United States Court of Appeals
For the First Circuit
No. 25-1820
ISHMAEL KOIGOR BANGS,
Petitioner,
v.
TODD BLANCHE, Attorney General,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Rikelman, Dunlap, Circuit Judges,
and Antongiorgi-Jordán,† District Judge.
Nathan P. Warecki, with whom Ronaldo Rauseo-Ricupero, and
Nixon Peabody LLP, were on brief, for petitioner.
Gilles Bissonnette, SangYeob Kim, Chelsea Eddy, Caroline
Meade, and American Civil Liberties Union of New Hampshire, on
brief for First Circuit-Based Immigration Law Practitioners,
Nonprofit Organizations, Immigration Law Professors, Law School
Clinics, and Law Firms, as amici curiae, in support of petitioner.
Jessica R. Lesnau, Trial Attorney, Office of Immigration
Litigation, with whom Brett A. Shumate, Assistant Attorney
General, Civil Division, and Stephen J. Flynn, Assistant Director,
Office of Immigration Litigation, were on brief, for respondent.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Todd Blanche is automatically substituted for
former Attorney General Pamela J. Bondi as respondent.
† Of the District of Puerto Rico, sitting by designation.
August 11, 2026
DUNLAP, Circuit Judge. In this immigration appeal, we
are called upon to decide whether a conviction under a New
Hampshire statute that criminalizes retaliation against a witness
is an aggravated felony "relating to obstruction of justice" under
8 U.S.C. § 1101(a)(43)(S). It is not. As a result, Petitioner
Ishmael Koigor Bangs ("Bangs") is not deportable pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for
retaliation. The Board of Immigration Appeals' ("BIA") decision
must therefore be vacated.
I.
Bangs is a Sierra Leonean native and Liberian citizen
who, since 2004, has lived in New Hampshire. In his early years
in Sierra Leone, Bangs enjoyed a relatively calm upbringing on
account of his father's close friendship and employ with the former
president of Sierra Leone, Valentine Strasser. But the calm did
not last. A coup by the present Sierra Leonean government ousted
Strasser, and members of the new government began to target and
execute those associated with the Strasser regime. Bangs' father
fled the country, abandoning him and his mother.
Bangs was thrust into further turmoil when, at six years
old, he was kidnapped and compelled to serve as a child soldier in
a rebel force. He was beaten, burned, drugged, and forced to
endure horrific conditions of violence. Eventually, his mother
rescued him and brought him to a refugee camp. Bangs and his
- 3 -mother were admitted to the United States as refugees in 2004, and
were granted lawful permanent resident status in 2008.
Bangs' integration into the United States, however, was
fraught, and in 2005 he was sent to the first of three youth
detention facilities in which he would spend the next few years of
his life. After his release, Bangs assaulted a friend whom he
believed had reported him to a Macy's store security guard for
shoplifting; he forced the friend to strip naked, glued the
friend's mouth shut, dripped melted plastic on his body, and burned
him with a heated knife. For these acts, Bangs pled guilty to
witness tampering and some of the other crimes with which he was
charged under New Hampshire state law. A state court sentenced
Bangs to 17 years imprisonment, which was later reduced to lesser
time.
In 2024, the federal government initiated removal
proceedings against Bangs due to his witness tampering conviction.
Bangs contested his removability and asserted entitlement to
deferral of removal under the Convention Against Torture ("CAT").
The Immigration Judge ("IJ") found Bangs removable but nonetheless
found that Bangs was entitled to deferral of removal under CAT
because it is more likely than not that he would face torture if
removed to Sierra Leone. On review, the BIA agreed that Bangs was
removable because of his witness tampering conviction, but
reversed the IJ's CAT finding. Bangs seeks review of the BIA's
- 4 -decision, including the BIA's determinations as to both
removability and CAT deferral of removal. We have jurisdiction
pursuant to 8 U.S.C. § 1252.
II.
In this case, the determinative question is whether
federal law dictates that Bangs is removable because of his state
crime conviction for witness tampering. See N.H. Rev. Stat.
§ 641:5(II). A person is guilty of this class B felony under New
Hampshire law, and is therefore subject to imprisonment for more
than one year but not more than seven years, id.
§ 625:9(III)(a)(2), when "[h]e commits any unlawful act in
retaliation for anything done by another in his capacity as witness
or informant," id. § 641:5(II).1 A conviction under this statute
has potential immigration implications because federal law
authorizes the removal of "[a]ny alien who is convicted of an
aggravated felony at any time after admission." 8 U.S.C.
§ 1227(a)(2)(A)(iii). An "aggravated felony" includes "an offense
relating to obstruction of justice, perjury or subornation of
perjury, or bribery of a witness, for which the term of
imprisonment is at least one year." Id. § 1101(a)(43)(S) (emphasis
added). Both the IJ and BIA concluded that Bangs' conviction under
There are two other paths to conviction under N.H. Rev.
