Aggravated Felonies

(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,” [404] 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.[405]

            In Espinoza, the Board distinguished Matter of Batista-Hernandez,[406] 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.[407]  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[408] to be limited to the conduct proscribed in Chapter 73.[409]  “Misprision of a felony is not among the crimes listed in this chapter . . . .”[410]  “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.”[411]

            The Board first defined 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.[412]  “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.”[413]

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

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

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

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

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

[409] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

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

[411] Id. at p. 7.

[412] Id. at p. 8.

[413] Id. at p. 10.