(B)  Obstruction of Justice.  The BIA, however, in a poorly reasoned decision, sua sponte, held that a conviction of accessory after the fact falls within the category of an offense relating to obstruction of justice, which is an aggravated felony if a sentence of one year or more is imposed.  Under this authority, it remains a safe haven so long as no sentence of one year or more is imposed.  Even with a greater sentence, it may well become a safe haven if the circuit court overrules the BIA holding that this type of conviction falls within the obstruction of justice aggravated felony category.

 

A conviction of accessory after the fact to a drug offense is not considered a drug offense, or a drug trafficking offense,[132] but it is an aggravated felony (obstruction of justice) offense[133] if custody of one year or more is imposed.[134]  This would be true if the defendant received one year or more in custody either as a condition of probation, as part of a suspended prison sentence, or as part of a non-suspended prison sentence.[135]   However, 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, and, indeed, any conviction-based ground of deportation.  See § 19.10, infra.

 

There is no reason why this reasoning would not apply to a conviction for accessory after the fact to any offense, not merely a drug trafficking offense.  This disposition, with a sentence imposed of less than one year, therefore constitutes a safe haven with respect to all aggravated felony categories.  However, it is safer to negotiate a plea to misprision of a felony, which, unlike accessory after the fact, is not considered an aggravated felony under the “obstruction of justice” theory, and which is less likely to be considered a crime of moral turpitude.[136]

 

                The Board in Batista validated the analysis that “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.”[137]  Batista suggests that the BIA may apply this analysis to moral turpitude cases as well.[138]  The fundamental nature of the accessory offense, aiding a fugitive after an offense has been committed, does not partake of the nature of the fugitive’s underlying offense.

 

                There are many strong arguments that Batista wrongly decided that accessory after the fact is an obstruction of justice offense.  The issue was not raised or briefed on appeal in Batista.  It is well established that decisions are not authority for propositions not considered therein.[139]  Moreover, the BIA did not discuss U.S. Supreme Court authority, which should be controlling.[140]  The BIA did not adequately discuss the legal standard for determining how a generally described offense identified in an aggravated felony definition (e.g., “obstruction of justice”) should be defined.  The federal definition of the offense should be used.[141]  Finally, the BIA violated basic constitutional, statutory, and regulatory standards by finding the respondent deportable under a ground the INS had never charged.[142]

 

[132] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact); Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (misprision of felony).  For further discussion of accessory after the fact, see K. Brady, et al., Defending Immigrants in the Ninth Circuit § 2.12 (ILRC 2007).

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

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

[135] 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). 

[136] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc); see Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977).

[137] 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).

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

[139] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[140] United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357 (1995) (obstruction of justice requires intent to influence existing judicial or grand jury proceedings; therefore, giving false statements to FBI agent who might or might not testify before grand jury not sufficient).

[141] Taylor v. United States, 495 U.S. 575 (1990) (holding state conviction for burglary constitutes burglary offense under 18 U.S.C. § 924(c) only if the state definition corresponds to the federal definition).

[142] Matter of Batista-Hernandez, supra (dissenting opinion by Board Member Rosenberg).

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.