proceedings
“reasonably foreseeable by the defendant.” Valenzuela
Gallardo, 27 I. & N. Dec. at 460.

                              A.

    We begin at Chevron Step Zero, where we determine
“whether the Chevron framework applies at all.” Or. Rest.
& Lodging Ass’n v. Perez, 816 F.3d 1080, 1086 n.3 (9th Cir.
2016). We have received briefing from amici 2 contending
that the BIA’s interpretation of the term “aggravated
felony,” which includes offenses related to obstruction of

   2
     Amici include the American Immigration Lawyers Association,
the U.C. Davis School of Law Immigration Law Clinic, and Asian
Americans Advancing Justice–Asian Law Caucus.
12           VALENZUELA GALLARDO V. BARR

justice, is ineligible for Chevron deference because the term
“aggravated felony” has dual application in both civil
proceedings, including removal under 8 U.S.C.
§§ 1227(a)(2)(A)(iii) and 1229b(a)(3), and criminal
proceedings, including increased maximum prison terms for
illegal reentry under 8 U.S.C. §§ 1326(b)(2) and 1327. See
Esquivel-Quintana v. Lynch, 810 F.3d 1019, 1028 (6th Cir.
2016) (Sutton, J., concurring in part and dissenting in part)
(explaining the criminal and civil implications of the
definition of “aggravated felony” in the INA), rev’d sub
nom. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017).
Amici urge that when interpreting such dual application
provisions in the INA, we should employ traditional tools of
statutory construction, including the rule of lenity.

    Deferring to the BIA’s construction of a statute with
criminal applications raises serious constitutional concerns.
Because “[o]nly the people’s elected representatives in
Congress have the power to write new federal criminal
laws,” United States v. Davis, 139 S. Ct. 2319, 2323 (2019),
permitting executive officials to define the scope of criminal
law could offend the doctrine of separation of powers, see
Esquivel-Quintana, 810 F.3d at 1023 (majority opinion).
Furthermore, ensuring that courts, rather than the BIA,
interpret criminal laws precludes the BIA “from altering
criminal laws back and forth over time.” Id. at 1030 (Sutton,
J., concurring in part and dissenting in part) (citing Nat’l
Cable & Telecomm. Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 980–85 (2005)).

   Over the past three decades, the Supreme Court has
occasionally addressed the propriety of deferring to an
agency’s construction of a dual application statute. In
United States v. Thompson/Center Arms Co., a plurality of
the Court declined to afford Chevron deference to the
             VALENZUELA GALLARDO V. BARR                     13

Bureau of Alcohol, Tobacco, and Firearms’ interpretation of
a civil tax law because that law could also carry criminal
sanctions. 504 U.S. 505, 517–18 (1992). However, the
Court followed up Thompson/Center Arms with two
decisions granting Chevron deference to an agency’s
interpretation of a statute with criminal applications. See
United States v. O’Hagan, 521 U.S. 642, 675–76 (1997)
(deferring to the Securities and Exchange Commission’s
regulation in a criminal case); Babbitt v. Sweet Home
Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703–04 &
n.18 (1995) (deferring to the Department of Interior’s
interpretation of a provision of the Endangered Species Act
that carried potential criminal sanctions). But see Whitman
v. United States, 135 S. Ct. 352, 354 (2014) (Scalia, J., joined
by Thomas, J., respecting the denial of certiorari) (“Babbitt’s
drive-by ruling . . . deserves little weight.”).

    More recently, the Supreme Court has leaned decidedly
against deferring to agencies’ interpretations of dual
application statutes. In Leocal v. Ashcroft, the Court
considered the BIA’s analysis of whether an immigrant’s
state DUI conviction was categorically an “aggravated
felony.” 543 U.S. 1, 3–4 (2004). As part of that analysis,
the Court considered the BIA’s construction of the term
“crime of violence” under 18 U.S.C. § 16. Id. at 5 n.2.
Although the Court could have reached materially the same
result by applying Chevron deference to the BIA’s then-
precedential interpretation of “crime of violence,” the Court
did not even mention Chevron. Compare id. (observing that
the BIA interpretation would require a mens rea of at least
recklessness, which the state offense of conviction lacked),
with id. at 11, 13 (holding that “crime of violence” could not
be read to include the offense of conviction, but reserving
the possibility than an otherwise identical offense with a
14              VALENZUELA GALLARDO V. BARR

mens rea of at least recklessness would qualify).                     In a
footnote, the Court further explained:

         Although here we deal with § 16 in the
         deportation context, § 16 is a criminal statute,
         and it has both criminal and noncriminal
         applications. Because we must interpret the
         statute consistently, whether we encounter its
         application in a criminal or noncriminal
         context, the rule of lenity applies.

