ICE Execution of a Final EOIR Removal Order Is Not a “Pending Proceeding” Under 18 U.S.C. § 1505

Introduction

In United States v. Dennis Hernandez (4th Cir. Apr. 16, 2026), the Fourth Circuit addressed—apparently for the first time in any circuit—whether the federal obstruction statute, 18 U.S.C. § 1505, reaches conduct that interferes with immigration removal actions after an Immigration Judge has already entered a final order of removal.

The defendant, Dennis Zeledon Hernandez (“Zeledon”), a noncitizen from El Salvador, was ordered removed in absentia in 2019 in proceedings conducted by the Executive Office for Immigration Review (“EOIR”). The Department of Homeland Security (“DHS”), through Immigration and Customs Enforcement (“ICE”), did not issue a warrant of removal until 2023, after Zeledon was arrested on unrelated state charges. While detained pending deportation, Zeledon escaped, was recaptured, and was indicted (among other charges) under § 1505 for “corruptly” obstructing a “pending proceeding . . . being had before” a federal department or agency.

The central issue on appeal was narrow but consequential: whether ICE’s execution of a warrant of removal following an EOIR final order can be treated as a “pending proceeding” before EOIR for purposes of § 1505 (and, relatedly, whether ICE’s own enforcement activity is itself a qualifying “pending proceeding”).

Summary of the Opinion

The Fourth Circuit (Judge Gregory, joined by Judge Quattlebaum) reversed, vacated Zeledon’s § 1505 conviction, and remanded. The court held:

  • After EOIR issues a final order of removal—an order issued “[a]t the conclusion of the [removal] proceeding,” 8 U.S.C. § 1229a(c)(1)(A), and “final . . . immediately upon entry,” 8 C.F.R. § 1241.1—there is no longer a “pending proceeding being had before” EOIR within the meaning of § 1505 merely because ICE later executes the removal warrant.
  • ICE’s execution of a removal warrant, on the facts presented, is not itself a “pending proceeding . . . being had before” ICE for § 1505 purposes; it resembles “mere police” activity that multiple circuits have recognized as outside § 1505.
  • The court declined to reach the Government’s newly raised appellate theory that Zeledon’s motion to reopen created a separate “pending proceeding,” invoking ordinary forfeiture principles.

Judge Wilkinson dissented, arguing that “proceeding” is capacious enough to include enforcement, and that ICE’s removal execution is part of a continuous targeted sequence covered by § 1505.

Analysis

Precedents Cited

1) Interpretive method: text, ordinary meaning, and context

  • Bufkin v. Collins, 604 U.S. 369 (2025): The majority begins with statutory text, framing the analysis as conventional textualism.
  • Hurlburt v. Black, 925 F.3d 154 (4th Cir. 2019): Used for the “ordinary, contemporary, common meaning” baseline.
  • United States v. Chaudhri, 134 F.4th 166 (4th Cir. 2025): Supports reading statutory language in both specific and broader context.
  • McDonnell v. United States, 579 U.S. 550 (2016): The majority invokes contextual canons (notably noscitur a sociis) to avoid choosing a dictionary definition of “proceeding” in isolation.
  • Tanzin v. Tanvir, 592 U.S. 43 (2020): Referenced for consulting historical usage around enactment when helpful (though here, older dictionary definitions were said to be inconclusive for administrative settings).
  • Towers Watson & Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 138 F.4th 786 (4th Cir. 2025): Cited for the court’s practice of using Black’s Law Dictionary as a source of ordinary legal meaning.

2) The scope of § 1505 and its limits (including “mere police” activity)

  • United States v. Mitchell, 877 F.2d 294 (4th Cir. 1989): A key Fourth Circuit anchor for the proposition that § 1505 is broad and applies to “administrative proceeding[s],” including investigations. The majority relies on Mitchell for breadth, but insists breadth is still bounded by “pending” and “before.”
  • Rice v. United States, 356 F.2d 709 (8th Cir. 1966); United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994); United States v. Senffner, 280 F.3d 755 (7th Cir. 2002); United States v. Kirst, 54 F.4th 610 (9th Cir. 2022): Cited by the majority for a “long-established exception” that § 1505 does not reach “mere police” activity, and for distinguishing investigative/adjudicative agency functions from ordinary enforcement.
  • United States v. Higgins, 511 F.Supp. 453 (W.D. Ky. 1981): Appears via Kelley as an example where FBI activity lacked the kind of agency authority that would convert it into a § 1505 “proceeding.”

3) Avoiding “catchall” readings and overcriminalization

  • Fischer v. United States, 603 U.S. 480 (2024): The majority uses Fischer to resist interpretations that effectively make an obstruction provision a “catchall,” and to support giving weight to limiting surrounding terms rather than allowing one word (“any”) to dominate.
  • Marinello v. United States, 584 U.S. 1 (2018): Cited similarly for rejecting overly broad obstruction readings that would sweep too widely.
  • United States v. Aguilar, 515 U.S. 593 (1995): Invoked for “restraint” in interpreting federal criminal statutes (a lenity-adjacent policy of narrow construction when breadth would be unmoored).
  • Marx v. General Revenue Corp., 568 U.S. 371 (2013): Used to explain why the anti-surplusage canon has diminished force when comparing across different statutes (here, § 1505 and 8 U.S.C. § 1253), but may still be informative.

4) Cases on “proceedings” including enforcement (and why the majority limits them)

  • United States v. Senffner, 280 F.3d 755 (7th Cir. 2002) and United States v. Hopper, 177 F.3d 824 (9th Cir. 1999): The Government relied on these to argue enforcement can be a “proceeding.” The majority distinguished them as involving enforcement actions intertwined with the same agency’s investigative/enforcement mission (SEC and IRS) rather than ICE executing a judgment entered by a different adjudicative entity (EOIR).
  • United States v. Leo, 941 F.2d 181 (3d Cir. 1991) (citing United States v. Browning, Inc., 572 F.2d 720 (10th Cir. 1978)): The majority treated these as supporting that investigations can qualify as § 1505 “proceedings,” but not as authority for isolated enforcement after adjudication by another body.

