                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 AUGUSTIN VALENZUELA GALLARDO,                   No. 12-72326
                      Petitioner,
                                                  Agency No.
                     v.                          A056-010-094

 LORETTA E. LYNCH, Attorney
 General,                                          OPINION
                       Respondent.


          On Petition for Review of an Order of the
              Board of Immigration Appeals

                  Argued November 21, 2014
                  Submitted January 5, 2015
                   San Francisco, California

                     Filed March 31, 2016

Before: Sidney R. Thomas, Chief Judge, Morgan Christen,
 Circuit Judge, and J. Michael Seabright,* District Judge

                  Opinion by Judge Christen;
                  Dissent by Judge Seabright




  *
     The Honorable J. Michael Seabright, District Judge for the U.S.
District Court for the District of Hawaii, sitting by designation.
2             VALENZUELA GALLARDO V. LYNCH

                           SUMMARY**


                            Immigration

    The panel granted Augustin Valenzuela Gallardo’s
petition for review of the Board of Immigration Appeals’
precedential published opinion in Matter of Valenzuela
Gallardo, 25 I. & N. Dec. 838 (BIA 2012), holding that a
conviction for accessory to a felony under California Penal
Code § 32 is an aggravated felony “offense relating to
obstruction of justice” under Immigration and Nationality Act
§ 101(a)(43)(S).

    The panel wrote that the BIA’s revised interpretation of
obstruction of justice to require only “the affirmative and
intentional attempt, with specific intent, to interfere with the
process of justice,” departed from its prior construction of the
statute by requiring no nexus to an ongoing investigation or
proceeding. The panel held that the new construction raises
grave doubts about whether § 101(a)(43)(S), so construed, is
unconstitutionally vague. The panel remanded for the BIA to
apply its previous interpretation in In re Espinoza-Gonzalez,
22 I. & N. Dec. 889 (BIA 1999) (en banc), or to offer a new
construction.

   Dissenting, Judge Seabright wrote that the majority
mistakenly found that the BIA in In re Espinoza-Gonzalez
had previously required a nexus to an ongoing investigation
or proceeding, and that the BIA’s opinion in Matter of
Valenzuela Gallardo did not announce a new interpretation

  **
     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. LYNCH                     3

removing the requirement. Judge Seabright wrote that rather
Matter of Valenzuela Gallardo explicitly clarified language
in In re Espinoza-Gonzalez in light of what the BIA
considered to be this court’s misreading of BIA precedent in
Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011). Judge
Seabright would also find that the absence of a requirement
for an ongoing investigation or proceeding does not render
the BIA’s definition vague, much less create grave
constitutional doubts.


                         COUNSEL

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

Rebecca Hoffberg Phillips (argued) and Imran Raza Zaidi,
Trial Attorneys, and Ada Elsie Bosque, Senior Litigation
Counsel, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.


                         OPINION

CHRISTEN, Circuit Judge:

    Augustin Valenzuela Gallardo, a citizen of Mexico,
pleaded guilty to violating California Penal Code § 32,
accessory to a felony. An immigration judge (IJ) ordered him
removed to Mexico, concluding that his conviction
constituted an “offense relating to obstruction of justice” and
therefore an aggravated felony under the Immigration and
Nationality Act (INA) § 101(a)(43)(S). The Board of
Immigration Appeals (BIA) dismissed Valenzuela Gallardo’s
4           VALENZUELA GALLARDO V. LYNCH

appeal. In its decision, it announced a new interpretation of
“obstruction of justice” that requires only “the affirmative
and intentional attempt, with specific intent, to interfere with
the process of justice.” Contrary to the prior construction,
this interpretation of INA § 101(a)(43)(S) requires no nexus
to an ongoing investigation or proceeding. Valenzuela
Gallardo petitions for review, arguing that the agency’s
revised interpretation of the statute raises serious
constitutional concerns about whether the statute is
unconstitutionally vague. We agree and remand to the Board
for application of the previous interpretation or formulation
of a construction that does not raise grave constitutional
doubts.

                      BACKGROUND

I. Facts

    Augustin Valenzuela Gallardo was admitted to the United
States as a lawful permanent resident in 2002. In November
2007, police discovered him in a stolen vehicle with
possession of methamphetamine, ecstacy, and a loaded
firearm. Valenzuela Gallardo was arrested and charged with
two counts of possession of a controlled substance
(methamphetamine) in violation of California Health and
Safety Code § 11378, one count of possessing
methamphetamine while armed in violation of California
Health and Safety Code § 11370.1, and one count of failing
to comply with the terms of his probation in violation of
California Penal Code § 1203. He agreed to plead guilty to
an amended count of accessory to a felony in violation of
California Penal Code § 32. All remaining charges were
dismissed. Initially, Valenzuela Gallardo was placed on
probation, but he subsequently violated the terms of his
            VALENZUELA GALLARDO V. LYNCH                     5

probation and was sentenced            to   sixteen   months’
imprisonment.

II. Proceedings

    In June 2010, the Government placed Valenzuela
Gallardo in removal proceedings. The Government argued
that a conviction under California Penal Code § 32 constitutes
an “offense relating to obstruction of justice,” and therefore
an aggravated felony under INA § 101(a)(43)(S).

    Valenzuela Gallardo filed a motion to terminate removal
proceedings in July 2010.          He appeared before an
immigration judge and contested removability on the grounds
that his conviction was not an offense “relating to obstruction
of justice” because “the federal ‘Obstruction of Justice’
grounds must relate to an extant judicial proceeding.”

    The IJ denied Valenzuela Gallardo’s motion to terminate
removal proceedings. The IJ reasoned that the BIA had
previously held that the federal crime of accessory after the
fact, 18 U.S.C. § 3, is an aggravated felony, that there was
“no material difference” between § 3 and California Penal
Code § 32, and that the BIA has not “limit[ed] the scope of
the obstruction of justice aggravated felony to cases in which
there is a pending judicial proceeding.” The IJ thus
concluded that a conviction under California Penal Code § 32
is an “offense relating to obstruction of justice,” and ordered
Valenzuela Gallardo removed to Mexico.

   Valenzuela Gallardo filed an appeal but the BIA
dismissed it. After the BIA denied Valenzuela Gallardo’s
motion to reconsider, he petitioned for review and requested
6            VALENZUELA GALLARDO V. LYNCH

a stay of removal. Our court dismissed that petition for lack
of jurisdiction.

    In May 2011, we issued an opinion in Trung Thanh
Hoang v. Holder, a case that looked to two prior BIA
decisions and held, under the agency’s interpretation, that a
crime constitutes an obstruction of justice crime “when it
interferes with an ongoing proceeding or investigation.”
641 F.3d 1157, 1164 (9th Cir. 2011) (some emphasis added).

    In light of our opinion in Hoang, the BIA sua sponte
reopened Valenzuela Gallardo’s proceedings for further
consideration of his removability. In the opinion that
followed, In re Valenzuela Gallardo, a three-judge panel of
the BIA sought “to clarify [the BIA’s] prior precedents on the
scope of the phrase ‘relating to obstruction of justice,’” and
rejected Hoang’s holding. 25 I. & N. Dec. 838, 840, 842
(B.I.A. 2012). The three-judge panel announced that
“obstruction of justice” requires only:

        the affirmative and intentional attempt, with
        specific intent, to interfere with the process of
        justice—[this] demarcates the category of
        crimes constituting obstruction of justice.
        While many crimes fitting this definition will
        involve interference with an ongoing criminal
        investigation or trial, we now clarify that the
        existence of such proceedings is not an
        essential element of “an offense relating to
        obstruction of justice.”

Id. at 841 (emphasis added) (citation omitted). In light of this
interpretation, the BIA concluded that Valenzuela Gallardo’s
conviction was an offense “relating to obstruction of justice.”
            VALENZUELA GALLARDO V. LYNCH                    7

Id. at 844. Because Valenzuela Gallardo was ultimately
sentenced to more than one year of imprisonment for his
offense, the BIA concluded that his conviction was for an
aggravated felony. Id. It therefore dismissed Valenzuela
Gallardo’s reopened appeal. Id.

    Valenzuela Gallardo petitions for review, challenging the
BIA’s most recent interpretation of INA § 101(a)(43)(S). We
have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and we
hold that the BIA’s new construction of “obstruction of
justice” raises grave doubts about whether the statute, so
construed, is unconstitutionally vague. Because we see no
clear indication that Congress intended to delegate authority
to the agency to push the constitutional boundary, we remand
to the agency, as the agency requested, for consideration of a
new construction or application of the interpretation it
previously announced in In re Espinoza-Gonzalez, 22 I. & N.
Dec. 889 (B.I.A. 1999) (en banc), and to which we deferred
in Hoang, 641 F.3d at 1161.

               STANDARD OF REVIEW

    We review legal questions de novo. Perez-Enriquez v.
Gonzales, 463 F.3d 1007, 1009 (9th Cir. 2006). Where, as
here, the BIA reviews an IJ’s decision de novo, our review is
limited to the BIA’s decision. Shah v. INS, 220 F.3d 1062,
1067 (9th Cir. 2000).
8            VALENZUELA GALLARDO V. LYNCH

                        DISCUSSION

I. The BIA’s most recent interpretation departs from its
   prior interpretations.

    “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). The INA does not separately define
“aggravated felony.” Instead, it refers to a list of qualifying
criminal offenses, which includes offenses “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.” INA § 101(a)(43)(S).

    In 1997, a twelve-member en banc panel of the BIA ruled
in In re Batista-Hernandez that the federal crime of accessory
after the fact, 18 U.S.C. § 3, “clearly relates to obstruction of
justice” and constitutes an aggravated felony under INA
§ 101(a)(43)(S). 21 I. & N. Dec. 955, 961 (B.I.A. 1997). The
Board explained:

        [T]he wording of 18 U.S.C. § 3 itself indicates
        its relation to obstruction of justice, for the
        statute criminalizes actions knowingly taken
        to “hinder or prevent (another’s)
        apprehension, trial or punishment.” . . . [T]he
        nature of being an accessory after the fact lies
        essentially in obstructing justice and
        preventing the arrest of the offender.

Id.

   Two years later, a sixteen-member en banc panel of the
BIA issued Espinoza-Gonzalez and concluded that misprision
            VALENZUELA GALLARDO V. LYNCH                   9

of felony, 18 U.S.C. § 4, does not constitute obstruction of
justice and is not an aggravated felony under INA
§ 101(a)(43)(S). 22 I. & N. Dec. 889, 897 (B.I.A. 1999). The
BIA reasoned:

       We do not believe that every offense that, by
       its nature, would tend to “obstruct justice” is
       an offense that should properly be classified
       as “obstruction of justice.” The United States
       Code delineates a circumscribed set of
       offenses that constitute “obstruction of
       justice,” and although misprision of felony
       bears some resemblance to these offenses, it
       lacks the critical element of an affirmative and
       intentional attempt, motivated by a specific
       intent, to interfere with the process of
       justice. . . . [W]here the obstruction of justice
       offenses are broadly stated, courts have
       interpreted them narrowly. To include all
       offenses that have a tendency to, or by their
       nature do, obstruct justice would cast the net
       too widely.

Id. at 893–94 (citation omitted).        Espinoza-Gonzalez
distinguished misprision of felony from accessory after the
fact, which had been at issue in Batista-Hernandez:

       The definition of the federal crime of
       accessory after the fact in 18 U.S.C. § 3
       requires an affirmative action knowingly
       undertaken “in order to hinder or prevent
       (another’s) apprehension, trial or
       punishment.” Although misprision of a
       felony has as an element the affirmative
10          VALENZUELA GALLARDO V. LYNCH

       concealment of the felony, there is, unlike § 3,
       nothing in § 4 that references the specific
       purpose for which the concealment must be
       undertaken.     The specific purpose of
       hindering the process of justice brings the
       federal “accessory after the fact” crime within
       the general ambit of offenses that fall under
       the “obstruction of justice” designation.

           Furthermore, concealment of a crime is
       qualitatively different from an affirmative
       action to hinder or prevent another’s
       apprehension, trial, or punishment. It is a
       lesser offense to conceal a crime where there
       is no investigation or proceeding, or even an
       intent to hinder the process of justice, and
       where the defendant need not be involved in
       the commission of the crime. Further,
       accessory after the fact has been defined as
       obstructing justice. United States v. Barlow,
       [470 F.2d 1245,] 1252–53 [(D.C. Cir. 1972)].

Id. at 894–95 (emphasis added).

    Although the phrase “obstruction of justice” is not
statutorily defined, the BIA observed that Title 18, Chapter
73 of the United States Code lists a number of offenses under
the heading “Obstruction of Justice” and provides
“substantial guidance, consistent with judicial
pronouncements on the subject, as to the contours of the
‘obstruction of justice’ category of offenses.” Id. at 893, 894
n.4; see also 18 U.S.C. §§ 1501–1521. The Board noted:
              VALENZUELA GALLARDO V. LYNCH                            11

         The intent of the two broadest provisions,
         § 1503 (prohibiting persons from influencing
         or injuring an officer or juror generally) and
         § 1510 (prohibiting obstruction of criminal
         investigations), is to protect individuals
         assisting in a federal investigation or judicial
         proceeding and to prevent a miscarriage of
         justice in any case pending in a federal court.

