Aggravated Felonies

(B)  Drug Trafficking.  It is noteworthy that the respondent had been convicted of misprision of a drug trafficking felony (conspiracy to possess marijuana with intent to distribute).[414]  The Board seems to have assumed that under the analysis in Matter of Batista-Hernandez,[415] the non-substantive offense of misprision of a felony is not a drug trafficking aggravated felony[416] even though the underlying felony does constitute a drug trafficking offense.

            Therefore, a federal conviction of misprision of a drug trafficking felony[417] would not constitute an aggravated felony, under either theory,[418] even if a sentence greater than one year was imposed.  This disposition therefore is far safer than accessory after the fact, since in the event of a probation violation, a defendant convicted of accessory after the fact with an original sentence of less than one year could be resentenced to more than one year, which would convert the non-aggravated felony into an “obstruction of justice” aggravated felony.[419]

[414] Matter of Espinoza-Gonzalez, supra, p. 2.

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

[416] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (relating to drug trafficking convictions).

[417] 18 U.S.C. § 4.

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

[419] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).