Accessory after the fact prohibits a person who knows that a federal crime has been committed from comforting or assisting the principal offender in order to “hinder or prevent his apprehension, trial or punishment.”[18]  Another statute defines an accessory after the fact as one who: “harbors, conceals, or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment . . . .”[19]

 

While the Ninth Circuit has found that accessory after the fact to a crime is not, in itself, a crime of moral turpitude, it is unclear whether the BIA or other courts will agree.[20]  The Ninth Circuit had originally held that accessory after the fact was inherently a CMT, regardless of whether the underlying offense involved moral turpitude, as an offense involving knowing concealment of a felony.[21]  The BIA adopted this reasoning in the context of misprision of a felony.[22]

 

On the other hand, the BIA held that an accessory after the fact to a drug trafficking offense does not partake of the nature of the underlying offense, and was therefore not a drug conviction or drug-trafficking aggravated felony.[23]  The reasoning in Batista-Hernandez in fact applies equally well across the board to all categories of offenses triggering immigration consequences, including crimes of moral turpitude.  Thus, the decision can be cited as support for the proposition that accessory after the fact to a CMT should not constitute a CMT, since the accessory does not take on the nature of the underlying substantive offense committed by the felon, even though the decision distinguished pre-existing cases holding to the contrary in the CMT context.

 

The Supreme Court in Duenas distinguished between aiding and abetting (equivalent to the substantive offense under state law) and accessory after the fact (defined and treated differently than the substantive offense under state law), adding great strength to the argument accessory after the fact is not a CMT.

 

Counsel may want to take the conservative approach in criminal court and assume, however, that accessory after the fact to a CMT will itself be a CMT.[24]

 

It has been held that accessory after the fact to murder and voluntary homicide are crimes of moral turpitude.

 

Cabral v. INS, 15 F.3d 193 (1st Cir. 1994) (Massachusetts conviction for offense of accessory after the fact to murder held “crime of moral turpitude” where underlying crime of murder was CMT, and noncitizen admitted, in his plea, that he knew the principal had intentionally committed murder and that he intentionally assisted the principal in avoiding detention, trial and punishment), disagreed with by Michel v. INS, 206 F.3d 253 (2d Cir. 2000);

Matter of Sloan, 12 I. & N. Dec. 840 (BIA 1966, AG 1968) (knowingly harboring a convicted murderer held CMT). 

Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965) (Massachusetts conviction of accessory after the fact to manslaughter under Chapter 274, § 4 of the Annotated Laws of Massachusetts is a crime involving moral turpitude where the principal was found guilty of voluntary manslaughter, a crime involving moral turpitude).

[18] 18 U.S.C. § 3.  See United States v. Taylor, 322 F.3d 1209 (9th Cir. Mar. 20, 2003) (trial court erred in refusing to dismiss accessory after the fact charge that was predicated on same facts that supported defendant’s conviction for aiding and abetting, because the government’s theory that the defendant was an accessory after the fact because he did not turn himself and the principal in to the authorities after the crime was committed would mean every principal is also an accessory in his own crime when he does not turn himself in, which would be an “absurd” result).

[19] California Penal Code § 32. 

[20] Navarro-Lopez v. Gonzales, 503 F.3d 1063 (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).  See § 8.24(C), supra, for further discussion of this case.

[21] Navarro-Lopez v Gonzales, 455 F.3d 1055 (9th Cir. 2006), opinion vacated following rehearing en banc by, 503 F.3d 1063 (9th Cir. Sept. 19, 2007). 

[22] Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006) (federal conviction of misprision of a felony, in violation of 18 U.S.C. § 4, was a CMT).

[23] Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after fact is obstruction of justice aggravated felony).

[24] Cf. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (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).  See also 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(a)(3).  Since an attempt, or a conspiracy to commit a CMT, along with other types of offenses committed with the intent to commit a CMT, are CMTs only if the substantive offense intended is a CMT, it is difficult to understand why accessory after the fact should be treated any differently.  This is made clear in the succeeding paragraph: “Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not come into play.” 9 U.S. Dep’t of State, Foreign Affairs Manual (FAM) § 40.21(a), N. 2.4(b).

BIA

CRIMES OF MORAL TURPITUDE " ACCESSORY AFTER THE FACT
Matter of Rivens, 25 I&N Dec. 623, 627 n.5 (BIA Oct. 19, 2011) (federal conviction of accessory after the fact, in violation of 18 U.S.C. 3 (2000), is a crime involving moral turpitude, but only if the underlying offense is a crime involving moral turpitude); see Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965) (an alien convicted of accessory after the fact to manslaughter was convicted of a crime involving moral turpitude because the underlying offense, which was found to be voluntary manslaughter, was a crime involving moral turpitude), modified on other grounds, Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); see also Cabral v. INS, 15 F.3d 193 (1st Cir. 1994). NOTE: The court rejected a powerful argument of respondent, that accessory after the fact does not take on the nature of the underlying offense, as discussed in the controlled substances context, see Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), and by the United States supreme Court. See Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (accessory after the fact is distinct from the principal offense in all states and under federal law).

Other

CAL POST CON " SAFE HAVEN " ACCESSORY AFTER THE FACT " ELEMENTS
People v. Moomey, 194 Cal.App.4th 850, 856, 123 Cal.Rptr.3d 749, 753 (4th Dist. April 26, 2011) (The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.); quoting People v. Plengsangtip (2007) 148 Cal.App.4th 825, 836, 56 Cal.Rptr.3d 165.