Criminal Defense of Immigrants

(C)  Misprision of a Felony.  The BIA long ago held that the common-law crime of misprision of a felony has been held not to be a crime of moral turpitude.[154]  However, in Itani v. Ashcroft,[155] the Eleventh Circuit “conclude[d] that misprision of a felony is a crime of moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.”  The Fifth Circuit, in dictum, has suggested the same.[156]  Most recently, the BIA found that a federal conviction of misprision of a felony, in violation of 18 U.S.C. § 4, constitutes crime of moral turpitude, since the offense requires affirmative conduct of concealment, and that “evil intent” is implicit in statutory requirement that offender take affirmative step to conceal a felony from the proper authorities.[157]

                As with aiding and abetting, mere violation of the duties owed to society – which is present in every single criminal offense – should be insufficient to make an offense a CMT.  Furthermore, misprision of a felony does not necessarily involve any dishonest or fraudulent activity.  For example, opening a door to allow a fleeing felon sanctuary would constitute misprision, but is not dishonest or fraudulent activity.  The sanctuary movement’s very public support for some who committed offenses for political reasons is another example.

In a related context, misprision of a felony also does not constitute a crime relating to a controlled substance.[158]  Assisting someone who has committed a crime, after the crime has been completed, can be committed by giving someone a sandwich, or a ride, or a place to sleep, with knowledge of the crime previously committed.  None of these activities inevitably involves dishonesty or fraud.  These offenses are so different from the commission of the underlying crime itself, that they cannot truly be said to partake of its nature.[159]  The underlying offense may or may not involve moral turpitude.  It would be anomalous to hold that accessory after the fact to a non-CMT offense was a CMT.  Even if the underlying offense is a CMT offense, the accessory after the fact offense is so different that it should not be held to be a CMT.  Since escape from prison itself is not a CMT offense, [160] the even lesser offense of aiding a loved one to escape detection for an offense a fortiori should not be considered a CMT.

[154] Matter of SC, 3 I. & N. Dec. 350 (BIA 1949).

[155] Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir. Apr. 22, 2002).

[156] Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. Dec. 15, 2003) (in dictum; Fifth Circuit [mis]cited Matter of Sloan, 12 I. & N. Dec. 840 (BIA 1968) (harboring a convicted murderer), as holding misprision of a felony was a CMT).

[157] Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27, 2006), citing Navarro-Lopez v Gonzales, 455 F.3d 1055, 1056-1057 (9th Cir. Jul. 31, 2006) (accessory after the fact to a crime is a CMT), rehearing granted, 469 F.3d 800 (9th Cir. Nov. 8, 2006).

[158] Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977).

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

[160] 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a) N.2.3-2(b); Matter of J, 4 I. & N. Dec. 512 (BIA 1951) (conviction of attempt to escape from reformatory in violation of Chapter 268, § 16 of the Annotated Laws of Massachusetts is “malum prohibitum” and does not involve moral turpitude, since “escape” is not defined by statute and the wording of the statute does not require a specific criminal intent).