Metropolitan News-Enterprise


Wednesday, December 24, 2008


Page 1


Court: Aiding Aliens’ Escape Not Obstruction of Justice


By STEVEN M. ELLIS, Staff Writer


A Mexican national’s conviction for attempting to free illegal aliens apprehended by the U.S. Border Patrol was not an “obstruction of justice” crime barring him from seeking relief from deportation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Explaining that Norberto Salazar-Luviano’s conviction was not an “aggravated felony” because the charge did not require the existence of a pending judicial proceeding, the court reversed a Board of Immigration Appeals decision denying Salazar-Luviano’s application for cancellation of removal and remanded the matter for reconsideration.

Salazar-Luviano, 55, was originally admitted to the United States as a lawful permanent resident in 1976, and lived in the Los Angeles metropolitan area for over 30 years with his wife, also a permanent resident, with whom he had four U.S. citizen children and five U.S. citizen grandchildren.

In 2001, he was caught assisting another alien to enter the country illegally, and the government sought to remove him under the Immigration and Nationality Act for having “knowingly…encouraged, induced, assisted, abetted, or aided” an illegal entry.

Salazar-Luviano conceded removability, but sought to remain in the United States under a provision of the INA permitting the attorney general to “cancel” removal if an alien has continuously resided in the country for seven years after having been admitted.

However, the government contended Salazar-Luviano was ineligible for cancellation after an investigation revealed six misdemeanor criminal convictions since 1976, including a 1987 conviction under 18 U.S.C. § 751 for attempting to free illegal aliens in custody in a Border Patrol vehicle near the border.

Citing Sec. 1503’s “catchall” provision applying to anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice,” the government argued that Salazar-Luviano had been convicted of an “aggravated felony” precluding eligibility for cancellation of removal, and an immigration judge agreed.

The judge reasoned that Salazar-Luviano had “attempt[ed] to prevent an apprehension…[and] to hinder the immigration proceedings and removal of the escapees,” and the Board of Immigration Appeals affirmed, adding that aiding and abetting escape from lawful custody “is a specific intent crime,” and “an interference with the proceedings of a tribunal and/or law enforcement.”

But Judge Michael Daly Hawkins wrote for the Ninth Circuit that Salazar-Luviano’s 1987 conviction could not categorically be considered obstruction of justice because its elements—an attempt to escape from the custody of the attorney general or his authorized representative—did not match the catchall provision’s elements: a showing that the defendant knew his actions would have the natural and probable effect of interfering with a pending judicial proceeding.

Noting that no legal proceedings had yet been commenced against the illegal aliens when Salazar-Luviano attempted to free them in 1987, Hawkins opined:

“Because a violation of 18 U.S.C. § 751 does not require the existence of a pending judicial proceeding, much less knowledge of or specific intent to obstruct such a proceeding, one could violate § 751 while serving a sentence in federal prison after the conclusion of all judicial proceedings, for example, or (as here) while in detention before the commencement of any judicial proceedings. Under either circumstance, a person attempting to escape from custody would fail all three elements of obstructing justice under § 1503.”

Hawkins similarly concluded the 1987 conviction was not an “aggravated felony” under the modified categorical approach because the record did not demonstrate that Salazar-Luviano had necessarily been convicted of all the elements of obstruction of justice set forth in Sec. 1503.

“[T]he parties acknowledge that, at the time of Salazar-Luviano’s offense, no judicial proceedings had been initiated against those he helped attempt to escape…,” he wrote. “[T]he government’s proposal that we ‘presume[ ] judicial proceedings [were] imminent’ simply does not meet the bar.

“Salazar-Luviano could not have known of, and his conduct could not have had the natural and probable effect of interfering with, a judicial proceeding that did not exist.”

Senior Judge A. Wallace Tashima and Eighth Circuit Judge Myron H. Bright, sitting by designation, joined Hawkins in his opinion.

The case is Salazar-Luviano v. Mukasey, No. 05-70505.


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