Id. at 11 n.8 (citing Thompson/Center Arms, 504 U.S.
at 517–18). Because the rule of lenity and Chevron
deference are typically mutually exclusive, this footnote
suggests that the Court looked unfavorably upon giving
deference to the BIA’s construction of the statute. 3


     3
       Statutory ambiguity is a trigger for applying both the rule of lenity
and Chevron deference. However, we apply the rule of lenity when a
criminal statute is ambiguous so that “legislatures, not courts” define the
scope of the statute. Crandon v. United States, 494 U.S. 152, 158 (1990).
By contrast, we apply Chevron deference in construing ambiguity in
other statutes because the lack of textual clarity is a signal that Congress
expected an “agency to be able to speak with the force of law when it
addresses [the textual] ambiguity.” United States v. Mead Corp.,
533 U.S. 218, 229 (2001). In other words, because lenity is a rule we
apply to ensure that the legislature has the final say, and Chevron is a
rule we apply to permit agencies to fill in the details of a statute, we do
not typically apply both principles at the same time. See Whitman, 135 S.
Ct. at 354 (Scalia, J., respecting the denial of certiorari) (“[O]nly the
legislature may define crimes and fix punishments. Congress cannot,
through ambiguity, effectively leave that function . . . to the
administrative bureaucracy.” (emphasis omitted)); see also Transcript of
Oral Argument at 12, Esquivel-Quintana v. Lynch, 137 S. Ct. 1562
(2017) (Chief Justice Roberts stating that the rule of lenity and Chevron
cannot “coexist” because, at least in that case, “[t]hey each point in the
opposite direction based on the same predicate, which is a degree of
               VALENZUELA GALLARDO V. BARR                          15

    Furthermore, even though it has been presented with
several opportunities to defer to the BIA’s construction of a
dual application statute, the Supreme Court has never done
so. See Torres v. Lynch, 136 S. Ct. 1619 (2016) (determining
the generic definition of an aggravated felony described in
the INA without reference to Chevron); Lopez v. Gonzales,
549 U.S. 47 (2006) (same). Compare Br. for Resp. at 11–
13, Esquivel-Quintana, 137 S. Ct. 1562 (No. 16-54) (urging
the Court to defer to the BIA’s construction of “aggravated
felony”), with Esquivel-Quintana, 137 S. Ct. at 1568–73
(interpreting the statute without giving deference). In fact,
in Carachuri-Rosendo v. Holder, the Court struck down the
BIA’s construction of an “aggravated felony” offense
without referencing Chevron. 560 U.S. 563, 581 (2010); see
also Guedes v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 140 S. Ct. 789, 790 (2020) (Gorsuch, J.,
respecting the denial of certiorari) (taking the position that
Chevron does not apply to agency interpretations of criminal
statutes).

    Notwithstanding the Supreme Court’s apparent reticence
to defer to the BIA’s interpretation of dual application
statutes, our court has consistently applied the Chevron
framework when considering the BIA’s prior constructions
of the statute at issue here, § 1101(a)(43)(S). See, e.g.,
Hoang, 641 F.3d at 1161; Renteria-Morales v. Mukasey,
551 F.3d 1076, 1086 (9th Cir. 2008); Salazar-Luviano v.

ambiguity in the statutory provision”); William N. Eskridge, Jr. &
Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment
of Agency Statutory Interpretations From Chevron to Hamdan, 96 Geo.
L.J. 1083, 1115 (2008) (regarding “anti-deference” in the context of a
criminal statute). However, some have discussed ways that the two rules
may be harmonized. See Note, William T. Gillis, An Unstable
Equilibrium: Evaluating the “Third Way” Between Chevron Deference
and the Rule of Lenity, 12 N.Y.U. J.L. & Liberty 352 (2019).
16             VALENZUELA GALLARDO V. BARR

Mukasey, 551 F.3d 857, 861–62 (9th Cir. 2008). In addition,
we have deferred to the BIA’s construction of the statutory
term “aggravated felony” in other contexts. See United
States v. Flores, 901 F.3d 1150, 1158 (9th Cir. 2018) (citing
Hoang, 641 F.3d at 1160, in applying the Chevron
framework to interpret a term in § 1101(a)(43)(G)).
However, because Hoang, Renteria-Morales, Salazar-
Luviano, and Flores all appear to have assumed that the
Chevron framework applied, these cases did not explicitly
address whether Chevron deference is constitutionally
permissible in the context of dual application statutes.

    The prior panel in Valenzuela Gallardo I implicitly
recognized the tension between our history of applying the
Chevron framework to interpret “aggravated felony,” and
the separation-of-powers concerns that guide interpretation
of criminal statutes. See 818 F.3d at 823 n.9. Relying on
Leocal and Carachuri-Rosendo, the panel expressly
concluded that for such dual-application terms, there is “less
reason to defer” to the BIA. Id.

    Nevertheless, the panel squarely answered the Chevron
Step Zero question in the affirmative, stating: “We apply the
Chevron framework where, as here, there is binding agency
precedent on-point in the form of a published BIA opinion.” 4
Id. at 815 (internal quotation marks omitted). Moreover, the
panel applied the Chevron framework to the same issue—
interpretation of “obstruction of justice” in the INA—that we
now confront.


