Safe Havens

The BIA held in Batista-Hernandez[73] that a conviction for accessory after the fact to a drug trafficking offense does not partake of the nature of the underlying offense, and was therefore not a drug conviction or a drug trafficking aggravated felony.  Batista-Hernandez also held, however, that accessory after the fact may be an aggravated felony (under the obstruction of justice category)[74] if a sentence of one year or more imprisonment is imposed.[75]  This would be true if the defendant received a sentence of one year or more in custody either as a condition of probation, as part of a suspended prison sentence, or as part of a nonsuspended prison sentence.[76]   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, as well as the controlled substances ground of deportability.  See § § 7.24 et seq., 7.30, supra. 

The reasoning in Batista-Hernandez applies equally well across the board to all categories of offenses triggering immigration consequences, including crimes of moral turpitude as well as aggravated felonies and controlled substances convictions and others.  Thus, the decision can be cited as support for the proposition that accessory after the fact to a CMT should not constitute a CMT, since the accessory does not take on the nature of the underlying substantive offense committed by the felon, even though the decision distinguished pre-existing cases holding to the contrary in the CMT context.

            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, on the reasoning that 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 is clear, however, that a conviction of accessory after the fact to an offense that is not a CMT will not be considered a CMT.[77]  So accessory after the fact to simple possession of a controlled substance, for example, would not be considered a CMT.

            The reasoning of Batista-Hernandez arguably also applies to the drug abuse/addiction ground of deportation,[78] since one can easily be an accessory to a drug offense without ever having personally used drugs.

            While a conviction of accessory after the fact to a drug trafficking offense does not create a conviction-based ground of deportation, it can contribute to a “reason to believe” ground of inadmissibility.[79]

[73] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after fact is obstruction of justice aggravated felony if sentence of one year or more is imposed).

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

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

[76] 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).

[77] 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).

[78] INA § 237(a)(2)(B)(ii), 8 U.S.C. § 1227(a)(2)(B)(ii).

[79] Lopez-Molina v. Ashcroft, 368 F.3d 1206 (9th Cir. June 2, 2004) (suspicious meetings between noncitizen and other suspects, several of whom were arrested with several thousand dollars in cash, noncitizen’s attempt to escape when police stopped the vehicle he was driving, and discovery of 147 pounds of marijuana in the trunk, plus a guilty plea to failure to disclose to authorities his knowledge of a conspiracy to distribute marijuana, not rebutted by the noncitizen, constituted sufficient evidence to support reason to believe he was inadmissible as illicit trafficker).