1
Stat. § 641:5. Subsections I and III of the statute, however, are
not at issue. Bangs was charged and convicted of violating only
subsection II. Our decision relates only to that provision.
- 5 -N.H. Rev. Stat. § 641:5(II) is a predicate "offense relating to
obstruction of justice" that renders him removable. We review
that legal conclusion de novo. Silva v. Garland, 27 F.4th 95, 101
(1st Cir. 2022); see Lecky v. Holder, 723 F.3d 1, 4 (1st Cir.
2013).
We apply the "categorical approach" to determine whether
a state crime is a predicate falling within the meaning of a
generic federal offense -- here, an "offense[] 'relating to
obstruction of justice.'" See Pugin v. Garland, 599 U.S. 600,
602-03 (2023) (quoting 8 U.S.C. § 1101(a)(43)(S)); Silva, 27 F.4th
at 101. Under that approach, we "look to 'the elements of the
[state] statute of conviction, not to the facts of [the]
defendant's conduct.'" Pugin, 599 U.S. at 603-04 (quoting Taylor
v. United States, 495 U.S. 575, 601 (1990)). We compare the
elements of the state crime to the elements of the federal crime:
a predicate crime fits within the generic federal "offense relating
to obstruction of justice" if "its elements are the same as, or
narrower than, those of the generic [federal] offense." Mathis v.
United States, 579 U.S. 500, 504 (2016) (emphasis removed). "But
if the crime of conviction covers any more conduct than the generic
offense, then it is not an" offense relating to obstruction of
justice "even if the defendant's actual conduct (i.e., the facts
of the crime) fits within the generic offense's boundaries." Id.;
see Rodríguez-Méndez v. United States, 134 F.4th 1, 8 (1st Cir.
- 6 -2025). Put another way, if there is even one way for a state
statute to be violated without meeting the elements of the generic
federal offense, no conviction under that statute can serve as a
predicate for the generic federal offense. See Moncrieffe v.
Holder, 569 U.S. 184, 190-91 (2013).
Bangs argues that the elements of a federal "offense
relating to obstruction of justice" are narrower than the elements
of N.H. Rev. Stat. § 641:5(II) because the federal offense requires
a specific intent to interfere with a legal proceeding, while the
New Hampshire statute criminalizes acts of pure revenge against a
witness absent any intent to interfere with a legal proceeding.2
He is correct.
Although § 1101(a)(43)(S) does not define "an offense
relating to obstruction of justice," the Supreme Court has had
occasion to survey its metes and bounds -- and, in so doing, has
provided us with guidance that leads us to conclude that the New
Hampshire law lacks the mens rea requirement that is essential to
the generic federal offense. In Pugin, the Court considered
whether an "offense[] 'relating to obstruction of justice'"
2Bangs also argues that the generic federal "offense relating
to obstruction of justice" refers to obstruction of an official
investigation, while the New Hampshire statute covers retaliation
against witnesses who participated in unofficial, private
investigations. Because we conclude that New Hampshire law clearly
supports Bangs' first argument for the reasons we will explain, we
need not address his second theory.
- 7 -requires a nexus to an ongoing or pending investigation. 599 U.S.
at 602. In concluding that it does not, the Court expressly
approved of the Solicitor General's position that such an offense
"require[s] an intent to interfere with the legal process." Id.
at 607 n.2. That mens rea requirement, the Court explained, is
necessary to prevent an overbroad reading of the statute and
"ensures that § 1101(a)(43)(S) will not sweep in offenses that are
not properly understood as offenses 'relating to obstruction of
justice.'" Id.
We have similarly observed that the generic federal
offense has an intent element. In Silva, we considered the same
generic federal offense at issue in this case and cited a BIA
decision which acknowledged that generic obstruction of justice
"covers crimes involving (1) an affirmative and intentional
attempt (2) that is motivated by a specific intent (3) to interfere
with an investigation or proceeding." 27 F.4th at 110 (emphases
added) (citation modified) (quoting Matter of Valenzuela Gallardo,
27 I. & N. Dec. 449, 456 (B.I.A. 2018), underlying removal order
vacated in Valenzuela Gallardo v. Barr, 968 F.3d 1053 (9th Cir.
2020)).3 We thus agree with Bangs -- as did the government at oral
3 In Silva v. Garland, we also cited multiple contemporary
definitions of "obstruction of justice" that emphasize that
obstruction encompasses "willful" acts interfering with the
process of justice. 27 F.4th 95, 102 (1st Cir. 2022) (citing
"Obstruction of Justice," Merriam-Webster's Dictionary of Law 337
- 8 -argument -- that the generic federal offense requires a specific
intent to interfere with legal process.