Id. at 892 (emphasis added) (citation omitted). The BIA also
found guidance in the Supreme Court’s decision in United
States v. Aguilar, which narrowly construed § 1503’s
“catchall phrase”1 to require action taken with an intent to
influence judicial or grand jury proceedings. 515 U.S. 593,
598–99 (1995) (holding that “[t]he action taken by the
accused must be with an intent to influence judicial or grand
jury proceedings”).

    Our court has deferred to the agency interpretation
announced in Espinoza-Gonzalez on three occasions. See
Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1161 (9th Cir.
2011); Salazar-Luviano v. Mukasey, 551 F.3d 857, 860 (9th
Cir. 2008); Renteria-Morales v. Mukasey, 551 F.3d 1076,
1086–87 (9th Cir. 2008). In the proceedings below, a three-
judge panel of the BIA revisited its en banc court’s
interpretation of obstruction of justice and clarified that a
nexus to an “ongoing criminal investigation or trial . . . is not
an essential element of ‘an offense related to obstruction of


  1
     The catchall phrase in § 1503 provides that obstruction of justice
includes a person who “corruptly, or by threats of force, or by any
threatening letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of
justice.” 18 U.S.C. § 1503(a).
12             VALENZUELA GALLARDO V. LYNCH

justice.’” In re Valenzuela Gallardo, 25 I. & N. Dec. 838,
841 (B.I.A. 2012). Applying this broader definition, the BIA
dismissed Valenzuela Gallardo’s appeal.2 Id. at 844.

II. The constitutional avoidance doctrine applies in the
    Chevron context.

     We apply the Chevron framework where, as here, there is
“binding agency precedent on-point” in the form of a
published BIA opinion. See Renteria-Morales, 551 F.3d at
1081 (quoting Kharana v. Gonzales, 487 F.3d 1280, 1283 n.4
(9th Cir. 2007)). Under the familiar Chevron framework, we
first ask “whether Congress has directly spoken to the precise
question at issue.” Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). If the statute
“unambiguously bars” the agency’s interpretation, that is the
end of the analysis, see Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 471 (2001), “for the court, as well as the
agency, must give effect to the unambiguously expressed


 2
   In its briefing and at oral argument, the government made clear that the
operative definition of “obstruction of justice” is the one the BIA
announced in Valenzuela Gallardo, so that is the one we review. The
dissent would have us review a construction that is narrower and more
concrete than the one the BIA advocates. Dissent at 44. The dissent also
quarrels with our characterization of the BIA’s interpretation of INA
§ 101(a)(43)(S) as “new,” see Dissent, Section I, but the government did
not dispute that this is a new interpretation. More to the point, whether the
BIA’s definition is new, newly clarified, or merely “a change from this
Circuit’s interpretation of BIA precedent,” Dissent at 33, the BIA in
Valenzuela Gallardo “invoke[d] . . . Brand X” and set out the operative
construction of “obstruction of justice.” Valenzuela Gallardo, 25 I. & N.
Dec. at 840. “Under Brand X,” it is our duty to review “the BIA’s most
recent interpretation.” Anaya-Ortiz v. Holder, 594 F.3d 673, 678 (9th Cir.
2010); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 842 (1984).
              VALENZUELA GALLARDO V. LYNCH                           13

intent of Congress,” Chevron, 467 U.S. at 842–43. To
determine whether the statute unambiguously bars an agency
interpretation we “apply[] the normal ‘tools of statutory
construction.’” INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001)
(quoting Chevron, 467 U.S. at 843 n.9). If, after application
of these tools, an immigration statute remains “silent or
ambiguous with respect to the specific issue before the
agency,” we proceed to Chevron Step Two and determine
whether “the BIA’s interpretation is ‘based on a permissible
construction of the statute.’” Renteria-Morales, 551 F.3d at
1081 (quoting Parrilla v. Gonzales, 414 F.3d 1038, 1041 (9th
Cir. 2005)). If it is, the court must defer to the BIA’s
reasonable statutory interpretation.

    We have deferred to the BIA’s interpretation of
“obstruction of justice” in at least three cases because the
INA did not unambiguously bar the interpretation and the
interpretation was reasonable.3 Hoang, 641 F.3d at 1160–61;
Salazar-Luviano, 551 F.3d at 860; Renteria-Morales,


  3
     Valenzuela Gallardo argues that the BIA cannot depart from our
court’s decision in Hoang or its own prior interpretation in Espinoza-
Gonzalez. We disagree. In National Cable & Telecommunications Ass’n
v. Brand X Internet Services, the Supreme Court expressly instructed that
“[a] court’s prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior
court decision holds that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency discretion.”
545 U.S. 967, 982 (2005). Because our prior interpretations of
§ 101(a)(43)(S) did not follow unambiguously from the statute, see
Hoang, 641 F.3d at 1161, the BIA was free to interpret the phrase
“obstruction of justice” in a manner inconsistent with those precedents.
Therefore, “[u]nder Brand X, we must apply Chevron deference to the
BIA’s most recent interpretation” if Congress has not directly spoken to
the issue and the BIA’s interpretation is reasonable. Anaya-Ortiz v.
Holder, 594 F.3d 673, 678 (9th Cir. 2010).
14           VALENZUELA GALLARDO V. LYNCH

551 F.3d at 1086–87; see also INS v. Aguirre-Aguirre,
526 U.S. 415, 424 (1999) (“It is clear that principles of
Chevron deference are applicable to [the INA’s] statutory
scheme.”). However, our prior deference to the BIA’s
interpretation of “obstruction of justice” does not end the
Chevron Step One inquiry. See INS v. Cardoza-Fonseca,
480 U.S. 421, 446–48 (1987) (concluding that the BIA’s
interpretation of “well-founded fear,” an otherwise
ambiguous term, was inconsistent with the INA at Chevron
Step One). Rather, before turning to Chevron’s Step Two, we
must ask whether Congress intended to permit the agency
interpretation. Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 159 (2000). To answer this
question we are aided by traditional tools of statutory
construction. See id. at 132–33; MCI Telecomms. Corp. v.
Am. Tel. & Tel. Co., 512 U.S. 218, 225–26 (1994). If a court,
employing these tools, “ascertains that Congress had an
intention on the precise question at issue, that intention is the
law and must be given effect.” Chevron, 467 U.S. at 843 n.9.

    Particularly relevant here are the doctrines of
constitutional avoidance and constitutional narrowing.
DeBartolo Corp. v. Fl. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988). The dissent objects to our
use of constitutional narrowing to interpret the INA, arguing
that we should stick with “the familiar Chevron standard.”
Dissent at 34. But Chevron itself instructs that “employing
traditional tools of statutory construction” is a straightforward
application of Chevron. Chevron, 467 U.S. at 843 n.9.
Indeed, the canon of constitutional avoidance “is highly
relevant at Chevron step one.” Morales-Izquierdo v.
Gonzales, 486 F.3d 484, 504 (9th Cir. 2007) (en banc)
(Thomas, J., dissenting); id. at 492–93 (majority opinion)
(holding that constitutional narrowing is inapplicable at
               VALENZUELA GALLARDO V. LYNCH                              15

Chevron Step Two).4 Because we “assum[e] that Congress
does not casually authorize administrative agencies to
interpret a statute to push the limit of congressional
authority,” if an agency’s statutory interpretation “invokes the
outer limits of Congress’ power, we expect a clear indication
that Congress intended that result.” Solid Waste Agency of N.
Cook Cty. v. U.S. Army Corps of Eng’rs (SWANCC), 531 U.S.
159, 172–73 (2001). Absent clear indication, we invoke
constitutional narrowing at Step One to avoid the
constitutional question and foreclose the constitutionally


 4
   The dissent criticizes our mode of Chevron analysis and the use of the
doctrine of constitutional avoidance at Chevron Step One. See Dissent at
47–48 (quoting Olmos v. Holder, 780 F.3d 1313, 1320–21 (10th Cir.
2015)). The dissent is incorrect, however, that we only ask whether
Congress intended an implicit delegation in “extraordinary cases.” See
Chevron, 467 U.S. at 843–44 (directing courts to determine whether
Congress explicitly or implicitly delegated authority to an agency);
Dissent at 49–50. Rather, when read in context, the cases invoked by the
dissent stand for the proposition that we should hesitate to find an implicit
delegation in “extraordinary cases” of “economic and political
significance.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (emphasis
added) (concluding that the potential implicit delegation at issue was of
such “deep economic and political significance” that “had Congress
wished to assign that question to an agency, it surely would have done so
expressly”); Brown & Williamson, 529 U.S. at 159–60 (concluding that
“Congress could not have intended to delegate a decision of such
economic and political significance to an agency in so cryptic a fashion”).
Here, where the potential implicit delegation is not one of deep “economic
and political significance,” we must turn to other tools to assess
Congressional intent, such as the constitutional avoidance doctrine.

     Furthermore, even the dissent acknowledges that the Supreme Court
applies the constitutional avoidance doctrine in the Chevron context,
Dissent at 63–65; DeBartolo, 485 U.S. at 575–76, and our en banc
authority says that the doctrine is inapplicable at Step Two, Morales-
Izquierdo, 486 F.3d at 492–93. That leaves Step One, lest we abdicate our
role.
16          VALENZUELA GALLARDO V. LYNCH

questionable interpretation. Williams v. Babbit, 115 F.3d
657, 662–63 (9th Cir. 1997); see also DeBartolo, 485 U.S. at
588 (construing the NLRA to preclude an interpretation
raising grave constitutional concerns rather than deferring to
the agency interpretation).

    The use of constitutional narrowing in the Chevron
context is not a novel concept. The Supreme Court and our
court have refused to accord deference to agency
interpretations that raise grave constitutional doubts where
other permissible and less troubling interpretations exist. In
DeBartolo Corp. v. Florida Gulf Coast Building &
Construction Trades Council, 485 U.S. 568 (1988), the
Supreme Court announced the applicability of the
constitutional avoidance doctrine in the Chevron context.
DeBartolo concerned the National Labor Relations Board’s
(NLRB) interpretation of “coercion” as used in the National
Labor Relations Act (NLRA). The NLRB decided that a
labor union’s peaceful handbilling of consumers was
prohibited if it encouraged consumers to boycott stores that
failed to pay fair wages. Id. at 573. The Court held that
though the interpretation would otherwise be entitled to
Chevron deference, the NLRB’s interpretation posed serious
questions of validity under the First Amendment. Id. at
574–76. The Court invoked the constitutional avoidance
doctrine: “where an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.” Id.
at 575 (citing NLRB v. Catholic Bishop of Chi., 440 U.S. 490,
499–501 (1979)). The DeBartolo Court observed:

       “[T]he elementary rule is that every
       reasonable construction must be resorted to,
            VALENZUELA GALLARDO V. LYNCH                   17

       in order to save a statute from
       unconstitutionality.” This approach not only
       reflects the prudential concern that
       constitutional issues not be needlessly
       confronted, but also recognizes that Congress,
       like this Court, is bound by and swears an
       oath to uphold the Constitution. The courts
       will therefore not lightly assume that
       Congress intended to infringe constitutionally
       protected liberties or usurp power
       constitutionally forbidden it.

Id. (quoting Hooper v. California, 155 U.S. 648, 657 (1895)).

    The Court ultimately determined that a less
constitutionally suspect interpretation was not foreclosed by
the statutory language or legislative history. It therefore
declined to defer to the NLRB’s interpretation because a less
problematic construction “makes unnecessary passing on the
serious constitutional questions that would be raised by the
Board’s understanding of the statute.” Id. at 588.

    In Rust v. Sullivan, 500 U.S. 173 (1991), the Supreme
Court further refined its application of the constitutional
avoidance doctrine to agency interpretation of ambiguous
statutes. The Rust Court reviewed facial challenges to
regulations promulgated by the Secretary of Health and
Human Services under Title X of the Public Health Service
Act. Id. at 181. Because the regulations provided that funds
under the Act could not be used to pay for abortions, directly
or indirectly, the challengers claimed the regulation violated
the First and Fifth Amendments. Id. The Court observed that
the principle espoused in DeBartolo “is based at least in part
on the fact that a decision to declare an Act of Congress
18          VALENZUELA GALLARDO V. LYNCH

unconstitutional ‘is the gravest and most delicate duty that
this Court is called on to perform,’” id. at 190–91 (quoting
Blodgett v. Holden, 275 U.S. 142, 148 (1927)), and concluded
that a “statute must be construed, if fairly possible, so as to
avoid not only the conclusion that it is unconstitutional but
also grave doubts upon that score.” Id. (quoting United States
v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)). Applying this
rule, the Court held that the public health regulations at issue
in Rust did not “raise the sort of ‘grave and doubtful
constitutional questions’ that would lead [it] to assume
Congress did not intend to authorize their issuance,” and
declined to invalidate the regulations. Id. (citation omitted).

