(A)  Accessory After the Fact.  Accessory after the fact is considered an inchoate crime or non-substantive offense that is not specifically listed in the statute as triggering deportability or inadmissibility.  “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.’”[1086]  The Board of Immigration Appeals has held that accessory after the fact does constitute “an offense relating to obstruction of justice,” under 8 U.S.C. § 1101(a)(43)(S), and thus constitutes an aggravated felony “if the term of imprisonment imposed is at least one year.”[1087]  See § 7.30, supra. 

 

The BIA erred in concluding that accessory after the fact constitutes an “obstruction of justice” offense, which qualifies as an aggravated felony if a one-year sentence is imposed.  If you cannot arrange a better disposition in a drug trafficking case (which is certain to trigger terrible immigration consequences), a plea to accessory after the fact, even with a one-year sentence imposed, gives immigration counsel a good argument in federal court that it is not an aggravated felony conviction, which is better than nothing.  Note, however, that one court 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.[1088]  A conviction of accessory after the fact to an offense that is not a CMT should not be considered to be a CMT.[1089]

A conviction of accessory after the fact to a drug offense will avoid adverse immigration consequences flowing from the conviction so long as the court does not impose a state prison sentence (even if execution is suspended) nor order 365 days or more in custody as a condition of probation.[1090]  If one year or more is imposed, the DHS will consider this an “obstruction of justice” aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).  (There is an argument in federal court that the BIA is wrong and this conviction does not in fact constitute an aggravated felony even if a one-year sentence is imposed.)  A conviction of accessory after the fact to an offense that is not a CMT should not be considered to be a CMT.[1091]  See § § 7.8, 7.30, supra, concerning accessory after the fact as an aggravated felony.

[1086] 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); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[1087] Matter of Batista-Hernandez, supra.

[1088] Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. April 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 ever considered to be a CMT.

[1089] 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).

[1090] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[1091] 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).

Seventh Circuit

Desai v. Mukasey, ___ F.3d ___, 2008 WL 818946 (7th Cir. Mar. 28, 2008) (Illinois conviction of Unlawful Delivery of a Look-Alike Substance, in violation of 720 ILCS 570/404(b), constitutes a conviction of an offense "relating to" a controlled substance, under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II): "This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did by distributing something that would lead one to believe it contained Psilocybin brings it into association with a federal controlled substance.").

Ninth Circuit

CONTROLLED SUBSTANCES - SOLICITATION
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.