     4
      The panel reached its non-deferential result only at Chevron Step
One, which addresses “whether Congress has directly spoken to the
precise question at issue,” 467 U.S. at 842. See Valenzuela Gallardo I,
818 F.3d at 823–24.
               VALENZUELA GALLARDO V. BARR                           17

    Accordingly, although amici’s arguments have much to
offer, we are not free to take a fresh look at the Chevron Step
Zero question. “[U]nder ‘law of the case’ doctrine, one
panel of an appellate court will not as a general rule
reconsider questions which another panel has decided on a
prior appeal in the same case.” Thomas v. Bible, 983 F.2d
152, 154 (9th Cir. 1993) (quoting Merritt v. Mackey,
932 F.2d 1317, 1320 (9th Cir. 1991)). Because the panel in
Valenzuela Gallardo I applied the Chevron framework to the
BIA’s construction of the aggravated felony of an offense
relating to obstruction of justice, and we do not believe any
exceptions to the law of the case doctrine apply here, we
must proceed to Chevron Step One. 5

    Nonetheless, both a de novo interpretation of the
obstruction of justice provision utilizing traditional tools of
statutory interpretation and a Chevron Step One analysis of
the precise question before us—whether the BIA’s new
“reasonably foreseeable” definition is at odds with the plain
meaning of the statute, which was not before the prior
panel—lead us to the same conclusion: the statute is
unambiguous in requiring an ongoing or pending criminal
proceeding, and the Board’s most recent interpretation is at
odds with that unambiguous meaning.




    5
     “[T]he law of the case doctrine is subject to three exceptions that
may arise when ‘(1) the decision is clearly erroneous and its enforcement
would work a manifest injustice, (2) intervening controlling authority
makes reconsideration appropriate, or (3) substantially different
evidence was adduced at a subsequent trial.’” Minidoka Irrigation Dist.
v. Dep’t of Interior, 406 F.3d 567, 573 (9th Cir. 2005) (quoting Old
Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002)). None of these
exceptions applies here.
18             VALENZUELA GALLARDO V. BARR

                                   B.

    At Chevron Step One, we ask “whether Congress has
directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842 (emphasis added). The precise question at
issue in this case is whether an offense relating to obstruction
of justice under § 1101(a)(43)(S) requires a nexus to an
ongoing or pending proceeding or investigation. We
conclude that Congress has clearly answered this question in
the affirmative.

                                   1.

    As an initial matter, the Government asserts that we
should proceed to Chevron Step Two because we have
already held that § 1101(a)(43)(S) is ambiguous as to
whether it requires a connection with an ongoing proceeding
or investigation. Not so. We did not previously have
occasion to opine on this point because, prior to its first
precedential opinion below, see Valenzuela Gallardo, 25 I.
& N. Dec. 838, the BIA consistently construed obstruction
of justice offenses as requiring a nexus to an ongoing
proceeding. Hoang, 641 F.3d at 1164. And, our prior
opinion, Valenzuela Gallardo I, expressly declined to
address to whether § 1101(a)(43)(S) has a “temporal nexus
requirement.” 6 818 F.3d at 822.


     6
      Even under the BIA’s prior construction of obstruction of justice
in Espinoza-Gonzalez, the Third Circuit declined to defer to the agency’s
construction of the aggravated felony described in § 1101(a)(43)(S)
because it concluded that the meaning of the statute is unambiguous.
Denis v. Att’y Gen., 633 F.3d 201, 209 (3d Cir. 2011); see also Higgins
v. Holder, 677 F.3d 97, 103–04 (2d Cir. 2012) (per curiam) (discussing
the split between our court and the Fifth Circuit, on the one hand, and
the Third Circuit, on the other, as to whether to defer to Espinoza-
               VALENZUELA GALLARDO V. BARR                            19

    Because § 1101(a)(43)(S) does not expressly define “an
offense relating to obstruction of justice,” to determine
whether the term is ambiguous, we must interpret the phrase
using the normal tools of statutory construction. See
Esquivel-Quintana, 137 S. Ct. at 1569. We determine how
this term was understood “[a]t th[e] time” the Antiterrorism
and Effective Death Penalty Act of 1996 was passed into
law. 7 Id.

