Agency No. A074-465-074 On Petition for Review of an Order of the Board of Immigration Appeals
The opinion of the court was delivered by: B. Fletcher, Circuit Judge:
November 3, 2010-Seattle, Washington
Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Jay S. Bybee, Circuit Judges.
Opinion by Judge B. Fletcher;
Petitioner, Trung Thanh Hoang, seeks review of the Board of Immigration Appeals's (BIA's) decision affirming an Immigration Judge's (IJ's) order of removal. This case requires us to determine whether petitioner's state misdemeanor conviction for rendering criminal assistance is a crime related to obstruction of justice and thus constitutes an aggravated felony under Immigration and Nationality Act (INA) § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S). We have jurisdiction to determine as a matter of law whether petitioner has been convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(D); Madujano-Real v. Mukasey, 526 F.3d 585, 588 (9th Cir. 2008). Because the BIA conducted an independent review, we review the BIA's decision rather than the IJ's. Vasquez v. Holder, 602 F.3d 1003, 1009 (9th Cir. 2010). We grant the petition.
Hoang is a native and citizen of Vietnam who was admitted to the United States as a refugee in 1994. He became a lawful permanent resident in 1997. In 2000, Hoang pleaded guilty to rendering criminal assistance in the second degree, a misdemeanor in violation of Washington Revised Code § 9A.76.080.*fn1
Hoang's plea agreement admits that he "[d]id unlawfully render criminal assistance to a person who has committed a class B Felony (Drive by shooting) by providing such person transportation." Hoang was sentenced to one year imprisonment and discharged in October 2002.
In 2006, Hoang's application to become a naturalized U.S. citizen was denied on account of his 2000 conviction. On October 9, 2007, the INS charged Hoang with being removable as an aggravated felon who had committed a crime of obstruction of justice (as defined by 8 U.S.C. § 1101(a)(43)(S)). After a hearing, the IJ issued a written decision sustaining the charge and ordered Hoang removed to Vietnam. Hoang timely appealed.
On August 31, 2009, in an unpublished, one-member order, the BIA upheld the IJ's decision. The BIA reasoned that because (1) the elements of Washington Revised Code § 9A.76.080 are the same as the elements of the federal accessory after the fact statute; and (2) In Re Batista-Hernandez, 21
I. & N. Dec. 955 (1997) (en banc), held that federal accessory after the fact is a crime related to obstruction of justice; then
(3) rendering criminal assistance in violation of § 9A.76.080 is a crime related to obstruction of justice. The BIA rejected Hoang's claim that his crime was not a categorical match for the definition of the generic obstruction of justice crime provided in In Re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (1999) (en banc). The BIA stated that in Espinoza-Gonzalez, the BIA "reaffirmed rather than overruled" Batista-Hernandez. This petition followed.
The INA defines the term "aggravated felony" to include, as relevant here, "an offense related to obstruction of justice" for which the term of imprisonment is at least one year.*fn2 INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S). To determine whether rendering criminal assistance constitutes obstruction of justice within the meaning of § 1101(a)(43)(S), we first apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990).
Under the categorical approach, we compare "the elements of the statute of conviction with the federal definition of the crime to determine whether conduct proscribed by the [state] statute is broader than the generic federal definition." Fregozo v. Holder, 576 F.3d 1030, 1035 (9th Cir. 2009) (alteration and citation omitted). To determine the elements of a federal generic crime, we must first consider whether Congress provided any specific guidance. Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (9th Cir. 2008). 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;*fn3 nor does § 1101(a)(43)(S) provide a generic definition. Renteria-Morales v. Mukasey, 551 F.3d 1076, 1086 (9thCir. 2008). Consequently, we must determine whether the agency charged with implementing the INA has defined the term. Id. We defer to the BIA's reasonable interpretations of ambiguous terms in the INA. See id. (citing Chevron, U.S.A. Inc., v. Natural Res. Def. Council, Inc., 476 U.S. 837, 843 (1984)).
 In Espinoza-Gonzalez, 22 I. & N. Dec. 889, the BIA defined the term obstruction of justice for the purposes of the INA. The issue in Espinoza-Gonzalez was whether the alien's conviction for misprision of a felony, in violation of 18 U.S.C. § 4,*fn4 was a crime related to obstruction of justice. 22
I. & N. Dec. at 889-90. The BIA looked to the chapter of the federal criminal code entitled "Obstruction of Justice" to guide its interpretation of the term.*fn5 Id. at 891-94. It concluded that "[i]n general, the obstruction of justice offenses listed in 18 U.S.C. §§ 1501-1518 have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others who cooperate in the process of justice or might otherwise so cooperate." Id. at 891. The BIA emphasized that:
Congress did not adopt a generic descriptive phrase such as "obstructing justice" or "obstruct justice," but chose instead a term of art utilized in the United States Code to designate a specific list of crimes. It employed that term in conjunction with other crimes (e.g., perjury and bribery) that also are clearly associated with the affirmative obstruction of a proceeding or investigation. We do not believe that every offense that, by its ...