In an unpublished decision in May, 2011, the Board of Immigration Appeals issued an unpublished decision holding that fleeing from a peace officer does not qualify as “obstruction of justice” under the Immigration and Nationality Act (INA § 101(a)(43)(S)), and therefore is not an aggravated felony for immigration purposes.
This is a significant development for immigration practitioners and immigrants alike, as it narrows the interpretation of what constitutes a deportable offense under the aggravated felony provisions.
Why Obstruction of Justice Matters in Immigration Law
A conviction classified as an aggravated felony can have catastrophic consequences in removal proceedings. It can:
Bar eligibility for most forms of relief from removal, including cancellation of removal and asylum
Trigger mandatory detention without bond
Lead to expedited removal and a permanent bar to reentry
Because obstruction of justice is one of the enumerated offenses that can qualify as an aggravated felony, how it is defined is of critical importance. DHS has often argued for a broad interpretation—including conduct like resisting arrest, failure to appear, and fleeing police—but this BIA decision draws a necessary line.
The Legacy of Matter of Espinoza-Gonzales
In Matter of Espinoza-Gonzales, 22 I&N Dec. 889 (BIA 1999), the Board laid out a two-part test to determine whether a crime constitutes obstruction of justice:
The offense must involve interference with a proceeding of a tribunal or an investigation, or threats against someone cooperating with justice;
The crime must include a specific intent to interfere with the process of justice.
This framework became the foundation for subsequent obstruction rulings. However, immigration judges and DHS attorneys have attempted to stretch this test to include conduct that doesn’t meet either prong.
The 2011 Unpublished Decision: Narrowing the Scope
In the unpublished May 2011 decision, the BIA declined to treat fleeing a peace officer as obstruction of justice. The Board reasoned that simple flight—while potentially illegal—is not the same as interfering with a tribunal or investigation. It lacks the specific intent required to obstruct justice and occurs outside the judicial process entirely.
This interpretation aligns with a more principled, text-based approach to statutory construction, ensuring that immigration consequences are not triggered by offenses that do not actually meet the legal threshold.
Practical Takeaways for Practitioners
For defense attorneys: Be strategic in negotiating pleas. Avoid pleas to offenses that include elements such as obstruction, tampering with evidence, or interfering with a public officer.
For immigration attorneys: Always review the statute of conviction, the record of conviction, and any charging documents to assess whether the conduct meets the obstruction definition. If the criminal statute lacks an element of intent to interfere with justice, the government’s obstruction argument may be flawed.
When DHS cites obstruction as the basis for an aggravated felony charge, push for factual and legal specificity—don’t accept generic assertions.
Conclusion
The BIA’s unpublished decision in 2011 offers a crucial clarification: not every flight from law enforcement constitutes obstruction of justice. While unpublished, the reasoning echoes the careful two-part standard laid out in Espinoza-Gonzales and supported by multiple circuits.
In a system where aggravated felony designations can end lives and separate families, precision matters. This case reminds us that immigration enforcement must remain tied to the statutory text, not expansive interpretations that go beyond what Congress intended.
For advocates, this is another tool to challenge government overreach in criminal-based immigration cases—and to protect clients from unjust consequences based on offenses that simply don’t qualify.