Recently, in Pugin v. Garland, No. 22–23 (June 22, 2023), the U.S. Supreme Court cited the Model Penal Code in holding that an offense could constitute an offense “relating to obstruction of justice” under the Immigration and Nationality Act even if the offense did not require that an investigation or proceeding be pending.
The case arose from two immigration proceedings in which noncitizens were determined removable from the United States on the grounds that they had convictions for aggravated felonies; Fernando Cordero-Garcia was convicted of a California offense for dissuading a witness from reporting a crime, and Jean Francois Pugin was convicted of a Virginia offense of being an accessory after the fact to a felony. Under the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), noncitizens convicted for an “aggravated felony” are removable from the United States, and, under § 1101(a)(43)(S), the definition of “aggravated felony” includes offenses “relating to obstruction of justice.” The U.S. Court of Appeals for the Ninth Circuit found that Cordero-Garcia’s conviction for dissuading a witness from reporting a crime did not constitute an offense “relating to obstruction of justice,” because the offense did not require that an investigation or proceeding be pending. The U.S. Court of Appeals for the Fourth Circuit found that Pugin’s conviction for accessory after the fact constituted an offense “relating to obstruction of justice” even if the offense did not require that an investigation or proceeding be pending.
The U.S. Supreme Court affirmed the Fourth Circuit’s decision and reversed the Ninth Circuit’s decision, holding that “an offense may ‘relat[e] to obstruction of justice’ under §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending,” finding support in “[d]ictionary definitions, federal laws, state laws, and the Model Penal Code.” Associate Justice Brett M. Kavanaugh, writing for the Court, explained that, in general, the Model Penal Code did not require an investigation or proceeding be pending, pointing out that, under Model Penal Code § 240.0(4), ‘“official proceedings’ include those which ‘may be heard.”’ For example, the Court observed that “the Model Penal Code focuses on an actor’s intent to tamper with a witness, not whether an investigation or proceeding is pending” (citing § 241.6, Comment 2). The Court concluded that the “extensive body of authority—dictionaries, federal laws, state laws, and the Model Penal Code—reflects common sense” that the “process of justice” can be obstructed “even when an investigation or proceeding is not pending.”
Dissenting, Associate Justice Sonia Sotomayor, joined by Associate Justice Neil M. Gorsuch and Associate Justice Elena Kagan, argued that “[c]ore obstruction of justice requires a pending investigation or proceeding,” and “[a] reexamination of the sources relied upon by the majority . . . leads to [that] result.” She explained that, while the Model Penal Code “sometimes can provide supplemental evidence of generic meaning” of an offense, §§ 240-243 “set out a series of articles” that covered “Offenses Against Public Administration” but were “clearly not generic obstruction of justice.” In addressing the majority’s focus on the Model Penal Code’s description of witness tampering, Justice Sotomayor noted that the Model Penal Code “chose to depart from ‘laws requiring that a proceeding or investigation actually be pending” “by requiring only a ‘belie[f] that an official proceeding or investigation is pending or about to be instituted”’ (citing Model Penal Code § 241.6(1) and Comment 2 thereto). She concluded that, while “[t]hat intentional departure is reason alone to treat this MPC description with caution when articulating generic obstruction of justice,” the majority in this case went even further by “dismissing the notion that at least a foreseeable investigation or proceeding should be required.”
Find the full decision here.