    We start with the term’s ordinary meaning. Id. When
the statute was enacted in 1996, the ordinary meaning of
“obstruction of justice” included “the crime or act of
willfully interfering with the process of justice and law
esp[ecially] by influencing, threatening, harming, or
impeding a witness, potential witness, juror, or judicial or
legal officer or by furnishing false information in or
otherwise impeding an investigation or legal process.”
Merriam-Webster’s Dictionary of Law 337 (1996)

Gonzalez); Armenta-Lagunas v. Holder, 724 F.3d 1019, 1022 (8th Cir.
2013) (same). After our decision in Valenzuela Gallardo I, the Seventh
Circuit declined to defer to the definition of § 1101(a)(43)(S) that the
BIA announced in Valenzuela Gallardo, 25 I. & N. Dec. 838, and instead
deferred to the BIA’s decision in Espinoza-Gonzalez. Victoria-Faustino
v. Sessions, 865 F.3d 869, 876 (7th Cir. 2017); see also Cruz v. Sessions,
689 F. App’x 328, 329 (5th Cir. 2017) (per curiam) (declining to defer
to the BIA’s 2012 definition of § 1101(a)(43)(S) on the basis that it was
“vacated” by Valenzuela Gallardo I).
     7
       The Antiterrorism and Effective Death Penalty Act of 1996
amended the INA by adding that “an offense relating to obstruction of
justice” constituted an aggravated felony if “a sentence of 5 years’
imprisonment or more may be imposed.” § 440(e)(8), 110 Stat. at 1278.
This provision was amended a few months later with the passage of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
so that an obstruction of justice offense “for which the term of
imprisonment is at least one year” constitutes an aggravated felony.
§ 321(a)(11), 110 Stat. at 3009-628.
20           VALENZUELA GALLARDO V. BARR

(emphasis added); see also Esquivel-Quintana, 137 S. Ct.
at 1569 (using Merriam-Webster’s Dictionary of Law to
determine the “ordinary meaning” of a different term,
“sexual abuse,” in § 1101).         Because in 1996 the
contemporaneous understanding of “obstruction of justice”
required a nexus to an extant investigation or proceeding, it
is unlikely that Congress intended to stretch the term
“obstruction of justice” under § 1101(a)(43)(S), as the BIA
has now stretched it, to include interference with
proceedings or investigations that were merely “reasonably
foreseeable to the defendant.”

    In addition to examining the ordinary understanding of
“an offense relating to obstruction of justice,” we look to the
term’s relevant statutory context to define its meaning. See
Torres, 136 S. Ct. at 1626 (“[W]e must, as usual, ‘interpret
the relevant words not in a vacuum, but with reference to the
statutory context.’” (quoting Abramski v. United States,
134 S. Ct. 2259, 2267 (2014)).

    We conclude that Chapter 73 of Title 18, entitled
“Obstruction of Justice,” provides the relevant statutory
context here. See United States v. Calvert, 511 F.3d 1237,
1243 (9th Cir. 2008) (“The placement of certain prohibited
acts in [Chapter 73] strongly indicates that the intent to
commit such an act amounts to an intent to obstruct
justice.”); see also Flores v. Att’y Gen., 856 F.3d 280, 288–
89 (3d Cir. 2017) (concluding that Chapter 73 provides the
relevant statutory context for interpreting the term
“obstruction of justice”); Denis, 633 F.3d at 209 (concluding
that § 1101(a)(43)(S) is unambiguous in part because the
phrase “obstruction of justice” is wholly defined by
Title 18). Section 1101(a)(43)(S) refers to three offenses:
“obstruction of justice,” “perjury or subornation of perjury,”
and “bribery of a witness.” Both “perjury or subornation of
                VALENZUELA GALLARDO V. BARR                             21

perjury” and “bribery of a witness” correspond to the titles
of specific chapters in Title 18. See 18 U.S.C. ch. 11
(“Bribery, Graft, and Conflicts of Interest”); 18 U.S.C.
ch. 79 (“Perjury”). So, too, does “obstruction of justice”: it
corresponds to the title of Chapter 73 (“Obstruction of
Justice”). We “do not believe Congress engaged in such
tortuous drafting,” Flores, 856 F.3d at 289, as to deviate
from the pattern of linking the statutory term to the crimes
identified in the same title.

    The Government muddies otherwise clear waters by
suggesting that 18 U.S.C. § 3, the federal accessory-after-
the-fact statute codified outside Chapter 73, provides
relevant statutory context as well. However, that Congress
placed § 3 outside of Chapter 73 is strong evidence that it
did not consider § 3 to provide relevant statutory context for
defining “obstruction of justice.” 8 See Flores, 856 F.3d

     8
       The BIA cites Virgin Islands v. Aquino, 378 F.2d 540, 553 (3d Cir.
1967), to suggest that federal and state law have long recognized that
being an accessory after the fact is an obstruction of justice offense.
However, Aquino is not a case about whether a person who is an
accessory after the fact obstructs justice. Rather, it is a case about
whether a defendant who is charged as a principal to a crime can be
convicted on a theory of liability of being an accessory after the fact. Id.
at 553–54. Aquino’s dicta that an accessory “obstructs justice by giving
comfort or assistance to the offender” cannot support the BIA’s broad
proposition that it was well established in 1996 that being an accessory
to a crime was an obstruction of justice offense. In fact, none of the
federal cases the BIA cites in its published opinion squarely held that an
accessory crime constitutes an obstruction of justice offense. Rather, all
of them address this issue only tangentially in dicta. See United States
v. Brown, 33 F.3d 1002, 1004 (8th Cir. 1994) (distinguishing between a
principal to a crime and an accessory after the fact); United States v.
Huppert, 917 F.2d 507, 510 (11th Cir. 1990) (same); United States v.
Willis, 559 F.2d 443, 444 (5th Cir. 1977) (per curiam) (same); United
States v. Barlow, 470 F.2d 1245, 1252–53 (D.C. Cir. 1972) (same); see
also United States v. Balano, 618 F.2d 624, 631 (10th Cir. 1979)
22             VALENZUELA GALLARDO V. BARR

