Safe Havens

(B)  Accessory After the Fact.  It is unclear whether a conviction of accessory after the fact to a substantive offense, which is analogous to harboring a fugitive, will never be held to be a CMT, since it is not of the same nature as the underlying offense, or whether such a conviction will be considered a CMT only if the substantive offense is considered a CMT.  It has been held that accessory after the fact to murder is a CMT.[942]  It is clear, however, that a conviction of accessory after the fact to an offense that is not a CMT will likewise not be considered a CMT.[943]  See § 7.8, supra, concerning accessory after the fact as an aggravated felony.

[942] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).

[943] 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) would not come into play.”  9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).