Safe Havens

 

(B)  Obstruction of Justice.  The BIA, however, in a poorly reasoned decision, sua sponte, held that it falls within the category of an offense relating to obstruction of justice, which is an aggravated felony if a sentence of one year or more is imposed.  Under this authority, it remains a safe haven so long as no sentence of one year or more is imposed, and even with a greater sentence, it may well be a safe haven if the circuit court overrules the holding this type of conviction falls within the obstruction of justice aggravated felony category.

 

A conviction of accessory after the fact to a drug offense is not considered a drug offense, or a drug trafficking offense,[29] but it is an aggravated felony (obstruction of justice)[30] if custody of one year or more is imposed.[31]  This would be true if the defendant received one year or more in custody either as a condition of probation, as part of a suspended prison sentence, or as part of a non-suspended prison sentence.[32]   However, accessory after the fact for which a sentence of 364 days or less is imposed will not be considered an aggravated felony offense, and is therefore a safe haven with respect to the aggravated felony drug trafficking category, and, indeed, any conviction-based ground of deportation.

 

There is no reason why this reasoning would not apply to a conviction for accessory after the fact to any offense, not merely a drug trafficking offense.  This disposition, with a sentence imposed of less than one year, therefore constitutes a safe haven with respect to all aggravated felony categories.  However, it is safer to negotiate a plea to misprision of a felony, which is not considered an aggravated felony under the “obstruction of justice” theory, unlike accessory after the fact,[33] and which is less likely to be considered a crime of moral turpitude.[34]

            On July 15, 1997, the Board of Immigration Appeals held that a conviction of “accessory after the fact,” under 18 U.S.C. § 3, to a controlled substances offense did not itself constitute a controlled substances offense.[35]  Accessory after the fact prohibits a person who knows that a federal crime has been committed from comforting or assisting the principal offender in order to “hinder or prevent his apprehension, trial or punishment.”[36]

 

            The Board in Batista validated the analysis that “when a criminal statute ‘does not by its language indicate [that] it was contemplated to be a “narcotic law”’ and historically has constituted a ‘criminal offense separate and distinct from the underlying felony,’ such a statute is not a ‘law relating to . . . narcotic drugs.”[37]  Batista suggests that the BIA may apply this analysis to moral turpitude cases as well.[38]  The fundamental nature of the accessory offense, aiding a fugitive after an offense has been committed, does not partake of the nature of the fugitive’s underlying offense.

 

            On the other hand, the BIA in Batista held that accessory after the fact did constitute “an offense relating to obstruction of justice,” under INA § 101(a)(43)(S) 8 U.S.C. § 1101(a)(43)(S), and thus constituted an aggravated felony “if the term of imprisonment imposed is at least one year.”[39]  This would be true if the defendant received one year or more in custody either as a condition of probation, as part of a suspended prison sentence, or as part of a non-suspended prison sentence.[40]

            There are many strong arguments that Batista wrongly decided that accessory after the fact is an obstruction of justice offense.  The issue was not raised or briefed on appeal in Batista.  It is well established that decisions are not authority for propositions not considered therein.[41]  Moreover, the BIA did not discuss U.S. Supreme Court authority, which should be controlling.[42]  The BIA did not adequately discuss the legal standard for determining how a generally described offense (e.g., “obstruction of justice”) identified in an aggravated felony definition should be defined.  The federal definition of the offense should be used.[43]  Finally, the BIA violated basic constitutional, statutory, and regulatory standards by finding the respondent deportable under a ground the INS had never charged.[44]

 

[29] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact); Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (misprision of felony).  For further discussion of accessory after the fact, see K. BRADY, California Criminal Law And Immigration § § 2.8, 9.13 (2004).

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

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

[32] For immigration purposes, a period of confinement ordered by a judge for an offense, “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part” will be counted as the term of the sentence.  INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[33] Ibid.

[34] Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (en banc); see Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977).

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

[36] 18 U.S.C. § 3.

[37] Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) (federal conviction of unlawful carrying of firearm during commission of a felony was not considered a drug offense, even where the felony was identified as a drug offense).

[38] See K. BRADY, California Criminal Law And Immigration § 2.8 (2004).

[39] Ibid.

[40] For immigration purposes, a period of confinement ordered by a judge for an offense, “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part” will be counted as the term of the sentence.  INA § 101(a)(48)(B), 8 U.S.C. § 1101(a)(48)(B), as amended by IIRAIRA § 322(a)(1).

[41] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[42] United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995) (obstruction requires intent to influence existing judicial or grand jury proceedings; therefore, giving false statements to FBI agent who might or might not testify before grand jury not sufficient).

[43] See K. BRADY, California Criminal Law And Immigration § 9.13 (2004); Taylor v. United States, 495 U.S. 575 (1990) (holding state conviction for burglary constitutes burglary offense under 18 U.S.C. § 924(c) only if the state definition corresponds to the federal definition).

[44] Matter of Batista-Hernandez, supra (dissenting opinion by Board Member Rosenberg).