at 289 & n.38 (explaining that where Congress chose to
codify § 3 is particularly relevant “because Title 18 was
enacted as positive law and accordingly approved by
Congress.”); see also Tobias A. Dorsey, Some Reflections on
Not Reading the Statutes, 10 Green Bag 2d 283, 286–87
(2007) (describing the relevance of the Statutes at Large
versus the United States Code, and the historical
development of enacting the latter into positive law). Thus,
it is Chapter 73—and only that chapter—that provides the
relevant statutory context for assessing the meaning of
obstruction of justice in 1996.

   Of the substantive provisions in Chapter 73 that existed
when § 1101(a)(43)(S) was enacted, almost all of them
required a nexus to an ongoing or pending proceeding or
investigation. 9 See Espinoza-Gonzalez, 22 I. & N. Dec.

(discussing 18 U.S.C. § 3 within the context of determining when a crime
ends so that a defendant may be convicted of being an accessory after
the fact).
     9
        We previously explained that “[a]ll of Congress’s express
examples of obstruction of justice contemplate ongoing proceedings or
investigations or are otherwise sufficiently specific to provide notice of
what conduct is prohibited.” Valenzuela Gallardo I, 818 F.3d at 823.
As examples of provisions that fall into the latter category, we cited
subsections of 18 U.S.C. § 1512, which we discuss in the paragraphs to
follow, and 18 U.S.C. § 1519, which postdates the passage of
§ 1101(a)(43)(S) and is therefore not relevant to our analysis here. Id.
at 821.

     At the time § 1101(a)(43)(S) was enacted into law in April 1996,
Chapter 73 consisted of some version of today’s 18 U.S.C. §§ 1501–14
and §§ 1515–17. Several provisions of Chapter 73 defined substantive
offenses that required a nexus to an ongoing or pending proceeding or
investigation. See 18 U.S.C § 1501 (assault on a process server); § 1502
(resistance to an extradition agent); § 1504 (influencing a juror by
writing); § 1505 (obstruction of proceedings before departments,
                VALENZUELA GALLARDO V. BARR                            23

at 892 (“In general, the obstruction of justice offenses listed
in [Chapter 73] have as an element interference with the
proceedings of a tribunal or require an intent to harm or
retaliate against others who cooperate in the process of
justice or might otherwise so cooperate.”). Therefore, the
norm in Chapter 73 is that an offense relating to obstruction



agencies, and committees); § 1506 (theft or alteration of record or
process; false bail); § 1507 (prohibiting picketing or parading “with the
intent of influencing any judge, juror, witness, or court officer, in the
discharge of his duty”); § 1508 (recording, listening to, or observing
proceedings of grand or petit juries while deliberating or voting); § 1509
(obstruction of court orders); § 1510 (obstruction of existing criminal
investigations); § 1516 (obstruction of a federal auditor “in the
performance of official duties”); § 1517 (obstruction of the examination
of a financial institution); see also 18 U.S.C. § 1513 (prohibiting
retaliation against a witness, and contemplating that a proceeding or
investigation is either ongoing or has already been completed).

     18 U.S.C. § 1511, which prohibits the corruption of state officials in
connection with a conspiracy to prevent the enforcement of anti-
gambling laws, contains language that is similar to § 1503, the so-called
catchall provision of Chapter 73. Prosecutors used § 1511 to pursue
efforts by organized crime organizations to bribe local officials to
investigate gambling operations run by their competitors, see United
States v. Riehl, 460 F.2d 454, 459 (3d Cir. 1972), or to prevent the
investigation of their own operations, see United States v. Crockett,
514 F.2d 64, 73 (5th Cir. 1975). In light of the way in which this
provision was used, and because, as we discuss below, in 1996,
Chapter 73’s catchall provision was understood to require a nexus to
ongoing or pending investigations or proceedings, Congress likely
understood § 1511 as contemplating a nexus to ongoing or pending
investigations or proceedings. Finally, 18 U.S.C. §§ 1514 and 1515 are
either definitional or otherwise do not describe substantive offenses.

    Thus, with the exception of § 1512, which we discuss below, all the
substantive provisions of Chapter 73 define obstruction of justice to
require a nexus to an ongoing or pending investigation or proceeding.
24            VALENZUELA GALLARDO V. BARR

of justice requires a nexus to an ongoing or pending
proceeding or investigation.

