(A)  As an Unlisted  Non-Substantive Offense.  This offense is a non-substantive offense, and it is not expressly listed in the aggravated felony definition, unlike the non-substantive offenses of attempt and conspiracy which are listed as aggravated felonies.  This gives rise to an excellent argument that a conviction of this offense generally cannot constitute an aggravated felony.  See § 7.7(B), supra.

A conviction of being an accessory after the fact is not held to constitute an aggravated felony offense, even where the offense committed by the principal did fall within an aggravated felony category.  Accessory after the fact, like harboring a fugitive, does not take on the “character” of the substantive offense.  Even though the BIA formerly held that this offense did take on the principal offense’s character in a case involving a crime of moral turpitude,[24] the BIA no longer uses that analysis, and has repeatedly held that accessory after the fact and the similar federal offense of “misprision of felony” do not constitute drug convictions even where the principal offense involves drugs.[25]  Significantly, the Ninth Circuit has also held that accessory after the fact is not a crime of violence under 18 U.S.C. § 16, even where the principal offense was murder for hire.[26]  California law interpreting the California accessory after the fact statute unequivocally states that this offense does not take on the character or intent of the principal offense.[27]  While the BIA is not bound by state courts’ appraisal of whether a state offense involves moral turpitude or is an aggravated felony, it does look to state law to define the elements of an offense.[28] 

[24] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).  This reasoning was approved by the First Circuit under a policy of strict deference to the BIA in Cabral v. INS, 15 F.3d 193, 197 (1st Cir. 1994).  See K. BRADY, California Criminal Law And Immigration § 4.12 (2004).

[25] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (federal accessory after the fact); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977).  See also Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) (federal conviction of unlawful carrying of firearm during commission of a felony not a drug offense even where felony identified as drug offense).

[26] United States v. Innie, 7 F.3d 840 (9th Cir. 1993).

[27] See K. BRADY, California Criminal Law And Immigration § 4.11 (2004).

[28] See, e.g., discussion in Gonzalez-Martinez v. Landon, 203 F.2d 196, 197 (9th Cir. 1952) (case law has established that intent is an element of bigamy, which therefore is a crime involving moral turpitude); Matter of Esqueda, 20 I. & N. Dec. 850 (BIA 1994) (the BIA recognizes addition through case law of element of guilty knowledge in various California drug offenses).

AGGRAVATED FELONY -- ACCESSORY AFTER THE FACT - SUPREME COURT REMANDS QUESTION TO NINTH CIRCUIT FOR CONSIDERATION
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (question whether California conviction of violating Vehicle Code 10851(a) holds liable accessories after the fact, who need not be shown to have committed a theft, is remanded to the Ninth Circuit for consideration in the first instance).

AGGRAVATED FELONY - THEFT OFFENSE - WHETHER THEFT INCLUDES JOYRIDING REMANDED BY SUPREME COURT TO NINTH CIRCUIT FOR CONSIDERATION IN FIRST INSTANCE
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (remanding to Ninth Circuit claim that Cal. Vehicle Code 10851(1) applies to joyriding, which falls outside the generic "theft" definition, is not considered because it does not fall within the terms of the question presented, the lower court did not consider them, and this Court declines to reach them in the first instance).

Third Circuit

AGGRAVATED FELONY - ALIEN SMUGGLING - MISDEMEANOR
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Lower Courts of Ninth Circuit

SENTENCE - PUNISHMENT AS CONDITION OF PROBATION DISTINGUISHED FROM PUNISHMENT FOR CONVICTION
Penal Code 1203.1 authorizes the sentencing court to impose a fine or county jail incarceration as a condition of probation. This fine or jail is not considered to be imposed on account of the conviction, however, but instead as a condition of probation. (See League of Women Voters of California v. McPherson (2006) 145 Cal.App.4th 1469, 1481 ["The defendant who has been placed on probation, therefore, is imprisoned by the court in a local facility as a condition of probation, not as a result of the conviction of a felony"].) This statute may be used only when the court "suspend[s] the imposing or the execution of the sentence . . . ." (Penal Code 1203.1; see (People v. Mauch (2008) ___ Cal.App.5th ___.) "Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) "The definition of crime and the determination of punishment are foremost among those matters that fall within the legislative domain." (People v. Mills (1978) 81 Cal.App.3d 171, 176-177; accord, Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765 ["the Legislature has the power and duty to define and classify crimes and offenses"].)