(A)  Obstruction of Justice.  Misprision of a felony under 18 U.S.C. § 4 (1994) does not fall within the definition of an offense “relating to obstruction of justice,” [76] so a conviction of misprision of a felony does not constitute an aggravated felony under any category, even if a one-year sentence has been imposed.[77]

 

            In Espinoza, the Board distinguished Matter of Batista-Hernandez,[78] which had held that a conviction for accessory after the fact (e.g., 18 U.S.C. § 3, or state statutes such as California Penal Code § 32) did constitute an aggravated felony under the “obstruction of justice” subdivision.[79]  Board Member Rosenberg concurred and dissented on the ground that while she agreed with the decision in Espinoza-Gonzalez, she believed Batista-Hernandez to be wrongly decided and felt that the Board’s discussion in Espinoza distinguishing Batista-Hernandez was unnecessary to the decision of the current case.  As usual, her concurring and dissenting opinion provides a blueprint for a petition for review in the United States Court of Appeals arguing that Matter of Batista-Hernandez, supra, was wrongly decided.

 

            The Board’s analysis in Espinoza-Gonzalez adopts the chapter heading of Chapter 73 of title 18, United States Code (“Obstruction of Justice”) as indicating a congressional intent to employ a federal definition of the phrase when it was used in INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) to be limited to the conduct proscribed in Chapter 73.[80]  “Misprision of a felony is not among the crimes listed in this chapter . . . .”[81]  “Although misprision of a felony bears some resemblance to these [obstruction of justice] offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”[82]

            The Board first decided on the definition of the term “obstruction of justice,” and then concluded that misprision of a felony was not included.  It then addressed the question whether misprision “related to” an obstruction of justice offense.[83]  “The broad coverage we have given the phrase ‘relating to’ does not lead us in this case to ‘relate’ the crime of misprision of a felony to obstruction of justice, thereby imparting to the first offense an element of culpability that is present only in the latter.”[84]

 

            It is also noteworthy that the Board proceeded to decide the appeal, notwithstanding the fact that the respondent had departed the United States, since the departure might be temporary and the decision on appeal “is not moot because a resolution of the Service’s appeal that is adverse to the respondent would have significant legal consequences were the respondent to seek admission to the United States in the future.”[85]

 

            Criminal counsel should if possible avoid accessory after the fact convictions, even with an initial sentence of less than one year in custody, since the defendant might violate probation and ultimately receive a sentence greater than one year, converting the conviction into an aggravated felony.  On the other hand, this disposition is far better than a drug trafficking aggravated felony, so long as the sentence imposed is less than one year. 

 

            A conviction of misprision of a felony (even a drug trafficking felony) would be far preferable since it would not constitute an aggravated felony even if a sentence of one year or more was imposed.

[76] INA 101(a)(48)(S), 8 U.S.C. § 1101(a)(48)(S).

[77] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc).

[78] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[79] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

[80] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

[81] Matter of Espinoza-Gonzalez, supra, p. 3.

[82] Id. at p. 7.

[83] Id. at p. 8.

[84] Id. at p. 10.

[85] Matter of Espinoza-Gonzalez, supra, p. 2.

BIA

CRIME OF MORAL TURPITUDE - MISPRISION OF FELONY
Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27, 2006) (federal conviction of misprison of a felony, in violation of 18 U.S.C. 4, constitutes crime of moral turpitude, since mere failure to report an offense is insufficient; offense requires affirmative conduct of concealment, contrary to the duties owed to society; "evil intent" is implicit in statutory requirement that offender take affirmative step to conceal a felony from the proper authorities).

This decision is very badly reasoned, for the reasons given in the dissent in Navarro-Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. July 31, 2006) (California conviction for accessory after the fact, in violation of Penal Code 32 ["Every person who, after a felony has been committed, harbors, conceals, or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony."], was a conviction involving a crime of moral turpitude, rendering respondent inadmissible and ineligible for cancellation of removal). The BIA mistakenly concluded that mere violation of the duties owed to society - which is present in every single criminal offense - is sufficient to make the offense a CMT. This would mean that all offenses by definition are CMTs, and none are not. It proves too much, and completely abolishes the meaning of the concept of crimes of moral turpitude, and renders the "moral turpitude" language surplusage. This interpretation thus violates the statute. The law is clear that regulatory offenses, that are wrong merely because they are illegal or unauthorized, are not CMTs.