                                2.

    Two provisions of Chapter 73 merit further discussion.
First, 18 U.S.C. § 1512, Chapter 73’s witness intimidation
provision, states that “an official proceeding need not be
pending or about to be instituted at the time of the offense.” 10
(emphasis added). The BIA relies on this provision to
conclude that obstruction of justice, as defined in
Chapter 73, does not necessarily require a nexus to an
ongoing or pending proceeding. However, Congress’s
explicit instruction that § 1512 reach proceedings that are
not pending at the time of commission of the act only
underscores that the common understanding at the time
§ 1101(a)(43)(S) was enacted into law was that an
obstruction offense referred only to offenses committed
while proceedings were ongoing or pending. If that were not
the case, it would not have been necessary for Congress to
make clear that § 1512 operates differently than the other
provisions in Chapter 73. Thus, contrary to the BIA’s
conclusion, § 1512 is the exception that proves the rule: “an
offense relating to obstruction of justice” requires a nexus to
an ongoing or pending proceeding.

    Second, 18 U.S.C § 1503, Chapter 73’s so-called
catchall provision, covers anyone who “influences,
obstructs, or impedes, or endeavors to influence, obstruct, or
impede, the due administration of justice.” Though this
language is broad, by 1996 the Supreme Court had made

     10
       Although this language is currently codified at 18 U.S.C.
§ 1512(f)(1), in 1996 it was codified at § 1512(e)(1). See 18 U.S.C.
§ 1512 (1994).
             VALENZUELA GALLARDO V. BARR                  25

clear for over a century that the catchall provision referred
only to interference with ongoing or pending proceedings.
In Pettibone v. United States, 148 U.S. 197, 203–04 (1893),
the Supreme Court considered whether criminal defendants
could be convicted under a predecessor to Chapter 73’s
catchall provision if they lacked knowledge of, and therefore
the intent to interfere with, district or circuit court
proceedings. The Court ruled that the crime of obstruction
of justice required a nexus to an ongoing judicial proceeding
of which the defendant was aware. The Court reasoned:

       The obstruction of the due administration of
       justice in any court of the United States,
       corruptly or by threats or force, is indeed
       made criminal, but such obstruction can only
       arise when justice is being administered.
       Unless that fact exists, the statutory offense
       cannot be committed, and while, with
       knowledge or notice of that fact, the intent to
       offend accompanies obstructive action,
       without such knowledge or notice the evil
       intent is lacking.

Id. at 207 (emphasis added). That obstruction of justice
requires a nexus with an ongoing proceeding was reinforced
by our survey of circuit court rulings addressing this issue
roughly 90 years later, where we found that “[n]o case
interpreting [Chapter 73’s catchall provision] has extended
it to conduct which was not aimed at interfering with a
pending judicial proceeding.” United States v. Brown,
688 F.2d 596, 598 (9th Cir. 1982) (emphasis added).

    The year before § 1101(a)(43)(S) was enacted, the
Supreme Court again confirmed this longstanding
interpretation of Chapter 73’s catchall provision in United
26            VALENZUELA GALLARDO V. BARR

States v. Aguilar, 515 U.S. 593 (1995). The Court explained
that Pettibone stood for the proposition that “a person
lacking knowledge of a pending proceeding necessarily
lacked the evil intent to obstruct.” Id. at 599 (emphasis
added). After citing the above-quoted passage from Brown
approvingly, the Court added, “as in Pettibone, if the
defendant lacks knowledge that his actions are likely to
affect the judicial proceeding, he lacks the requisite intent to
obstruct.” Id. Given its construction of Pettibone and its
approving citation of our decision in Brown, Aguilar stands
for the proposition that Chapter 73’s catchall provision
requires a nexus to an ongoing or pending proceeding. Thus,
at the time of enactment, “an offense relating to obstruction
of justice” in § 1101(a)(43)(S) had a nexus requirement.

    Both the BIA and the Government point to two more-
recent Supreme Court decisions to argue that we should
interpret the catchall provision, § 1503, to cover interference
with reasonably foreseeable proceedings. However, neither
case is apposite.