5) Preservation/forfeiture on appeal

  • Richardson v. Clarke, 52 F.4th 614 (4th Cir. 2022): The majority relied on this principle to decline the Government’s new theory (raised for the first time on appeal) that a motion to reopen kept a proceeding “pending.”

Legal Reasoning

  1. Textual limits inside § 1505 do the work. The majority emphasized that “proceeding” must be read together with “pending” and “being had before” a department or agency. On this view, even if “proceeding” can be broad, it does not include actions once the relevant agency’s role has concluded.
  2. Immigration law defines when EOIR proceedings end. The court leaned heavily on the immigration statute/regulations stating removal orders are issued “[a]t the conclusion of the [removal] proceeding” (8 U.S.C. § 1229a(c)(1)(A)) and become final “immediately upon entry” (8 C.F.R. § 1241.1). That legal architecture made it difficult, in the majority’s view, to treat later ICE execution as part of a still “pending” EOIR proceeding.
  3. ICE execution looks like enforcement—closer to “mere police” than to adjudication/investigation. The majority adopted the idea, reflected in Rice, Kelley, Senffner, and Kirst, that § 1505 does not cover “mere police” activity. ICE’s act here—executing a warrant of removal after EOIR had already adjudicated removability—was treated as analogous to routine law enforcement executing another body’s warrant, rather than an agency conducting a fact-finding or adjudicative “proceeding.”
  4. Structure of related criminal provisions suggests Congress already targeted this conduct elsewhere. The court noted 8 U.S.C. § 1253, which criminalizes acts that prevent or hamper departure when a final removal order is outstanding, and observed the Government initially charged Zeledon under § 1253 but did not pursue it. While not dispositive, the availability of § 1253 reinforced the majority’s reluctance to expand § 1505 into a general immigration-enforcement obstruction statute.
  5. No “any-means-anything” approach. The majority rejected the Government’s argument that “any” in “any pending proceeding” effectively converts § 1505 into an all-purpose obstruction tool for agency actions, citing Fischer and Marinello for the Supreme Court’s resistance to “catchall” readings.

Impact

The decision’s practical and doctrinal significance lies in its narrowing of § 1505 in the immigration-removal context and, potentially, in other inter-agency enforcement settings:

  • Charging decisions in immigration-escape scenarios. Prosecutors in the Fourth Circuit cannot rely on § 1505 simply because a final EOIR removal order exists and ICE is executing it. Instead, they may need to proceed under more tailored statutes (e.g., 8 U.S.C. § 1253 where applicable, or escape statutes where elements are met).
  • Clarification of “proceeding” boundaries. The opinion draws a sharper line between adjudicative/investigative agency functions (often within § 1505) and post-adjudication execution/enforcement (not necessarily within § 1505, especially when performed by an agency that did not adjudicate the underlying matter).
  • Revitalization of the “mere police” limitation. By explicitly applying the “mere police” concept to ICE removal execution, the decision provides defendants a concrete doctrinal foothold for resisting expansive obstruction theories premised on enforcement alone.
  • Potential for broader doctrinal friction. Judge Wilkinson’s dissent reads § 1505 to encompass a continuum including enforcement and flags that “proceeding” has been construed broadly elsewhere. Future litigation may test whether other circuits adopt the majority’s inter-agency enforcement distinction or align with the dissent’s continuum approach, especially given the dissent’s reliance on enforcement-inclusive definitions and cases like United States v. Hopper and United States v. Senffner.

Complex Concepts Simplified

What is EOIR vs. DHS/ICE?
EOIR (within the Department of Justice) runs immigration courts and issues removal orders. DHS/ICE (executive enforcement) carries out removals, including detention and execution of removal warrants after EOIR orders removal.
What does “pending proceeding being had before” mean in § 1505?
The majority read this as requiring an ongoing agency process in front of (i.e., within the cognizance of) that agency—something “begun, but not yet completed.” Once EOIR enters a final removal order, the EOIR case is no longer pending simply because ICE later enforces it.
What is the “mere police activity” limitation?
Several courts have said § 1505 does not cover ordinary law-enforcement-type activity (like routine policing) as opposed to agency proceedings with investigative or adjudicative character. The majority treated ICE’s warrant execution here as closer to the former.
What is noscitur a sociis?
A canon of interpretation meaning “a word is known by the company it keeps.” The court used it to insist “proceeding” must be read together with the surrounding words “pending” and “being had before,” not in isolation.
Why mention 8 U.S.C. § 1253?
It is a statute specifically addressing interference with removal after a final order. Its existence supported the majority’s view that § 1505 should not be stretched to cover that same ground as a general “catchall.”
Why didn’t the court consider the Government’s “motion to reopen” theory?
The Government did not raise it in the district court, and appellate courts typically refuse to consider new arguments absent exceptional circumstances (citing Richardson v. Clarke).

Conclusion

United States v. Dennis Hernandez establishes a significant Fourth Circuit limitation on 18 U.S.C. § 1505 in the immigration context: after EOIR has concluded removal proceedings by entering a final removal order, ICE’s later execution of that order is not a “pending proceeding being had before” EOIR, and ICE’s isolated execution activity—on these facts—does not itself qualify as a § 1505 “proceeding.” The decision reinforces text-and-context constraints (“pending,” “before”), applies the “mere police” limitation to immigration enforcement execution, and signals that immigration-removal obstruction is ordinarily to be addressed through more specific statutory tools rather than expansive readings of § 1505.