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PUGIN v. GARLAND

Sotomayor, J., dissenting

The syllogism’s conclusion is also noteworthy for its narrowness. In the end, all the Court really holds is that generic obstruction of justice includes one offense (dissuading a witness from reporting a crime) that does not require a pending investigation or proceeding. Lower courts faced with difficult questions about what offenses qualify as categorical matches for §1101(a)(43)(S) would do well to bear in mind the limited nature of that holding. Many open questions remain regarding whether offenses other than dissuading a witness from reporting a crime are categorical matches for §1101(a)(43)(S), what affirmative understanding of §1101(a)(43)(S) should guide that categorical analysis, and whether other offenses that also lack a connection to a pending investigation or proceeding can qualify under that analysis.^[1] I do not take the majority to be addressing any of these questions, and great care is warranted in answering them in the future. ***

By eliminating a central constraint on what qualifies as “an offense relating to obstruction of justice” under §1101(a)(43)(S), while providing zero affirmative guidance as to what sorts of offenses are a match for that category, the majority leaves lower courts and the Board of Immigration Appeals without direction and invites the Government to advance far-ranging constructions of §1101(a)(43)(S) that bear little resemblance to core obstruction of justice. I

↑ On this list of open questions is whether state accessory-after-the-fact convictions like petitioner Pugin’s are a categorical match for §1101(a)(43)(S). The majority affirms the Fourth Circuit’s legal holding that a pending investigation or proceeding is unnecessary for an offense to qualify under §1101(a)(43)(S). The majority is conspicuously silent, however, regarding the underlying offense itself and whether it is obstruction of justice under §1101(a)(43)(S). And for good reason, because accessory offenses have their own distinct pedigree and purpose with historical roots far afield from that of obstruction of justice. Cf. R Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581, 581–582, 605–607 (1941).

[1] On this list of open questions is whether state accessory-after-the-fact convictions like petitioner Pugin’s are a categorical match for §1101(a)(43)(S). The majority affirms the Fourth Circuit’s legal holding that a pending investigation or proceeding is unnecessary for an offense to qualify under §1101(a)(43)(S). The majority is conspicuously silent, however, regarding the underlying offense itself and whether it is obstruction of justice under §1101(a)(43)(S). And for good reason, because accessory offenses have their own distinct pedigree and purpose with historical roots far afield from that of obstruction of justice. Cf. R Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581, 581–582, 605–607 (1941).

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