Pugin v. Garland

P R E L I M I N A R Y P R I N T
Volume 599 U. S. Part 1
Pages 600–634
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T H E S U P R E M E C O U R T
June 22, 2023
REBECCA A. WOMELDORF
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600 OCTOBER
TERM, 2022
Syllabus
PUGIN v. GARLAND, ATTORNEY GENERAL
certiorari
to the united states court of appeals for
the fourth circuit
No. 22–23. Argued April 17, 2023—Decided June 22, 2023*
In two immigration proceedings, noncitizens Fernando Cordero-Garcia and
Jean Francois Pugin were determined removable from the United
States on the ground that they had convictions for aggravated felonies—
namely, offenses “relating to obstruction of justice.” See 8 U. S. C.
§§ 1101(a)(43)(S), 1227(a)(2)(A)(iii). On appeal, the Ninth Circuit con-
cluded that Cordero-Garcia's state conviction for dissuading a witness
from reporting a crime did not constitute an offense “relating to obstruc-
tion of justice” because the state offense did not require that an invest-
igation or proceeding be pending. By contrast, the Fourth Circuit
concluded that Pugin's state conviction for accessory after the fact
constituted an offense “relating to obstruction of justice” even if the
state offense did not require that an investigation or proceeding be
pending.
Hel d: An offense may “relat[e] to obstr uc ti on of justice” under
§ 1101(a)(43)(S) even if the offense does not require that an investigation
or proceeding be pending. Federal law provides that noncitizens con-
victed of a federal or state crime constituting an “aggravated felony”
are removable from the United States. § 1227(a)(2)(A)(iii). Congress
expanded the defnition of “aggravated felony” in 1996 to include of-
fenses “relating to obstruction of justice.” § 1101(a)(43)(S). Dictionary
defnitions, federal laws, state laws, and the Model Penal Code show
that federal or state obstruction offenses “relat[e] to obstruction of jus-
tice” under § 1101(a)(43)(S) even if the offense does not require that an
investigation or proceeding be pending. This extensive body of author-
ity refects common sense. Individuals can obstruct the process of jus-
tice even when an investigation or proceeding is not pending. Indeed,
obstruction of justice is often “most effective” when it prevents “an
investigation or proceeding from commencing in the frst place.” Brief
for Attorney General 15. The Court declines to adopt an interpretation
of the statute that would exclude many common obstruction offenses
from the defnition of aggravated felony under § 1101(a)(43)(S). Finally,
*Together with No. 22–331, Garland, Attorney General v. Cordero-
Garcia, aka Cordero, on certiorari to the United States Court of Appeals
for the Ninth Circuit.
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601
Syllabus
the phrase “relati ng to” resolves any doubt about the scope of
§
1101(a)(43)(S), because it ensures that the statute covers offenses hav-
ing a connection with obstruction of justice—which surely covers com-
mon obstruction offenses that can occur when an investigation or pro-
ceeding is not pending.
Pugin's and Cordero-Garcia's contrary arguments lack merit. First,
even if a specifc prohibition in 18 U. S. C. § 1503(a) requires that an
investigation or proceeding be pending, Congress defned offenses under
§ 1101(a)(43)(S) more broadly. Second, the historical record does not
support the claim that obstruction of justice requires that an investiga-
tion or proceeding be pending. Third, reading § 1101(a)(43)(S) to cover
offenses that do not require a pending investigation or proceeding may
create some redundancy, but the better overall reading of a statute
sometimes contains some redundancy. Fourth, resort to the rule of len-
ity has no place here because the traditional tools of statutory interpre-
tation show that an offense “relating to obstruction of justice” does not
require that an investigation or proceeding be pending. Pp. 603–611.
No. 22–23, 19 F. 4th 437, affrmed; No. 22–331, 44 F. 4th 1181, reversed
and remanded.
Kavanaugh, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Barrett, and Jackson, JJ., joined. Jackson,
J., fled a concurring opinion, post, p. 611. Sotomayor, J., fled a dissent-
ing opinion, in which Gorsuch, J., joined, and in which Kagan, J., joined
as to all but Part III, post, p. 614.
Deputy Solicitor General Gannon argued the cause for
the federal parties in both cases. With him on the briefs
were Solicitor General Prelogar, Principal Deputy Assist-
ant Attorney General Boynton, Frederick Liu, John W.
Blakeley, and Aimee J. Carmichael.
Martha Hutton argued the cause for petitioner in No. 22–
23. With her on the brief were Michael R. Dreeben, Brian
D. Boyle, Jenya Godina, and Bruce Pettig.
Mark C. Fleming argued the cause for respondent in
No. 22–331. With him on the brief was Catherine M. A.
Carroll.†
†Briefs of amici curiae urging reversal in No. 22–23 and affrmance in
No. 22–331 were fled for Criminal Law Scholars by Michelle S. Kallen;
for the Immigrant Defense Project et al. by Emma C. Winger, Manuel

602 PUGIN
v. GARLAND
Opinion of the Court
Justice Kavanaugh delivered the opinion of the Court.
F
ederal law provides that noncitizens convicted of an “ag-
gravated felony” are removable from the United States.
The defnition of “aggravated felony” includes federal or
state offenses “relating to obstruction of justice.” 8 U. S. C.
§ 1101(a)(43)(S). The question here is whether an offense
“relat[es] to obstruction of justice” under § 1101(a)(43)(S)
even if the offense does not require that an investigation or
proceeding be pending. That question arises because some
obstruction offenses can occur when an investigation or pro-
ceeding is not pending, such as threatening a witness to pre-
vent the witness from reporting a crime to the police. We
conclude that an offense may “relat[e] to obstruction of jus-
tice” under § 1101(a)(43)(S) even if the offense does not re-
quire that an investigation or proceeding be pending.
I
This case stems from two immigration proceedings. Fer-
nando Cordero-Garcia is a citi zen of Mexico. In 2009,
Cordero-Garcia was convicted of several California offenses,
including dissuading a witness from reporting a crime. Jean
Francois Pugin is a citizen of Mauritius. In 2014, Pugin was
convicted of the Virginia offense of being an accessory after
the fact to a felony.
As relevant here, the U. S. Department of Homeland Secu-
rity charged both Cordero-Garcia and Pugin as removable
from the United States on the ground that they had convic-
tions for aggravated felonies—namely, offenses “relating to
D. Vargas, and Andrew Wachtenheim; for the National Association of Fed-
eral Defenders by David Menninger, Keith M. Donoghue, Tracy Dreispul,
and Judith H. Mizner; and for the National Immigrant Justice Center
et al. by Matthew S. Hellman, David A. Strauss, and Sarah M. Konsky.
Christopher J. Hajec fled a brief fled for the Immigration Reform Law
Institute as amicus curiae urging reversal in No. 22–331 and affrmance
in No. 22–23.
Caleb J. Kruckenberg and Oliver J. Dun ford fled a brief for the Pacifc
Legal Foundation as amicus curiae in both cases.
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Opinion of the Court
obstruction of justice. ” See 8 U. S. C. §§ 1101(a)(43)(S),
1
227(a)(2)(A)(iii). In both cases, an Immigration Judge
ruled for the Department, as did the Board of Immigration
Appeals.
Cordero-Garcia and Pugin petitioned for review in the
relevant Courts of Appeals. In Cordero-Garcia's case, the
Ninth Circuit concluded, in pertinent part, that his state con-
viction for dissuading a witness from reporting a crime did
not constitute an offense “relating to obstruction of justice”
because the state offense did not require that an investiga-
tion or proceeding be pending. 44 F. 4th 1181, 1188–1189
(2022). In Pugin's case, by contrast, the Fourth Circuit con-
cluded that his state conviction for accessory after the fact
constituted an offense “relating to obstruction of justice”
even if the state offense did not require that an investigation
or proceeding be pending. 19 F. 4th 437, 450 (2021); see also
Silva v. Garland, 27 F. 4th 95, 98 (CA1 2022).
This Court granted certiorari to resolve the confict in the
Courts of Appeals. 598 U. S. ––– (2023).
II
Under the Immigration and Nationality Act, noncitizens
convicted of an “aggravated felony” are removable from the
United States. 8 U. S. C. § 1227(a)(2)(A)(iii). The Act de-
fnes “aggravated felony” to cover a broad range of federal
and state crimes. See § 1101(a)(43).
In 1996, Congress passed and President Clinton signed
legislation that expanded the defnition of “aggravated fel-
ony” to include offenses “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.”
§ 1101(a)(43)(S); 110 Stat. 1278; id., at 3009–628.
This Court has generally used the “categorical approach”
to determine whether a prior conviction qualifes as an “ag-
gravated felony” under § 1101(a)(43). Esquivel-Quintana v.
