Criminal Defense of Immigrants

(A)  Accessory After the Fact.  Arguably, accessory after the fact should not be considered a CMT, since it is not of the same nature as the underlying offense.  However, the BIA had long ago held that accessory after the fact to murder was a CMT.[148]  While the United States Supreme Court has recently held aiding and abetting an offense to be necessarily included in the principle offense, it noted that accessory after the fact is considered distinct from the principal offense in all States and under Federal law.[149]  Therefore, accessory after the fact is not included in the substantive offense, and should not trigger the same immigration consequences as the substantive offense.

The Ninth Circuit recently that held that a California conviction of accessory after the fact, in violation of Penal Code § 32, was a CMT, regardless of the underlying offense, on the theory that assisting “one known to have committed a felony is clearly contrary to the accepted rules owed between members of society.”[150]  The dissent in that case noted that Penal Code § 32 could be violated simply by providing food or shelter to someone who has been convicted of any sort of felony offense.  The dissent also pointed out the absurdity that under the logic of the majority, “a person who committed assault with a deadly weapon has not committed a categorical crime involving moral turpitude, but a person who harbored the attacker from capture by the police [has].”[151]  The Ninth Circuit decision has since been vacated upon a grant of rehearing en banc to reconsider  the issue.

[148] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).

[149] Gonzalez v. Duenas-Alvarez, 549 U.S. __ , 127 S.Ct. 815, 820 (Jan. 17, 2007).

[150] Navarro-Lopez v Gonzales, 455 F.3d 1055, 1056-1057 (9th Cir. Jul. 31, 2006), rehearing granted, 469 F.3d 800 (9th Cir. Nov. 8, 2006).

[151] Id. at 1061.