Safe Havens

 

(A)  Obstruction of Justice.  Misprision of a felony under 18 U.S.C. § 4 (1994) does not fall within the definition of an offense “relating to obstruction of justice,” [76] so a conviction of misprision of a felony does not constitute an aggravated felony under any category, even if a one-year sentence has been imposed.[77]

 

            In Espinoza, the Board distinguished Matter of Batista-Hernandez,[78] which had held that a conviction for accessory after the fact (e.g., 18 U.S.C. § 3, or state statutes such as California Penal Code § 32) did constitute an aggravated felony under the “obstruction of justice” subdivision.[79]  Board Member Rosenberg concurred and dissented on the ground that while she agreed with the decision in Espinoza-Gonzalez, she believed Batista-Hernandez to be wrongly decided and felt that the Board’s discussion in Espinoza distinguishing Batista-Hernandez was unnecessary to the decision of the current case.  As usual, her concurring and dissenting opinion provides a blueprint for a petition for review in the United States Court of Appeals arguing that Matter of Batista-Hernandez, supra, was wrongly decided.

 

            The Board’s analysis in Espinoza-Gonzalez adopts the chapter heading of Chapter 73 of title 18, United States Code (“Obstruction of Justice”) as indicating a congressional intent to employ a federal definition of the phrase when it was used in INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) to be limited to the conduct proscribed in Chapter 73.[80]  “Misprision of a felony is not among the crimes listed in this chapter . . . .”[81]  “Although misprision of a felony bears some resemblance to these [obstruction of justice] offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”[82]

            The Board first decided on the definition of the term “obstruction of justice,” and then concluded that misprision of a felony was not included.  It then addressed the question whether misprision “related to” an obstruction of justice offense.[83]  “The broad coverage we have given the phrase ‘relating to’ does not lead us in this case to ‘relate’ the crime of misprision of a felony to obstruction of justice, thereby imparting to the first offense an element of culpability that is present only in the latter.”[84]

 

            It is also noteworthy that the Board proceeded to decide the appeal, notwithstanding the fact that the respondent had departed the United States, since the departure might be temporary and the decision on appeal “is not moot because a resolution of the Service’s appeal that is adverse to the respondent would have significant legal consequences were the respondent to seek admission to the United States in the future.”[85]

 

            Criminal counsel should if possible avoid accessory after the fact convictions, even with an initial sentence of less than one year in custody, since the defendant might violate probation and ultimately receive a sentence greater than one year, converting the conviction into an aggravated felony.  On the other hand, this disposition is far better than a drug trafficking aggravated felony, so long as the sentence imposed is less than one year. 

 

            A conviction of misprision of a felony (even a drug trafficking felony) would be far preferable since it would not constitute an aggravated felony even if a sentence of one year or more was imposed.

[76] INA 101(a)(48)(S), 8 U.S.C. § 1101(a)(48)(S).

[77] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc).

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

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

[80] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

[81] Matter of Espinoza-Gonzalez, supra, p. 3.

[82] Id. at p. 7.

[83] Id. at p. 8.

[84] Id. at p. 10.

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