Safe Havens

Misprision of a felony consists of concealing a felony.[162]  A defendant convicted of misprision has unlawfully covered up a crime.  His or her conduct is separate from the underlying felony s/he concealed.[163]  Misprision of a felony has been held not to fall within the definition of an offense “relating to obstruction of justice,” so a conviction of misprision of a felony does not constitute an aggravated felony,[164] even if a one-year sentence has been imposed.[165]  See § § 7.11, 7.85, supra.

The common-law crime of misprision of a felony has also been held not to be a crime of moral turpitude.[166]  Although two circuit courts (and the BIA in an unpublished decision) have held that the federal crime of misprision of a felony is a crime of moral turpitude,[167] misprision should not be found to constitute a CMT outside the Fifth and Eleventh Circuits.  See § 7.107, supra.

Misprision of a felony also does not constitute a crime relating to a controlled substance.[168]  See § 7.142, supra.

[162] See 18 U.S.C. § 4.

[163] Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977) (misprision of felony of conspiracy to possess narcotics was not a crime relating to narcotics); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (adopting Castaneda de Esper as nationwide precedent); Matter of SC, 3 I. & N. Dec. 350, 353 (BIA 1948) (conviction of common-law misprision of a felony, for failure to prevent the commission of an offense, does not involve moral turpitude, since an evil and depraved intent is not essential to support a conviction, and mere knowledge of the offense being committed and neglect to employ lawful means available to prevent its commission is sufficient to support a conviction).

[164] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) (obstruction of justice).

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

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

[167] 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a crime of moral turpitude for purposes of triggering deportation); Matter of Giraldo-Valencia, A36 520 954 (unpublished BIA Index Dec., Oct. 22, 1992) (making a weak distinction between the crime of common law misprision that the BIA in Matter of SC held did not involve moral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).

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