Sotomayor, J., dissenting
IV
By rejecting a central feature of core obstruction of justice and adopting a seemingly expansive reading of “relating to,” the Court leaves generic obstruction of justice without any discernible shape. The Court thus injects further chaos into the already fraught question of how to understand §1101(a)(43)(S) and opens the door for the Government to try to use that provision as a catchall for all sorts of criminal activity, whether aggravated or not.
The Court could perhaps have reined in some of that chaos by giving “obstruction of justice” affirmative shape and boundaries in other ways, but it makes no effort to do so. Instead, the Court simply rejects the legal proposition that a pending investigation or proceeding is required for a predicate offense to qualify under §1101(a)(43)(S). At bottom, its reasoning in support of that conclusion boils down to a simple syllogism, which it clothes in various guises: (1) Dissuading a witness from reporting a crime to the police qualifies as obstruction of justice; (2) the offense of dissuading a witness from reporting a crime does not require a pending investigation or proceeding; thus (3) some offense qualifying as obstruction of justice does not require a pending investigation or proceeding.
The flaw in this syllogism is, of course, premise (1). By assuming, up front and without reason, that dissuading a witness from reporting a crime qualifies as obstruction of justice, the Court oversteps. Congress could, if it wanted, add witness tampering to the INA’s lengthy list of aggravated felonies, just as it did with the list of offenses at §1101(a)(15)(U)(iii), but it has not done so. The Court’s decision today makes that judgment call for Congress. “Our license to interpret statutes does not include the power to engage in such freewheeling judicial policymaking.” Pereida v. Wilkinson, 592 U. S. ___, ___ (2021) (slip op., at 16).