    Our court considered DeBartolo and Rust in Williams v.
Babbitt, 115 F.3d 657 (9th Cir. 1997). There, we synthesized
and applied the DeBartolo-Rust constitutional avoidance
standard for the first time. Id. at 661–63. The Babbitt court
reviewed an interpretation by the Interior Board of Indian
Appeals (IBIA) of the Reindeer Industry Act as it pertained
to reindeer sales in Alaska. Id. at 659. The IBIA interpreted
the Act to prohibit non-Natives from joining the Alaska
reindeer industry. Id. On appeal, non-Native appellants
claimed that the IBIA interpretation violated the
constitutional guarantee of equal protection. Id. at 660.

    Our analysis in Babbitt began by observing that the IBIA
interpretation was entitled to Chevron deference “absent other
considerations.” Id. at 660 n.3. We then went on to analyze
one of those “other considerations,” namely, whether the
interpretation raised equal protection concerns. Id. at 661.
We concluded: “Rust and DeBartolo, read together, require
courts to scrutinize constitutional objections to a particular
agency interpretation skeptically. Only if the agency’s
proffered interpretation raises serious constitutional concerns
             VALENZUELA GALLARDO V. LYNCH                     19

may a court refuse to defer under Chevron.” Id. at 662.
Because we concluded that the IBIA’s interpretation of the
Reindeer Act raised serious constitutional concerns, and
because “a less constitutionally troubling construction [was]
readily available,” we interpreted the Act as not precluding
non-Natives from owning and importing reindeer in Alaska.
Id. at 666.

    When a court practices what Babbitt termed
“constitutional narrowing,” it leaves agencies “free to adopt
any interpretation that doesn’t come perilously close to the
constitutional boundary.” Id. at 662–63. Constitutional
narrowing recognizes that the decision to foreclose a
constitutionally troubling interpretation is a legal decision,
not a policy decision, and should be addressed by the courts,
not the agency. Id. at 662. Agencies specialize in making the
policy decisions necessary to apply generalized statutory
provisions to the complexities of everyday life. FDA v.
Brown & Williamson, 529 U.S. 120, 132–33 (2000). Judges
specialize in “say[ing] what the law is.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). “[W]hen a
court construes a statute so as to avoid a difficult
constitutional question, it is not making a policy choice,” it is
making a legal choice. Babbit, 115 F.3d at 662. The policy
choice remains with the agency, which is “free to adopt any
interpretation that doesn’t come perilously close to the
constitutional boundary.” Id. at 663.

    These authorities establish that where an agency’s
interpretation of a statute raises grave constitutional concerns,
and where Congress has not clearly indicated it intends a
constitutionally suspect interpretation, we can assume
Congress did not delegate authority for the interpretation and
20           VALENZUELA GALLARDO V. LYNCH

deem it foreclosed by the statute. With this framework in
mind, we turn to the agency interpretation before us.

III.    The BIA’s new interpretation raises grave
        constitutional doubts.

    The BIA has been express in stating that it does “not
believe that every offense that, by its nature, would tend to
‘obstruct justice’ is an offense that should properly be
classified as ‘obstruction of justice.’” In re Espinoza-
Gonzalez, 22 I. & N. Dec. 889, 893–94 (B.I.A. 1999). And
the BIA has given some indication of where it draws that line:
18 U.S.C. § 3 (accessory after the fact) is an obstruction of
justice crime, whereas 18 U.S.C. § 4 (misprision of felony) is
not. Id. at 892. According to the BIA, the distinction
between these crimes—and the “critical element” of
obstruction of justice crimes—is the “affirmative and
intentional attempt, motivated by a specific intent, to interfere
with the process of justice,” regardless of the existence of an
ongoing investigation or proceeding. In re Valenzuela
Gallardo, 25 I. & N. Dec. 838, 842 (B.I.A. 2012). In other
words, though the BIA has said that not every crime that
tends to obstruct justice qualifies as an obstruction of justice
crime, and the critical factor is the interference with the
process of justice—which does not require an ongoing
investigation or proceeding—the BIA has not given an
indication of what it does include in “the process of justice,”
or where that process begins and ends. Valenzuela Gallardo
argues that this new interpretation raises grave doubts about
whether INA § 101(a)(43)(S) is unconstitutionally vague.
We agree.

     “The Fifth Amendment provides that ‘[n]o person shall
. . . be deprived of life, liberty, or property, without due
             VALENZUELA GALLARDO V. LYNCH                     21

process of law.’” Johnson v. United States, 135 S. Ct. 2551,
2556 (2015) (alterations in original) (quoting U.S. Const.
amend. V). The “[v]agueness doctrine is an outgrowth . . . of
[that clause]. A conviction fails to comport with due process
if the statute under which it is obtained fails to provide a
person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.” United
States v. Williams, 553 U.S. 285, 304 (2008). The Supreme
Court has advised:

        What renders a statute vague is not the
        possibility that it will sometimes be difficult
        to determine whether the incriminating fact it
        establishes has been proved; but rather the
        indeterminancy of precisely what that fact is.
        Thus, we have struck down statutes that tied
        criminal culpability to . . . wholly subjective
        judgments without statutory definitions,
        narrowing context, or settled legal meanings.

Id. at 306 (emphasis added). “The prohibition of vagueness
in criminal statutes ‘is a well-recognized requirement,
consonant alike with ordinary notions of fair play and the
settled rules of law,’ and a statute that flouts it ‘violates the
first essential of due process.’” Johnson, 135 S. Ct. at
2556–57 (quoting Connally v. Gen. Constr. Co., 269 U.S.
385, 391 (1926)).

    Recently, the Supreme Court held that the residual clause
of the Armed Career Criminal Act of 1984 is
unconstitutionally vague because it “denies fair notice to
defendants and invites arbitrary enforcement by judges.” Id.
at 2257. The residual clause states that a “violent felony” is
22           VALENZUELA GALLARDO V. LYNCH

“any crime punishable by imprisonment for a term exceeding
one year . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B). The Court held that two features of the clause
render it unconstitutionally vague. First, the clause “leaves
grave uncertainty about how to estimate the risk posed by a
crime. It ties the judicial assessment of risk to a judicially
imagined ordinary case of a crime, not to real-world facts or
statutory elements.” Johnson, 135 S. Ct. at 2557 (internal
quotation marks omitted). Second, the clause creates
“uncertainty about how much risk it takes for a crime to
qualify as a violent felony. It is one thing to apply an
imprecise ‘serious potential risk’ standard to real-world facts;
it is quite another to apply it to a judge-imagined abstraction.”
Id. at 2558. The Supreme Court concluded: “By combining
indeterminacy about how to measure the risk posed by a
crime with indeterminacy about how much risk it takes for
the crime to qualify as a violent felony, the residual clause
produces more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id.

    The residual clause left grave uncertainty about the
amount of risk it takes for a crime to qualify as a violent
felony. The BIA’s new construction leaves grave uncertainty
about the plethora of steps before and after an “ongoing
criminal investigation or trial” that comprise “the process of
justice,” and, hence, uncertainty about which crimes
constitute “obstruction of justice.” See In re Valenzuela
Gallardo, 25 I. & N. Dec. 838, 841 (B.I.A. 2012). We can
glean no definition of “the process of justice” from the BIA’s
case law. See, e.g., id. at 840–41 (distinguishing 18 U.S.C.
§ 4 (misprision of felony) from 18 U.S.C. § 3 (accessory after
               VALENZUELA GALLARDO V. LYNCH                              23

the fact) based on § 3’s specific intent requirement).5 The
phrase “obstruction of justice” has no statutory definition or
settled legal meaning. See 8 U.S.C. § 1101 (INA definitions
section with no definition of “process of justice”); Black’s
Law Dictionary 1329 (9th ed. 2009) (providing no definition
of “process of justice”). When the BIA clarified that the
“process of justice” does not necessarily involve an ongoing
investigation or proceeding, it eliminated the narrowing
principal Hoang had gleaned from earlier BIA case law. See
Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1160–61,
1164 (9th Cir. 2011). We do not hold, as the dissent suggests,
that “ongoing proceedings” is the only permissible anchor for
the “process of justice.” But after Valenzuela Gallardo,
arguably everything that happens after someone commits a
crime could be considered to be part of the “process of
justice.” We cannot reconcile this expansive interpretation
with the BIA en banc court’s declaration that it does “not
believe that every offense that, by its nature, would tend to
‘obstruct justice’ is an offense that should properly be
classified as ‘obstruction of justice.’” In re Espinoza-
Gonzalez, 22 I. & N. Dec. 889, 893–94 (B.I.A. 1999). As the
Supreme Court noted in Williams, amorphous terms “without
statutory definitions, narrowing context, or settled legal


  5
    At oral argument, the government would only go so far as to say that
interference with the “process of justice” includes interfering with another
person’s arrest or apprehension. This only confirms that a conviction
under California’s accessory after the fact statute is a crime “relating to
the obstruction of justice.” See Cal. Penal Code § 32 (“Every person who,
after a felony has been committed . . . aids a principal in such felony, with
the intent that such principal may avoid escape from arrest, trial,
conviction or punishment . . . is an accessory to such felony.”). The
government’s response does not provide a limiting principal or tell us
what crimes—other than § 32—fall within and outside the nebulous
“process of justice.”
24          VALENZUELA GALLARDO V. LYNCH

meanings” raise vagueness concerns. See United States v.
Williams, 553 U.S. 285, 306 (2008).

    Absent some indication of the contours of “process of
justice,” an unpredictable variety of specific intent crimes
could fall within it, leaving us unable to determine what
crimes make a criminal defendant deportable under INA
§ 101(a)(43)(S) and what crimes do not. See City of Chicago
v. Morales, 527 U.S. 41, 57 (1999) (plurality opinion)
(invalidating as unconstitutionally vague Chicago’s anti-
loitering statute in part because it did not give potential
violators notice of “what loitering is covered by the ordinance
and what is not”). More importantly, because the BIA’s new
interpretation invites arbitrary enforcement, defense lawyers
will be unable to accurately advise their clients about the
immigration-related consequences of a conviction or plea
agreement. See Padilla v. Kentucky, 559 U.S. 356, 360
(2010) (holding that defense “counsel had an obligation to
advise [defendant] that the offense to which he was pleading
guilty would result in his removal from this country”).

    What we do know is that, in the INA, Congress identified
three types of obstruction-related offenses that qualify as
“aggravated felonies” and trigger deportation: “[1] an offense
relating to obstruction of justice, [2] perjury or subordination
of perjury, [3] or bribery of a witness.” INA § 101(a)(43)(S).
Perjury and bribery of a witness are clearly tied to
proceedings, and this informs our understanding of
Congress’s intended interpretation of “obstruction of justice.”
See Microsoft Corp. v. C.I.R., 311 F.3d 1178, 1184 (9th Cir.
2002) (“The doctrine of noscitur a sociis counsels that words
should be understood by the company they keep.”). Shedding
more light on what Congress intended is the list of
obstruction of justice crimes Congress included in Title 18,
               VALENZUELA GALLARDO V. LYNCH                             25

Chapter 73, on which the BIA based its interpretation of INA
§ 101(a)(43)(S). See Espinoza-Gonzalez, 22 I. & N. Dec. at
892. The difficulty presented by the BIA’s new interpretation
of “obstruction of justice” can be seen by comparing it to the
Chapter 73 obstruction of justice crimes. As the BIA has
recognized, almost all of these “obstruction of justice
offenses . . . have as an element interference with the
proceedings of a tribunal.” Id. at 892. The few that do not
require interference with a tribunal or investigation have as an
element the intent to interfere with a specific act associated
with a tribunal or investigation. See, e.g., 18 U.S.C.
§ 1512(b)(3) (prohibition on tampering with a witness with
the intent to hinder or prevent “communication to a law
enforcement officer” regarding a federal offense); 18 U.S.C.
§ 1512(d)(2) (prohibition on harassing someone with the
intent to prevent that person from “reporting [a federal crime]
to a law enforcement officer or judge”); 18 U.S.C. § 1519
(prohibition on falsifying or destroying a record “with the
intent to impede, obstruct, or influence the investigation or
proper administration of any matter” within the jurisdiction
of the United States).6

    The Government and dissent assure us that the BIA’s new
interpretation is sufficiently limited because it still requires


  6
    The dissent discusses examples of crimes that clearly fall within the
BIA’s new interpretation, but we are concerned with the outer edges of the
definition, not its core. The fact that the BIA’s interpretation encompasses
conduct Congress undoubtedly intended to include in “obstruction of
justice,” see 18 U.S.C. §§ 1501–1521, does not resolve the due process
concern presented by the phrase “the process of justice.” In Johnson, the
Supreme Court reaffirmed that its case law “squarely contradict[s] the
theory that a vague provision is constitutional merely because there is
some conduct that clearly falls within the provision’s grasp.” 135 S. Ct.
at 2561.
26           VALENZUELA GALLARDO V. LYNCH

specific intent. But this does little to answer the question
central to our constitutional concerns—specific intent to do
what? See United States v. Williams, 553 U.S. 285, 306
(2008) (“What renders a statute vague, however, is not the
possibility that it will sometimes be difficult to determine
whether the incriminating fact it establishes has been proved;
but rather the indeterminancy of precisely what that fact is.”
(emphasis added)). Though it ostensibly defines the required
mens rea—intent to interfere with the “process of justice”—it
provides little instruction on the equally important actus reus.
Cf. Leal v. Holder, 771 F.3d 1140, 1146 (9th Cir. 2014)
(“[B]oth the actus reus and the mens rea must be considered
in concert to determine whether the behavior they describe is
sufficiently culpable.” (citation omitted)); Trung Thanh
Hoang v. Holder, 641 F.3d 1157, 1161 (9th Cir. 2011)
(“Espinoza-Gonzalez ‘articulated both an actus reus and mens
rea element of the generic definition of [obstruction of
justice] crimes for purposes of §1101(a)(43)(S).’” (alteration
in original) (citation omitted)). Specific intent does little to
accord fair notice when there is no indication of what it is that
must be interfered with in order to “obstruct justice.”

