(C)  Other Grounds of Deportation.  Note, however, that one court has held a federal conviction of misprision of a felony to be a crime involving moral turpitude, and its reasoning might apply to accessory after the fact offenses.[45]  The BIA held that a conviction of accessory after the fact constitutes an offense relating to obstruction of justice, and therefore constitutes an aggravated felony if and only if a one-year sentence is imposed. [46]  In a decision also open to challenge, the BIA found that accessory after the fact is a crime involving moral turpitude.[47] A conviction of accessory after the fact to an offense that is not a CMT should not be considered to be a CMT.[48]

 

[45] Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. April 22, 2002) (federal conviction for misprision of a felony, in violation of 18 U.S.C. § 4, constitutes a crime of moral turpitude for purposes of triggering deportation).  This decision is poorly reasoned, since it assessed the turpitude of this offense in the abstract, without considering the particular substantive felony that was in effect facilitated, and did not discuss the fact that attempt and conspiracy to commit non-CMTs are not CMTs themselves, and attempt and conspiracy to commit non-aggravated felonies are not aggravated felonies.  The same reasoning should apply to misprision of a felony, if this offense is even considered to be a CMT under any circumstances.

[46] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).  See K. BRADY, California Criminal Law And Immigration § § 9.5 (Part B) and 9.13 (2004).

[47] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).  However, see Goldeshtein v. INS, 8 F.3d 645 (9th Cir. 1993) and Matter of LVC, 22 I. & N. Dec. 594 (BIA 1999) (both holding that structuring currency transactions to evade reporting requirements does not involve moral turpitude).

[48] But see 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(3).  Since an attempt, or a conspiracy to commit a CMT, along with other types of offenses committed with the intent to commit a CMT, are CMTs only if the substantive offense intended is a CMT, it is difficult to understand why accessory after the fact should be treated any differently.  This is made clear in the succeeding paragraph: “Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA § 212(a)(2)(A)(i)(I) would not come into play.” 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).

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"].)