Pugin argues that Chevron cannot apply to the Board's decision in In re Valenzuela Gallardo II , 27 I. & N. Dec. 449, 460 (B.I.A. 2018), because the definition of "obstruction of justice" has effect in criminal proceedings. See, e.g., Valenzuela Gallardo v. Barr , 968 F.3d 1053, 1059–62 (9th Cir. 2020) (acknowledging the issue in this context but applying Chevron because circuit precedent has given deference in similar situations). So we begin at "Step Zero" by asking whether Chevron applies at all.

On August 6, 2020, we decided Valenzuela Gallardo v. Barr (" Valenzuela Gallardo II "), "hold[ing] that the BIA's new construction is inconsistent with the unambiguous meaning of the term ‘offense relating to obstruction of justice’ in [ § 1101(a)(43)(S) ] as enacted by Congress and, therefore, is an unreasonable construction of the statute." 968 F.3d 1053, 1056 (9th Cir. 2020). We held that " ‘obstruction of justice’ under § 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings."

In a written decision in May 2019, the IJ held that Silva's Massachusetts accessory-after-the-fact conviction was categorically an offense relating to obstruction of justice under the INA and so was a proper ground for removal as an aggravated felony. The IJ relied on the BIA's decision in Matter of Valenzuela Gallardo, 27 I. & N. Dec. 449, 452-60 (B.I.A. 2018), underlying removal order vacated in Valenzuela-Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020). "[T]o determine whether an alien's conviction qualifies as an aggravated felony under th[e INA], [courts and the agency] ‘employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime.’ "

As noted by our sister circuit, Arthur Andersen is inapplicable in our analysis because § 1512 "is an exception to Chapter 73's general rule that obstruction requires a nexus to an ongoing or pending proceeding," and the Supreme Court still read a nexus requirement into § 1512 "support[ing] the notion that obstruction of justice offenses require a tight nexus to a proceeding." Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1067 (9th Cir. 2020) (emphasis in original).

If that does not count as applying Chevron deference, what does? See also Mead , 533 U.S. at 230 & n.12, 121 S.Ct. 2164 (stating that the "overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication," and listing O'Hagan among the "rulemaking cases" where Chevron deference applied); Valenzuela Gallardo v. Barr , 968 F.3d 1053, 1060 (9th Cir. 2020) (noting that the Court "grant[ed] Chevron deference" in O'Hagan ); Guedes , 920 F.3d at 24 (same); Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain , 89 GEO. L.J. 833, 874 n.220 (2001) (same).The majority also tries to distinguish O'Hagan on the basis that it did not involve a purely criminal statute.

Docket No. 12 at 3-4. (quoting Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1059-60 (9th Cir. 2020)). Valenzuela Gallardo addressed whether the Board of Immigration Appeals' interpretation of a statute is entitled to Chevron deference and how Chevron deference interacts with other aspects of criminal law.

While that petition was pending, we held that § 1101(a)(43)(S) obstruction of justice "requires a nexus to an ongoing or pending proceeding." Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1067 (9th Cir. 2020). Applying that holding in Cordero-Garcia's case, we held that a violation of CPC § 136.1(b)(1) was not an offense related to obstruction of justice because the state statute of conviction did not require a "nexus to an ongoing or pending proceeding or investigation."

4. Additionally, because the BIA did not abuse its discretion in determining that Maldonado committed a particularly serious crime barring her from her requested relief, we need not consider whether she committed an aggravated felony under Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir. 2020).

None of the exceptions to the law of the case doctrine apply, see Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1062 n.5 (9th Cir. 2020), and we are thus "precluded from reconsidering" the issues decided in our prior disposition, United States v. Crooked Arm, 853 F.3d 1065, 1069 (9th Cir. 2017). PETITION DENIED.

" Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1062 (9th Cir. 2020) (quoting Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)). Chen does not show that our prior decision was "clearly erroneous and its enforcement would work a manifest injustice" or that any of the other exceptions to the doctrine apply. Id. at n.5