The United States Court of Appeals for the Ninth Circuit  found that the BIA’s revised interpretation of “obstruction of justice” announced in Matter of Valenzuela Gallardo, which required only “the affirmative and intentional attempt, with specific intent, to interfere with the process of justice,” departed from the BIA’s prior construction of the statute by not requiring a nexus to an ongoing investigation or proceeding (modifying Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), reaffirmed. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999)).  Following these ruling, the Ninth Circuit  interpreted the BIA’s position more narrowly than the Board liked . In Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011), the Ninth Circuit concluded that the BIA requires actual interference with an ongoing criminal proceeding or investigation for a crime to constitute
obstruction of justice. The BIA interpretation found the offense was an aggravated felony.

Because the court found that this new interpretation raised grave doubts about whether INA §101(a)(43)(S) is unconstitutionally vague, the court remanded for the BIA to apply its previous interpretation of the phrase, or to offer a new construction. (Valenzuela Gallardo v. Lynch, 3/31/16)