VALENZUELA GALLARDO

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Matter of Agustin VALENZUELA GALLARDO, Respondent
Decided April 2, 2026
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) “[A]n offense relating to obstruction of justice” under section 101(a)(43)(S) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (2024), is a specific intent
offense involving an affirmative and intentional attempt to interfere with the process of
justice and law. 	Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012),
reaffirmed.
(2) A conviction for accessory to a felony under section 32 of the California Penal Code
that results in a term of imprisonment of at least 1 year categorically qualifies as “an
offense relating to obstruction of justice” under section 101(a)(43)(S) of the INA,
8 U.S.C. § 1101(a)(43)(S).
FOR THE RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Jessica E. Long, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; MULLANE
and VOLKERT, Appellate Immigration Judges.
MALPHRUS, Chief Appellate Immigration Judge:
This case is before the Board pursuant to the United States Court of
Appeals for the Ninth Circuit’s remand in Valenzuela Gallardo v. Barr,
968 F.3d 1053 (9th Cir. 2020). The Ninth Circuit granted the respondent’s
petition for review and vacated the Board’s September 11, 2018, published
decision clarifying an earlier determination that the respondent has been
convicted of an aggravated felony “relating to obstruction of justice” under
section 101(a)(43)(S) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1101(a)(43)(S) (2012). 	The Department of Homeland Security
(“DHS”) has submitted a brief in response to the Ninth Circuit’s decision.
The respondent’s appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
This case has an extensive procedural history. The respondent is a native
and citizen of Mexico and lawful permanent resident of the United States. In
2007, he was convicted of accessory to a felony in violation of section 32 of
the California Penal Code and was sentenced to 16 months in prison. DHS

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placed him in removal proceedings and charged him with removability as an
aggravated felon under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C.
§ 1227(a)(2)(A)(iii) (2012). The respondent challenged his removability and
in 2012, we concluded in a published decision that the respondent’s
conviction constitutes an aggravated felony because a crime “relat[es] to
obstruction of justice” within the meaning of section 101(a)(43)(S) of the
INA, 8 U.S.C. § 1101(a)(43)(S), if it 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 	investigation 	or 	proceeding. 	Matter 	of 	Valenzuela
Gallardo, 25 I&N Dec. 838, 841–42, 844 (BIA 2012) (“Matter of Valenzuela
Gallardo I”), remanded by 818 F.3d 808 (9th Cir. 2016).
In 2016, the Ninth Circuit granted the respondent’s petition for review
and concluded that the Board’s definition of “obstruction of justice” was
unconstitutionally vague because the term “the process of justice” did not
have meaningful boundaries. Valenzuela Gallardo v. Lynch, 818 F.3d 808,
819–22 (9th Cir. 2016). The Ninth Circuit remanded the case for the Board
to “either offer a new construction of INA § 101(a)(43)(S) or, in the
alternative, apply [Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999)
(en banc)]’s interpretation to the instant case.” Id. at 824.
In 2018, we clarified Matter of Valenzuela Gallardo I and again dismissed
the respondent’s appeal. 	Matter of Valenzuela Gallardo, 27 I&N Dec. 449
(BIA 2018) (“Matter of Valenzuela Gallardo II”), vacated, 968 F.3d 1053
(9th Cir. 2020), abrogated by Pugin v. Garland, 599 U.S. 600 (2023). 	In
Matter of Valenzuela Gallardo II, we determined that “an offense relating to
obstruction of justice” under section 101(a)(43)(S) of the INA, 8 U.S.C.
§ 1101(a)(43)(S), encompasses any “Federal or State offense that involves
(1) an affirmative and intentional attempt (2) that is motivated by a specific
intent (3) to interfere either in an investigation or proceeding that is ongoing,
pending, 	or 	reasonably 	foreseeable 	by 	the 	defendant, 	or 	in 	another’s
punishment resulting from a completed proceeding.” 	Id. at 460. 	We once
again concluded that the respondent’s conviction was for an aggravated
felony relating to obstruction of justice. Id. at 461.
In Valenzuela Gallardo v. Barr, 968 F.3d at 1062–68, the Ninth Circuit
vacated our prior decision in Matter of Valenzuela Gallardo II, concluding
that section 101(a)(43)(S) of the INA, 8 U.S.C. § 1101(a)(43)(S) “is
unambiguous in requiring an ongoing or pending criminal proceeding,” and
the Board erred in defining offenses relating to obstruction of justice to
include 	interference 	with 	“reasonably 	foreseeable” 	investigations 	or
proceedings. This remand followed.

