(C)  Other Grounds of Deportation.  One court, however, 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.[363]  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. [364]  In a decision also open to challenge, the BIA found that accessory after the fact is a crime involving moral turpitude.[365] A conviction of accessory after the fact to an offense that is not a CMT should not be considered to be a CMT.[366]

[363] Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 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.

[364] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).  See ILRC § § 9.5 (Part B) and 9.13 (2004).

[365] 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).

[366] 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) (emphasis added).

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).