Sotomayor, J., dissenting
reasonably foreseeable, while the remainder were ambiguous on the matter.[1] Thus, when §1101(a)(43)(S) was added to the INA in 1996, obstruction of justice “ ‘generally’ ” or “ ‘typically’ ” required such a connection. Id., at 598.
The majority avoids this conclusion only by, once again, adopting a circular approach. In analyzing state law, the majority looks exclusively to state witness tampering statutes, which it simply assumes are “state obstruction offenses.” Ante, at 5. It then concludes that because many of those statutes do not require a pending investigation or proceeding, neither does obstruction of justice under the INA. Ibid. As should be clear by now, that method gets the categorical approach backward; if the overarching federal category is assumed to include the state offenses in question, there will always be a categorical match. One cannot prove that all state witness tampering laws fall within the INA’s “relating to obstruction of justice” simply by assuming that they do.[2]
- ↑ See Haw. Rev. Stat. §710–1072.5 (1996) (connection required); La. Rev. Stat. Ann. §14:130.1 (West 1996) (same); Md. Ann. Code, Art. 27, §26 (1996) (same); Miss. Code Ann. §97–9–55 (1996) (same); Va. Code Ann. §18.2–460 (1996) (same); Vt. Stat. Ann., Tit. 13, §3015 (1996) (same); W. Va. Code Ann. §61–5–27 (1996) (same); Wis. Stat. §946.65 (1996) (same); Ind. Code Ann. §35–44–3–4 (ambiguous); Ohio Rev. Code Ann. §2921.32 (1996) (same); Utah Code Ann. §76–8–306 (1996) (same); D. C. Code §22–722 (1996) (same); Ill. Comp. Stat., ch. 720, §5/31–4 (1996) (same); Mont. Code Ann. §45–7–303 (1996) (same).
- ↑ Moreover, even assuming state witness tampering statutes are relevant, it is noteworthy that in 1996 the vast majority of States (39 in total) categorized their witness tampering statutes as something other than “obstruction of justice.” See, e.g., Ala. Code §13A–10–124 (1996) (categorized under “Offenses Against Public Administration”); Colo. Rev. Stat. §18–8–707 (1996) (categorized under “Offenses—Governmental Operations”); Idaho Code Ann. §18–2604 (1996) (categorized under “Evidence Falsified or Concealed and Witnesses Intimidated or Bribed”); see also Brief for Respondent in No. 22–331, pp. 26–28 (collecting statutes). Of the remaining 11 States that located their witness tampering statutes in the part of the Criminal Code prohibiting “obstructing” or “obstruction” of “justice,” at least 7 required a connection to a pending investigation or
