(A)  Obstruction of Justice.  Misprision of a felony[159] does not fall within the definition of an offense “relating to obstruction of justice,” [160] so a conviction of misprision of a felony does not constitute an aggravated felony under any category, even if a one-year sentence has been imposed.[161]

 

                In Espinoza, the Board distinguished Matter of Batista-Hernandez,[162] which had held that a conviction for accessory after the fact[163] did constitute an aggravated felony under the “obstruction of justice” subdivision.[164]  Board Member Rosenberg concurred and dissented on the ground that while she agreed with the decision in Espinoza-Gonzalez, she believed Batista-Hernandez to be wrongly decided and felt that the Board’s discussion in Espinoza distinguishing Batista-Hernandez was unnecessary to the decision of the current case.  As usual, her concurring and dissenting opinion provides a blueprint for a petition for review in the United States Court of Appeals arguing that Matter of Batista-Hernandez, supra, was wrongly decided.

 

                The Board’s analysis in Espinoza-Gonzalez adopts the chapter heading of Chapter 73 of title 18, United States Code (“Obstruction of Justice”) as indicating a congressional intent to employ a federal definition of the phrase[165] to be limited to the conduct proscribed in Chapter 73.[166]  “Misprision of a felony is not among the crimes listed in this chapter . . . .”[167]  “Although misprision of a felony bears some resemblance to these [obstruction of justice] offenses, it lacks the critical element of an affirmative and intentional attempt, motivated by a specific intent, to interfere with the process of justice.”[168]

 

                The Board first defined the term “obstruction of justice,” and then concluded that misprision of a felony was not included.  It then addressed the question whether misprision “related to” an obstruction of justice offense.[169]  “The broad coverage we have given the phrase ‘relating to’ does not lead us in this case to ‘relate’ the crime of misprision of a felony to obstruction of justice, thereby imparting to the first offense an element of culpability that is present only in the latter.”[170]

 

[159] 18 U.S.C. § 4 (1994).

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

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

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

[163] E.g., 18 U.S.C. § 3, or state statutes such as California Penal Code § 32.

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

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

[166] 18 U.S.C. § § 1501-1518 (1994 & Supp. II 1996).

[167] Matter of Espinoza-Gonzalez, supra, p. 3.

[168] Id. at p. 7.

[169] Id. at p. 8.

[170] Id. at p. 10.

Fifth Circuit

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

AGGRAVATED FELONY - FRAUD - MISPRISON OF A FELONY
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (federal conviction for violation of 8 U.S.C. 4, misprision of a felony was an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) because it necessarily entails deceit; in this particular case the loss to the victim, which exceeded $10,000, was not disputed by the parties).

AGGRAVATED FELONY - MISPRISON OF A FELONY - MISPRISON OF A FELONY
Patel v. Mukasey, 526 F.3d 800 (5th Cir. Apr. 29, 2008) (federal conviction for violation of 8 U.S.C. 4, misprision of a felony was an aggravated felony under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i) because it necessarily entails deceit and in the particular case the loss to the victim, which exceeded $10,000, was not disputed by the parties).