UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO CORDERO-GARCIA, No. 19-72779 AKA Fernando Cordero, Agency No. Petitioner, A014-690-577

v. OPINION MERRICK B. GARLAND, Attorney General,

Respondent.

On Remand from the United States Supreme Court

Argued and Submitted May 6, 2024 San Diego, California

Filed June 27, 2024

Before: Andrew D. Hurwitz and Lawrence VanDyke, Circuit Judges, and Barry Ted Moskowitz, * District Judge.

Opinion by Judge Hurwitz

* The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. 2 CORDERO-GARCIA V. GARLAND

SUMMARY **

Immigration

On remand from the United States Supreme Court, Pugin v. Garland, 599 U.S. 600 (2023), the panel denied a petition for review by Fernando Cordero-Garcia and held that a conviction under Cal. Penal Code § 136.1(b)(1) qualifies as an aggravated felony—an offense “relating to obstruction of justice” for which the term of imprisonment is at least one year under 8 U.S.C. § 1101(a)(43)(S). An immigration judge found that Cordero-Garcia’s convictions of two counts of violating § 136.1(b)(1) were for a crime relating to obstruction of justice, and the Board of Immigration Appeals (“BIA”) dismissed Cordero-Garcia’s appeal. This court remanded Cordero-Garcia’s first petition for review due to intervening law regarding the definition of “obstruction of justice.” The BIA again held that § 136.1(b)(1) constituted obstruction of justice. This court granted the petition for review in light of Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1067 (9th Cir. 2020), which held that obstruction of justice requires a nexus to an ongoing or pending proceeding. The government then petitioned for certiorari. Resolving a Circuit split, the Supreme Court held that obstruction of justice under § 1101(a)(43)(S) includes “threatening a witness to prevent the witness from reporting a crime to the police” and does not require a pending investigation or proceeding. Pugin v. Garland, 599 U.S. 600 (2023) (consolidating Cordero- ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CORDERO-GARCIA V. GARLAND 3

Garcia’s appeal with that of Jean Francois Pugin). The Supreme Court reversed this Court’s opinion and remanded for reconsideration. On remand, the panel held that § 136.1(b)(1) qualifies as an aggravated felony, rejecting Cordero-Garcia’s argument that the mens rea required for conviction differs materially from that required under § 1101(a)(43)(S).

COUNSEL Jason F. Choy (argued), Blue Peak Law Group LLP, Santa Monica, California; Michael K. Mehr, Mehr & Soto LLP, Santa Cruz, California; for Petitioner. Rebecca H. Phillips (argued), Senior Trial Attorney, Office of Immigration Litigation, Civil Division; Bryan S. Beier, Senior Litigation Counsel, Office of Immigration Litigation; John S. Hogan, Assistant Director, Office of Immigration Litigation; Brian M. Boynton, Acting Assistant Attorney General, Civil Division; United States Department of Justice, Washington, D.C.; for Respondent. 4 CORDERO-GARCIA V. GARLAND

OPINION HURWITZ, Circuit Judge:

Noncitizens convicted of offenses “relating to obstruction of justice . . . for which the term of imprisonment is at least one year” are removable. See 8 U.S.C. § 1101(a)(43)(S). This case requires us to determine whether a conviction under California Penal Code (“CPC”) § 136.1(b)(1) is such a crime. We conclud