(A)  As an Unlisted Non-Substantive Offense.  Accessory after the fact is a non-substantive offense, and it is not expressly listed in the aggravated felony definition, unlike the non-substantive offenses of attempt and conspiracy which are specifically listed as aggravated felonies.[125]  This gives rise to an excellent argument that a conviction of this offense generally cannot constitute an aggravated felony.  See Appendix G, infra.

 

A conviction of being an accessory after the fact is not held to constitute an aggravated felony offense, even where the offense committed by the principal did fall within an aggravated felony category.  Accessory after the fact, like harboring a fugitive, does not take on the “character” of the substantive offense.  Even though the BIA formerly held that this offense did take on the principal offense’s character in a case involving a crime of moral turpitude,[126] the BIA no longer uses that analysis, and has repeatedly held that accessory after the fact and the similar federal offense of “misprision of felony” do not constitute drug convictions even where the principal offense involves drugs.[127]  Significantly, the Ninth Circuit has also held that accessory after the fact is not a crime of violence under 18 U.S.C. § 16, even where the principal offense was murder for hire.[128]  California law interpreting the California accessory after the fact statute unequivocally states that this offense does not take on the character or intent of the principal offense.[129]  While the BIA is not bound by state courts’ appraisal of whether a state offense involves moral turpitude or is an aggravated felony, it does look to state law to define the elements of an offense.  See § 19.5, supra.[130] 

 

Recently, the United States Supreme Court, in holding that the aggravated felony generic definition of “theft” included not only principals, aiders and abettors, strongly suggested that a conviction of accessory after the fact would not be included within the definition of a substantive aggravated felony offense, since neither Federal law, nor the law of the various states, treats such convictions as equivalent to a conviction of a substantive offense.[131]  The Duenas decision provides strong support for the position that a conviction of accessory after the fact to a substantive offense does not trigger the immigration or illegal re-entry sentencing consequences of a conviction of the substantive offense.

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

[126] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).  This reasoning was approved by the First Circuit under a policy of strict deference to the BIA in Cabral v. INS, 15 F.3d 193, 197 (1st Cir. 1994).

[127] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (federal accessory after the fact); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977).  See also Matter of Carrillo, 16 I. & N. Dec. 625, 626 (BIA 1978) (federal conviction of unlawful carrying of firearm during commission of a felony not a drug offense even where felony identified as drug offense).

[128] United States v. Innie, 7 F.3d 840 (9th Cir. 1993).

[129] See K.Brady, et al., Defending Immigrants in the Ninth Circuit § 2.12 (ILRC 2007).

[130] See, e.g., discussion in Gonzalez-Martinez v. Landon, 203 F.2d 196, 197 (9th Cir. 1952) (case law has established that intent is an element of bigamy, which therefore is a crime involving moral turpitude); Matter of Esqueda, 20 I. & N. Dec. 850 (BIA 1994) (the BIA recognizes addition through case law of element of guilty knowledge in various California drug offenses).

[131] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820  (Jan. 17, 2007).

BIA

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, is an aggravated felony "obstruction of justice" offense if a sentence of one year or more is imposed on any single count). http://www.justice.gov/eoir/vll/intdec/vol25/3758.pdf.

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 842 (BIA 2012) (California conviction of accessory after the fact, in violation of Penal Code 32, with a sentence of 16 months imprisonment, is a conviction for an aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S) because it include[s] the element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice), quoting Matter of Espinoza, 22 I&N Dec. 889, 894 (BIA 1999); disagreeing with Trung Thanh Hoang v. Holder, 641 F.3d 1157, 1164 (9th Cir. 2011) (BIA requires actual interference with an ongoing criminal proceeding or investigation). Note: The BIA interpreted the obstruction of justice provision more broadly than the Ninth Circuits more restrictive approach, pursuant to Brand X, the Supreme Court decision that allows an agency to issue a reasonable interpretation of a statute within its expertise even after a court has found an earlier agency interpretation unreasonable. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 840 (BIA 2012), discussing Natl Cable & Telecomms. Assn v. BrandX Servs., 545 U.S. 967 (2005). The question remains whether the Ninth Circuit will conclude that the aggravated felony definition, also used extensively in federal criminal cases, falls exclusively within the purview of the BIA to interpret immigration laws. The Ninth Circuit could also determine the statute is not ambiguous, after employing normal statutory interpretation standards, or that the BIAs interpretation is unreasonable, to justify deference.

Fifth Circuit

AGGRAVATED FELONY " OBSTRUCTION OF JUSTICE " ACCESSORY AFTER THE FACT
United States v. Gamboa-Garcia, ___ F.3d ___ (5th Cir. Sept. 22, 2010) (Idaho convictions for violation of Idaho Code 18-205, for being accessory after the fact to murder, was an aggravated felony obstruction of justice offense to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). for illegal re-entry sentencing purposes). Note: The court here did not address the issue of whether an obstruction of justice offense must interfere with a court proceeding to constitute an obstruction of justice aggravated felony under INA 101(a)(43)(S), 8 U.S.C. 1101(a)(43)(S). CD:19.80, 19.15;AF:5.2, 5.63, A.31, A.2, B.31, B.62

Ninth Circuit

AGGRAVATED FELONY - ACCESSORY AFTER THE FACT
Verdugo-Gonzalez v. Holder, 581 F.3d 1059 (9th Cir. Sept. 14, 2009) (California conviction for receiving stolen property, under Penal Code 496(a), categorically qualified as a theft offense aggravated felony under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), rejecting argument that the statutory use of the term "aids" includes accessory after the fact, which would not constitute an aggravated felony; the court reasoned that the statute does not mention accessory, only aiding, and no case was identified applying the statute to accessories after the fact).

AGGRAVATED FELONY - ACCESSORY AFTER THE FACT
United States v. Vidal, 504 F.3d 1072 (9th Cir. Oct. 10, 2007) (9-6 en banc) (accessory after the fact does not constitute an aggravated felony, since attempt and conspiracy are listed under INA 101(a)(43)(U), but accessory after the fact is not).

Other

CAL POST CON " SAFE HAVEN " ACCESSORY AFTER THE FACT " ELEMENTS
People v. Moomey, 194 Cal.App.4th 850, 856, 123 Cal.Rptr.3d 749, 753 (4th Dist. April 26, 2011) (The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.); quoting People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836, 56 Cal.Rptr.3d 165.