This section has been intentionally left blank to allow for the inclusion of additional safe havens.  We welcome your suggestions, and will be happy to share them with others via future editions of this book and its monthly updates on http://www.CriminalAndImmigrationLaw.com.

 

 

BIA

SAFE HAVEN - AGGRAVATED FELONY - OBSTRUCTION OF JUSTICE -- ELUDING AN OFFICER OFFENSE DOES NOT MEET BIA DEFINITION OF OBSTRUCTING
California Penal Code 2800.2, eluding an officer, should not be considered an obstruction of justice offense within the meaning of INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). See Matter of Espinoza, 22 I. & N. Dec. 894 (BIA 1999) ("We do not believe that every offense that, by its nature, would tend to "obstruct justice" is an offense that should properly be classified as "obstruction of justice." The United States Code delineates a circumscribed set of offenses that constitute "obstruction of justice," and although misprision of a felony bears some resemblance to these offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.").

Ninth Circuit

SAFE HAVENS " MORAL TURPITUDE " COPYRIGHT INFINGEMENT
United States v. Liu, 731 F.3d 982 (9th Cir. Oct. 1, 2013) (federal conviction of copyright infringement under 17 U.S.C. 506(a) requires proof that defendant knew he was acting illegally, rather than simply knew he was making copies; knowingly trafficking in counterfeit labels under 18 U.S.C. 2318(a)(1) requires knowledge that the labels were counterfeit).

SAFE HAVEN " CRIMES OF MORAL TURPITUDE " UNAUTHORIZED ACCESS TO COMPUTER
United States v. Nosal, __ F.3d __ (9th Cir. Apr. 28, 2011) (18 U.S.C. 1030, punishing unauthorized access of a computer by an employee is violated where the actor obtains information from an employers computer and uses the information for any purpose that violates the employers use of the information).

SAFE HAVEN - 18 U.S.C. 1589
A conviction of coercing labor, in violation of 18 U.S.C. 1589, does not constitute an aggravated felony under INA 101(a)(43)(K)(iii), 8 U.S.C. 1101(a)(43)(K)(iii), which lists only neighboring provisions. This offense appears to be divisible with respect to whether it constitutes a crime involving moral turpitude. Subsections (1) and (2) appear would be crimes of moral turpitude if committed by means of threats of serious harm to a person, at least if construed as serious bodily harm. If the harm includes non-physical harm, or even physical harm no matter how insignificant, there might be an argument the conviction is not a crime of moral turpitude. See United States v. Belless (9th Cir.); CMT decisions holding simple assault and battery are not CMTs. Physical restraint might not constitute CMT, since the language appears to be restraint no matter how minor, since false imprisonment is not a CMT because of the de minimus possibility. The offense defined under (3), coercing labor by abuse or threatened abuse of law or the legal process, is arguably not a CMT since the determination of abuse of process can be highly technical and seems akin to a regulatory offense: there is nothing wrong about threatening litigation except sometimes it is regulated.
The statute, 18 U.S.C. 1589, is labeled "Forced labor" and provides: Whoever knowingly provides or obtains the labor or services of a person - (1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process, shall be fined under this title or imprisoned not more than 20 years, or both.  If death results from the violation of this section, or if the violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

Lower Courts of Ninth Circuit

SAFE HAVEN - CALIFORNIA - OFFERING INDUCEMENT FOR THE REFERRAL OF PATIENTS - NOT CRIME OF MORAL TURPITUDE OR FRAUD OFFENSE
People v. Hering, 20 Cal.4th 440, 976 P.2d 210 (1999) (Bus. & Prof. Code, 650, and Ins. Code, 750, punishing offering rebates on medical fees as inducement referral of patients, does not require any evil intent). This offense therefore should not be considered a crime of moral turpitude.

Other

SAFE HAVEN - TRAVEL ACT
18 U.S.C. 1952 ("travels . . . or uses the mail or any facility in interstate or foreign commerce, within intent do (1) distribute the proceeds of any unlawful activity."), by it minimum conduct is arguably not controlled substances offense or a crime involving moral turpitude (the funds may have been obtained through non-CMT activity and be distributed for non-CMT purposes). Thanks to Jonathan Moore.

SAFE HAVEN " CALIFORNIA " WITNESS DISSUASION
There are strong arguments that Penal Code 136.1(b)(1) is not obstruction of justice. Section 32 was held obstruction because it requires the specific intent to prevent the criminal from undergoing arrest, trial or punishment. Section 136.1(b)(1) lacks specific intent to protect the criminal or thwart the judicial process. The 136.1 violator may support arrest and punishment of the criminal, but still want to encourage the victim or witness not to file a police report because they may suffer from the filing (e.g., reprisals by gang members, eviction when the facts come out, emotional strain on an unhealthy person), or other reports already may have been filed in the matter so that the witness report is merely cumulative, or other reasons. Penal Code 136.1(b)(1) may be similar to misprision of felony, merely concealing a felony without specific intent, which the Board (and Ninth Circuit) have held is not obstruction of justice. Thanks to Katherine Brady