Sessions, 581 U. S. 385, 389 (2017); Moncrieffe v. Holder, 569
U. S. 184, 190 (2013). Under that approach, courts look to
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604 PUGIN
v. GARLAND
Opinion of the Court
“the elements of the statute of conviction, not to the facts
of
each defendant's conduct.” Taylor v. United States, 495
U. S. 575, 601 (1990). The Court's role here is not to fashion
a separate federal obstruction offense, but rather to deter-
mine which federal or state offenses “relat[e] to obstruction
of justice.”
The question in this case is whether an offense “relat[es]
to obstruction of justice” under § 1101(a)(43)(S) even if the
offense does not require that an investigation or proceeding
be pending. Dictionary defnitions, federal laws, state laws,
and the Model Penal Code show that the answer is yes:
An offense “relat[es] to obstruction of justice” even if the of-
fense does not require that an investigation or proceeding
be pending.
To begin, dictionaries from the time of § 1101(a)(43)(S)'s
enactment in 1996 demonstrate that obstruction of justice
generally does not require a pending investigation or pro-
ceeding. To take an illustrative formulation, obstruction of
justice covers “the crime or act of willfully interfering with
the process of justice and law,” including “by infuencing,
threatening, harming, or impeding a witness, potential wit-
ness, juror, or judicial or legal offcer or by furnishing false
information in or otherwise impeding an investigation or
legal process.” Merriam-Webster's Dictionary of Law 337
(1996). The offense “captures every willful act of corrup-
tion, intimidation, or force that tends somehow to impair the
machinery of the civil or criminal law.” B. Garner, A Dic-
tionary of Modern Legal Usage 611 (2d ed. 1995); see also
Black's Law Dictionary 1077 (6th ed. 1990) (“obstructing
the administration of justice in any way”); cf. Esquivel-
Quintana, 581 U. S., at 391–392 (relying on same dictionaries
to interpret a different offense in § 1101(a)(43)).
Notably missing from those dictionary defnitions is a re-
quirement that an investigation or proceeding be pending.
The dictionaries demonstrate that obstruction of justice in-
cludes offenses where an investigation or proceeding is pend-
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Opinion of the Court
ing, but is not limited to offenses where an investigation or
proceedi
ng is pending.
In accord with the dictionary defnitions, Title 18 of the
U. S. Code has long proscribed various obstruction offenses
that do not require a pending investigation or proceeding.
Entitled “Obstruction of Justice,” Chapter 73 of Title 18
houses many such offenses. For example, the federal wit-
ness tampering statute covers various offenses, such as kill-
ing or threatening a witness with an intent to prevent the
person from testifying at an offcial proceeding. See 18
U. S. C. §§ 1512(a)(1)(A), (b)(1). That statute provides that
“an offcial proceeding need not be pending or about to be
instituted at the time of the offense.” § 1512(f )(1). Like-
wise, § 1519 forbids assorted means of destroying, altering,
or falsifying records with an intent to obstruct certain inves-
tigations or proceedings. That provision covers acts in-
tended to impede a federal investigation or proceeding, “in-
cluding one not even on the verge of commencement.”
Yates v. United States, 574 U. S. 528, 547 (2015) (plurality
opinion); see also 18 U. S. C. § 1518 (proscribing acts to ob-
struct the communication of certain information to criminal
investigators).
1
The Solicitor General explains that many state obstruction
offenses as of 1996 similarly did not require that an inves-
tigation or proceeding be pending. See, e. g., Fla. Stat.
§ 914.22(3)(a) (1997); N. D. Cent. Code Ann. § 12.1–09–01(3)(c)
(1997); State v. O'Neill, 165 Vt. 270, 682 A. 2d 943 (1996);
Brief for Attorney General 36–43 (collecting statutes); see
1
To be sure, one of those offenses—18 U. S. C. § 1519—was enacted after
the passage of § 1101(a)(43)(S) in its current form in 1996. But § 1519, too,
refects the longstanding ordinary understanding of obstruction of jus-
tice—and no one here suggests that the ordinary understanding in the
years after 1996 somehow differed from the ordinary understanding in
1996. See Branch v. Smith, 538 U. S. 254, 281 (2003) (plurality opinion of
Scalia, J.) (“the most rudimentary rule of statutory construction” is “that
courts do not interpret statutes in isolation, but in the context of the cor-
pus juris of which they are a part, including later-enacted statutes”).
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also Commonwealth v. Berry, 141 Ky. 477, 481, 133 S. W.
212,
213 (1911); cf. Esquivel-Quintana, 581 U. S., at 395–397
(looking to state statutes). Some States did not label the
relevant offenses as “obstruction of justice,” but instead la-
beled the offenses with a more precise term for the particu-
lar category of obstruction at issue, such as witness tamper-
ing. But Congress accounted for the variations in labels by
crafting the relevant defnition in § 1101(a)(43)(S) to cover
offenses “relating to obstruction of justice,” not just offenses
labeled as “obstruction of justice.” In any event, the termi-
nology that States use to categorize criminal offenses is not
dispositive because our inquiry here does not turn on “tech-
nical defnitions and labels under state law.” Taylor, 495
U. S., at 590.
For obstruction offenses, the Model Penal Code also gener-
ally does not require that an investigation or proceeding be
pending. See generally ALI, Model Penal Code § 240.0(4),
p. 3 (1980) (“ `offcial proceeding[s]' ” include those which
“may be heard”). For witness tampering, for example, the
Model Penal Code focuses on an actor's intent to tamper with
a witness, not whether an investigation or proceeding is
pending. See id., § 241.6, Comment 2, at 166–167 (“What is
important is not that the actor believe that an offcial pro-
ceeding or investigation will begin within a certain span of
time but rather that he recognize that his conduct threatens
obstruction of justice”).
That extensive body of authority—dictionaries, federal
laws, state laws, and the Model Penal Code—refects com-
mon sense. Individuals can obstruct the process of justice
even when an investigation or proceeding is not pending.
For example, a murderer may threaten to kill a witness if
the witness reports information to the police. Such an act
is no less obstructive merely because the government has
yet to catch on and begin an investigation. As the Solicitor
General persuasively states, one can obstruct the wheels of
justice even before the wheels have begun to move; indeed,
obstruction of justice is often “most effective” when it pre-
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Opinion of the Court
vents “an investigation or proceeding from commencing in
the
frst place.” Brief for Attorney General 15.
Importantly, if an offense “relating to obstruction of jus-
tice” under § 1101(a)(43)(S) required that an investigation or
proceeding be pending, then many common obstruction of-
fenses would not qualify as aggravated felonies under that
provision. We decline to interpret § 1101(a)(43)(S) to ex-
clude numerous heartland obstruction offenses. “We should
not lightly conclude that Congress enacted a self-defeating
statute.” Quarles v. United States, 587 U. S. –––, ––– (2019);
see also, e. g., Stokeling v. United States, 586 U. S. –––, ––– –
––– (2019); Esquivel-Quintana, 581 U. S., at 395; Voisine v.
United States, 579 U. S. 686, 695–696 (2016).
One fnal point bears emphasis: To the extent any doubt
remains about whether § 1101(a)(43)(S) requires that an in-
vestigation or proceeding be pending, the phrase “relating
to obstruction of justice” resolves the doubt. Cf. Mellouli
v. Lynch, 575 U. S. 798, 811–812, n. 11 (2015). The phrase
“relating to” ensures that this statute covers offenses that
have “a connection with” obstruction of justice—which
surely covers common obstruction offenses that can occur
when an investigation or proceeding is not pending. Coven-
try Health Care of Mo., Inc. v. Nevils, 581 U. S. 87, 96 (2017)
(internal quotation marks omitted). By contrast, in defning
certain other aggravated felonies in this statute, Congress
did not employ the broad phrase “relating to.” See, e. g., 8
U. S. C. § 1101(a)(43)(A) (“murder, rape, or sexual abuse of
a minor”).
For all of those reasons, an offense “relating to obstruction
of justice” under § 1101(a)(43)(S) does not require that an in-
vestigation or proceeding be pending.
2
2
As interpreted by this Court, a few obstruction statutes require that
an investigation or proceeding be reasonably foreseeable. See, e. g., Ma-
rinello v. United States, 584 U. S. –––, ––– (2018). Those decisions inter-
preted specifc statutory language and did not rule that obstruction of-
fenses in general have a foreseeability requirement (which would have
been incorrect, in any event). Moreover, the Solicitor General explains
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608 PUGIN
v. GARLAND
Opinion of the Court
III
Pug
in and Cordero-Garcia offer four main arguments in
response. None is persuasive.
First, Pug i n and Cordero-Garcia poi nt to 18 U. S. C.