The next step of the analysis, then, is to determine
whether the "minimum conduct criminalized by the [New Hampshire]
statute" of conviction also imposes such a requirement. Id. at
109 (citing Moncrieffe, 569 U.S. at 191). We begin, as we must,
with the plain text of § 641:5. See Mellouli v. Lynch, 575 U.S.
798, 805 (2015) (noting that the categorical "approach looks to
the statutory definition of the offense of conviction" (emphasis
added)); Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017) (looking
to the "plain terms" of the state law at issue to determine whether
it was a categorical match with the federal law).
Section 641:5(II) says nothing about intent to interfere
with legal process. Rather, it penalizes any "unlawful act in
retaliation for anything done" by a person who has acted as a
witness or informant. N.H. Rev. Stat. § 641:5(II). Granted, as
the BIA observed, witness retaliation "displays a fundamental
disregard for the rule of law that interferes with the judicial
system"; but retaliation does not necessarily entail an intent to
undermine the legal process -- rather, it may be motivated by pure
revenge. The plain text of § 641:5(II) therefore does not indicate
that any intent to interfere with legal process is required for
(1996), and "Obstruction of Justice," B. Garner, A Dictionary of
Modern Legal Usage 611 (2d ed. 1995)).
- 9 -conviction. That distinguishes it from the
accessory-after-the-fact statute addressed in Silva, which
criminalized aiding a person who committed a felony "with intent
that he shall avoid or escape detention, arrest, trial or
punishment." 27 F. 4th at 98-99 (quoting Mass. Gen. Laws ch. 274,
§ 4).
In any event, we need not rely solely on our own
interpretation of the text of § 641:5(II) because the New Hampshire
Supreme Court has already upheld a conviction under § 641:5(II)
wherein the defendant lacked any specific intent to interfere with
a legal process. See Commissioner v. Est. of Bosch, 387 U.S. 456,
465 (1967) ("[A] State's highest court is the best authority on
its own law."). In State v. Baird, the defendant -- Baird -- was
investigated by the New Hampshire Division for Children and Youth
Services for having sexually abused his daughter. 581 A.2d 1313,
1314 (1990). Baird's daughter participated in the investigation,
which eventually led the state to initiate an abuse or neglect
hearing. Id. The hearing concluded with Baird's admission of
abuse and agreement to avoid having any contact with his daughter
for at least one year. Id. Two weeks after the conclusion of
proceedings, Baird directed his son to disseminate criminally
defamatory materials about his daughter to his daughter's friends.
Id. The State then prosecuted Baird under § 641:5(II), alleging
that he had retaliated against his daughter for her participation
- 10 -as a witness in the investigation. Id. At trial, the jury heard
that Baird's justification for disseminating the defamatory
material was "to get even with [his daughter] for what she did to
him." Id. (alteration in the original). Baird was convicted, and
the New Hampshire Supreme Court affirmed. Id. at 1314-15, 1317.
Baird establishes that "the least serious conduct for
which there is a 'realistic probability' of [a] charge and
conviction" under § 641:5(II) does not require a specific intent
to interfere with legal process. See Silva, 27 F.4th at 109
(quoting United States v. Starks, 861 F.3d 306, 315 (1st Cir.
2017)); cf. Armenta-Lagunas v. Holder, 724 F.3d 1019, 1024 (8th
Cir. 2013) (concluding that Nebraska's witness tampering statute
was "an offense relating to obstruction of justice" because the
Nebraska Supreme Court had interpreted the statute to require a
"specific intent to interfere with the process of justice"
(citation omitted)). Neither the trial court nor the New Hampshire
Supreme Court required a showing of intent to interfere with the
legal process to sustain the conviction. The only intent the New
Hampshire Supreme Court recognized was Baird's admission that he
acted for purposes of revenge. Baird, 581 A.2d at 1314. And the
court affirmed the prosecution's arguments that the "essential
element[] of its witness or informant tampering charge," as to
intent, was "that Mr. Baird harbored a desire to retaliate against
- 11 -his daughter for her having reported his conduct to authorities
and having subjected him to the entire ordeal." Id. at 1316.4
We conclude that § 641:5(II) "covers . . . more conduct
than the generic offense," Mathis, 579 U.S. at 504, and so is not
an "offense relating to obstruction of justice" within the meaning
of 8 U.S.C. § 1101(a)(43)(S). The government has thus failed to
establish that Bangs committed an "aggravated felony" for which he
would be removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). We
therefore need not reach the propriety of the BIA's determination
regarding CAT deferral.
III.
We grant Bangs' petition for review, vacate the BIA's
decision, and remand this case for proceedings consistent with our
decision.
4 We note that the BIA did not grapple with State v. Baird,
or even cite the case. Neither did the IJ. In fact, the IJ
mistakenly cited elements of § 641:5(I), instead of § 641:5(II),
in its analysis. The government's briefing before our court also
ignored Bangs' argument regarding Baird.
- 12 -