CA5 on AggFel, Due Process: Lopez Orellana v. Garland

Lopez Orellana v. Garland

"The question presented here is whether the Louisiana accessory-after-the-fact statute, LA.REV. STAT. § 14:25, is a categorical match for the generic federal offense of obstruction of justice and is therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(S) permitting expedited removal of a noncitizen. Because the generic federal offense requires specific intent, and the Louisiana Supreme Court has explicitly maintained that the state statute requires only general intent, we find that it is not a match. Accordingly, we GRANT Lopez’s petition for review, VACATE the final order of removal, and REMAND to the Department of Homeland Security (“DHS”) for further proceedings in accordance with this opinion. ... The disposition of Lopez’s due process claim turns on the disposition of her claim that her § 14:25 conviction does not render her removable, as prevailing on the latter claim could show that she was prejudiced by not being able to challenge the classification of this conviction as an aggravated felony during her administrative proceedings. ... Any reading of the facts here shows that DHS did not follow the procedures that are designated under Section 238. These failures were a violation of Lopez’s due process rights. ... DHS’s failure to follow the Section 238.1 removal procedures outlined in the regulations violated her right to due process. ... Lopez was removed to Honduras on June 30, 2023. ... This court does not confer immigration benefits on Lopez, nor does it predict any eventual merits determination by an IJ or the BIA. However, because Lopez’s original removal “was premised on a mistaken conclusion of law,” we find that “judicial review would otherwise be frustrated” if Lopez were not given the opportunity to pursue the forms of relief she would have been able to pursue had she not been placed, erroneously, in Section 238 proceedings. Ramirez v. Sessions, 887 F.3d 693, 707 (4th Cir. 2018). Accordingly, we GRANT Lopez’s petition for review, VACATE the order of removal, and REMAND to DHS with directions for the government to facilitate Lopez’s participation in further proceedings, consistent with this opinion."  NOTE ALSO Footnote 6: "The government provides, in its analysis of the Louisiana statute, a citation to what it purports to be the jury instructions from the same source cited here. It omits the fourth element and replaces it with “the defendant actively desired for the perpetrator to avoid or escape from arrest, trial, conviction, or punishment.” This version of the jury instructions does not appear at the citation on either Westlaw or LexisNexis; additionally, a search on those databases and Google for “the defendant actively desired for the perpetrator to avoid” yielded no results at all."

[Hats off to Homero López (now at the BIA) and Fatima Khan!]