§ 1503(a), which among other things prohibits persons from
endeavoring “to infuence, obstruct, or impede” the “due ad-
ministration of justice.” According to Pugin and Cordero-
Garcia, that specifc prohibition requires that an investiga-
tion or proceeding be pending. Cf. Pettibone v. United
States, 148 U. S. 197, 207 (1893). But even if they are cor-
rect about that point, § 1503(a) is only one obstruction offense
among the many obstruction offenses in Title 18. And many
federal obstruction offenses—like many state obstruction of-
fenses—proscribe obstruction when an investigation or pro-
ceeding is not pending. Moreover, if Congress wanted to
defne offenses “relating to obstruction of justice” to have
the same coverage as § 1503(a), Congress knew how to do
so: Congress cou ld have cross-referenced § 1503(a) i n
§ 1101(a)(43)(S) in the same way that Congress cross-
referenced numerous other statutes in § 1101(a)(43). See,
e. g., §§ 1101(a)(43)(B)–(F). But Congress included no such
cross-reference to § 1503(a) in § 1101(a)(43)(S).
Second, Pugin and Cordero-Garcia cite a few authorities
from the 1700s and 1800s and assert that obstruction of jus-
tice historically required that an investigation or proceeding
that offenses “relating to obstruction of justice” require an intent to inter-
fere with the legal process. See Tr. of Oral Arg. 6–8, 18, 116–117; Brief
for Attorney General 23. That mens rea requirement targets the same
basic overbreadth concern as a foreseeability requirement and ensures
that § 1101(a)(43)(S) will not sweep in offenses that are not properly under-
stood as offenses “relating to obstruction of justice.” For example, the
Solicitor General concedes that federal misprision of felony is not an of-
fense “relating to obstruction of justice” because, in the Government's
view, the crime does not require an intent to interfere with the legal proc-
ess. See 18 U. S. C. § 4; Reply Brief for Attorney General 26–27. In
short, we see no justifcation for engrafting a separate foreseeability re-
quirement onto the broad and general language of § 1101(a)(43)(S).
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609
Opinion of the Court
be pending. But the historical record cited by Pugin and
Cordero-Garcia
does not back up their broad claim. See,
e. g., 4 W. Blackstone, Commentaries on the Laws of England
126 (1769) (explaining without qualifcation that endeavoring
“to dissuade a witness from giving evidence” was an “imped-
imen[t] of justice”). More to the point, as we have explained
at length, the widespread and contemporary understanding
of obstruction of justice at the time Congress enacted
§ 1101(a)(43)(S) in 1996 did not require that an investigation
or proceeding be pending. Cf. Taylor v. United States, 495
U. S. 575, 593 (1990).
Third, Pugin and Cordero-Garcia argue that offenses “re-
lating to obstruction of justice” require a pending investiga-
tion or proceeding; otherwise, they maintain that those of-
fenses would be redundant with other offenses covered by
§ 1101(a)(43)(S)—in particular, offenses “relating to . . . per-
jury or subornation of perjury, or bribery of a witness.”
But Pugin and Cordero-Garcia fail to explain how requiring a
pending investigation or proceeding for obstruction offenses
would resolve the claimed redundancies with perjury or brib-
ery offenses. After all, perjury and bribery offenses often
“relat[e] to obstruction of justice.” In any event, “redundan-
cies are common in statutory drafting—sometimes in a con-
gressional effort to be doubly sure, sometimes because of
congressional inadvertence or lack of foresight, or sometimes
simply because of the shortcomings of human communica-
tion.” Barton v. Barr, 590 U. S. –––, ––– (2020). As a re-
sult, “the better overall reading of the statute” sometimes
“contains some redundancy.” Ibid.; Atlantic Richfeld Co.
v. Christian, 590 U. S. –––, –––, n. 5 (2020); Rimini Street,
Inc. v. Oracle USA, Inc., 586 U. S. –––, ––– (2019). Section
1101(a)(43) illustrates the point: Congress listed a large num-
ber of offenses that would qualify as aggravated felonies,
likely to avoid unintended gaps. So it is not surprising to
fnd some overlap. To take one example, the defnition of
“aggravated felony” covers “murder, rape, or sexual abuse
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610 PUGIN
v. GARLAND
Opinion of the Court
of a minor” and separately covers “crime[s] of violence.”
§§
1101(a)(43)(A), (F).
3
Fourth, Pugin and Cordero-Garcia invoke the rule of len-
ity. But even assuming that the rule of lenity can be in-
voked in this particular civil immigration context, the rule
applies only if “after seizing everything from which aid can
be derived,” there remains “grievous ambiguity.” Ocasio v.
United States, 578 U. S. 282, 295, n. 8 (2016) (internal quota-
tion marks omitted). Here, applying the traditional tools of
statutory interpretation, we have concluded that an offense
“relating to obstruction of justice” does not require that an
investigation or proceeding be pending. So we have no
basis for resorting to the rule of lenity. See, e. g., Shaw v.
United States, 580 U. S. 63, 71 (2016); Salman v. United
States, 580 U. S. 39, 51 (2016); Abramski v. United States,
573 U. S. 169, 188, n. 10 (2014); cf. Kawashima v. Holder, 565
U. S. 478, 489 (2012).
***
In sum, we conclude that an offense “relating to obstruc-
tion of justice” under § 1101(a)(43)(S) does not require that
an investigation or proceeding be pending. We therefore
disagree with the argument raised by Pugin and Cordero-
Garcia for excluding their obstruction offenses from the
broad coverage of § 1101(a)(43)(S). We affrm the judgment
of the U. S. Court of Appeals for the Fourth Circuit. We
reverse the judgment of the U. S. Court of Appeals for the
3
The same point applies to § 1101(a)(15)(U)(iii), which lists both “ob-
str uc ti on of justice” and “w itness t amper i ng. ” Neither Pug i n nor
Cordero-Garcia cites that provision—presumably because the provision
appears in a different part of the statute and contains different language.
Moreover, Congress took the same belt-and-suspenders approach in
§ 1101(a)(15)(U)(iii) that it did in § 1101(a)(43). See § 1101(a)(15)(U)(iii)
(covering among other things “being held hostage; peonage; involuntary
servitude; slave trade; kidnapping; abduction; unlawful criminal restraint;
false imprisonment” as well as “any similar activity in violation of Fed-
eral, State, or local criminal law”).
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611
Jackson, J., concurring
Ninth Circuit and remand the case for further proceedings
consistent
with this opinion.
It is so ordered.
Justice Jackson, concurring.
I agree with the Court that the Ninth Circuit wrongly
embraced a pending-proceeding requirement when it as-
sessed what types of prior offenses qualify as “offense[s] re-
lating to obstruction of justice” under 8 U. S. C. § 1101(a)
(43)(S), for purposes of determining the “aggravated felon-
[ies]” that render noncitizens deportable, § 1227(a)(2)(A)(iii).
This means, of course, that I also agree with the Court's
conclusion that the Fourth Circuit rightly rejected any such
pending-proceeding requirement.
I write separately to highlight one (possibly suffcient) rea-
son why a predicate offense need not have a nexus to a pend-
ing or ongoing investigation or judicial proceeding in order
to qualify as “an offense relating to obstruction of justice”
within the meaning of this immigration statute. The reason
is that, when Congress inserted the phrase “offense relating
to obstruction of justice” into § 1101(a)(43)(S), it might well
have been referencing a specifc and previously designated
category of offenses—the offenses that are grouped together
in Chapter 73 of Title 18 of the U. S. Code, under the heading
“Obstruction of Justice.” 62 Stat. 769, codifed at 18 U. S. C.
§ 1501 et seq. And not all of the offenses that are addressed
in Chapter 73 contain a pending-proceeding requirement.
***
What counts as “an offense relating to obstruction of jus-
tice” within the meaning of § 1101(a)(43)(S) is nothing more,
or less, than what Congress intended that phrase to mean
when it enacted that statute. The Immigration and Nation-
ality Act (INA) “does not expressly defne” the phrase, so
we apply the “normal tools of statutory interpretation” to
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612 PUGIN
v. GARLAND
Jackson, J., concurring
“ `see what Congress probably meant' ” by it. Esquivel-
Q
uintana v. Sessions, 581 U. S. 385, 391 (2017) (quoting
Lopez v. Gonzales, 549 U. S. 47, 53 (2006)). In my view, our
job in this regard is a limited one: We are called upon to
understand and implement whatever Congress meant by
that unadorned phrase.
When Congress selected the words “offense relating to ob-
struction of justice” and inserted them into the INA in 1996,
110 Stat. 1277–1278, Congress's longest standing and most
signifcant use of the phrase “obstruction of justice” in the
Statutes at Large was its description of Chapter 73 of Title
18 as concerning “obstruction of justice.” 62 Stat. 769; see
also 104 Stat. 4861 (describing Chapter 73 as “relating to
obstruction of justice” when adding an offense to that Chap-
ter in 1990). To me, this is a powerful contextual clue that
Congress may have simply—and solely—been drawing on its
own existing understanding of which particular offenses are
properly characterized as such. Accord, Flores v. Attorney
General, 856 F. 3d 280, 287–289 (CA3 2017) (refusing to “look
beyond Chapter 73” to “determine whether an alien's prior
offense `relat[es] to obstruction of justice' ” because § 1101(a)
(43)(S)'s “text . . . indicates Congress's intention to reference
Chapter 73”). In deciding the cases before us, I would not
want to rule out (even inadvertently) the possibility that
Chapter 73 is Congress's actual benchmark with respect to
what qualifes as an “offense relating to obstruction of jus-
tice” for § 1101(a)(43)(S) purposes, rather than just a mere
clue to some platonic, judicially divined meaning of Con-
gress's chosen words.
