Justices Appear to Back Broad Reading of Deportation Statute (1)

US Supreme Court justices appeared to favor a broad view of when the government can deport legal immigrants convicted of certain crimes, including many who have been in the US for decades.

The question at argument on Monday centered on what types of crimes related to obstruction of justice count as an “aggravated felony” that can trigger deportation, and specifically whether there must be an active investigation or proceeding to qualify.

Jean Francois Pugin, who was admitted to the US as a lawful permanent resident in 1985, was ordered removed after pleading guilty to being an accessory after the fact. Fernando Cordero-Garcia, a psychologist admitted as a lawful permanent resident since 1965, similarly was ordered removed for attempting to dissuade his former clients from reporting his sexual misconduct.

Federal appellate courts came to opposite conclusions on whether the pair’s actions met the definition of an aggravated felony when there was not yet an official investigation into their crimes for them to obstruct.

“The government has a commonsense point they start with, which is the best way to obstruct an investigation is to make sure it never gets started by interfering with a witness or destroying documents or what have you,” Justice Brett Kavanaugh said.

Justice Department lawyer Curtis Gannon said that “the wheels of justice can be obstructed even before they begin to move.”

Justice Elena Kagan wondered if that was too broad a reading. “I mean, it’s sort of seems like obstruction of justice taking over the world,” she said.

Gannon tried to provide a limiting principle, including that a proceeding must be at least “reasonably foreseeable.” Though the line seemed to create more questions for Chief Justice John Roberts.

“Exactly at what point do you decide?” Roberts asked. What if it’s 50-50 that the government would prosecute a similar case? “Is that enough to say that the investigation is reasonably foreseeable?”

The other side didn’t come up with a line satisfactory to the justices, either.

Cordero-Garcia’s attorney, Mark Fleming, argued that there must be an investigation already proceeding to qualify as obstruction of justice.

The question “doesn’t turn on whether an offense seems like or has the gist or feels like it has the effect of obstructing justice,” Fleming said.

Justice Samuel Alito posed a hypothetical. What if a newly elected district attorney promises to crack down on organized crime and it’s fairly obvious who he or she will be targeting. If the grand jury doesn’t meet until Monday, a person who fears prosecution could attempt to intimidate a witness on Sunday. “But, if the person waits until Tuesday, it’s too late, right?” Alito asked.

The case is Pugin v. United States, U.S., No. 22-23, argued 4/17/23.