    The Government also argues that the one-year sentence
requirement offers a limitation on its interpretation. See INA
§ 101(a)(43)(S). But as with the specific intent element, the
one-year sentence requirement does not reduce the
indeterminacy of the type of conduct that qualifies as an
aggravated felony. Indeed, in the context of accessory after
the fact, the one-year sentence actually reflects the severity of
an underlying crime committed by another person. The
residual clause the Supreme Court examined in Johnson also
required a one-year sentence. 135 S. Ct. at 2555. There, the
sentence at least reflected the crime actually committed by
the defendant at issue, see 18 U.S.C. § 924(e)(2)(B) (“[T]he
               VALENZUELA GALLARDO V. LYNCH                             27

term ‘violent felony’ means any crime punishable by
imprisonment for a term exceeding one year.”), but even so,
the length-of-sentence limitation was insufficient to salvage
the clause from its vagueness. See Johnson, 135 S. Ct. at
2563. We see no reason for concluding that the same one-
year sentence requirement is sufficient to dispel the serious
constitutional doubts presented here.

    The dissent reads our opinion as imposing a “temporal
nexus requirement” on the BIA’s definition of “crimes
relating to obstruction of justice.” Dissent at 36. It doesn’t.
We do not hold that the BIA’s definition of “obstruction of
justice” must be tied to an ongoing proceeding; rather, we
hold that the BIA’s new interpretation of obstruction of
justice raises grave constitutional concerns because it uses an
amorphous phrase—“process of justice”—without telling us
what that phrase means. It is difficult to imagine a specific
intent crime that could not be swept into the BIA’s expanded
definition. The problem is the absence of any narrowing
context—not necessarily the specific narrowing context of a
tie to “ongoing proceedings.”7 The BIA is free to define




   7
     The dissent argues that “the BIA’s definition is not missing the
required nexus” to “a foreseeable or contemplated proceeding,” Dissent
at 52–53, and suggests that the BIA’s interpretation of “obstruction of
justice” requires a nexus to an ongoing or contemplated proceeding or
investigation. But this is not what the BIA said in Valenzuela Gallardo
or in oral argument before our court. In Valenzuela Gallardo, the BIA
articulated that “the existence of such proceedings is not an essential
element of ‘an offense relating to obstruction of justice.’” 25 I. & N. Dec.
at 841. If, as the dissent suggests, the BIA intends interference with the
“process of justice” to mean interference with an ongoing or foreseeable
or contemplated investigation or proceeding, it can clarify this on remand.
28             VALENZUELA GALLARDO V. LYNCH

obstruction of justice as it sees fit on remand, as long as the
definition is not unworkably vague.8

IV.      Under the constitutional avoidance doctrine, we do
         not defer to the BIA’s new construction.

    Having determined that the BIA’s new interpretation
creates serious constitutional doubts, we must determine
whether Congress “[made] it clear that it chooses the
constitutionally doubtful interpretation.” Williams v. Babbitt,


 8
    The dissent argues that we create or exacerbate a circuit split with the
Second, Third, Fifth, and Eighth Circuits. See Dissent at 44–45 & n.6.
We don’t. Our sister circuits do not address whether the BIA’s
interpretation of “obstruction of justice” is unconstitutionally vague in any
of the cases cited by the dissent. See Armenta-Lagunas v. Holder, 724
F.3d 1019, 1020–21 (8th Cir. 2013); Higgins v. Holder, 677 F.3d 97,
98–99 (2d Cir. 2012) (per curiam); Denis v. Attorney General, 633 F.3d
201, 207–09 (3d Cir. 2011). “Nexus to an ongoing proceeding” was not
at issue in Armenta-Lagunas or Higgins because the state statutes in those
cases plainly required such a nexus. See Armenta-Lagunas, 724 F.3d at
1023; Higgins, 677 F.3d at 105 (noting that the Connecticut statute
“require[s] a nexus to an official proceeding”). In United States v.
Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010)—a case decided before
Valenzuela Gallardo and Descamps v. United States, 133 S. Ct. 2276
(2013)—the Fifth Circuit relied on the alien’s conduct, not the elements
of her crime of conviction, to decide that the crime “relat[ed] to
obstruction of justice.” Gamboa-Garcia, 620 F.3d at 549–50. The
conduct was extreme: Gamboa-Garcia witnessed a murder, drove and
cleaned up the getaway car, financed the murderer’s escape, and lied to
police. Id. at 547. The dissent also overlooks that our circuit has long
disagreed with the Third Circuit’s interpretation of INA § 101(a)(43)(S).
In fact, our circuits’ views depart from the get-go because the Third
Circuit does not even consider the undefined term “obstruction of justice”
to be ambiguous. See Denis, 633 F.3d at 207–09, 211 & n.12 (“[W]e
again depart from the view adopted by the Ninth and Fifth Circuit Courts
of Appeals . . . .”). Contrary to the dissent’s assertion, our decision does
not create or exacerbate a circuit split.
            VALENZUELA GALLARDO V. LYNCH                     29

115 F.3d 657, 663 (9th Cir. 1997). We see no such
indication.     All 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. See 18 U.S.C.
§§ 1501–1502, 1504–1521; supra Section III. And although
the catchall provision in 18 U.S.C. § 1503 pertains to anyone
who “influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of
justice,” courts have universally construed this broad
language to require an ongoing proceeding:

        Recent decisions of Courts of Appeals have
        likewise tended to place metes and bounds on
        the very broad language of the catchall
        provision. The action taken by the accused
        must be with an intent to influence judicial or
        grand jury proceedings; it is not enough that
        there be an intent to influence some ancillary
        proceeding, such as an investigation
        independent of the court’s or grand jury’s
        authority. United States v. Brown, 688 F.2d
        596, 598 (9th Cir. 1982) (citing cases). Some
        courts have phrased this showing as a
        “nexus” requirement—that the act must have
        a relationship in time, causation, or logic with
        the judicial proceedings. United States v.
        Wood, 6 F.3d 692, 696 (10th Cir. 1993);
        United States v. Walasek, 527 F.2d 676, 679
        & n.12 (3d Cir. 1975). In other words, the
        endeavor must have the “‘natural and
        probable effect’” of interfering with the due
        administration of justice. Wood, 6 F.3d at
        695; United States v. Thomas, 916 F.2d 647,
30             VALENZUELA GALLARDO V. LYNCH

         651 (11th Cir. 1990); Walasek, 527 F.2d at
         679. . . . But . . . if the defendant lacks
         knowledge that his actions are likely to affect
         the judicial proceeding, he lacks the requisite
         intent to obstruct.

United States v. Aguilar, 515 U.S. 593, 599 (1995) (emphasis
added); see also In re Espinoza-Gonzalez, 22 I. & N. Dec.
889, 892 (B.I.A. 1999) (noting that the Supreme Court has
“narrowly” construed the catchall provision).9 As the BIA
itself observed in Espinoza-Gonzalez, even the broadest
obstruction of justice provisions intend “to protect individuals
assisting in a federal investigation or judicial proceeding and
to prevent a miscarriage of justice in any case pending in a
federal court.” 22 I. & N. Dec. at 892. We see no indication
Congress intended that “obstruction of justice” be interpreted
as broadly as the BIA has done here.


 9
   Judicial interpretations of § 1503 are particularly relevant here because
the BIA’s construction pertains to a criminal statute, where federal
courts—not administrative agencies—have expertise. See Leocal v.
Ashcroft, 543 U.S. 1, 11 n.8 (2004) (“Although here we deal with
[18 U.S.C.] § 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.”); Mugalli v.
Ashcroft, 258 F.3d 52, 56 (2d Cir. 2001) (“But the BIA’s conclusion that
a conviction under 18 U.S.C. § 513(a) necessarily constituted an ‘attempt’
as the BIA had defined it depended on an analysis of a federal criminal
statute and was thus beyond the BIA’s administrative responsibility and
expertise. That conclusion was therefore entitled to no deference from
us.” (emphasis added)). Because the BIA has expertise in interpreting the
INA, but not the federal criminal code, there is less reason to defer. See,
e.g., Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (striking down
BIA interpretation of aggravated felony provision without mentioning
Chevron deference).
             VALENZUELA GALLARDO V. LYNCH                     31

    Further, and contrary to the dissent’s argument, the fact
that Congress defined “aggravated felony” to include not just
obstruction of justice offenses but offenses “relating to
obstruction of justice” does not indicate its intent that the BIA
“push the constitutional envelope.” Williams v. Babbit,
115 F.3d 657, 662 (9th Cir. 1997). The use of the modifier
“relating to” broadens the INA’s intended reach, but it is not
an explicit indication that Congress intended that the BIA
approach the constitutional boundary, nor is it an excuse for
abdicating our role. See Mellouli v. Lynch, 135 S. Ct. 1980,
1990 (2015) (striking down the BIA’s interpretation of an
aggravated felony “relating to a controlled substance,” INA
§ 237(a)(2)(B)(I), as inconsistent with congressional intent).
If Congress wishes to authorize such a result, “it must do so
explicitly.” Babbitt, 115 F.3d at 662.

     For over a decade, we upheld the interpretation that the
BIA announced in Espinoza-Gonzalez—requiring a nexus to
an ongoing proceeding—as a plausible construction. See
Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1161, 1164
(9th Cir. 2011); Salazar-Luviano v. Mukasey, 551 F.3d 857,
860 (9th Cir. 2008); Renteria-Morales v. Mukasey, 551 F.3d
1076, 1086–87 (9th Cir. 2008). This demonstrates that “a
less constitutionally troubling construction is readily
available.” See Babbitt, 115 F.3d at 666. We do not
independently inquire into another interpretation, see
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 577 (1988); we leave it to the BIA to
“adopt any interpretation that doesn’t come perilously close
to the constitutional boundary.” See Babbitt, 115 F.3d at 663.
“And, of course, Congress may . . . remov[e] the statutory
ambiguity and mak[e] it clear that it chooses the
constitutionally doubtful interpretation—in which event, the
32          VALENZUELA GALLARDO V. LYNCH

courts will have to confront the constitutional question
squarely.” Id.

    Our decision to remand to the BIA, rather than attempt to
reconcile the questions that arise from the interpretation its
three-judge panel announced in Valenzuela Gallardo, is
consistent with the charge from Congress that the BIA
administer the INA. See Gonzalez v. Thomas, 547 U.S. 183,
186 (2006) (per curiam). It is also consistent with the
government’s request in its supplemental briefing that the
court remand for the Board to provide an alternative
definition of the ambiguous statute if we agree with the
petitioner’s view of this one.

   We remand to the agency so that it can either offer a new
construction of INA § 101(a)(43)(S) or, in the alternative,
apply Espinoza-Gonzalez’s interpretation to the instant case.

                      CONCLUSION

   We grant Valenzuela Gallardo’s petition for review and
remand to the BIA for proceedings consistent with this
opinion.

     PETITION GRANTED AND REMANDED.
              VALENZUELA GALLARDO V. LYNCH                           33

SEABRIGHT, District Judge, dissenting:

   For several reasons, I respectfully disagree with the
majority Opinion, and dissent.

I. Overview

    First, In re Valenzuela Gallardo, 25 I. & N. Dec. 838
(B.I.A. 2012), did not announce a new Board of Immigration
Appeals (“BIA”) interpretation that removed a required nexus
between an obstructive act and an existing proceeding,
thereby rendering its interpretation vague. The majority
Opinion concludes that Valenzuela Gallardo raises grave
constitutional vagueness concerns by changing a well-settled
BIA construction, and gives the BIA an option of applying its
“previous interpretation” on remand. But the majority
Opinion relies on a mistaken premise that In re Espinoza-
Gonzalez, 22 I. & N. Dec. 889 (B.I.A. 1999) (en banc),
previously required a nexus to an ongoing investigation or
proceeding for a crime of conviction to be “an offense
relating to obstruction of justice” for purposes of 8 U.S.C.
§ 1101(a)(43)(S).1 In fact, Espinoza-Gonzalez did not (and
Valenzuela Gallardo explains why). Valenzuela Gallardo is
not a change from BIA precedent – it is a change from this
Circuit’s interpretation of BIA precedent.

