Luis Miguel Guido CRUZ, also known as Luis Miguel Guido, Petitioner v. Jefferson B. SESSIONS, III, U. S. Attorney General, Respondent, 689 F. App'x 328

PER CURIAM: Luis Miguel Guido Cruz appeals the determination by the Board of Immigration Appeals that he must be deported because his prior conviction for tampering with or fabricating evidence under Tex. Pen. Code § 37.09 qualifies as an “aggravated felony” because is it an “offense relating to obstruction of justice” under 8 U.S.C. § 1101(a)(43)(S). In reaching its conclusion, the Board below relied on its decision in Matter of Valenzuela Gallardo, 25 I. & N.

Dec. 838, 841 (BIA 2012), in which it held that “the existence of [an ongoing criminal investigation or trial] is not an essential element of ‘an offense relating to obstruction of justice.’ ” However, after briefing in this matter concluded, the Ninth Circuit vacated the Valenzuela Gallardo definition, finding that it was unconstitutionally vague, and remanded for reconsideration and development of an appropriate standard. Valenzuela Gallardo v. Lynch, 818 F.3d 808, 811 (9th Cir. 2016).

Because the BIA below relied exclusively on the now-vacated Valenzuela Gallardo decision, we remand this case to the Board for reconsideration in the light of this development. We make no suggestion as to whether the Ninth Circuit’s ruling was correctly decided or whether Valenzuela Gallardo provided an appropriate standard. Accordingly, Guido Cruz’s Petition for Review is GRANTED and this case is REMANDED for further proceedings. Pursuant to 5th Cir.

R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir, R. 47.5.4. . This Court had previously afforded deference to the Board’s definition of “offense relating to obstruction of justice” set forth in In Re Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999). See Alwan v. Ashcroft, 388 F.3d 507, 510 (5th Cir. 2004); United States v. Gamboa-Garcia, 620 F.3d 546, 549 (5th Cir. 2010).

Valenzuela Gallardo purported to clarify the Espinoza-Gonzalez definition to show that "the existence of [an ongoing criminal investigation or trial] is not an essential element of 'an offense relating to obstruction of justice.’" Valenzuela Gallardo, 25 I. & N. Dec. at 841. That clarification is directly implicated in this case because Tex. Pen.

Code § 37.09(d)(1) punishes one who "knowing that an offense has been committed, alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in any subsequent investigation of or official proceeding related to the offense.” Id. § 37.09(d)(1) (emphasis added). We make no suggestion as to whether Guido Cruz's statute of conviction satisfies the standard as set forth in Espinoza-Gonzalez.