     In Arthur Andersen LLP v. United States, 544 U.S. 696,
707 (2005), the Supreme Court considered the reach of
18 U.S.C. § 1512, Chapter 73’s witness tampering
provision, which, as discussed above, provides that a
proceeding “need not be pending or about to be instituted at
the time of the offense.” The Court explained that although
“it is . . . one thing to say a proceeding need not be pending
or about to be instituted at the time of the offense, [it is] quite
another to say a proceeding need not even be foreseen.” Id.
at 707–08 (internal quotation marks omitted).                  The
Government reads this language to suggest that a reasonably
foreseeable proceeding could satisfy the nexus requirement
for all of the offenses in Chapter 73. However, because
18 U.S.C. § 1512 is an exception to Chapter 73’s general rule
             VALENZUELA GALLARDO V. BARR                   27

that obstruction requires a nexus to an ongoing or pending
proceeding, Arthur Andersen’s interpretation of this
provision is inapplicable to this case. Furthermore, that the
Court read any nexus requirement at all into § 1512, even
though the text of the statute suggests none is necessary,
supports the notion that obstruction of justice offenses
require a tight nexus to a proceeding. Cf. Aguilar, 515 U.S.
at 600 (counseling that we should “exercise[] restraint” and
interpret obstruction of justice offenses narrowly). Thus,
Arthur Andersen confirms our view that an offense relating
to obstruction of justice under § 1101(a)(43)(S), which does
not contain the limiting language of § 1512, requires a nexus
to an ongoing or pending proceeding.

    More recently, in Marinello v. United States, 138 S. Ct.
1101, 1104 (2018), the Court interpreted 26 U.S.C. § 7212,
which prohibits obstructing “the due administration of the
[Internal Revenue Code].” The Court explained that to
establish obstruction under this statute, “the Government
must show that the proceeding was pending at the time the
defendant engaged in the obstructive conduct or, at the least,
was then reasonably foreseeable by the defendant.” Id.
at 1110 (emphasis added) (citing Arthur Andersen, 544 U.S.
at 703, 707–08). The BIA suggests that because the text of
§ 7212 is similar to the text of Chapter 73’s catchall
provision, Marinello shows that a nexus to a reasonably
foreseeable proceeding is sufficient under § 1101(a)(43)(S).

    We agree that Marinello settles any concern that defining
obstruction of justice to include interference with a
“reasonably foreseeable” proceeding is unconstitutionally
vague. However, Marinello does not alter our analysis here.
Although the Court noted the similarities in language
between § 7212 and the catchall provision of Chapter 73, it
emphasized that the “the language and history of [§ 7212]
28           VALENZUELA GALLARDO V. BARR

differ[ed]” from the obstruction of justice provisions it had
interpreted in cases like Aguilar, which concerned § 1503.
Id. at 1109. Furthermore, in arriving at the conclusion that a
nexus to a “reasonably foreseeable” proceeding was
sufficient under § 7212, the Court relied not on any of its
precedents about Chapter 73’s catchall provision, but rather
on Arthur Andersen, a case about Chapter 73’s unusual
witness tampering provision, § 1512. Id. at 1110. Marinello
therefore sheds little light on the meaning of § 1503.

    But even if Arthur Andersen and Marinello were on
point, they would not be helpful here. To determine whether
Congress has clearly spoken to the question presented in this
case, we are confined to the meaning of the words of the
catchall provision “[a]t th[e] time” § 1101(a)(43)(S) was
passed into law. Esquivel-Quintana, 137 S. Ct. at 1569.
Because these cases were decided after 1996, they do not
shed much light on the settled meaning at the time of
enactment of “obstruction of justice,” and therefore have
limited value in answering the question before us. See id.
at 1571–72 (relying on state statutes as they existed in 1996
to interpret another aggravated felony provision); see also
Neder v. United States, 527 U.S. 1, 22–23 (1999) (regarding
the presumption that when Congress uses a phrase with a
“well-settled” meaning, it adopts that definition of the
phrase). That the catchall provision required a nexus to
ongoing or pending proceedings at that time confirms our
conclusion that an “offense relating to obstruction of justice”
in § 1101(a)(43)(S) also requires such a nexus.

                              3.

    Finally, the Government suggests that even if the
statutory context cabins “obstruction of justice” to
interference with pending or ongoing proceedings, we
should read § 1101(a)(43)(S) more broadly because it refers
                VALENZUELA GALLARDO V. BARR                            29

to “an offense relating to obstruction of justice.” (emphasis
added). Recently, the Supreme Court considered the BIA’s
interpretation of another provision in the INA that used the
phrase “relating to.” In Mellouli v. Lynch, the Court
explained that although the phrase “relating to” may be
broad, the context of the statute “may ‘tug . . . in favor of a
narrower reading’” of the phrase. 135 S. Ct. 1980, 1990
(2015) (alteration in original and brackets omitted) (quoting
Yates v. United States, 135 S. Ct. 1074, 1083 (2015)).
“Context does so here,” too, id., because the common
understanding from the time of enactment, statutory context,
and judicial precedent pre-1996 all point to one conclusion:
“obstruction of justice” requires a nexus to an ongoing
proceeding, see id. (noting that Congress’s long-established
understanding of a particular term counsels in favor of a
narrower reading of “relating to”). 11

    Because § 1101(a)(43)(S) unambiguously does not
extend to cover intentional interference with “reasonably
foreseeable” proceedings or investigations, we conclude our
analysis here and do not proceed to Chevron Step Two to
determine whether the agency’s interpretation “is a
reasonable choice within a gap left open by Congress,”
467 U.S at 866.