    As explained to follow, Valenzuela Gallardo explicitly
clarified language in Espinoza-Gonzalez, in light of what the
BIA considers to be the Ninth Circuit’s misreading of BIA


 1
  8 U.S.C. § 1101(a)(43)(S) provides that “[t]he term ‘aggravated felony’
means . . . 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[.]”
34             VALENZUELA GALLARDO V. LYNCH

precedent in Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011).
Further, Valenzuela Gallardo specifically reaffirmed In re
Batista-Hernandez, 21 I. & N. Dec. 955 (B.I.A. 1997) (en
banc), which held that 18 U.S.C. § 3 – a crime that is
indistinguishable from California Penal Code § 32 which is
at issue here – is indeed a crime “relating to obstruction of
justice.”2 Valenzuela Gallardo did not purport to overrule or
change the BIA’s prior (and still valid) en banc precedent,
although it surely meant to trump Hoang. And as the
majority Opinion acknowledges, this is the BIA’s prerogative
under principles of deference set forth in National Cable &
Telecommunications Ass’n v. Brand X Internet Services,
545 U.S. 967, 982 (2005) (“A court’s prior judicial
construction of a statute trumps an agency construction
otherwise entitled to Chevron deference only if the prior court
decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for
agency discretion.”) (applying Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).

    Thus, viewed in proper context, the matter should be
analyzed under the familiar Chevron standard where, given
a statutory ambiguity, courts defer to an agency’s
construction of a statute it administers if its construction
“reflects a plausible reading of the statutory text.” Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 493 (9th Cir. 2007) (en
banc) (discussing and applying Chevron).


 2
    California Penal Code § 32 provides that “[e]very 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. LYNCH                     35

    Second, although the majority Opinion acknowledges that
the term “relating to obstruction of justice” in
§ 1101(a)(43)(S) is ambiguous, it refuses to give deference to
the BIA’s reasonable, permissible, and plausible formulation
at Chevron step two. But this type of refusal should be
reserved for “major” or “extraordinary cases.” See King v.
Burwell, 135 S. Ct. 2480, 2488–89 (2015) (explaining that
deference under Chevron to an agency’s construction of a
statute that it administers “is premised on the theory that a
statute’s ambiguity constitutes an implicit delegation from
Congress to the agency to fill in the statutory gaps. . . . In
extraordinary cases, however, there may be reason to hesitate
before concluding that Congress has intended such an implicit
delegation”) (quoting Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 159 (2000))
(emphasis added). And unlike King’s challenge to the Patient
Protection and Affordable Care Act, this is not an
extraordinary case.

    Instead of deferring, the majority applies the canon of
constitutional avoidance because it views the BIA’s
construction as approaching a constitutional boundary –
vagueness – a type of interpretation that it believes Congress
could not have intended. But applying the constitutional
avoidance doctrine in this instance, where the context calls
for an ordinary Chevron analysis, allows the exception to
swallow the rule. See, e.g., Nat’l Mining Ass’n v.
Kempthorne, 512 F.3d 702, 711 (D.C. Cir. 2008) (“[W]e do
not abandon Chevron deference at the mere mention of a
possible constitutional problem; the argument must be
serious.”). The BIA’s formulation (whether a crime “includes
the critical element of an affirmative and intentional attempt,
motivated by a specific intent, to interfere with the process of
justice, irrespective of the existence of an ongoing criminal
36          VALENZUELA GALLARDO V. LYNCH

investigation or proceeding”) does not raise “grave”
constitutional vagueness concerns.

    The majority Opinion reasons that without a nexus to an
existing proceeding or investigation, the BIA’s definition
fails to indicate the contours of “the process of justice,”
thereby presenting grave or serious constitutional concerns.
But many obstruction crimes do not require an ongoing or
pending proceeding – crimes which are undoubtedly “relating
to obstruction of justice” (a term indicating that Congress
specifically intended to broaden – not narrow – the scope of
qualifying obstruction crimes). Such crimes require a nexus
only to a foreseeable or contemplated investigation (e.g.,
18 U.S.C. § 1512(b)(1)), or to a specific type of proceeding
(e.g., 18 U.S.C. § 1519), or otherwise to “the process of
justice” such as by hindering or preventing an offender’s
apprehension or arrest (e.g., 18 U.S.C. § 3) and thereby
materially interfering with the ability to investigate or
prosecute. That is, there is no temporal nexus requirement.
The absence of a specific requirement for an ongoing
investigation or pending proceeding does not render the
BIA’s definition vague, much less create grave constitutional
doubts on that score.

    Finally, to the extent the constitutional avoidance doctrine
can apply to the BIA’s formulation in the current Chevron
context, we should apply it differently than the majority
Opinion does. If the BIA’s formulation raises serious
questions as to vagueness, then – as has been done previously
– we should construe the agency’s precedent in a readily-
apparent way that is constitutional, not remand with an option
for the BIA to apply its previous interpretation. See, e.g.,
Williams v. Babbitt, 115 F.3d 657, 666 (9th Cir. 1997) (“The
constitutional questions raised by the [Interior Board of
             VALENZUELA GALLARDO V. LYNCH                       37

Indian Appeals’] interpretation are grave . . . . We therefore
interpret the Reindeer Act as not precluding non-natives in
Alaska from owning and importing reindeer.”); United States
v. Stansell, 847 F.2d 609, 615 (9th Cir. 1988) (“Because a
reasonable limiting construction can be placed on the
challenged regulation, we hold that [it] is not substantially
overbroad.”).

    And the BIA’s formulation can certainly be viewed to
include a required nexus – short of a pending or ongoing
investigation. The formulation requires an affirmative
attempt (i.e., an act), with specific intent, to interfere with the
process of justice – sufficiently encapsulating the type of
nexus or connection required in crimes such as 18 U.S.C.
§§ 1512(b)(1), 1519, and 3 (and thus to California Penal Code
§ 32 at issue here). Valenzuela Gallardo also specifically
refers to acts that clearly constitute obstruction – without a
pending proceeding or investigation – in giving obvious
meaning to the phrase “the process of justice.” See 25 I. & N.
Dec. at 841–42 (referring to acts with intent “to hinder or
prevent [the principal’s] apprehension, trial or punishment”
and “that [the] principal may avoid or escape from arrest,
trial, conviction or punishment”) (emphasis added). And it
reaffirms its en banc precedent further explaining “the
process of justice.” See id. at 840 (explaining that obstruction
occurs with an act meant to “prevent[] the arrest of the
offender”) (quoting Batista-Hernandez, 21 I & N. Dec. at
961). We need not remand for further explanation.

    To follow, I explain these points in more detail.
38          VALENZUELA GALLARDO V. LYNCH

II. Applying Brand-X, Valenzuela Gallardo clarified prior
    BIA decisions in light of Hoang

    It is undisputed that the Immigration and Nationality Act
(“INA”) does not provide specific guidance as to the meaning
of “an offense relating to obstruction of justice” in
§ 1101(a)(43)(S) – that is, the term is ambiguous. See, e.g.,
Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9th Cir.
2008) (“[Section] 1101(a)(43)(S) does not clearly set forth the
elements of the generic federal crime. Because the INA does
not define the phrase ‘offense relating to obstruction of
justice,’ we must determine whether there is any binding
agency precedent on-point which does define that phrase.”)
(citations and some quotation marks omitted); Salazar-
Luviano v. Mukasey, 551 F.3d 857, 860 (9th Cir. 2008)
(“Because Congress itself did not define the phrase ‘offense
relating to obstruction of justice’ in the INA, we defer to the
BIA’s ‘interpretation of the elements of a generic obstruction
of justice offense under § 1101(a)(43)(S)[.]”) (citation and
editorial marks omitted); Hoang, 641 F.3d at 1160 (“Though
the United States criminal code includes a chapter entitled
‘Obstruction of Justice,’ 18 U.S.C. §§ 1501–1521, it does not
clearly set forth the elements of a generic federal obstruction
of justice crime; nor does § 1101(a)(43)(S) provide a generic
definition. Consequently, we must determine whether the
agency charged with implementing the INA has defined the
term.”) (citation and footnote omitted).

    Under Chevron, given an ambiguity in a statute that an
agency administers, a court “does not impose its own
construction of the statute, but rather it decides ‘whether the
agency’s answer is based on a permissible construction of the
statute.’” Gonzales v. Dep’t of Homeland Sec., 508 F.3d
1227, 1235 (9th Cir. 2007) (quoting Chevron, 467 U.S. at
                VALENZUELA GALLARDO V. LYNCH                            39

843). And Brand X “instructed federal courts to defer to
reasonable agency interpretations of ambiguous statutes, even
when those interpretations conflict with the prior holding of
a federal circuit court.” Garfias-Rodriguez v. Holder,
702 F.3d 504, 507 (9th Cir. 2012) (en banc) (citing Brand X,
545 U.S. at 982–83). In other words, “[a] circuit court must
apply Chevron deference to an agency’s interpretation of a
statute regardless of the circuit court’s contrary precedent,
provided that the court’s earlier precedent was an
interpretation of a statutory ambiguity.” Gonzales, 508 F.3d
at 1235–36 (citing Brand X, 545 U.S. at 980–82).

    In 2011, a majority in Hoang (over a dissent from Judge
Bybee) interpreted BIA precedent regarding § 1101(a)(43)(S)
to require a pending proceeding or investigation such that a
Washington crime of rendering criminal assistance is not an
offense “relating to obstruction of justice.” 641 F.3d at
1162–64. Hoang thus concluded that the Washington statute
was categorically not an aggravated felony because it
potentially criminalized the rendering of criminal assistance
“before any investigation or judicial proceeding has begun.”
641 F.3d at 1162. It did so, however, despite an en banc BIA
decision, Batista-Hernandez, which held that a conviction of
18 U.S.C. § 3 (accessory after the fact) “clearly relates to
obstruction of justice.” 21 I. & N. Dec. at 961.3 Batista-
Hernandez cited “the wording of 18 U.S.C. § 3” and caselaw
reasoning that “the nature of being an accessory after the fact

 3
     18 U.S.C. § 3 (“Accessory after the fact”) provides in pertinent part:

          Whoever, knowing that an offense against the United
          States has been committed, receives, relieves, comforts
          or assists the offender in order to hinder or prevent his
          apprehension, trial or punishment, is an accessory after
          the fact.
40              VALENZUELA GALLARDO V. LYNCH

lies essentially in obstructing justice and preventing the arrest
of the offender.” Id. (citing United States v. Barlow, 470 F.2d
1245, 1252–53 (D.C. Cir. 1972)). The BIA reasoned that
18 U.S.C. § 3 “criminalizes actions knowingly taken to
‘hinder or prevent (another’s) apprehension, trial or
punishment.’” Id.

    Hoang relied in part on another BIA en banc decision,
Espinoza-Gonzales, issued two years after Batista-
Hernandez. The BIA in Espinoza-Gonzales (in a decision
written by Board Member Grant) held that the federal crime
of misprision of a felony under 18 U.S.C. § 4 is not “an
offense relating to obstruction of justice.” 22 I. & N. Dec. at
892–95.4 The Hoang majority analyzed the BIA’s approach
to the differences between 18 U.S.C. § 3 and 18 U.S.C. § 4 as
follows:

          Espinoza-Gonzalez distinguished misprision
          of a felony from accessory after the fact on
          the grounds that the latter both “references the
          specific purpose for which” the act is done,
          22 I. & N. Dec. at 894, and requires “as an
          element either active interference with
          proceedings of a tribunal or investigation, or
          action or threat of action against those who


 4
     18 U.S.C. § 4 (“Misprision of felony”) provides:

          Whoever, having knowledge of the actual commission
          of a felony cognizable by a court of the United States,
          conceals and does not as soon as possible make known
          the same to some judge or other person in civil or
          military authority under the United States, shall be
          fined under this title or imprisoned not more than three
          years, or both.
            VALENZUELA GALLARDO V. LYNCH                     41

       would cooperate in the process of justice.” Id.
       at 895. The BIA stated that “concealment of
       a crime [as in 18 U.S.C. § 4] is qualitatively
       different from an affirmative action to hinder
       or prevent another’s apprehension, trial, or
       punishment [as in 18 U.S.C. § 3]. It is a
       lesser offense to conceal a crime where there
       is no investigation or proceeding, or even an
       intent to hinder the process of justice. . . .” Id.
       at 895 (emphasis added). Taken as a whole,
       Espinoza-Gonzalez does not suggest that the
       BIA considered accessory after the fact to be
       an offense relating to obstruction of justice
       even though it does not require the defendant
       to interfere with an ongoing proceeding or
       investigation. The language used indicates
       that the BIA now concludes [in Espinoza-
       Gonzalez] that accessory after the fact is an
       obstruction of justice crime when it interferes
       with an ongoing proceeding or investigation.

