CA9 Remands Valenzuela Gallardo

Valenzuela Gallardo v. Lynch, Mar. 31, 2016 - "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 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. ... 

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."  [Hats way off to Ricci & Sprouls!]