Aggravated Felonies

(C)  Relationship to Other Deportation Grounds.  One poorly reasoned decision 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.[420]  A conviction of accessory after the fact to an offense that is not a CMT should not be considered to be a CMT.[421]  Misprision of a felony may constitute a crime of moral turpitude.[422]  It does not constitute a crime relating to a controlled substance.[423]

[420] 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 considered to be a CMT under any circumstances.

[421] 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), 8 U.S.C. § 1182(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 supplied).

[422] Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002); Matter of Giraldo-Valencia (unpublished index decision 1992) (a conviction for misprision of felony under 18 U.S.C. § 4 is a crime involving moral turpitude, making a weak distinction between the crime of common law misprision that the BIA in Matter of SC held did not involve moral turpitude and statutory misprision under 18 U.S.C. § 4); see Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965); but see Matter of SC, 3 I. & N. Dec. 350 (BIA 1949); Matter of Sloan, 12 I. & N. Dec. 840 (BIA 1968). 

[423] Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977).