641 F.3d at 1164.

    A year later, the BIA in Valenzuela Gallardo specifically
responded to Hoang (in a decision also written by Board
Member Grant, the author of Espinoza-Gonzalez) by
explicitly reaffirming Batista-Hernandez and clarifying
Espinoza-Gonzales. See Valenzuela Gallardo, 25 I. & N.
Dec. at 844. The BIA “respectfully invoke[d] the authority
in Brand X to clarify [its] prior precedents on the scope of the
phrase ‘relating to obstruction of justice.’” Id. at 840. In
explaining Espinoza-Gonzales, Valenzuela Gallardo
reiterated that the key distinction between 18 U.S.C. § 3 and
18 U.S.C. § 4 is that § 3 “references the specific purposes for
42          VALENZUELA GALLARDO V. LYNCH

the concealment, which are hindering or preventing the
‘apprehension, trial or punishment’ of the principal offender.”
Id. at 841 (quoting 18 U.S.C. § 3). In contrast, “nothing in
§ 4 . . . references the specific purpose[.]” Id. (quoting
Espinoza-Gonzalez, 22 I. & N. Dec. at 894). Valenzuela
Gallardo reasoned:

       [W]e supported this distinction by pointing
       out that “concealment of a crime is
       qualitatively different from an affirmative
       action to hinder or prevent another’s
       apprehension, trial or punishment.”
       [Espinoza-Gonzalez, 22 I. & N. Dec.] at 895.
       We concluded that misprision does not
       constitute “obstruction of justice” because “it
       lacks the critical element of an affirmative and
       intentional attempt, motivated by a specific
       intent, to interfere with the process of justice.”
        Id. at 896. This element – the affirmative and
       intentional attempt, with specific intent, to
       interfere with the process of justice –
       demarcates the category of crimes constituting
       obstruction of justice. While many crimes
       fitting this definition will involve interference
       with an ongoing criminal investigation or
       trial, id. at 892–93, we now clarify that the
       existence of such proceedings is not an
       essential element of “an offense relating to
       obstruction of justice.”

25 I. & N. Dec. at 841.

   In other words, the BIA disagrees with the Hoang
majority’s conclusion that “[t]aken as a whole, Espinoza-
             VALENZUELA GALLARDO V. LYNCH                      43

Gonzalez does not suggest that the BIA considered accessory
after the fact to be an offense relating to obstruction of justice
even though it does not require the defendant to interfere with
an ongoing proceeding or investigation.” Hoang, 641 F.3d at
1164. It disagrees with the Hoang majority’s interpretation
that “the BIA now concludes [in Espinoza-Gonzalez] that
accessory after the fact is an obstruction of justice crime
when it interferes with an ongoing proceeding or
investigation.” Id. Espinoza-Gonzales never required a
crime of conviction to have as an element only “active
interference with proceedings of a tribunal;” it always
required “either active interference with proceedings of a
tribunal or investigation, or action or threat of action against
those who would cooperate in the process of justice.” 22 I. &
N. Dec. at 893 (emphasis added).

    The purpose of Valenzuela Gallardo was not to announce
a new comprehensive BIA interpretation; it was simply to
reaffirm and clarify its precedent that – despite Hoang – a
pending or ongoing investigation or proceeding is not a
necessary element of a crime “relating to obstruction of
justice.” 25 I. & N. Dec. at 844. It must be read together
with both Batista-Hernandez and Espinoza-Gonzalez as
establishing the BIA’s construction of “relating to obstruction
of justice.”

   Applying the categorical approach to California Penal
Code § 32, Valenzuela Gallardo then reasoned that:

        The provisions of this statute are closely
        analogous, if not functionally identical, to
        those in 18 U.S.C. § 3. Critically, both
        statutes include the element of an affirmative
        and intentional attempt, motivated by a
44            VALENZUELA GALLARDO V. LYNCH

         specific intent, to interfere with the process of
         justice. See 18 U.S.C. § 3 (requiring that the
         offender act “in order to hinder or prevent
         [the principal’s] apprehension, trial or
         punishment”) (emphasis added); Cal. Penal
         Code § 32 (West 2012) (requiring that the
         offender act “with the intent that [the]
         principal may avoid or escape from arrest,
         trial, conviction or punishment”) (emphasis
         added)[.]

25 I. & N. Dec. at 841–42. The BIA thus gives meaning to
the term “process of justice” by referring to statutes and
obstructive acts even without a pending proceeding or
ongoing investigation.5 And it based its decision on the same
key factor that it has applied since at least 1999 in Espinoza-
Gonzalez – whether a crime has “the critical element of an
affirmative and intentional attempt, motivated by specific
intent, to interfere with the process of justice.” In this
fundamental aspect, the decision was hardly a new
interpretation.

    Valenzuela Gallardo also considered that
§ 1101(a)(43)(S) requires only an offense to be “relating to”
obstruction of justice, indicating that a broader reading is
proper. 25 I. & N. Dec. at 843. And it recognized that the
Third Circuit in Denis v. Attorney General, 633 F.3d 201, 209
(3d Cir. 2011), considered the phrase “relating to obstruction


  5
    Furthermore, “hindering or preventing” a principal’s “apprehension,
trial, or punishment” satisfies a “materiality” requirement that may be
necessary to satisfy vagueness concerns with some obstruction crimes.
See, e.g., United States v. Bonds, 784 F.3d 582, 585 (9th Cir. 2015) (en
banc) (Kozinski, J., concurring).
              VALENZUELA GALLARDO V. LYNCH                            45

of justice” to be unambiguous such that a conviction for
accessory after the fact in the Third Circuit would necessarily
qualify as an obstruction offense under § 1101(a)(43)(S).
Reasoning (properly) that “[a]n important purpose of [BIA]
precedent is the establishment of a uniform interpretation of
law in cases before the Immigration Judges and the [BIA],”
id. at 844 (quoting Matter of U. Singh, 25 I. & N. Dec. 670,
672 (B.I.A. 2012)), it concluded that “accessory after the fact
offenses necessarily relate to obstruction of justice”
irrespective of the existence of an ongoing criminal
investigation or proceeding. Id.6



   6
     After Valenzuela Gallardo was issued in 2012, the Eighth Circuit
similarly interpreted Espinoza-Gonzales to mean that a Nebraska witness-
tampering statute (Neb. Rev. Stat. § 28-919(1)) is a crime “relating to
obstruction of justice” for purposes of § 1101(a)(43)(S). See Armenta-
Lagunas v. Holder, 724 F.3d 1019, 1022–24 (8th Cir. 2013). Although
Armenta-Lagunas did not specifically address vagueness or whether a
pending proceeding is required, it found nothing uncertain about the BIA’s
formulation:

         [T]he offenses entitled “Obstruction of Justice” all
         required “the critical element of an affirmative and
         intentional attempt, motivated by a specific intent, to
         interfere with the process of justice.” [Espinoza-
         Gonzales, 22 I. & N. Dec.] at 894. “In other words . . .
         it must include as elements both (1) the actus reus of an
         ‘active interference with proceedings of a tribunal or
         investigation, or action or threat of action against those
         who would cooperate in the process of justice,’ and
         (2) the mens rea of a ‘specific intent to interfere with
         the process of justice.’” Higgins v. Holder, 677 F.3d 97,
         102 (2d Cir. 2012) (quoting Espinoza-Gonzalez, 22 I. &
         N. Dec. at 893).

724 F.3d at 1022.
46             VALENZUELA GALLARDO V. LYNCH

    In short, this case involves a straightforward application
of Chevron. The court should defer to the BIA’s reasonable,
permissible, and plausible interpretation of § 1101(a)(43)(S).

III.     The use of the constitutional avoidance doctrine in
         this case undermines Congressional intent

     Moreover, in the context now before us – where it is
undisputed that the statutory language is ambiguous – the
constitutional avoidance doctrine is an inappropriate
framework to disregard the BIA’s interpretation. Certainly,
if the BIA’s definition is unconstitutional, then we have the
power to strike it or make such a declaration. But Morales-
Izquierdo, an en banc opinion of this court, in no uncertain
terms reasons that “the constitutional avoidance doctrine . . .
plays no role in the second Chevron inquiry.” 486 F.3d at
493. That is,




     Similarly, the Second Circuit in Higgins concluded that a Connecticut
witness-tampering statute (Conn. Gen. Stat. § 53a-151) is a crime “relating
to obstruction of justice.” See 677 F.3d at 105–06 (citing Espinoza-
Gonzales). And in United States v. Gamboa-Garcia, 620 F.3d 546 (5th
Cir. 2010), the Fifth Circuit held the same for an Idaho accessory statute
(Idaho Code § 18-205). See id. at 550.

     Notably, the witness-tampering statutes analyzed in Armenta-Lagunas
and Higgins both require a perpetrator to “believ[e] that an official
proceeding” “is pending or about to be instituted.” Armenta-Lagunas,
724 F.3d at 1023 (emphasis added); Higgins, 677 F.3d at 104 (same).
Likewise, Idaho Code § 18-205, analyzed in Gamboa-Garcia, does not
refer to a pending proceeding. The majority Opinion’s approach is thus
inconsistent with the Second (Higgins), Fifth (Gamboa-Garcia) and
Eighth Circuits (Armenta-Lagunas) – creating or perpetuating a circuit
split.
               VALENZUELA GALLARDO V. LYNCH                            47

         we are not deciding between two plausible
         statutory constructions; we are evaluating an
         agency’s interpretation of a statute under
         Chevron. At step two of this inquiry, our
         function is “not simply [to] impose [our] own
         construction on the statute, as would be
         necessary in the absence of an administrative
         interpretation. Rather, . . . the question for the
         court is whether the agency’s answer is based
         on a permissible construction of the statute.”
         When Congress has explicitly or implicitly
         left a gap for an agency to fill, and the agency
         has filled it, we have no authority to re-
         construe the statute, even to avoid potential
         constitutional problems; we can only decide
         whether the agency’s interpretation reflects a
         plausible reading of the statutory text.

Id. at 492–93 (quoting Chevron, 467 U.S. at 843) (emphasis
added) (brackets and ellipses in original).7

    Rather than giving deference to the BIA’s permissible
formulation, the majority Opinion (avoiding Morales-
Izquierdo’s logic) relies on authority indicating that
constitutional avoidance can apply at Chevron step one. See,
e.g., Morales-Izquierdo, 486 F.3d at 504 (“The avoidance
canon . . . is properly applied at step one of the Chevron


 7
   See also Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008)
(“[T]he doctrine is unavailing to petitioner, because, as the Ninth Circuit
held, once an ambiguous statute has been interpreted by the agency in
charge of its implementation, we lack the ‘authority to re-construe the
statute, even to avoid potential constitutional problems.’”) (quoting
Morales-Izquierdo, 486 F.3d at 493).
48          VALENZUELA GALLARDO V. LYNCH

analysis. While . . . the avoidance canon cannot be used to
render an agency’s interpretation ‘unreasonable’ at Chevron
step two, the canon is unquestionably a ‘traditional tool of
statutory interpretation’ that may and should be used to
determine whether Congress intended to preclude the
agency’s chosen interpretation.”) (citations omitted)
(Thomas, C.J., dissenting); but cf. Olmos v. Holder, 780 F.3d
1313, 1321 (10th Cir. 2015) (“[T]he canon on constitutional
avoidance does not bear on our inquiry at step one.”).

    That is, although the majority Opinion acknowledges that
the term “relating to obstruction of justice” is ambiguous, it
applies the canon of constitutional avoidance because
Congress could not have intended an agency construction that
approaches a constitutional boundary without some indication
allowing such a construction. But this reasoning utterly
disregards the term “relating to,” which indicates a broad
interpretation – meaning Congress intended to include not
only crimes that actually constitute “obstruction of justice,”
but also crimes that are “relating to” such crimes. See, e.g.,
Rodriguez-Valencia v. Holder, 652 F.3d 1157, 1159 (9th Cir.
2011) (“When interpreting the INA, we construe the ‘relating
to’ language broadly.”) (quoting Luu-Le v. I.N.S., 224 F.3d
911, 915 (9th Cir. 2000) (some quotation marks omitted)).

    For example, in analyzing an aggravated felony statute,
8 U.S.C. § 1101(a)(43)(R) (including as an aggravated felony
an “offense relating to commercial bribery, counterfeiting,
forgery, or trafficking in vehicles . . . for which the term of
imprisonment is at least one year”), Albillo-Figuero v. I.N.S.,
221 F.3d 1070 (9th Cir. 2000), held that the clause “relating
to” “necessarily covers a range of activities beyond those of
counterfeiting or forgery itself.” Id. at 1073. As Kamagate
v. Ashcroft, 385 F.3d 144 (2d Cir. 2004), reasoned, “the
               VALENZUELA GALLARDO V. LYNCH                              49

phrase ‘relating to’ . . . is [often] used [in the INA] . . . to
define aggravated felonies by reference to the general subject
of the offense of conviction, suggesting Congress’s intent to
reach more broadly than any single statute.” Id. at 154 (citing
8 U.S.C. §§ 1101(a)(43)(K)(i), (Q), (S), & (T)).8

    Thus, by using the term “relating to” in § 1101(a)(43)(S),
Congress intended to reach a wide spectrum of obstruction
crimes, even those that may reach near to the limits of
congressional authority. It surely meant to include more than
crimes constituting obstruction of justice, not just some of
them.

