Crimes of Moral Turpitude

(A)

Accessory After the Fact.  Arguably, accessory after the fact should not be considered a CMT, since it is not of the same nature as the underlying offense.  However, the BIA long ago held that accessory after the fact to murder was a CMT.[215]  While the United States Supreme Court has recently held aiding and abetting an offense to be necessarily included in the principal offense, it noted that accessory after the fact is distinct from the principal offense in all States and under Federal law.[216]  Therefore, accessory after the fact is not included in the substantive offense, and should not trigger the same immigration consequences as the substantive offense.

In 2006, the Ninth Circuit that held that a California conviction of accessory after the fact,[217] was a CMT, regardless of the underlying offense, on the theory that assisting “one known to have committed a felony is clearly contrary to the accepted rules owed between members of society.”[218]  However, on rehearing en banc, the Ninth Circuit reversed this decision, noting that the minimum conduct necessary to qualify as an accessory after the fact would include a mother giving food to her felon child.[219]  The court also noted that it would be absurd to treat an accessory after the fact as a CMT even where the underlying offense was not, itself, a crime of moral turpitude.[220]

[215] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).

[216] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 820 (Jan. 17, 2007).

[217] California Penal Code § 32.

[218] Navarro-Lopez v Gonzales, 455 F.3d 1055, 1056-1057 (9th Cir. Jul. 31, 2006), rehearing granted, 469 F.3d 800 (9th Cir. Nov. 8, 2006).

[219] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (9th Cir. Sept. 19, 2007) (California conviction for accessory after the fact, in violation of Penal Code § 32, is not a crime of moral turpitude as the minimum conduct required to violate the statute includes acts that are not necessarily “morally shocking,” such a mother providing food to her son, or being accessory after the fact to an offense that is not itself an crime of moral turpitude).

[220] Ibid.