Seventh Circuit

CONTROLLED SUBSTANCES - DRUG PARAPHERNALIA - DOES POSSESSION OF PARAPHERNALIA WITH INTENT TO SMOKE LESS THAN 30 GRAMS OF MARIJUANA TRIGGER DEPORTATION
Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (suggesting conviction for possession of paraphernalia with intent to smoke less than 30 grams of marijuana should fall within INA 237(a)(2)(B) exception to deportability).

"We find it strange that under the Luu-Le interpretation of the statute a noncitizen caught with a small article of paraphernalia used to consume a tiny quantity of marijuana could be removable, while a noncitizen actually caught with the drug, so long as it was less than 30 grams, would be in no such danger because of the express exception 1227(a)(2)(B)(i) provides for small-quantity marijuana offenses. This is not merely some abstract possibility-it may well describe this case. The IJ asked Gutnik about his conviction for possession of drug paraphernalia:

Q. And where were you arrested at that time? How was it that you were charged with possession of drug paraphernalia?

A. I was in a car with-and smoking a joint, and a police officer pulled up.

This description of the events, if true, suggests that whatever "paraphernalia" Gutnik was caught with was clearly for his personal use of less than 30 grams of marijuana. Unfortunately, the record provides no further details about the conduct behind Gutnik's paraphernalia conviction, and the Illinois statute in question, 720 ILCS 600/3.5, does not limit its application to offenders holding paraphernalia that will be used with more than 30 grams of marijuana.

What we do know is that Gutnik pled guilty to the possession of drug paraphernalia charge. Knowing this, and based on his testimony regarding his conduct, we might deduce that he agreed to plead to the lesser paraphernalia charge rather than face conviction for marijuana possession. Yet, under the Luu-Le approach to 1227(a)(2)(B)(i) urged by the government, Gutnik became deportable by pleading to the lesser crime. Had he instead taken his chances with the more serious conviction for marijuana possession, he would have faced no immigration consequences. Talk about absurd results."

Ninth Circuit

CRIMES OF MORAL TURPITUDE " MISPRISION OF A FELONY
Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. Apr. 23, 2012) (A crime involving moral turpitude is either one that involves fraud or one that involves grave acts of baseness or depravity, such that its commission offend[s] the most fundamental values of society. Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1074"75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). That an offense contravenes societal duties is not enough to make it a crime involving moral turpitude; otherwise, every crime would involve moral turpitude. Id. at 1070 (majority opinion). Because the BIA relied on this flawed rationale in concluding that misprision of a felony is a crime involving moral turpitude, we cannot defer to its interpretation of the Immigration and Nationality Act (INA). Instead, we hold that misprision of a felony is not categorically a crime involving moral turpitude.). Note: While this ought to be good news signaling that California accessory after the fact, in violation of Penal Code 32, is not a CIMT, the ILRC strongly suggests that criminal defense counsel continue to assume conservatively that it will be charged as a CIMT, however wrongly. There are three reasons to be conservative here: 1. Misprision is somewhat different from accessory, in that misprision does not require intent to help someone avoid arrest, sentence, etc., and accessory does. The federal offense of misprision of a felony, under 18 U.S.C. 4, in Robles, prohibits someone who, knowing a felony has been committed, "conceals" or fails to report it, with no further intent required. At one point, the opinion points out that misprision does not have this intent unlike other concealing offenses, including accessory after the fact, as yet another reason why misprision is not CIMT. ICE is likely to use this to assert that even if misprision is not CIMT, accessory after the fact is. While this goes against the thrust of the whole rest of the opinion, it still gives ICE its opening. 2. The court made clear that misprision is a divisible statute and that the immigration judge may review the record of conviction under the modified categorical approach to see if a fact "necessary" to the conviction showed moral turpitude, although the court found it hard to see how that could happen. (The Ninth Circuit appears to hold that the regular categorical approach applies, contrary to Silva-Trevino. On the other hand, Silva-Trevino had not been decided at the time the BIA made its decision in this case, so that issue was not before the court.) 3. It is possible that this case will go en banc. For one thing, this is a very rare instance where a court acknowledges that it owes Chevron deference to an agency opinion, but declines to give it because the agency's reasoning is so bad as to be impermissible. 4. Immigration counsel in removal proceedings should argue that a California conviction of accessory after the fact, in violation of Penal Code 32, is not a CIMT. Thanks to Katherine Brady, Senior Staff Attorney, Immigrant Legal Resource Center.