Aggravated Felonies

Misprision of a felony consists of concealing a felony.[402]  A defendant convicted of misprision has unlawfully covered up a crime.  His or her conduct is separate from the underlying felony s/he concealed.[403]

            Misprision of a felony might be considered an aggravated felony under an obstruction of justice theory, see § 3.52(A), infra or under a drug trafficking theory if the underlying offense is a drug trafficking offense.  See § 3.52(B), infra.  Under current law, however, it does not fall within any aggravated felony category.

It is possible to argue that a conviction for misprision of a felony is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony argument.”  See § 3.52(B), supra.  See also Appendix F, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include this non-substantive offense, thus giving rise to the argument that it meant to exclude these convictions.

[402] See 18 U.S.C. § 4.

[403] Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977) (misprision of felony of conspiracy to possess narcotics was not a crime relating to narcotics); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (adopting Castaneda De Esper as nationwide precedent); Matter of SC, 3 I. & N. Dec. 350, 353 (BIA 1949) (conviction of common-law misprision of a felony, for failure to prevent the commission of an offense, does not involve moral turpitude, since an evil and depraved intent is not essential to support a conviction, and mere knowledge of the offense being committed and neglect to employ lawful means available to prevent its commission is sufficient to support a conviction), but see Hani, N. Tooby & J. Rollin, Safe Havens: How to Identify and Construct Non-Deportable Convictions § 7.85 (2005).