    11
        Relying on our prior decision in Valenzuela Gallardo I to explain
the dangers of an overbroad reading of “an offense relating to obstruction
of justice,” the Third Circuit recently explained that the phrase “relating
to” does not remove the requirement that an offense under
§ 1101(a)(43)(S) have a nexus to a pending judicial proceeding. Flores,
856 F.3d at 290–91; see also id. at 293 n.63 (characterizing any language
to the contrary in the Third Circuit’s prior opinion in Denis as dicta).
30           VALENZUELA GALLARDO V. BARR

                              4.

   In light of this statutory interpretation analysis, the BIA’s
proffered reasonably foreseeable standard cannot stand. We
would reach the same conclusion even if we were not
applying the Chevron framework: In 1996, when Congress
enacted § 1101(a)(43)(S) into law, an offense relating to
obstruction of justice unambiguously required a nexus to an
ongoing or pending proceeding or investigation.

                              C.

    “[Having] determine[ed] the elements of the generic
crime listed in § 1101(a)(43)(S), we next identify the
elements of [Valenzuela Gallardo’s] specific crime of
conviction.” Hoang, 641 F.3d at 1161 (quoting Salazar-
Luviano, 551 F.3d at 860). “We do not defer to the BIA’s
interpretations of state law . . . and instead must review de
novo whether the specific crime of conviction meets the
INA’s definition of an aggravated felony.” Id. (quoting
Salazar-Luviano, 551 F.3d at 860–61). “If the statute of
conviction criminalizes conduct that would not satisfy the
federal definition of the crime at issue, then the conviction
does not qualify as a predicate offense under the categorical
approach.” Id. (quoting Fregozo v. Holder, 576 F.3d 1030,
1035 (9th Cir. 2009)).

    The text of California Penal Code § 32 is not a
categorical match with obstruction of justice under
§ 1101(a)(43)(S) because California’s statute encompasses
interference with proceedings or investigations that are not
pending or ongoing. Under California’s accessory-after-the-
fact statute, a defendant can be found guilty for helping a
principal to a felony to escape “arrest, trial, conviction or
punishment, having knowledge that said principal has
committed such felony,” regardless of whether a proceeding
               VALENZUELA GALLARDO V. BARR                           31

or investigation has in fact been initiated and regardless of
whether the defendant knows such a proceeding has been
instituted. Cal. Penal Code § 32.

    This broad language sweeps in many acts that fall
outside the scope of § 1101(a)(43)(S). For example, in
People v. Riley, 20 Cal. App. 4th 1808, 1815 (1993), the
defendant was convicted under California Penal Code § 32
for “attempting to dispose of the gun” that had been used in
a murder. Cf. Gonzales v. Duenas-Alvarez, 549 U.S. 183,
191–92 (2007) (surveying state judicial decisions to interpret
the scope of a state statute). At the time the defendant in
Riley disposed of the gun, he might have imagined that the
police would one day want to investigate the murder. But
there was no evidence that he was aware that there were
proceedings or investigations ongoing or pending at the time
of his criminal act. 12 Riley, 20 Cal. App. 4th at 1815.

    Both the text of California Penal Code § 32 and its
practical application, as shown in Riley, demonstrate that
Valenzuela Gallardo’s state statute of conviction covers
offenses that fall well outside the definition of an “offense
relating to obstruction of justice” under § 1101(a)(43)(S).
They are therefore not a categorical match.

    12
       The BIA suggests that Valenzuela Gallardo’s state conviction is a
categorical match with the federal offense because 18 U.S.C. § 3 is a
crime obstructing justice and California Penal Code § 32 is a categorical
match with 18 U.S.C. § 3. However, “[u]nder the categorical approach,
we compare the elements of the statute of conviction with the federal
definition of the crime to determine whether conduct proscribed by the
state statute is broader than the generic federal definition.” Hoang,
641 F.3d at 1159–60 (emphasis added, brackets omitted, and citation and
internal quotation marks omitted). Thus, the correct comparison is
between California Penal Code § 32 and the language of
§ 1101(a)(43)(S).
32              VALENZUELA GALLARDO V. BARR

                                   IV.

    Because “obstruction of justice” under § 1101(a)(43)(S)
unambiguously requires a nexus to ongoing or pending
proceedings, and California Penal Code § 32 does not,
Valenzuela Gallardo’s state criminal conviction is not a
categorical match with the aggravated felony offense
charged in his Notice to Appear. 13 Accordingly, we grant
the petition for review and vacate the removal order.

     PETITION GRANTED; VACATED.




     13
       Because “a statute is divisible only when it ‘list[s] elements in the
alternative, and thereby define[s] multiple crimes,’” United States v.
Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) (en banc)
(emphases added) (quoting Mathis, 136 S. Ct. at 2249), and California
Penal Code § 32 does not itself list elements in the alternative, the
modified categorical approach is not applicable in this case.
