(C)  Misprision of a Felony.  The common-law crime of misprision of a felony has been held not to be a crime of moral turpitude.[944]  Two circuit courts, and the BIA, in an unpublished decision, have held that the federal crime of misprision of a felony is a crime of moral turpitude.[945]  In Itani v. Ashcroft,[946] the Eleventh Circuit “conclude[d] that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.”  This statement is inaccurate.  Misprision of a felony does not necessarily involve any dishonest or fraudulent activity.  For example, opening a door to allow a fleeing felon sanctuary would constitute misprision, but is not dishonest or fraudulent activity.  The sanctuary movement’s very public support for some who committed offenses for political reasons is another example.  Moreover, many underlying felonies are not dishonest, or fraudulent, and do not involve moral turpitude.  Aiding a felon who is not guilty of a CMT should not be held to involve moral turpitude, any more than conspiracy to commit a non-CMT is held to be a CMT.  See § 7.120, infra.

 

Misprision of a felony also does not constitute a crime relating to a controlled substance.[947]

[944] Matter of SC, 3 I. & N. Dec. 350 (BIA 1949).

[945] Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003) (in dictum; Fifth Circuit [mis]cited Matter of Sloane, 12 I. & N. Dec. 840 (harboring a convicted murderer), as holding misprision of a felony was a CMT); Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. April 22, 2002) (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); Matter of Giraldo-Valencia, A36 520 954 (unpubl. BIA Index Dec., Oct. 22, 1992) (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).

[946] Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. April 22, 2002).

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

BIA

CRIMES OF MORAL TURPITUDE " ATTEMPT
Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (where the substantive offense underlying a noncitizen's conviction for an attempt offense is a crime involving moral turpitude, the noncitizen is considered to have been convicted of a crime involving moral turpitude for purposes of INA 237(a)(2)(A), even though that section makes no reference to attempt offenses).

First Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Fifth Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Ninth Circuit

CRIME OF MORAL TURPITUDE - ACCESSORY AFTER THE FACT
Navarro-Lopez v. Gonzales, __ F.3d __, 2007 WL 2713211 (9th Cir. Sept. 19, 2007) (California conviction for accessory after the fact, in violation of Penal Code 32, is not a crime of moral turpitude as the minimum conduct required to violate the statute includes acts that are not necessarily "morally shocking," such a mother providing food to her son, or being accessory after the fact to an offense that is not itself an crime of moral turpitude).

SAFE HAVENS - GENERAL SAFE HAVENS - CONVICTION-BASED GROUNDS OF DEPORTATION
Immigration counsel can argue that a person convicted of aiding and abetting the commission of a deportable offense is not deportable unless the definition of aiding and abetting, under the law of the jurisdiction of conviction, is coextensive with the federal definition of aiding and abetting. For example, in California, a person can be convicted of aiding and abetting on the basis of mere encouragement, even if no actual assistance is provided. This form of aiding a theft offense has been held insufficient to constitute a theft offense aggravated felony. United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). This same argument could be used to argue that a conviction of aiding and abetting any other deportable offense - a firearms conviction, crime of moral turpitude, domestic violence conviction, or controlled substances conviction - does not fall within the ground of deportation. Criminal defense counsel, however, should assume that a conviction of aiding a deportable offense also constitutes a deportable offense and avoid such a conviction if possible.