I believe that hewing closely to Congress's will in this re-
gard is especially important where (as here) making the de-
termination of which offenses qualify implicates the “drastic”
deportation sanction. Jordan v. De George, 341 U. S. 223,
231 (1951). In our constitutional system, the Legislature
makes legal policy judgments regarding the particular cir-
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613
Jackson, J., concurring
cumstances that trigger the consequences that are associated
w
ith criminal convictions. Accord, United States v. Lanier,
520 U. S. 259, 265, and n. 5 (1997). And it seems at least
plausible that Congress's description of certain “aggravated
felon[ies],” § 1227(a)(2)(A)(iii), as “offense[s] relating to ob-
struction of justice,” § 1101(a)(43)(S), may embody its judg-
ment to peg that subset of aggravated felonies to Chapter
73, not an intent to leave the category without form for fu-
ture judicial refnement. Of course, if Congress has already
thus decided which obstruction-related convictions so trigger
the INA's aggravated-felony provision, this Court need not,
and indeed should not, cobble together a “generic” offense
defnition from nonstatutory sources (which risks sweeping
in offenses that Congress did not mean to capture).
Here, the Court correctly emphasizes Chapter 73's impor-
tance in the course of analyzing whether a possible predicate
offense must have a nexus to a pending proceeding in order
to qualify as an aggravated felony. Ante, at 605. But these
parties have not fully ventilated the arguments for and
against the possibility that Chapter 73 might defne (in
substance) the universe of offenses that “relat[e] to obstruc-
tion of justice,” § 1101(a)(43)(S), as Congress meant that
phrase to be interpreted. Nor would running that issue to
ground here change the outcome.* As the Court notes, mul-
tiple Chapter 73 offenses require no pending proceeding.
§ 1512(f ); see also 102 Stat. 4397–4398 (1988 Congress de-
scribing an amendment to § 1512 as an “obstruction of justice
amendmen[t]” (boldface deleted)). That suffces to resolve
the question before us even under a Chapter 73-focused ap-
proach. The issue of whether such an approach best tracks
Congress's intent can be reserved for future consideration in
a case where the parties joust in earnest on the question.
*Before this Court, Pugin did not root his arguments in the Chapter 73-
focused paradigm that I sketch here. I agree with the Court that the
arguments he did make do not require reversing the Fourth Circuit.
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v. GARLAND
Sotomayor, J., dissenting
Justice Sotomayor, with whom Justice Gorsuch joins,
and
with whom Justice Kagan joins as to all but Part III,
dissenting.
From early American laws, to dictionaries, to modern fed-
eral and state obstruction statutes, interference with an on-
going investigation or proceeding is at the core of what it
means to be “an offense relating to obstruction of justice,” 8
U. S. C. § 1101(a)(43)(S). The Court circumvents this ample
evidence only by casting a wide net and then throwing back
all but the bycatch. That approach “turns the categorical
approach on its head,” Esquivel-Quintana v. Sessions, 581
U. S. 385, 393 (2017), and subverts the commonly understood
meaning of “obstruction of justice” when Congress enacted
§ 1101(a)(43)(S) in 1996. I respectfully dissent.
I
The Immigration and Nationality Act (INA) defnes “ag-
gravated felony” by enumerating a long list of offenses.
§ 1101(a)(43). Some are federal criminal offenses, but others
are undefi ned gener ic offenses, such as “ burg lary, ”
§ 1101(a)(43)(G), and “obstruction of justice,” § 1101(a)(43)(S),
which is relevant here.
To assess whether someone's conviction is covered by a
generic offense, our precedents dictate that courts use the
“categorical approach.” Esquivel-Quintana, 581 U. S., at
389. That approach disregards facts about the conviction
and instead “compare[s] the elements of the statute forming
the basis of the defendant's conviction with the elements of
the `generic' crime—i. e., the offense as commonly under-
stood.” Descamps v. United States, 570 U. S. 254, 257
(2013). If the elements of the underlying crime of conviction
are narrower than or the same as the elements of the generic
offense, then there is a “categorical match,” Moncrieffe v.
Holder, 569 U. S. 184, 190 (2013), and the underlying offense
is an aggravated felony. If there is no categorical match,
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615
Sotomayor, J., dissenting
then the conviction is not an aggravated felony, no matter
the
underlying facts.
Before a court can engage in this categorical comparison,
however, it must discern the “basic elements” of the relevant
“generic” offense. Taylor v. United States, 495 U. S. 575,
599 (1990). Courts accomplish this task by looking for “evi-
dence about the generic meaning ” of the offense at the time
of the statute's enactment. Esquivel-Quintana, 581 U. S.,
at 395. This means looking for the “generally accepted con-
temporary meaning ” of the generic offense, while setting
aside more unusual “nongeneric” variants that are “defn[ed]
. . . more broadly.” Taylor, 495 U. S., at 596, 599. In Tay-
lor, for example, this Court concluded, after surveying vari-
ous sources of meaning, that for purposes of 18 U. S. C.
§ 924(e), “generic burglary” encompasses any crime “having
the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
a crime.” 495 U. S., at 599. In reaching that conclusion,
the Court purposefully excluded burglary convictions in a
handful of States that “defn[ed] burglary more broadly” by
“eliminating the requirement that the entry be unlawful, or
by including places, such as automobiles and vending ma-
chines, other than buildings.” Ibid. Expanding the defni-
tion to include those statutes would have strayed too far
from “the generic defnition of bribery . . . intended by Con-
gress.” Id., at 595 (internal quotation marks omitted).
The question presented in these cases—whether “an of-
fense relating to obstruction of justice,” 8 U. S. C. § 1101(a)
(43)(S), necessarily involves a pending investigation or pro-
ceeding—is a question about the “basic elements” of “ge-
neric” obstruction of justice. Taylor, 495 U. S., at 599.
That is, it is a question about how obstruction of justice was
“commonly understood,” Descamps, 570 U. S., at 257, in 1996
when Congress enacted § 1101(a)(43)(S). Answering that
question requires focusing on the core, “generally accepted
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v. GARLAND
Sotomayor, J., dissenting
contemporary meaning,” Taylor, 495 U. S., at 596, of obstruc-
ti
on of justice, rather than on more unusual “nongeneric”
variants that are “defne[d] . . . more broadly,” id., at 599.
The Court loses sight of this fundamental point. Instead
of focusing on whether a pending investigation or proceeding
is part of the heartland of obstruction of justice, it wanders
off into an array of obstruction-adjacent federal and state
laws that do not require a pending investigation or proceed-
ing. The Court then announces that those offenses are core
obstruction of justice, even though the evidence it relies on,
taken as a whole, reveals they are not. The result is pre-
dictable. By defning offenses that do not require a pending
investigation or proceeding as core obstruction of justice, the
majority forces through the conclusion that a pending inves-
tigation or proceeding is not required to qualify as generic
obstruction of justice.
A reexamination of the sources relied upon by the major-
ity, with the appropriate focus on discerning the trunk of
obstruction of justice, rather than its various branches or
offshoots, leads to the opposite result: To qualify as “an
offense relating to obstruction of justice” under § 1101(a)
(43)(S), a predicate offense must require a pending investiga-
tion or proceeding.
A
As an initial matter, the majority glosses over the critical
fact that “obstruction of justice” was an established term of
art at the time of § 1101(a)(43)(S)'s enactment in 1996. This
is a major frst misstep because “[w]here Congress employs
a term of art obviously transplanted from another legal
source, it brings the old soil with it.” George v. McDo-
nough, 596 U. S. 740, 746 (2022) (internal quotation marks
omitted).
From the “old soil” until today, “obstruction of justice” has
required a pending investigation or proceeding. In 1831,
Congress forbade efforts “to infuence, intimidate, or impede
any juror, witness, or offcer, in any court of the United
States, in the discharge of his duty” or “to obstruct or im-
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617
Sotomayor, J., dissenting
pede, the due administration of justice therein.” Act of
Mar
. 2, 1831, ch. 99, 4 Stat. 488 (emphasis added). This pro-
vision, which became § 5399 of the Revised Statutes, see Rev.
