Crimes of Moral Turpitude

 

Misprision of a felony consists of concealing a felony.[25]  A defendant convicted of misprision has unlawfully covered up a crime.  His or her conduct is separate from the underlying felony s/he concealed.[26]  

 

The BIA, however, has recently found that misprision of a felony is a crime of moral turpitude.[27]  The reasoning of this case was based, in part, upon a Ninth Circuit decision that was later vacated en banc and reversed.[28]  Therefore, at least in the Ninth Circuit, this offense does not constitute a CMT. 

 

Two circuit courts have also held that the federal crime of misprision of a felony is a crime of moral turpitude.[29]  In Itani v. Ashcroft,[30] 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.”  This statement is inaccurate.  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.  Moreover, many underlying felonies are not dishonest, or fraudulent, and do not involve CMT.  Aiding a felon who is not guilty of a CMT should not be held to involve CMT, any more than conspiracy to commit a non-CMT is held to be a CMT.

 

A federal conviction of misprision of a felony does not constitute an aggravated felony, even if a one-year sentence is imposed, since it does not fall within the definition of an offense “relating to obstruction of justice.”[31]  Misprision of a felony also does not constitute a crime relating to a controlled substance, even where the underlying felony does.[32]

 

            Misprision of a Felony.

 

Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27, 2006) (federal conviction of misprision of a felony, in violation of 18 U.S.C. § 4, constitutes crime of moral turpitude, since mere failure to report an offense is insufficient; offense requires affirmative conduct of concealment, contrary to the duties owed to society; "evil intent" is implicit in statutory requirement that offender take affirmative step to conceal a felony from the proper authorities);

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 A.G. 1968; BIA 1966) (harboring a convicted murderer), as holding misprision of a felony was a CMT);

Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 22, 2002) (conviction for misprision of a felony, in violation of 18 U.S.C. § 4, constitutes a crime of moral turpitude for purposes of triggering deportation).

 

Failure to prevent the commission of a crime.

 

Matter of SC, 3 I. & N. Dec. 350 (BIA 1949) (Mexican conviction for failure to prevent the commission of a crime held not CMT, under a statute which provided for punishment of anyone who did not “employ lawful means at his disposal to prevent the commission of crimes which he knows are to be committed or are being committed,” where the noncitizen had assisted and facilitated the commission of forgery and uttering of checks by endorsing them as an identifying endorser knowing that the person who was going to cash them was not the rightful payee named therein, the BIA used U.S. standards as to moral turpitude, and compared the offense to the common-law crime of misprision of felony, for which it said conviction was possible for mere failure or neglect without evil intent).

 

            See also § 9.43 (obstruction of justice), infra.

[25] See 18 U.S.C. § 4.

[26] Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir. 1977) (misprision of felony of conspiracy to possess narcotics was not a crime relating to narcotics); Matter of Velasco, 16 I. & N. Dec. 281 (BIA 1977) (adopting Castaneda de Esper as nationwide precedent); Matter of SC, 3 I. & N. Dec. 350, 353 (BIA 1948) (conviction of common-law misprision of a felony, for failure to prevent the commission of an offense, does not involve moral turpitude, since an evil and depraved intent is not essential to support a conviction, and mere knowledge of the offense being committed and neglect to employ lawful means available to prevent its commission is sufficient to support a conviction).

[27] 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), overruling Matter of Sloan, 12 I. & N. Dec. 840 (BIA A.G. 1968; BIA 1966).

[28] Navarro-Lopez v Gonzales, 455 F.3d 1055 (9th Cir. 2006), opinion vacated following rehearing en banc, 503 F.3d 1063 (9th Cir. Sept. 19, 2007).  See § 9.4, supra.

[29] 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 A.G. 1968; BIA 1966) (harboring a convicted murderer), as holding misprision of a felony was a CMT); Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. Apr. 22, 2002) (conviction for misprision of a felony, in violation of 18 U.S.C. § 4, constitutes a crime of moral turpitude for purposes of triggering deportation); Matter of Giraldo-Valencia, A36 520 954 (unpubl. BIA Index Dec., Oct. 22, 1992) (making a weak distinction between the crime of common law misprision that the BIA in Matter of SC held did not involve moral turpitude and statutory misprision under 18 U.S.C. § 4).

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

[31] Matter of Espinoza-Gonzalez, 22 I. & N. Dec. 889 (BIA 1999) (en banc); INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S).

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