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II. 	ANALYSIS
The sole issue before us is whether the respondent is removable as
charged as an alien convicted of “an offense relating to obstruction of justice”
under section 101(a)(43)(S) of the INA, 8 U.S.C. § 1101(a)(43)(S). 	We
review this legal question de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2026).
After the Ninth Circuit issued Valenzuela Gallardo v. Barr, the Supreme
Court of the United States issued Pugin v. Garland, 599 U.S. at 607, holding
that 	“an 	offense 	‘relating 	to 	obstruction 	of 	justice’ 	under 	[section
101(a)(43)(S) of the INA, 8 U.S.C.] § 1101(a)(43)(S) does not require that
an 	investigation 	or 	proceeding 	be 	pending.” 	Pugin 	thus 	abrogated
Valenzuela Gallardo v. Barr. 	See Cordero-Garcia v. Garland, 105 F.4th
1168, 1170 (9th Cir. 2024); see also Godoy-Aguilar v. Garland, 125 F.4th
985, 989 (9th Cir. 2025) (acknowledging that “[n]o pending investigation or
proceeding is required” for an offense to qualify as one “relating to
obstruction of justice”). 	After the Supreme Court issued Pugin, the Ninth
Circuit confirmed that “[t]he ‘relating to’ language in [section 101(a)(43)(S)
of the INA, 8 U.S.C.] § 1101(a)(43)(S) ‘indicates that Congress intended to
cover a range of activities beyond just the generic offense’ of obstruction of
justice.” Cordero-Garcia, 105 F.4th at 1172 (quoting Ho Sang Yim v. Barr,
972 F.3d 1069, 1078 (9th Cir. 2020)).
In view of the foregoing, we now clarify, consistent with intervening
Supreme Court and Ninth Circuit precedent, that “an offense relating to
obstruction of justice” under section 101(a)(43)(S) of the INA, 8 U.S.C.
§ 1101(a)(43)(S), is a specific intent offense involving an affirmative and
intentional attempt to interfere with the process of justice and law.1 	See
Godoy-Aguilar, 125 F.4th at 989 (noting that obstruction of justice is a
specific intent offense and that no pending investigation or proceeding is
1 	We recognize that in Valenzuela Gallardo v. Lynch, the Ninth Circuit held that the
phrase “the process of justice” was unconstitutionally vague. 	818 F.3d at 819–22.
However, based on intervening Supreme Court precedent, we conclude that the
constitutionality concerns in Valenzuela Gallardo v. Lynch are no longer controlling and
that the term “the process of justice and law” is understandable in this context. We observe,
for example, that in Pugin, the Supreme Court noted that at the time section 101(a)(43)(S)
of the INA, 8 U.S.C. § 1101(a)(43)(S), was enacted, “an illustrative formulation” of the
term “obstruction of justice” broadly defined the offense as “the crime or act of willfully
interfering with the process of justice and law.” 599 U.S. at 604 (emphasis added) (citation
omitted). The Supreme Court further noted that the requirement that an offense relating to
obstruction of justice involve “an intent to interfere with the legal process. . . ensures that
[section 101(a)(43)(S) of the INA, 8 U.S.C.] § 1101(a)(43)(S) will not sweep in offenses
that are not properly understood as offenses ‘relating to obstruction of justice.’” 	Id. at
607 n.2.