Stat., Title 70, ch. 4, § 5399 (1875), laid “the foundation for the
modern statutory incarnation of the offense of obstruction of
justice.” E. Murphy, Manufacturing Crime: Process, Pre-
text, and Criminal Justice, 97 Geo. L. J. 1435, 1473 (2009).
In Pettibone v. United States, 148 U. S. 197 (1893), this
Court confrmed that § 5399 required a pending proceeding.
After describing the law as criminalizing “obstruction of the
due administration of justice in any court of the United
States,” the Court explained that “such obstruction can only
arise when justice is being administered.” Id., at 207.
“Unless that fact exists, the statutory offence cannot be com-
mitted.” Ibid. The Court thus tied obstruction of justice
under § 5399 to “the pendency of proceedings in the United
States court, or the progress of the administration of justice
therein.” Id., at 205.
Section 5399 is the predecessor of the modern omnibus or
catchall obstruction of justice clause, which is codifed at 18
U. S. C. § 1503, and which prohibits endeavoring “to infu-
ence, obstruct, or impede, the due administration of justice.”
In recognition of this through line, this Court held, just a
year before the enactment of § 1101(a)(43)(S), that “a person
lacking knowledge of a pending proceeding ” cannot be con-
victed under § 1503. United States v. Aguilar, 515 U. S. 593,
599 (1995) (citing Pettibone, 148 U. S., at 207). Underscoring
this point in his partial concurrence, Justice Scalia explained
that “an endeavor to obstruct proceedings that did not exist
would not violate the statute” because “obstruction can only
arise when justice is being administered.” 515 U. S., at 610,
n. 1 (alteration and internal quotation marks omitted).
Congress was aware of this settled interpretation of § 1503
when it added “obstruction of justice” to the INA's list of
aggravated felonies. See Guerrero-Lasprilla v. Barr, 589
U. S. –––, ––– (2020) (“We normally assume that Congress is
aware of relevant judicial precedent when it enacts a new
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statute” (internal quotation marks omitted)). In fact, by
1996
Congress had already demonstrated that “relating to
obstruction of justice” was understood to capture § 1503.
Enacted in 1970, the Racketeer Infuenced and Corrupt Or-
ganizations Act (RICO) specifcally lists as a predicate of-
fense “section 1503 (relating to obstruction of justice).” 18
U. S. C. § 1961(1). Moreover, this language, just like the lan-
guage at § 1101(a)(43)(S), serves the purpose of identifying
one of a long list of underlying offenses to which an over-
arching statute applies. Thus, by 1996, Congress had used
the same phrase for the same purpose to refer to § 1503. In
fact, the INA's list of aggravated felonies explicitly cross-
references RICO, suggesting Congress was well aware of the
parallel. See § 1101(a)(43)(J) (INA listing RICO violation as
an aggravated felony).
1
In short, in searching for the heartland of obstruction of
justice, the omnibus clause of § 1503 and the history from
which it is derived are invaluable touchstones. Neither
countenances an obstruction of justice offense separate from
a pending investigation or proceeding.
2
1
The majority argues that if Congress had wanted offenses “relating
to obstruction of justice” to “have the same coverage as § 1503(a),” then
Congress could have just “cross-referenced § 1503(a) in § 1101(a)(43)(S).”
Ante, at 608. This argument misses the point entirely. If Congress had
done that, then only persons convicted under § 1503 would qualify. Con-
gress's use of the generic “obstruction of justice,” however, clearly signals
that Congress wanted other state and federal offenses sharing the same
basic elements to be included as well. Section 1503 is a strong indicator
of the generic meaning of “obstruction of justice” in § 1101(a)(43)(S), not
its equivalent.
2
Although the Court quotes Blackstone's statement that “ `dissuad[ing]
a witness from giving evidence' ” was an “ `impedimen[t] of justice' ” in
support of its position, ante, at 609, Blackstone actually supports this dis-
sent. The Court ignores that in historical usage “giving evidence” meant
“testifying ” at a proceeding. See, e. g., 3 W. Blackstone, Commentaries
on the Laws of England 305 (1768) (“[E]very defence, which cannot be
thus specially pleaded, may be given in evidence, upon the general issue
at the trial”); 2 M. Hale, History of the Pleas of the Crown 280 (1736) (“If
a reward be promised to a person for giving his evidence before he gives it,
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619
Sotomayor, J., dissenting
B
E
ven setting this crucial historical evidence aside, and pro-
ceeding as the Court does, by looking to dictionary defni-
tions, chapter 73 of the Federal Criminal Code, state stat-
utes, and the Model Penal Code, the same result emerges:
Core obstruction of justice requires a pending investigation
or proceeding.
1
Begin with the central dictionary defnition upon which
the Court relies. It defnes obstruction of justice as “the
crime or act of willfully interfering with the process of jus-
tice and law esp. by infuencing, threatening, harming, or
impeding a witness, potential witness, juror, or judicial or
legal offcer or by furnishing false information in or other-
w ise imped ing an inv est i ga t io n o r l ega l p rocess. ”
Merriam-Webster's Dictionary of Law 337 (1996) (emphasis
added).
While the Court claims that this defnition omits any re-
quirement of a pending investigation or proceeding, ante, at
604, the two italicized phrases say otherwise. “[I]nterfer-
ence” means the “act of meddling in or hampering an activity
or process,” Webster's Third New International Dictionary
1178 (1993), while “impede” means “to interfere with or get
in the way of the progress of ” something or someone, id., at
1132. The defnition is clear that the process that is med-
dled in, or interfered with, is the “process of justice and law”
or “an investigation or legal process.”
3
this, if proved, disables his testimony”). The majority also ignores that
the Blackstone passage is discussing “[c]ontempts against the king 's . . .
courts of justice.” 4 Blackstone, Commentaries, at 124 (1769). This con-
text confrms Blackstone is referring to impeding a witness from testifying
at a proceeding, because otherwise it would not be a contempt against the
king 's courts.
3
While it is possible to talk about interfering with or impeding a process
before it has even begun, those phrases more naturally connote an effect
on a process that is ongoing. For example, talk of interfering in a hiring
process strongly suggests that hiring-related activities are already under-
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Sotomayor, J., dissenting
For the same reason, the majority is too hasty when it
asser
ts that the defnition encompasses acts separate from a
pending investigation or proceeding. That defnition ends
with the phrase “in . . . an investigation or legal process.”
Under the series-qualifer canon, that phrase is best read to
modify all listed verbs, especially because the defnition lists
each action as an example of “the crime or act of willfully
interfering with the process of justice and law.” See Face-
book, Inc. v. Duguid, 592 U. S. 395, 402 (2021) (“[W]hen there
is a straightforward, parallel construction that involves all
nouns or verbs in a series, a modifer at the end of the list
normally applies to the entire series” (internal quotation
marks omitted)). Thus, far from favoring the majority's
view, the defnition most naturally supports the conclusion
that interference with a pending investigation or proceeding
is an element of generic obstruction of justice.
The other dictionary defnitions upon which the Court re-
lies similarly indicate the need for a pending investigation or
proceeding. The majority notes that Black's Law Diction-
ary defnes obstruction of justice to cover “ `obstructing the
administration of justice in any way,' ” ante, at 604, but over-
looks the fact that “administration of justice,” both histori-
cally and currently, refers to court proceedings. See, e. g., 1
J. Kent, Commentaries on American Law *290 (“[T]he judi-
ciary power is intrusted with the administration of justice”);
Black's Law Dictionary 53 (10th ed. 2014) (defning “due ad-
ministration of justice” as “[t]he proper functioning and in-
tegrity of a court or other tribunal and the proceedings be-
fore it”). Similarly, the full defnition from A Dictionary of
Modern Legal Usage mentions “interference with the or-
derly administration of law.” B. Garner, p. 611 (2d ed. 1995).
The cited defnitions thus all weigh against the majority's
way. Certainly where an upcoming hiring is not even foreseeable, it
would be unusual to talk of such inference. Yet, the majority does not
require even a foreseeable investigation or proceeding in order for there
to be obstruction of justice. See ante, at 607, n. 2.
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621
Sotomayor, J., dissenting
sweeping view, and in favor of the view that obstruction of
justice
“can only arise when justice is being administered.”
Pettibone, 148 U. S., at 207.
2
The federal offenses listed in chapter 73 of Title 18, which
is entitled “Obstruction of Justice,” provide further support
for the conclusion that core obstruction of justice requires
the administration of justice.
When Congress codifed chapter 73 in 1948, the chapter
contained six provisions, each of which requires a connection
to a pending proceeding or investigation. See Act of June
25, 1948, §§ 1501–1506, 62 Stat. 769–770. The central provi-
sion is § 1503, with its omnibus or catchall prohibition against
endeavoring “to infuence, obstruct, or impede, the due ad-
ministration of justice.” As already explained, supra, at 617,
it is undisputed that § 1503's omnibus clause requires a pend-
ing proceeding. The same is true for the other fve provi-
sions, all of which either refer to ongoing legal processes or
cover conduct that can arise only during legal proceedings.
