In a split decision issued on June 22, the Supreme Court ruled against two noncitizens seeking to overturn agency findings that their state criminal convictions qualified as “aggravated felonies.” Under immigration law, an aggravated felony makes a noncitizen deportable. Their cases hinged on whether the definition of “obstruction of justice” made it an aggravated felony.
In a 6-3 opinion, the Court ruled in favor of the government on a narrow question: does “obstruction of justice” require a pending investigation or proceeding at the time of the obstructive conduct for a conviction to qualify as an aggravated felony offense? Writing for the majority, Justice Kavanaugh said no, a pending investigation or proceeding is not an element of the generic crime.
The decision in Pugin v. Garland and Cordero-Garcia v. Garland refused to narrow what counts as an obstruction of justice aggravated felony. The Court’s ruling in this pair of cases will lead to more noncitizens deemed to have aggravated felonies based on their criminal convictions – potentially even convictions for misdemeanors and relatively innocuous or common conduct.
Congress has mandated particularly harsh consequences for aggravated felonies. Now, the Court’s holding means that more lawful permanent residents (like Mr. Pugin), who have built their lives in the United States over decades, will face mandatory detention, deportation without the chance to apply for any discretionary relief, and the inability to lawfully return to their families here for 20 years.
Obstruction of justice is not a commonly charged offense in immigration court. But there are still reasons for immigration practitioners to pay attention to the decision in Pugin and Cordero Garcia. The Supreme Court reaffirmed the importance of using traditional tools of interpreting laws when defining generic criminal offenses and made no mention of deferring to the relevant Board of Immigration Appeals decision. While that approach unfortunately didn’t save the noncitizens here, it provides a roadmap to arguing for more principled and less outcome-driven analyses in the criminal-immigration context.
On the flip side, the majority once again articulated its misplaced concern that construing the aggravated felony statute too narrowly would be “self-defeating.” The justices feared that it would result in too much leniency and too few deportations. This demonstrates a disconnect from how removal proceedings play out in reality.
From a legal perspective, limiting the reach of a specific aggravated felony provision rarely provides an escape valve to noncitizens with criminal convictions, who will almost certainly remain removable on different grounds. It merely grants Immigration Judges more discretion to decide, on a highly fact-specific basis, whether someone has demonstrated that they deserve a second chance. And from a humanitarian perspective, noncitizens who have contact with the criminal legal system are often deeply rooted in the United States and have demonstrated meaningful rehabilitation.
Rather than doing justice, expanding the aggravated felony provision creates immeasurable harm. Tearing non-citizens from their families has a painful ripple effect in families and communities, devastating those who must leave and those who are left behind.
FILED UNDER: Supreme Court