     Case: 15-60857      Document: 00513991499         Page: 1    Date Filed: 05/12/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                                 Fifth Circuit

                                                                                FILED
                                                                             May 12, 2017
                                      No. 15-60857
                                                                             Lyle W. Cayce
                                                                                  Clerk
LUIS MIGUEL GUIDO CRUZ, also known as Luis Miguel Guido,

               Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

               Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A046 617 352


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
       Luis Miguel Guido Cruz appeals the determination by the Board of
Immigration Appeals that he must be deported because his prior conviction for
tampering with or fabricating evidence under Tex. Pen. Code § 37.09 qualifies
as an “aggravated felony” because is it an “offense relating to obstruction of
justice” under 8 U.S.C. § 1101(a)(43)(S). In reaching its conclusion, the Board
below relied on its decision in Matter of Valenzuela Gallardo, 25 I. & N. Dec.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 15-60857        Document: 00513991499          Page: 2     Date Filed: 05/12/2017



                                        No. 15-60857
838, 841 (BIA 2012), in which it held that “the existence of [an ongoing criminal
investigation or trial] is not an essential element of ‘an offense relating to
obstruction of justice.’” However, after briefing in this matter concluded, the
Ninth Circuit vacated the Valenzuela Gallardo definition, finding that it was
unconstitutionally vague, and remanded for reconsideration and development
of an appropriate standard. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 811
(9th Cir. 2016).
       Because the BIA below relied exclusively on the now-vacated Valenzuela
Gallardo decision, we remand this case to the Board for reconsideration in the
light of this development. We make no suggestion as to whether the Ninth
Circuit’s ruling was correctly decided or whether Valenzuela Gallardo provided
an appropriate standard. 1
       Accordingly, Guido Cruz’s Petition for Review is GRANTED and this
case is REMANDED for further proceedings.




       1  This Court had previously afforded deference to the Board’s definition of “offense
relating to obstruction of justice” set forth in In Re Espinoza-Gonzalez, 22 I. & N. Dec. 889
(BIA 1999). See Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004); United States v.
Gamboa-Garcia, 620 F.3d 546, 549 (5th Cir. 2010). Valenzuela Gallardo purported to clarify
the Espinoza-Gonzalez definition to show that “the existence of [an ongoing criminal
investigation or trial] is not an essential element of ‘an offense relating to obstruction of
justice.’” Valenzuela Gallardo, 25 I. & N. Dec. at 841. That clarification is directly implicated
in this case because Tex. Pen. Code § 37.09(d)(1) punishes one who “knowing that an offense
has been committed, alters, destroys, or conceals any record, document, or thing with intent
to impair its verity, legibility, or availability as evidence in any subsequent investigation of
or official proceeding related to the offense.” Id. § 37.09(d)(1) (emphasis added). We make no
suggestion as to whether Guido Cruz’s statute of conviction satisfies the standard as set forth
in Espinoza-Gonzalez.
                                               2