4
By the time Congress passed 8 U. S. C. § 1101(a)(43)(S) in
1996, Congress had added nine narrower, more specifc of-
fenses to the six original offenses (§§ 1501–1506) in chapter
73. See 18 U. S. C. §§ 1507–1513, 1516–1517.
5
While it is
less clear that those specialized provisions fall within the
4
The fve other original chapter 73 offenses are § 1501 (“Assault on proc-
ess server”); § 1502 (“Resistance to extradition agent”); § 1504 (“Infuenc-
ing juror by writing ”); § 1505 (“Infuencing or injuring witness before
agencies and committees”); and § 1506 (“Theft or alteration of record or
process; false bail”). These provisions remain in chapter 73 to this day,
with only modest revisions that do not change the need for a pending
investigation or proceeding.
5
§ 31(a), 64 Stat. 1018 (adding § 1507 in 1950); § 1, 70 Stat. 935 (adding
§ 1508 in 1956); § 101, 74 Stat. 86 (adding § 1509 in 1960); Pub. L. 90–123,
§ 1(a), 81 Stat. 362 (adding § 1510 in 1967); § 802(a), 84 Stat. 936 (adding
§ 1511 in 1970); § 4(a), 96 Stat. 1249 (adding § 1512 in 1982); id., at 1250
(adding § 1513 in 1982); § 7078(a), 102 Stat. 4406 (adding § 1516 in 1988);
§ 2503(a), 104 Stat. 4861 (adding § 1517 in 1990).

622 PUGIN
v. GARLAND
Sotomayor, J., dissenting
heartland of obstruction of justice, even the vast majority of
them
require a connection to a proceeding or investigation.
6
See § 1507 (“picket[ing] or parad[ing]” with the intent to in-
terfere with “the administration of justice”); § 1508 (listening
to or recording jury “deliberat[ions] or voting ”); § 1510 (in-
terference with reports of information “to a criminal investi-
gator”); § 1516 (interfering with a “Federal auditor in the
performance of offcial duties”); § 1509 (interfering with “due
exercise of rights” under a court order); § 1513 (retaliat-
i ng agai nst a w itness for par ticipati ng i n “an officia l
proceeding ”).
The primary outlier amongst the more recent additions to
chapter 73 is § 1512, which criminalizes tampering with a
witness, victim, or informant. As the majority notes, that
provision provides that “[f]or purposes of this section . . . an
offcial proceeding need not be pending or about to be insti-
tuted at the time of the offense.” § 1512(f )(1). Instead of
favoring the majority's conclusion, however, § 1512 is the ex-
ception that proves the rule. There would be no need to
clarify that the provision applies absent a pending proceed-
ing unless there were an established background under-
standing that obstruction of justice requires such a proceed-
ing.
7
Because the question at hand concerns the meaning
of heartland obstruction of justice, excluding “nongeneric”
6
The two exceptions are §§ 1511 and 1512. Section 1511 is a specialized
provision, enacted as part of the Organized Crime Control Act of 1970,
§ 802, 84 Stat. 936, which prohibits “conspir[ing] to obstruct the enforce-
ment of the criminal laws of a State . . . with the intent to facilitate an
illegal gambling business.” 18 U. S. C. § 1511(a). Given that § 1511 is a
specialized conspiracy provision intended to “discourage organized crime's
corruption of state and local offcials for the purpose of facilitating gam-
bling enterprises,” Iannelli v. United States, 420 U. S. 770, 788 (1975), it
has no bearing on core obstruction of justice. Section 1512 is discussed
in fra, at 622–623, and n. 6.
7
In a testament to the gravitational force of the weighty background
rule that a pending proceeding is generally required, this Court has inter-
preted § 1512 to at least require a foreseeable proceeding. See Arthur
Andersen LLP v. United States, 544 U. S. 696, 707–708 (2005).
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623
Sotomayor, J., dissenting
variants “defn[ed] . . . more broadly,” Taylor, 495 U. S., at
599,
what matters here is the general rule, not a singular
exception to it. To use a lighthearted example, it is clear
that the “generic” meaning of “mammal” includes giving
birth to live young, even though the platypus is an exception
to that rule. Section 1512 thus proves the opposite of what
the majority takes it to prove.
8
The Court instead reasons that because § 1512 does not
require a pending investigation or proceeding, the answer to
the question “Does generic obstruction of justice require a
pending investigation or proceeding?” must be “No.” That
line of thinking, however, simply assumes that § 1512 falls
within generic obstruction (it assumes the platypus is heart-
land mammalia). In so assuming, the Court loses sight of
the task at hand, which is, again, to answer a question about
the trunk of obstruction of justice, not more broadly defned
offshoots. See Descamps, 570 U. S., at 257. All signs point
toward treating § 1512 as just such an offshoot, at least inso-
far as it explicitly chooses to dispose with the requirement
that a proceeding “be pending or about to be instituted at
the time of the offense.” § 1512(f )(1).
8
The majority also mentions § 1518 (Obstruction of criminal investiga-
tions of health care offenses) and § 1519 (Destruction, alteration, or falsif-
cation of records in federal investigations and bankruptcy), which were
enacted after Congress passed § 1101(a)(43)(S). See § 245(a), 110 Stat.
2017 (adding § 1518 in 1996); § 802(a), 116 Stat. 800 (adding § 1519 in 2002).
Both are highly “specialized” provisions concerned with “corporate fraud
and fnancial audits.” Yates v. United States, 574 U. S. 528, 541 (2015)
(plurality opinion). Given that these later enacted offenses are special-
ized extensions of obstruction of justice, they are irrelevant to determin-
ing what Congress in 1996 understood as the generic meaning of “obstruc-
tion of justice” in § 1101(a)(43)(S). While the concurrence suggests that
“obstruction of justice” is coextensive with chapter 73, ante, at 612 (opin-
ion of Jackson, J.), the concurrence (like the majority) does not engage
with these issues regarding §§ 1518 and 1519, nor with the problems noted
above about §§ 1511 and 1512, see supra, at 621, 622, n. 6, 623, even though
all of these issues have been thoroughly ventilated in these cases. See
Brief for Petitioner in No. 22–23, pp. 23–29; Brief for Respondent in No.
22–331, pp. 15–21; Brief for Attorney General 24–31.
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3
The
text of the INA itself confrms that Congress did not
understand obstruction of justice to encompass all witness
tampering. In the very same subsection of the INA at issue
here, Congress expressly used the term “witness tampering ”
separately from “obstruction of justice.” 8 U. S. C.
§ 1101(a)(15)(U)(iii). Specifcally, in a set of provisions de-
fning “U” nonimmigrant status,
9
Congress again enumer-
ated a list of offenses, many of which overlap with the aggra-
vated felonies in § 1101(a)(43). See § 1101(a)(15)(U)(iii); cf.
§§ 1101(a)(43). Just as it did for aggravated felonies, Con-
gress included “obstruction of justice” in the list. This time,
however, Congress added witness tampering in addition
to obstruction of justice by listing “witness tampering; ob-
str uc ti on of justice; [or] perjury” as disti nc t offenses.
§ 1101(a)(15)(U)(iii); cf. § 1101(a)(43)(S) (“obstruction of jus-
tice, perjury or subornation of perjury, or bribery of a
witness”).
The Court's broad interpretation of “obstruction of jus-
tice,” which swallows up all witness tampering, cannot be
reconciled with this statutory text. If, on the one hand, the
Court applies the same broad meaning to “obstruction of jus-
tice” in § 1101(a)(15)(U)(iii), then “witness tampering ” be-
comes redundant, in violation of the canon that statutes
should be read “so as to avoid rendering superfuous any
parts thereof.” Astoria Fed. Sav. & Loan Assn. v. Soli-
mino, 501 U. S. 104, 112 (1991). If, on the other hand, the
Court attempts to avoid this problem by interpreting “ob-
struction of justice” differently across the two provisions,
then it violates “the established canon of construction that
similar language contained within the same section of a stat-
ute must be accorded a consistent meaning.” National
9
Persons eligible for “U” nonimmigrant status are victims of certain
qualifying criminal activity who are helpful to offcials investigating or
prosecuting such activity. See 8 U. S. C. § 1101(a)(15)(U)(i).
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Sotomayor, J., dissenting
Credit Union Admin. v. First Nat. Bank & Trust Co., 522
U
. S. 479, 501 (1998). Either way, the Court's interpreta-
tion fails.
Although § 1101(a)(43)(S) refers to “an offense relating to
obstruction of justice,” while § 1101(a)(15)(U)(iii) refers to
“criminal activity . . . involving . . . obstruction of justice”
“or any similar activity,” these textual differences only rein-
force that Congress understood “obstruction of justice” and
“witness tampering ” to have quite different ordinary mean-
ings. Given that § 1101(a)(15)(U)(iii) covers not just “ob-
struction of justice” but “any similar activity,” one must infer
that Congress took witness tampering to be not only distinct
from obstruction of justice, but distinct enough to need sepa-
rate mention from “obstruction of justice” “or any similar
activity.”