    The exception “to hesitate before concluding that
Congress has intended such an implicit delegation,” should be
reserved for major or “extraordinary cases.” See Brown &
Williamson, 529 U.S. at 159 (“In extraordinary cases,
however, there may be reason to hesitate before concluding
that Congress has intended such an implicit delegation.”)
(emphasis added) (citing Stephen Breyer, Judicial Review of
Questions of Law and Policy, 38 Admin. L. Rev. 363, 370
(1986)). And, although the issues we face regarding the
meaning of “relating to obstruction of justice” have proven to
be challenging, this is not an extraordinary case. Compare


  8
    Contrary to the majority’s view, Mellouli v. Lynch, 135 S. Ct. 1980,
1990 (2015) (cautioning that courts may not extend “relating to” “to the
furthest stretch of [its] indeterminacy” where language and historical
context “tug in favor of a narrower reading”) does not change this
reasoning. See United States v. Sullivan, 797 F.3d 623, 639 (9th Cir.
2015) (“[W]e interpret the phrase ‘relating to’ broadly . . . unless the text
and history of the statute require a narrower construction.”) (some
editorial marks and citation omitted) (discussing Mellouli), petition for
cert. filed (U.S. Jan. 28, 2016) (No. 15-7875). Nothing here “tugs in favor
of a narrower reading” as was analyzed in Mellouli.
50          VALENZUELA GALLARDO V. LYNCH

King, 135 S. Ct. at 2489 (upholding the Patient Protection
and Affordable Care Act despite statutory ambiguity because
“[t]his is one of those [extraordinary] cases”) (referring to
Brown & Williamson, 529 U.S. at 159). Because this is not
such a case, the BIA is owed deference. And applying the
constitutional avoidance doctrine in this instance – where the
constitutional questions are not “serious” (as explained to
follow) – invites courts to apply an exception whenever there
is statutory ambiguity. Cf. Liu v. Waters, 55 F.3d 421, 426
(9th Cir. 1995) (“[W]e must not allow [an] exception for
constitutional questions to swallow the rule.”).

    The majority Opinion correctly states that we must ask
whether Congress intended to permit the agency
interpretation, and the doctrine of constitutional avoidance
can sometimes aid in this task. But by reading the term
“relating to” out of the statute, the majority Opinion ignores
true Congressional intent. That is, because Congress’ use of
the term “relating to” demonstrates intent to broaden the
scope of covered obstruction-related crimes, the doctrine
should not be employed to narrow the scope of covered
crimes. In short, the majority Opinion’s use of the doctrine
as applied here does not further Congressional intent but
instead undermines it.

IV.    The BIA’s construction does not present “serious”
       or “grave” constitutional concerns

    More to the point, even examining the BIA’s construction
at Chevron step one, the constitutional avoidance doctrine
only applies to truly “serious” constitutional questions. See
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and
Constr. Trades Council, 485 U.S. 568, 577 (1988); Williams,
115 F.3d at 662 (“Only if the agency’s proffered
            VALENZUELA GALLARDO V. LYNCH                    51

interpretation raises serious constitutional concerns may a
court refuse to defer under Chevron.”). They must be
“grave.” Rust v. Sullivan, 500 U.S. 173, 191 (1991);
Williams, 115 F.3d at 663 (“[C]onstitutional narrowing
should displace Chevron only when the constitutional
problems are truly ‘grave’ . . . because all possible
interpretations raise constitutional problems.”). “[T]he
‘constitutional doubt’ doctrine does not apply mechanically
whenever there arises a significant constitutional question the
answer to which is not obvious.” Almendarez-Torres v.
United States, 523 U.S. 224, 239 (1998). That is, “we do not
abandon Chevron deference at the mere mention of a possible
constitutional problem[.]” Kempthorne, 512 F.3d at 711.
“An agency’s interpretation may be permissible even if it
would create constitutional issues.” Olmos, 780 F.3d at
1322–23 (citing Morales-Izquierdo, 486 F.3d at 493).

    Here, the BIA’s interpretation in Valenzuela Gallardo
does not approach the void-for-vagueness line. It is true that
obstruction of justice crimes punishing acts intended to
impede “the due administration of justice,” such as the
omnibus clause in 18 U.S.C. § 1503(a), have a potentially
“vast” coverage. Bonds, 784 F.3d at 583 (Kozinski, J.,
concurring). But federal obstruction statutes are not
unconstitutionally vague where they include a mens rea of
“corruptly persuade” or “corruptly endeavor.” See, e.g.,
United States v. Jeter, 775 F.2d 670, 679 (6th Cir. 1985)
(rejecting that 18 U.S.C. § 1503 is unconstitutionally
overbroad or vague given “its explicit mens rea requirement
that a person must ‘corruptly’ endeavor to interfere with the
due administration of justice. Thus, one must impede the due
administration of justice with the general intent of knowledge
as well as the specific intent of purpose to obstruct.”)
(citations omitted); United States v. Shotts, 145 F.3d 1289,
52            VALENZUELA GALLARDO V. LYNCH

1300 (11th Cir. 1998) (rejecting vagueness challenge to
18 U.S.C. § 1512(b), reasoning in part that ‘“corrupt’ is a
scienter requirement which provides adequate notice of what
conduct is proscribed”) (citing United States v. Thompson,
76 F.3d 442, 452 (2d Cir. 1996)).

     Under Ninth Circuit law, “corruptly” in this context
means that the obstructive conduct “must be done with the
purpose of obstructing justice.” United States v. Rasheed,
663 F.2d 843, 852 (9th Cir. 1981); United States v. Laurins,
857 F.2d 529, 536–37 (9th Cir. 1988).9 And this definition of
“corruptly” is the functional equivalent to the BIA’s language
at issue here (“the affirmative and intentional attempt, with
specific intent, to interfere with the process of justice,
irrespective of the existence of an ongoing criminal
investigation or proceeding”). That is, the BIA requires a
“corrupt” mens rea in its construction.

    The majority Opinion reasons that without a nexus to
pending or ongoing proceedings – as the Ninth Circuit in
Hoang had interpreted Espinoza-Gonzales – the meaning of
“the process of justice” is vague (or approaches that line).
And it is true that many, if not all, obstruction crimes require
some connection between the obstructive act and a
“proceeding.” See Arthur Andersen LLP v. United States,
544 U.S. 696, 707–08 (2005) (indicating that a nexus to a
foreseeable or contemplated proceeding might suffice under
18 U.S.C. § 1512). But in my view, because a pending


     9
      Cf. 18 U.S.C. § 1515(b) (“As used in section 1505, the term
“corruptly” means acting with an improper purpose, personally or by
influencing another, including making a false or misleading statement, or
withholding, concealing, altering, or destroying a document or other
information.”).
            VALENZUELA GALLARDO V. LYNCH                   53

proceeding does not create the necessary connection, the
BIA’s definition is not missing the required nexus. If a
person specifically interferes with an ongoing investigation,
then the requisite specific purpose of an obstructive act is
obvious. But obstruction does not require the investigation
or proceeding to be pending. “Pending” is sufficient, but not
necessary. And its absence does not render the definition
unconstitutionally vague.

     Rather, what is necessary is a connection to some
contemplated “process of justice” that encompasses an “evil
intent to obstruct.” United States v. Aguilar, 515 U.S. 593,
599 (1995) (“[A] person lacking knowledge of a pending
proceeding necessarily lacked the evil intent to obstruct.”)
(citing Pettibone v. United States, 148 U.S. 197, 207 (1893)).
This “evil intent” is adequately articulated by the BIA as “an
affirmative and intentional attempt, with specific intent, to
interfere with the process of justice.” Moreover, Valenzuela
Gallardo (as well as Batista-Hernandez and Espinoza-
Gonzalez) describes or refers to “the process of justice” as
including arrest, apprehension, conviction, or punishment.
See 25 I. & N. Dec. at 841–42. Valenzuela Gallardo also
refers to specific federal obstruction crimes, as detailed to
follow, that do not require proceedings to be pending, and
that also give further meaning to “the process of justice.”

   A. Crimes Under 18 U.S.C. § 1512

    Prime examples of federal obstruction crimes that do not
require “pending proceedings” are witness-tampering crimes
set forth in 18 U.S.C. § 1512 such as:

       • 18 U.S.C. § 1512(b) (“Whoever knowingly
       uses intimidation, threatens, or corruptly
54          VALENZUELA GALLARDO V. LYNCH

       persuades another person, or attempts to do
       so, or engages in misleading conduct toward
       another person, with intent to – (1) influence,
       delay, or prevent the testimony of any person
       in an official proceeding”); and

       • 18 U.S.C. § 1512(c) (“Whoever corruptly –
       (1) alters, destroys, mutilates, or conceals a
       record, document, or other object, or attempts
       to do so, with the intent to impair the object’s
       integrity or availability for use in an official
       proceeding; or (2) otherwise obstructs,
       influences, or impedes any official
       proceeding, or attempts to do so, shall be
       fined under this title or imprisoned not more
       than 20 years, or both.”).

      Although these crimes require some connection to an
“official proceeding,” they do not require it to be pending.
See 18 U.S.C. § 1512(f)(1) (“For the purposes of this section
. . . an official proceeding need not be pending or about to be
instituted at the time of the offense.”). Congress adopted this
language to encompass a perpetrator’s actions even before an
investigation has begun. Legislative history explains:

       [Section 1512(f)(1)] obviates the requirement
       that there be an official proceeding in progress
       or pending. The Committee felt that this
       increases the scope of the section by
       expanding the galaxy of witnesses and victims
       the protections of its language is meant to
       embrace.        Intimidation offenses are
       particularly insidious and do violence to
       traditional notions of justice because no one
            VALENZUELA GALLARDO V. LYNCH                    55

       can be convicted of a crime which is not
       reported. Subsection [(f)(1)], among other
       things, specifically reaches intimidation
       offenses before a crime is reported to the
       appropriate authorities.

Judiciary Comm., 97th Cong., Victim and Witness Protection
Act of 1982, S. Rep. No. 97-532, at 19 (1982), reprinted in
1982 U.S.C.C.A.N. 3 (emphasis added).

    That is, although the government must still connect the
obstructive act to an official proceeding under § 1512(b)(1),
see Arthur Andersen, 544 U.S. at 707–08, the nexus does not
have to be to an ongoing proceeding. Rather, it requires
proof under § 1512(b)(1) of a foreseeable or contemplated
proceeding. See id. (“It is, however, one thing to say that a
proceeding ‘need not be pending or about to be instituted at
the time of the offense,’ and quite another to say a proceeding
need not even be foreseen. A ‘knowingly . . . corrup[t]
persuade[r]’ cannot be someone who persuades others to
shred documents under a document retention policy when he
does not have in contemplation any particular official
proceeding in which those documents might be material.”);
see also United States v. Friske, 640 F.3d 1288, 1292 n.5
(11th Cir. 2011) (“Consistent with Aguilar’s nexus
requirement, the government must prove [under § 1512(c)(2)]
that the defendant knew of or foresaw an official proceeding,
and knew that his actions were likely to affect it.”).

   Other obstruction of justice crimes in § 1512 do not even
require an “official proceeding:”

       •    18 U.S.C. § 1512(d)(2) (“Whoever
       intentionally harasses another person and
56          VALENZUELA GALLARDO V. LYNCH

       thereby hinders, delays, prevents, or dissuades
       any person from . . . reporting to a law
       enforcement officer or judge of the United
       States the commission or possible commission
       of a Federal offense . . . . or attempts to do so,
       shall be fined under this title or imprisoned
       not more than 3 years, or both.”); and

       •     18 U.S.C. § 1512(b)(3) (“Whoever
       knowingly uses intimidation, threatens, or
       corruptly persuades another person, or
       attempts to do so, or engages in misleading
       conduct toward another person, with intent to
       . . . hinder, delay, or prevent the
       communication to a law enforcement officer
       or judge of the United States of information
       relating to the commission or possible
       commission of a Federal offense . . . shall be
       fined under this title or imprisoned not more
       than 20 years, or both.”).

    These sections “make[] no mention of ‘an official
proceeding’ and do[] not require that a defendant’s
misleading conduct relate in any way either to an ‘official
proceeding’ or even to a particular ongoing investigation.”
United States v. Ronda, 455 F.3d 1273, 1288 (11th Cir.
2006). “[Section] 1512(b)(3) requires only that a defendant
intended to hinder, delay, or prevent communication to any
‘law enforcement officer or judge of the United States’ [and
thus] requires only ‘the possible existence of a federal crime
and a defendant’s intention to thwart an inquiry into that
crime.’” Id. (quoting United States v. Veal, 153 F.3d 1233,
1250 (11th Cir. 1998)). See also, e.g., United States v.
Guadalupe, 402 F.3d 409, 411 (3d Cir. 2005) (“[P]roving a
            VALENZUELA GALLARDO V. LYNCH                     57

violation of 18 U.S.C. § 1512(b)(3) does not depend on the
existence or imminency of a federal investigation but rather
on the possible existence of a federal crime and a defendant’s
intention to thwart an inquiry into that crime by officials who
happen to be federal.”) (emphases added); United States v.
Baldyga, 233 F.3d 674, 680 (1st Cir. 2000) (noting that
defendant’s conduct violated § 1512(b)(3) where he hindered
government cooperator’s “communication with authorities”
and where “the possibility existed that such communication
would eventually occur with federal officials”) (emphasis
added).

