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US Supremes Expand Immigration Aggravated Felonies

Posted by Sean A. Black | Jun 26, 2023 | 0 Comments

I am not an immigration attorney.  I handle criminal, DUI and traffic defense in northeast Georgia.  I write about this case only because criminal trial court attorneys need to be aware of the collateral consequences of resolutions for non-citizen clients who are present in the country legally or illegally.

Because the consequence can be deportation, there is a fair amount of litigation as to what constitutes an aggravated felony for immigration purposes.  There are a number of different classes of offenses that can trigger immigration consequences in the event of a conviction.  Not all felony convictioons will trigger deportation. One of the classes of offenses that will trigger deportation are those relating to obstruction of justice.  On Thursday, June 22, 2023, the United States Supreme Court issued its decision in Pugin v. Garland. The issue in that case was whether an offense can relate to obstruction of justice even if an investigation or proceeding is not pending.

The appeal involved two cases. Both Pugin and Cordero-Garcia were permanent residents of the United States who had lived here for decades. Pugin plead guilty to being an accessory after the fact to a felony.  Cordero-Garcia was convicted of dissuading a witness from reporting a crime.  Both were served with notices of removal alleging they had each been convicted of an aggravated felony. They were found to be deportable, and each appealed that determination. Both argued that the particular state-level offense that they had been convicted of did not include as an element a connection to a pending investigation or proceeding. That element is a part of the federal obstruction of justice statute.

The majority opinion points out that the removal statute uses the phrase "related to obstruction of justice" not the federal obstruction statute.  The removal statute's reference to obstruction of justice is broader than the federal obstruction statute.  So, the court must determine what "related to obstruction of justice" includes.

The court reviews the interpretations that can be made based on dictionary definitions, the 1996 Model Penal Code, and other sources contemporary to the 1996 amendment of the removal statute that added this provision.  Based on all of that, the majority held that a pending investigation or proceeding was not required. It relies on the idea that the process of justice can be obstructed even when there is no pending investigation or proceeding. 

Justice Sotomayer's dissent points out that the majority is being pretty loose with the dictionary definitions and ignoring the fact that several of those definitions include a requirement of a pending investigation or proceeding.  In addition, the majority ignored the fact that the US Supreme Court has repeatedly found that obstruction of justice necessitates a pending investigation or proceeding.

For Georgia practitioners, it definitely can be a trap for the unwary.  8 USC 1101(a)(43)(S) is the subsection of the federal statute at issue.  It triggers deportation for "an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year."  A Georgia misdemeanor can carry a sentence of 12 months, which the feds could treat as one year.  Georgia sentences are written that the person will be imprisoned for twelve months but that the sentence can be served on probation.  So, it would not be out of the realm of consideration that the feds could argue that a 12 month probation sentence for obstruction of officer would trigger removal.  

Pugin was sentenced to twelve months imprisonment with nine months suspended.  So, even though he was only sentenced to three months to serve, the initial part of the sentence met the federal definitional requirement of being a term of imprisonment of at least one year.

So, the questions will be whether the Georgia offenses will meet the definition of obstructing the process of justice. Most of the felony offenses set out in Chapter 10 of  Title 16 relating to Offenses against Public Administration likely will.  But what of the edge cases like obstruction of an officer.  

OCGA § 16-10-24 makes it a crime to knowingly and willfully obstruct any law enforcement officer in the lawful discharge of the officer's official duties.

The safest course will be to try to reach a resolution that does not include an obstruction of officer charge or that includes a total sentence less than 12 months, including time that is suspended or probated.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


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