Nor does it matter that § 1101(a)(15)(U) was added to the
INA in 2000 as part of the Victims of Traffcking and Vio-
lence Protection Act. 114 Stat. 1534. On the contrary, the
fact that Congress understood “obstruction of justice” to be
distinct from “witness tampering ” just four years after
enacting § 1101(a)(43)(S) is good evidence Congress under-
stood the same to be true in 1996, when it deemed “obstruc-
tion of justice” an aggravated felony under the INA. After
all, “no one here suggests that the ordinary understanding
in the years after 1996 somehow differed from the ordinary
understanding in 1996.” Ante, at 605, n. 1.
4
State law points to the same result as the other indicia of
meaning examined thus far. State law is relevant because,
in discerning the generic meaning of terms with common-
law roots, the Court will often survey state statutes in effect
at the time the federal statute in question was enacted. See
Taylor, 495 U. S., at 598–599 (considering how “burglary”
was understood “in the criminal codes of most States”).
Here, when § 1101(a)(43)(S) was enacted in 1996, 13 States
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and the District of Columbia had a crime deemed “obstruc-
ti
on of ” or “obstructing ” “justice.” The majority of those
state statutes (eight in total) required a connection to an
investigation or proceeding that was pending, or at least rea-
sonably foreseeable, while the remainder were ambiguous on
the matter.
10
Thus, when § 1101(a)(43)(S) was added to the
INA in 1996, obstruction of justice “ `generally' ” or “ `typi-
cally' ” required such a connection. Id., at 598.
The majority avoids this conclusion only by, once again,
adopting a circular approach. In analyzing state law, the
majority looks exclusively to state witness tampering stat-
utes, which it simply assumes are “state obstruction of-
fenses.” Ante, at 605. It then concludes that because many
of those statutes do not require a pending investigation or
proceeding, neither does obstruction of justice under the
INA. Ante, at 606. As should be clear by now, that
method gets the categorical approach backward; if the over-
arching federal category is assumed to include the state of-
fenses in question, there will always be a categorical match.
One cannot prove that all state witness tampering laws fall
within the INA's “relating to obstruction of justice” simply
by assuming that they do.
11
10
See Haw. Rev. Stat. § 710–1072.5 (1996) (connection required); La. Rev.
Stat. Ann. § 14:130.1 (West 1996) (same); Md. Ann. Code, Art. 27, § 26
(1996) (same); Miss. Code Ann. § 97–9–55 (1996) (same); Va. Code Ann.
§ 18.2–460 (1996) (same); Vt. Stat. Ann., Tit. 13, § 3015 (1996) (same); W. Va.
Code Ann. § 61–5–27 (1996) (same); Wis. Stat. § 946.65 (1996) (same); Ind.
Code Ann. § 35–44–3–4 (ambiguous); Ohio Rev. Code Ann. § 2921.32 (1996)
(same); Utah Code Ann. § 76–8–306 (1996) (same); D. C. Code § 22–722
(1996) (same); Ill. Comp. Stat., ch. 720, § 5/31–4 (1996) (same); Mont. Code
Ann. § 45–7–303 (1996) (same).
11
Moreover, even assuming state witness tampering statutes are rele-
vant, it is noteworthy that in 1996 the vast majority of States (39 in total)
categorized their witness tampering statutes as something other than “ob-
struction of justice.” See, e. g., Ala. Code § 13A–10–124 (1996) (catego-
rized under “Offenses Against Public Administration”); Colo. Rev. Stat.
§ 18–8–707 (1996) (categorized under “Offenses—Governmental Opera-
tions”); Idaho Code Ann. § 18–2604 (1996) (categorized under “Evidence
Falsifed or Concealed and Witnesses Intimidated or Bribed”); see also
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The majority also relies on the Model Penal Code (MPC).
An
te, at 606. Although the MPC sometimes can provide
supplemental evidence of generic meaning, see Taylor, 495
U. S., at 598, n. 8, it is critical to bear in mind that the MPC
is fundamentally a “reform movemen[t].” United States v.
Bailey, 444 U. S. 394, 403 (1980). Where that reform in-
volves a defnitive break from the state of the law at the time
in question, the MPC is of limited value in discerning generic
meaning. Such is the case here. The MPC eschews any
talk of “obstruction of justice,” and instead sets out a series
of articles under the heading “Offenses Against Public Ad-
ministration.” ALI, MPC §§ 240–243 (1980). Those arti-
cles cover many offenses, such as escape from pr ison
(§ 242.6), perjury (§ 241.1), and bribery (§ 240.1) that are
clearly not generic obstruction of justice (indeed, perjury
and bribery are listed separately from obstruction of justice
in § 1101(a)(43)(S)). Even in the article that most closely
parallels traditional obstruction of justice (§ 242.1 “Obstruct-
ing Administration of Law or Other Governmental Func-
tion”), the MPC gave the word “ `obstructs' ” an “expansive
meaning,” § 242.1, Comment 2, at 203, and “intended” for the
offense described to “reach all legitimate activities of gov-
ernment,” not just “the administration of justice,” id., at
203–204. Because of these departures, which have not been
widely adopted, the MPC carries little weight for purposes of
discerning the core that forms generic obstruction of justice.
Despite these issues, the majority focuses, again without
justifcation, on the MPC's description of witness tamper-
ing (§ 241.6). See ante, at 606. Even setting aside the now-
Brief for Respondent in No. 22–331, pp. 26–28 (collecting statutes). Of
the remaining 11 States that located their witness tampering statutes in
the part of the Criminal Code prohibiting “obstructing ” or “obstruction”
of “justice,” at least 7 required a connection to a pending investigation or
proceeding. See Ind. Code Ann. § 35–44–3–4(a)(1); Md. Ann. Code, Art.
27, § 26; Miss. Code Ann. § 97–9–55; Nev. Rev. Stat. Ann. § 199.230 (1996);
N. C. Gen. Stat. Ann. § 14–266 (1996); Vt. Stat. Ann., Tit. 13, § 3015; W. Va.
Code Ann. § 61–5–27. State law on the whole thus favors a pending inves-
tigation or proceeding requirement for generic obstruction of justice.
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familiar circularity of this reasoning, this defnition does not
help
the majority either. In describing witness tampering,
the MPC reformers chose to depart from “laws requiring
that a proceeding or investigation actually be pending,”
§ 241.6, Comment 2, at 166, by requiring only a “belie[f] that
an offcial proceeding or investigation is pending or about to
be instituted,” § 241.6(1) (emphasis added). That intentional
departure is reason alone to treat this MPC description with
caution when articulating generic obstruction of justice.
Yet, the majority goes much further than the MPC reformers
by dismissing the notion that at least a foreseeable investiga-
tion or proceeding should be required. See ante, at 607, n. 2.
That statement by the Court refects just how far afeld it
has wandered from the heartland of obstruction of justice.
Perhaps sensing the weakness of its evidence, the Court
falls back on the Government's “commonsense point,” Reply
Brief 4, that “one can obstruct the wheels of justice even
before the wheels have begun to move,” ante, at 606. Yet
the intuitive idea that “obstruction can only arise when jus-
tice is being administered,” Pettibone, 148 U. S., at 207, fnds
support in common sense to at least the same degree. But
while both formulations fnd some support in common sense,
the same cannot be said regarding other clues about generic
meaning. Considered together, the relevant history, dic-
tionaries, and federal and state laws provide powerful evi-
dence that obstruction of justice “as commonly understood,”
Descamps, 570 U. S., at 257, when Congress enacted 8
U. S. C. § 1101(a)(43)(S) in 1996, requires a pending investiga-
tion or proceeding.
II
In a feeble attempt to shore up its argument, the Court
resorts to a seemingly limitless construction of “relating to
obstruction of justice,” § 1101(a)(43)(S), according to which
the phrase “relating to” covers all offenses “that have `a con-
nection with' obstruction of justice,” ante, at 607. That read-
ing is a direct result of the Court's failure to consider statu-

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Sotomayor, J., dissenting
tory text and context when interpreting “relating to.”
Af
ter all, “in isolation” that phrase is endlessly expansive
because, absent a statute-specifc “limiting principle,” rela-
tions “stop nowhere.” Maracich v. Spears, 570 U. S. 48, 59–
60 (2013) (internal quotation marks omitted). Here, one
look at statutory text and context confrms that “relating to”
must have a narrower meaning.
The text of the INA “makes [non-U. S. citizens] remov-
able based on the nature of their convictions, not based on
their actual conduct.” Esquivel-Quintana, 581 U. S., at 389.
