B.I.A.’s Valenzuela Gallardo Decision a Reminder of Broad Scope of Aggravated Felony Definition

If you had to guess, would you think that being convicted under California’s Penal Code Section 32 for an after-the fact “accessory to a felony” would itself be considered an aggravated felony — and therefore cause someone with a green card to lose his or her permanent resident status and be deported?

Section 32 of the California Penal Code makes it a crime when someone:

"after a felony has been committed, harbors,
conceals or aids a principal in such felony, with the intent that
said principal may avoid or escape from arrest, trial, conviction or
punishment . . . ."

In other words, the convicted person wasn’t part of the original crime, but seems to have somehow helped the criminal(s) hide out afterwards.

This is indeed an aggravated felony, according to the Board of Immigration Appeals’ (B.I.A’s) June 27 decision in Matter of Agustin Valenzuela Gallardo. The B.I.A. pointed to Section 101(1)(a)(43)(S) of the Immigration and Nationality Act (I.N.A.), which says that among the many types of aggravated felonies are “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.”

Mr. Valenzuela Gallardo had received a 16-month prison sentence. And, the B.I.A. reasoned, the California statute’s specific mention of the convicted person’s intent to help a felon escape capture brings it squarely in line with the definition of obstruction of justice.

I don’t know the history of this case — namely what type of legal help the defendant had early on — but may well be a classic example of why immigrants to the U.S. should hire an immigration lawyer, not just a criminal lawyer, the minute they find themselves in trouble with the law. With some negotiation, it is sometimes possible to obtain a conviction that does not lead so directly to deportation.