Retaliation-Only Witness Crimes Are Not “Obstruction of Justice” Aggravated Felonies Without Intent to Interfere with Legal Process

A. Precedents Cited

• Pugin v. Garland, 599 U.S. 600 (2023)
  

  The court relied heavily on Pugin for the contours of “offense relating to obstruction of justice.” While Pugin held that the generic offense does not require a nexus to a pending/ongoing investigation, it also endorsed the Solicitor General’s position that obstruction offenses “require[] an intent to interfere with the legal process.” The First Circuit treated that intent requirement as a limiting principle preventing § 1101(a)(43)(S) from sweeping in non-obstruction conduct.

• Silva v. Garland, 27 F.4th 95 (1st Cir. 2022)
  

  Silva provided circuit-level grounding for the same mens rea concept: generic obstruction covers crimes involving an affirmative and intentional attempt motivated by a specific intent to interfere with an investigation or proceeding. The opinion also used Silva to frame the categorical approach inquiry as asking whether the “minimum conduct” criminalized by the state statute matches the generic federal offense.

• Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449 (B.I.A. 2018)
  

  Cited (via Silva) for the BIA’s articulation of obstruction’s elements, including a specific intent to interfere. Although the opinion notes the underlying removal order was vacated in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020), the First Circuit used the decision principally to show that even the agency’s own formulations have recognized a specific intent component.

• Taylor v. United States, 495 U.S. 575 (1990), Mathis v. United States, 579 U.S. 500 (2016), Moncrieffe v. Holder, 569 U.S. 184 (2013)
  

  These cases supplied the categorical approach framework: courts compare statutory elements (not facts), and if the state statute covers any conduct beyond the generic offense, it is not a categorical match. Moncrieffe also supports focusing on the realistic minimum conduct that can lead to conviction.

• Mellouli v. Lynch, 575 U.S. 798 (2015), Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017)
  

  Cited for the principle that categorical analysis begins with the statute’s text and statutory definition of the offense of conviction.

• Commissioner v. Est. of Bosch, 387 U.S. 456 (1967)
  

  Used to justify deference to the New Hampshire Supreme Court as the best authority on what N.H. Rev. Stat. § 641:5(II) requires.

• State v. Baird, 581 A.2d 1313 (1990)
  

  This state high-court decision was pivotal. The First Circuit treated Baird as confirming that New Hampshire’s retaliation provision can be satisfied by pure revenge—“to get even”—and does not require intent to affect a proceeding or investigation. That interpretation established that the statute’s minimum conduct falls outside generic obstruction.

• Armenta-Lagunas v. Holder, 724 F.3d 1019 (8th Cir. 2013)
  

  Cited as a contrast: the Eighth Circuit found a witness-tampering statute to be obstruction-related where the state supreme court required “specific intent to interfere with the process of justice.” The comparison underscores the First Circuit’s element-focused, state-law-driven approach.

• Silva v. Garland (and citations therein to legal dictionaries)
  

  The court noted that contemporary definitions emphasize “willful” interference, reinforcing that generic obstruction is not merely wrongful conduct connected to a witness, but conduct aimed at disrupting justice.

B. Legal Reasoning

1. The governing generic federal element: intent to interfere with the legal process

The opinion identifies a mens rea constraint as central to the generic offense “relating to obstruction of justice.” Drawing from Pugin v. Garland and its own precedent in Silva v. Garland, the court concluded that generic obstruction requires specific intent to interfere with the legal process. The court treated this as a necessary limiting principle to avoid an overbroad reading of § 1101(a)(43)(S).

2. Comparing New Hampshire’s elements to the generic definition

Applying the categorical approach, the court examined the elements of N.H. Rev. Stat. § 641:5(II). The statute punishes “any unlawful act in retaliation” for a person’s conduct as a witness or informant. The First Circuit emphasized what is absent: no textual requirement that the defendant act with intent to affect an investigation, proceeding, testimony, reporting, or cooperation.

The BIA’s rationale—that retaliation “interferes with the judicial system” by showing disregard for law—was rejected as a categorical substitute for a mens rea element. The court drew a sharp line between:

• retaliation as backward-looking vengeance (punishing someone for what they already did), and
• obstruction as process-directed interference (aiming to impact legal processes).

3. State v. Baird confirms the statute reaches non-obstructive conduct

The court then anchored its interpretation in authoritative state law. In State v. Baird, the defendant’s stated motive was “to get even” with his daughter after proceedings had ended; conviction was upheld without any finding of intent to influence, impede, or affect any legal process.

That real-world prosecution (and affirmance) established the statute’s “minimum conduct” includes revenge-only retaliation, making the statute categorically broader than generic obstruction. Under Mathis and Moncrieffe, that breadth forecloses treating any conviction under § 641:5(II) as an aggravated felony obstruction predicate.

4. Procedural and institutional notes

The opinion also highlighted shortcomings below: the BIA did not address State v. Baird; the IJ mistakenly cited elements of § 641:5(I) rather than the subsection of conviction; and the government’s circuit briefing did not engage with the Baird-based argument. While not independently dispositive, these points underscore the appellate court’s insistence on precise element-based analysis.

5. Consequence: removability not established; CAT issue not reached

Because the government failed to show the conviction was an aggravated felony, the court held Bangs was not removable under § 1227(a)(2)(A)(iii) on that basis and therefore did not reach the BIA’s reversal of CAT deferral.

C. Impact

• Element-level narrowing of § 1101(a)(43)(S) in the First Circuit: State retaliation statutes that can be satisfied by revenge alone—without intent to affect an investigation or proceeding—are unlikely to qualify as “offense[s] relating to obstruction of justice.”
• Greater importance of mens rea in obstruction-related immigration predicates: The decision operationalizes Pugin’s limiting principle. Even though obstruction does not require a pending proceeding, it does require process-directed intent.
• Agency adjudication discipline: The court’s emphasis on State v. Baird signals that the BIA must engage with state supreme court interpretations when applying the categorical approach, particularly where they define the statute’s minimum conduct.
• Practical effects for removal charging decisions: DHS may need to rely on alternative removal grounds (if available) or prove a different aggravated felony category when confronted with retaliation-only statutes lacking process-interference intent.
• CAT litigation sequencing: By resolving removability first, the decision illustrates how a successful categorical challenge can moot protection issues (at least temporarily) and reshape the posture on remand.