This explains why, when applying § 1101(a)(43)(S), courts use
the categorical approach, which compares the elements of the
statute of conviction to the generic offense. Without a de-
lineated generic offense, however, this comparison falters.
The Court's nebulous reading of “relating to obstruction of
justice, perjury or subornation of perjury, or bribery of a
witness,” § 1101(a)(43)(S) (emphasis added), fails to grapple
with this reality. Rather than ask whether a conviction is a
categorical match for, say, generic “perjury,” the majority
seems to suggest courts should ask if the conviction has “a
connection with” generic perjury. If that is what the major-
ity intends, it is not clear what that question means or how
courts should go about answering it.
In contrast, no such problem arises if “an offense relating
to . . . perjury” or “an offense relating to obstruction of jus-
tice” is understood narrowly to mean simply “an offense
qualifying as generic perjury” or “an offense qualifying as
generic obstruction of justice.” The broader statutory con-
text confrms this reading. Again and again, § 1101(a)(43)
uses the phrase “relating to” in descriptive parentheticals to
introduce an ordinary language description of other aggra-
vated felonies. For example, to identify the money laun-
dering offenses in 18 U. S. C. § 1956, the INA refers to “an
offense described in section 1956 of title 18 (relating to
laundering of monetary instruments).” § 1101(a)(43)(D) (em-
phasis added). This structure, which the INA repeats well
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over a dozen times, see §§ 1101(a)(43)(D)–(E), (H)–(N), con-
fr
ms that the phrase “relating to” is used in the INA simply
to introduce (not expand upon) a general description of the
intended crime category.
The Court's seemingly expansive reading of “in relation
to” is also refuted by its consequences for the statutory text.
If all that is required is a “connection with” something that
“obstruct[s] the wheels of justice,” ante, at 606–607, then the
Government has open season to argue that all sorts of crimes
that hinder law enforcement (e. g., failing to report a crime)
or make detection of a crime more diffcult (e. g., money laun-
dering) qualify as offenses “relating to obstruction of jus-
tice.” On this approach, certain other aggravated felonies
listed in the INA (e. g., § 1101(a)(43)(D) (money laundering))
will collapse into “obstruction of justice,” leading to substan-
tial superfuity in the statute. Indeed, the separate catego-
ries of perjury and bribery of a witness listed in the very
same subparagraph, § 1101(a)(43)(S), will themselves be part
of that collapse.
More importantly, an expansive reading of “in relation to”
opens the door for the Government to argue that many low-
level offenses that fall outside of core obstruction of justice
are “aggravated” felonies, even though the INA reserves
that label for “especially egregious felonies.” Esquivel-
Quintana, 581 U. S., at 394. For example, misdemeanor
convictions for failing to report a crime, presenting false
identifcation to an offcer, refusing to aid a police offcer,
leaving the scene of a crime, or purchasing a fake ID could
be taken to count as “relating to obstruction of justice.” See
Brief for National Immigrant Justice Center et al. as Amici
Curiae 10–25 (collecting offenses).
12
12
Of course, many of the convictions the Government seeks to shoehorn
into “obstruction of justice” are serious offenses, even if they are not a
categorical match for obstruction of justice. Such convictions, however,
may render non-U. S. citizens removable for other reasons (e. g., if they
qualify as crimes involving moral turpitude). Moreover, when noncitizens
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Sotomayor, J., dissenting
This signifcant potential for “redundancy,” “unfairness,”
and
“arbitrary” enforcement should have led the Court to
“exercise interpretive restraint,” Marinello v. United States,
584 U. S. 1, 9, 11 (2018) (internal quotation marks omitted),
when construing “relating to.” Indeed, the many problems
with an expansive reading of “relating to” raise the question
whether the Court even really intends to adopt such a read-
ing, especially because the relevant discussion occupies a sin-
gle paragraph. Perhaps instead the Court simply offers up
“connection with” as a synonym for “relating to,” leaving it
for lower courts to settle what that phrase actually means.
III
While the evidence assembled here is far stronger than
any offered by the majority, the sheer complexity of the task
at hand leaves lingering ambiguity, even if the Court claims
it does not see it. Cf. ante, at 610. To the extent doubts
remain, however, they are resolved in favor of a narrower
understanding of § 1101(a)(43)(S) by the “longstanding prin-
ciple of construing any lingering ambiguities in deportation
statutes in favor of the [non-U. S. citizen].” INS v. Cardoza-
Fonseca, 480 U. S. 421, 449 (1987).
This Court resolves doubts in favor of the non-U. S. citizen
in keeping with the general rule that ambiguities in penal
statutes should be construed against the government.
After all, deportation is not only a kind of “penalty,” but a
“drastic measure” often “the equivalent of banishment or
exile.” Fong Haw Tan v. Phelan, 333 U. S. 6, 10 (1948).
Nowhere is that truer than here. Aggravated felonies
under the INA are “a category of crimes singled out for the
harshest deportation consequences.” Carachuri-Rosendo v.
are removable, any discretionary immigration relief for which they may
be eligible will “depen[d] upon the discretion of the Attorney General.”
Carachuri-Rosendo v. Holder, 560 U. S. 563, 581 (2010). Thus, any differ-
ence between the majority and the dissent in terms of “practical effect on
policing our Nation's borders . . . is a limited one.” Ibid.
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Holder, 560 U. S. 563, 566 (2010). If a non-U. S. citizen is
con
victed of an aggravated felony, even if she has a green
card and has lived in this country for years, she is subject to
removal and is also ineligible for readmission and many
forms of immigration relief. See 8 U. S. C. §§ 1158(b)(2),
1182(a)(9)(A), 1182( h), 1227(a)(2)(A)( i i i), 1229b(a)(3),
1229c(a)(1). “Accordingly, removal is a virtual certainty
for [a non-U. S. citizen] found to have an aggravated felony
conviction, no matter how long he has previously resided
here.” Sessions v. Dimaya, 584 U. S. 148, 153 (2018).
Moreover, a person convicted of an “aggravated felony” faces
heightened criminal sanctions for disobeying orders of re-
moval, § 1253(a)(1), or reentering the United States without
permission, § 1326(b)(2). For example, the penalty for illegal
reentry skyrockets from 2 years to 20. See §§ 1326(a), (b)(2).
This Court has been clear that, in the face of such stakes,
it “will not assume that Congress meant to trench on [a non-
U. S. citizen's] freedom beyond that which is required by the
narrowest of several possible meanings of the words used.”
Fong Haw Tan, 333 U. S., at 10. While it may be true that
certain broader readings of “obstruction of justice” are “at
least plausible,” ante, at 613 (Jackson, J., concurring), that
is not good enough because it is, at the very minimum, at
least equally plausible that “obstruction of justice” requires
a pending investigation or proceeding. The Court should
have “err[ed] on the side of underinclusiveness” when inter-
preting § 1101(a)(43). Moncrieffe, 569 U. S., at 205.
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.
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The Court could perhaps have reined in some of that chaos
by
giving “obstruction of justice” affrmative 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 predi-
cate 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 qualifes as
obstruction of justice; (2) the offense of dissuading a witness
from reporting a crime does not require a pending investiga-
tion or proceeding; thus (3) some offense qualifying as ob-
struction of justice does not require a pending investigation
or proceeding.
The faw in this syllogism is, of course, premise (1). By
assuming, up front and without reason, that dissuading a wit-
ness from reporting a crime qualifes as obstruction of jus-
tice, 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. 224, 241 (2021).
The syllogism's conclusion is also noteworthy for its nar-
rowness. In the end, all the Court really holds is that ge-
neric 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 diffcult questions about what offenses qualify as cate-
gorical matches for § 1101(a)(43)(S) would do well to bear in
mind the limited nature of that holding. Many open ques-
tions remain regarding whether offenses other than dissuad-
ing a witness from reporting a crime are categorical matches
for § 1101(a)(43)(S), what affir mative underst andi ng of
§ 1101(a)(43)(S) should guide that categorical analysis, and
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whether other offenses that also lack a connection to a pend-
i
ng investigation or proceeding can qualify under that analy-
sis.
13
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 qualifes as
“an offense relati ng to obstr uc ti on of justice” under
§ 1101(a)(43)(S), while providing zero affrmative 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 ad-
vance far-ranging constructions of § 1101(a)(43)(S) that bear
little resemblance to core obstruction of justice. I would
leave it to Congress, not the Judiciary, to decide which addi-
tional crimes should be listed as aggravated felonies under
the INA. I respectfully dissent.
13
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 affrms the Fourth Circuit's legal holding that a
pending investigation or proceeding is unnecessary for an offense to qual-
ify 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 of-
fenses have their own distinct pedigree and purpose with historical roots
far afeld 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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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 629, line 2 from bottom: “money” is replaced with “monetary”
p. 632, line 12: “heighted” is replaced with “heightened”