    These types of obstruction crimes, while not requiring a
nexus to a pending proceeding, can fairly and reasonably be
said to require a specific intent to interfere with “the process
of justice.” See, e.g., United States v. Byrne, 435 F.3d 16, 24
(1st Cir. 2006) (“[S]ubsection (b)(3) ‘does not connect the
federal interest with an ongoing or imminent judicial
proceeding,’ but rather ‘speaks more broadly’ to ‘the
character of the affected activity, the transmission of
information to federal law enforcement agents[.]’”) (quoting
Veal, 153 F.3d at 1250–51). See also United States v.
Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (“[I]n terms of
the Aguilar nexus requirement, a conviction is proper [under
§ 1512(c)] if interference with the official proceeding is the
‘natural and probable effect’ of the defendant’s conduct.”);
Friske, 640 F.3d at 1292 (“Aguilar relied on the principle that
‘a person lacking knowledge of a pending proceeding
necessarily lack[s] the evil intent to obstruct.’”) (quoting
Aguilar, 515 U.S. at 599).
58             VALENZUELA GALLARDO V. LYNCH

       B. Another example – 18 U.S.C. § 1519

    Another example is destroying documents intending to
obstruct a federal investigation under 18 U.S.C. § 1519.
This obstruction crime has a very specific mens rea. It
criminalizes the knowing alteration, destruction, mutilation,
etc., of records, documents, or “tangible objects,” intending
to obstruct the investigation or proper administration of
matters within federal jurisdiction.10 Section 1519 “covers
conduct intended to impede any federal investigation or
proceeding including one not even on the verge of
commencement.” Yates v. United States, 135 S. Ct. 1074,
1087 (2015) (emphasis added). See also United States v.
Gray, 642 F.3d 371, 379 (2d Cir. 2011) (“[Section] 1519 does
not require the existence or likelihood of a federal
investigation.”); United States v. Moyer, 674 F.3d 192, 210
(3d Cir. 2012) (“[The government] was not required to prove
that [Defendant] intended to obstruct or impede a specific
federal investigation.”). “To ensure that the statute is applied
‘broadly,’ criminal liability ‘also extends to acts done in
contemplation of such federal matters, so that the timing of
the act in relation to the beginning of the matter or

  10
    Section § 1519, entitled “Destruction, alteration, or falsification of
records in Federal investigations and bankruptcy,” provides:

          Whoever knowingly alters, destroys, mutilates,
          conceals, covers up, falsifies, or makes a false entry in
          any record, document, or tangible object with the intent
          to impede, obstruct, or influence the investigation or
          proper administration of any matter within the
          jurisdiction of any department or agency of the United
          States or any case filed under title 11, or in relation to
          or contemplation of any such matter or case, shall be
          fined under this title, imprisoned not more than 20
          years, or both.
               VALENZUELA GALLARDO V. LYNCH                             59

investigation is also not a bar to prosecution.’” Moyer,
674 F.3d at 210 (quoting S. Rep. No. 107-146, at 13 (2002));
see also United States v. Yielding, 657 F.3d 688, 711 (8th Cir.
2011) (similar reasoning).11

    Section 1519 is not vague. “Section 1519’s scienter
requirement . . . eliminates any concerns regarding statutory
vagueness.” Moyer, 674 F.3d at 211. Specifically,
“[b]ecause a defendant will be convicted for violating § 1519
‘only for an act knowingly done with the purpose of doing
that which the statute prohibits, the accused cannot be said to
suffer from lack of warning or knowledge that the act which
he does is a violation of law.’” Id. at 212 (quoting Screws v.
United States, 325 U.S. 91, 102 (1945)). “Here, by the
express language of [§ 1519], no liability will be imposed for
knowingly falsifying documents without an ‘intent to impede,
obstruct, or influence a matter.’” Id.




 11
    Indeed, several Circuits have held that no “nexus” (as that term is used
in Aguilar and Arthur Andersen) is required at all under § 1519. See
Yielding, 657 F.3d at 712 (“We conclude that the ‘nexus’ requirement
urged by Yielding – that the government must show the accused knew his
actions were likely to affect a federal matter – does not apply to a
prosecution for the knowing falsification of documents under § 1519. The
text of § 1519 requires only proof that the accused knowingly committed
one of several acts, including falsification of a document, and did so ‘with
the intent to impede, obstruct, or influence the investigation or proper
administration’ of a federal matter.”); Gray, 642 F.3d at 378 (“In view of
the statute’s plain language, which is fully consistent with the legislative
history, we decline to read any such nexus requirement into the text of
§ 1519.”); Moyer, 674 F.3d at 209 (“We conclude that proof of such a
nexus is not required.”). Nevertheless, cases speak in terms of
“foreseeable” or “contemplated” proceedings. See Yielding, 657 F.3d at
811; Moyer, 674 F.3d at 210.
60           VALENZUELA GALLARDO V. LYNCH

    In rejecting a vagueness challenge to § 1519, Yielding
reasoned that “the statute does not impose liability for
‘knowingly . . . destroy[ing] . . . any . . . document . . . in . . .
contemplation of any [federal] matter,’ without an intent to
impede, obstruct, or influence a matter. If it did, then the
statute would forbid innocent conduct such as routine
destruction of documents that a person consciously and in
good faith determines are irrelevant to a foreseeable federal
matter.” 657 F.3d at 711 (editorial marks in original).
Yielding concluded: “[t]he plain language of the statute
forbids the knowing falsification of a document with the
intent to impede, obstruct, or influence the investigation or
proper administration of a federal matter, even if that matter
is not pending at the time of the obstructive act.” Id. at 715.
See also United States v. Kernell, 667 F.3d 746, 753–56 (6th
Cir. 2012) (rejecting vagueness challenge to § 1519); United
States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008) (same).

    Similarly, Valenzuela Gallardo’s formulation –
affirmative and intentional attempt, motivated by a specific
intent, to interfere with the process of justice, irrespective of
the existence of an ongoing criminal investigation or
proceeding – encompasses acts done with the purpose of
impeding or obstructing justice. See, e.g., Rasheed, 663 F.2d
at 852. That is, like § 1519’s requirement to intend to
influence “the investigation or proper administration of any
[federal] matter,” the BIA’s formulation requires a specific
intent to interfere with the process of justice “irrespective of
the existence of an ongoing criminal investigation or
proceeding.”
             VALENZUELA GALLARDO V. LYNCH                      61

    C. The majority Opinion’s other criticisms do not
       help its vagueness analysis

     In discussing vagueness, the majority Opinion also faults
the BIA for providing little instruction as to the requisite
actus reus, with no indication of what conduct must be
interfered with. But the BIA requires “affirmative action
knowingly undertaken,” 25 I. & N. Dec. at 840 (quoting
Espinoza-Gonzalez, 22 I. & N. Dec. at 894) (emphasis added)
– that is, an act – and Espinoza-Gonzales further defines the
actus reus as “either active interference with proceedings of
a tribunal or investigation, or action or threat of action against
those who would cooperate in the process of justice.” 22 I. &
N. at 893 (emphasis added). As the Eighth Circuit reasons,
the BIA has not eliminated an actus reus. See Armenta-
Lagunas, 724 F.3d at 1024 (“To satisfy the actus reus
element, the statute of conviction simply must require an
active interference with proceedings of a tribunal or
investigation, or action or threat of action against those who
would cooperate in the process of justice.”).

    Applying the categorical approach, California Penal Code
§ 32 includes as elements specific instances of conduct that
interfere with the process of justice (“harbors, conceals or
aids a principal . . . with the intent that said principal may
avoid or escape from arrest, trial, conviction, or
punishment[.]”). Petitioner’s California conviction was for
a crime that necessarily requires “an affirmative and
intentional attempt, motivated by a specific intent, to interfere
with the process of justice, irrespective of the existence of an
ongoing criminal investigation or proceeding.”

    And the majority Opinion’s citation to Johnson v. United
States, 135 S. Ct. 2551 (2015), does not support its
62             VALENZUELA GALLARDO V. LYNCH

conclusion that the BIA’s construction raises grave doubts as
to vagueness. Johnson concluded that the Armed Career
Criminal Act’s (“ACCA”) “residual clause,” which defines a
“violent felony” as “any crime punishable by imprisonment
for a term exceeding one year . . . that . . . ‘otherwise involves
conduct that presents a serious potential risk of physical
injury to another,’” 18 U.S.C. § 924(e)(2)(B)(ii), is
unconstitutionally vague. 135 S. Ct. at 2557. Unlike
Johnson, for the reasons just stated, the BIA’s formulation
provides objective standards (it does not eliminate a required
nexus, and adequately explains a connection to “the process
of justice), and requires analyzing statutory definitions – not
“judge-imagined abstraction[s].” Johnson, 135 S. Ct. at
2558. Moreover, Johnson declared the residual clause vague
not only because of its indeterminancy, but because of a long
history by the Supreme Court and other courts of “repeated
attempts and repeated failures to craft a principled and
objective standard out of” its language. Id. There was a
“pervasive disagreement about the nature of the inquiry one
is supposed to conduct and the kinds of factors one is
supposed to consider” among lower courts. Id. at 2560.
Nothing like that is involved with the BIA’s formulation.
Johnson addressed vagueness as to the specific language of
the residual clause by applying settled principles12 – it
provides no support for questioning, on vagueness grounds,
the BIA’s construction of § 1101(a)(43)(S).

     12
          Johnson concluded that the ACCA’s residual clause is
unconstitutional because of two flaws – uncertainty as to: 1) how to
estimate the risk posed by a crime in an “ordinary case,” and 2) how much
risk is required for a crime to qualify. 135 S. Ct. at 2557–58. And the
residual clause contains a list of exemplar crimes, causing further
confusion. Id. at 2558. But the residual clause’s flaws simply don’t exist
with the BIA’s definition requiring a specific intent to interfere with the
process of justice.
            VALENZUELA GALLARDO V. LYNCH                     63

V. If applicable, we should apply constitutional
   avoidance differently

    Finally, even if the constitutional avoidance doctrine
should be applied to the situation before us, we should apply
it differently than how the majority Opinion does. When
presented with grave doubts as to the constitutionality of a
regulatory interpretation, courts should read the interpretation
narrowly in a readily-apparent way to avoid the constitutional
issue. See, e.g., Williams, 115 F.3d at 666; Stansell, 847 F.2d
at 615 (“Because a reasonable limiting construction can be
placed on the challenged regulation, we hold that [it] is not
substantially overbroad.”) (emphasis added); Meinhold v.
United States Dep’t of Defense, 34 F.3d 1469, 1479 (9th Cir.
1994) (“[T]he regulation under which Meinhold was
processed need not be construed so broadly as to raise
constitutional concerns. It can reasonably be construed to
reach only [constitutional grounds].”); United States v.
Bulacan, 156 F.3d 963, 974 (9th Cir. 1998) (similar); cf. Ma
v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir. 2001) (“In the
immigration context, courts have often read limitations into
statutes that appeared to confer broad power on immigration
officials in order to avoid constitutional problems.”). Put
differently, “our task is not to destroy the Act . . . but to
construe it, if consistent with the will of Congress, so as to
comport with constitutional limitations.” U.S. Civil Serv.
Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S.
548, 571 (1973).

    In Edward J. DeBartolo Corp., when faced with a
National Labor Relations Board’s (“NLRB”) interpretation
that presented serious First Amendment questions, neither the
Eleventh Circuit nor the Supreme Court remanded the action
to the NLRB to promulgate a different interpretation – the
64          VALENZUELA GALLARDO V. LYNCH

Eleventh Circuit construed it “as not prohibiting consumer
publicity.” 485 U.S. at 574. Edward J. DeBartolo Corp.
concluded, “as did the [Eleventh Circuit], that the section is
open to a construction that obviates deciding whether a
congressional prohibition of handbilling . . . would violate the
First Amendment.” Id. at 578.

    Likewise, in Williams, the Ninth Circuit did not instruct
the district court to remand the interpretation to the agency to
allow it to reconsider its interpretation in a manner that did
not violate equal protection, or come close to that line.
Rather, given an agency interpretation that presented grave
constitutional questions, Williams then “interpret[ed] the
Reindeer Act as not precluding non-natives in Alaska from
owning and importing reindeer.” 115 F.3d at 666.

    And so, even if Valenzuela Gallardo raises serious
constitutional questions about vagueness, rather than
remanding to the BIA, we can give the definition a limiting
construction and construe it to include the necessary nexus
where such a construction is readily apparent. And
Valenzuela Gallardo can certainly be properly construed to
fully encompass crimes “relating to obstruction of justice.”
The BIA meant to include crimes with an element of
interfering with “the process of justice,” such as preventing
or impeding a principal’s apprehension, trial, or punishment.
Valenzuela Gallardo, 25 I. & N. Dec. at 841. Such a meaning
is obvious from Valenzuela Gallardo, especially when read
in conjunction with the BIA’s en banc decisions in Batista
Hernandez and Espinoza-Gonzalez, both of which Valenzuela
              VALENZUELA GALLARDO V. LYNCH                           65

Gallardo explicitly referred to when “reaffirming” and
“clarifying” them. Id. at 844. There is no reason to remand.13

    For the foregoing reasons, I respectfully dissent.




    13
       The majority Opinion states that the government’s supplemental
briefing requested a remand so that the BIA could consider an alternative
definition. But the government’s request was a fallback, apparently
contingent on the panel deciding at Chevron step two that the BIA’s
definition is “unreasonable.” See Resp’t’s Suppl. Mem. at 10 (“If the
panel decides, however, the Board’s definition is unreasonable this Court
should remand for the Board to provide an alternative definition of the
ambiguous phrase.”). Although we certainly have the power to do so, it
is inappropriate to remand to the BIA in this instance.