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required). This definition covers a broad range of offenses “‘beyond just the
generic offense’ of obstruction of justice,” Cordero-Garcia, 105 F.4th at
1172 (citation omitted), and includes crimes that interfere with the process
of justice and law “even if the offense does not require that an investigation
or proceeding be pending.” 	Pugin, 599 U.S. at 604, 606–07 (“[I]ndeed,
obstruction 	of 	justice 	is 	often 	‘most 	effective’ 	when 	it 	prevents 	‘an
investigation or proceeding from commencing in the first place.’” (citation
omitted)). 	The current state of the law concerning the generic Federal
definition of “an offense relating to obstruction of justice” is therefore largely
consistent with our holding in Matter of Valenzuela Gallardo I, 25 I&N Dec.
at 841–42.
To determine whether the respondent’s conviction under section 32 of the
California Penal Code qualifies as an aggravated felony within the meaning
of section 101(a)(43)(S) of the INA, 8 U.S.C. § 1101(a)(43)(S), we apply the
categorical 	approach 	and 	compare 	the 	elements 	of 	the 	respondent’s
conviction with the elements of a generic offense relating to obstruction of
justice. See Pugin, 599 U.S. at 603–04. Section 32 of the California Penal
Code provides:
Every person who, after a felony has been committed, harbors, conceals or aids a
principal in such felony, with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment, having knowledge that said principal has
committed such felony or has been charged with such felony or convicted thereof, is
an accessory to such felony.
Cal. Penal Code § 32 (West 2007). 	This statute explicitly requires that the
perpetrator act “with the intent that said principal may avoid or escape from
arrest, trial, conviction or punishment.” 	Id.; see also People v. Partee, 456
P.3d 437, 446 (Cal. 2020) (confirming that the intent element is distinct from
the requirement that the individual provide “overt or affirmative assistance”
to the principal (citation omitted)). 	This intent involves a specific purpose
of hindering or interfering with the process of justice and law, bringing the
respondent’s offense “within the general ambit of offenses that fall under the
‘obstruction of justice’ designation.”2 	Matter of Valenzuela Gallardo I,
25 I&N Dec. at 841 (quoting Matter of Espinoza, 22 I&N Dec. at 894–95).
2 	The requirement that an offense include a specific intent to interfere with the process of
justice and law to qualify as an aggravated felony obstruction of justice offense prevents
the inclusion of offenses not properly understood as relating to obstruction of justice. See
Pugin, 599 U.S. at 607 n.2. For instance, our clarified definition of an offense relating to
obstruction of justice does not reach the Federal crime of misprision of a felony
under 18 U.S.C. § 4 (2024), as “nothing in § 4 . . . references the specific purpose
for 	which 	concealment 	[of 	the 	principal 	felon’s 	crime] 	must 	be 	undertaken.”

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Moreover, the statute’s actus reus—the requirement that one who is
charged as an accessory have harbored, concealed, or aided a principal in
avoiding or escaping from arrest, trial, conviction, or punishment for the
underlying felony—necessarily involves interference with the process of
justice and law. See Cal. Penal Code § 32. That is, section 32 covers only
acts of overt or affirmative assistance to a principal which “tend[] somehow
to impair the machinery of the . . . criminal law” in relation to the potential
prosecution of the principal felon’s crime. Pugin, 599 U.S. at 604 (citation
omitted); see also Partee, 456 P.3d at 443 (explaining that to qualify as a
violation of section 32, “an individual must provide ‘overt or affirmative
assistance’ to the [principal] perpetrator” (citation omitted)). As the Supreme
Court recognized in Pugin, when section 101(a)(43)(S) of the INA, 8 U.S.C.
§ 1101(a)(43)(S), was enacted in 1996, the crime of obstruction of justice
was understood to include “every willful act of corruption, intimidation, or
force that tends somehow to impair the machinery of the civil or criminal
law,” or, said another way, any offense that involves “obstructing the
administration of justice in any way.” 599 U.S. at 604 (citations omitted).
For the reasons stated above and consistent with our holding in Matter of
Valenzuela Gallardo I, we again conclude that a conviction for accessory to
a felony under section 32 of the California Penal Code that results in a term
of imprisonment of at least 1 year categorically qualifies as “an offense
relating to obstruction of justice” under section 101(a)(43)(S) of the INA,
8 U.S.C. § 1101(a)(43)(S). The respondent is therefore removable as charged
under section 237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), for
having been convicted of an aggravated felony.
ORDER: The respondent’s appeal is dismissed.
NOTICE: 	If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $998 for each day the
respondent is in violation. 	See INA § 274D, 8 U.S.C. § 1324d (2024);
8 C.F.R. § 280.53(b)(14) (2026). 	Further, any respondent that has been
Matter of Valenzuela Gallardo I, 25 I&N Dec. at 841 (quoting Matter of Espinoza, 22 I&N
Dec. at 894); see also Pugin, 599 U.S. at 607 n.2 (noting that the Solicitor General had
conceded that Federal misprision of a felony was not an offense relating to obstruction of
justice because the crime does not require an intent to interfere with the legal process).

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denied admission to, removed from, or has departed the United States while
an order of exclusion, deportation, or removal is outstanding and thereafter
enters, attempts to enter, or is at any time found in the United States shall be
fined or imprisoned not more than 2 years, or both. 	See INA § 276(a),
8 U.S.C. § 1326(a) (2024).