(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). 

CRIMES OF MORAL TURPITUDE - SOLICITATION
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. Nov. 21, 2007) (Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-1002(A) and (B)(2), 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), since this ground does not specifically list "attempt" and "conspiracy," and thus does not impliedly exclude "solicitation").

Note: The court applied a "target offense" style analysis. Under this analysis, solicitation to commit a non-CMT offense should not be considered a CMT. The case also holds that solicitation offenses are included in INA 237(a)(2)(A)(i), 8 U.S.C. 1227(a)(2)(A)(i), because that section does not mention "attempt and conspiracy" to the exclusion of other non-substantive offenses. This case would not apply to the CMT ground of inadmissibility, since INA 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i)(I) does include the "attempt or conspiracy" language, and thus impliedly excludes solicitation offenses. The same holds true for any other ground of deportation or inadmissibility that lists attempt and conspiracy, but not solicitation, such as the controlled substances ground of inadmissibility, INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II), and the aggravated felony ground of deportation, INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), inter alia.

BIA

CRIMES OF MORAL TURPITUDE " ATTEMPT
Matter of VO, 25 I. & N. Dec. 426 (BIA Mar. 18, 2011) (where the substantive offense underlying a noncitizen's conviction for an attempt offense is a crime involving moral turpitude, the noncitizen is considered to have been convicted of a crime involving moral turpitude for purposes of INA 237(a)(2)(A), even though that section makes no reference to attempt offenses).

IMMIGRATION PROCEEDINGS
Dababneh v. Gonzales, __ F.3d __ (7th Cir. Dec. 20, 2006) (Department of Homeland Security may indicate in the NTA that it will give the alien subsequent notice of the precise time and place of the hearing once it files the NTA with the appropriate immigration court). http://caselaw.lp.findlaw.com/data2/circs/7th/054001p.pdf

First Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Fifth Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Ninth Circuit

CRIME OF MORAL TURPITUDE - ACCESSORY AFTER THE FACT
Navarro-Lopez v. Gonzales, __ F.3d __, 2007 WL 2713211 (9th Cir. Sept. 19, 2007) (California conviction for accessory after the fact, in violation of Penal Code 32, is not a crime of moral turpitude as the minimum conduct required to violate the statute includes acts that are not necessarily "morally shocking," such a mother providing food to her son, or being accessory after the fact to an offense that is not itself an crime of moral turpitude).