(B)  Drug Trafficking.  It is noteworthy that the respondent had been convicted of misprision of a drug trafficking felony (conspiracy to possess marijuana with intent to distribute).[171]  The Board seems to have assumed that under the analysis in Matter of Batista-Hernandez,[172] the non-substantive offense of misprision of a felony is not a drug trafficking aggravated felony[173] even though the underlying felony does constitute a drug trafficking offense.

 

                Therefore, a federal conviction of misprision of a drug trafficking felony[174] would not constitute an aggravated felony, under either theory,[175] even if a sentence greater than one year was imposed.  This disposition therefore is far safer than accessory after the fact, since in the event of a probation violation, a defendant convicted of accessory after the fact with an original sentence of less than one year could be resentenced to more than one year, which would convert the non-aggravated felony into an “obstruction of justice” aggravated felony.[176]

 

[171] Matter of Espinoza-Gonzalez, supra, p. 2.

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

[173] INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B) (relating to drug trafficking convictions).

[174] 18 U.S.C. § 4.

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

[176] INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S); Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

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).