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).

Second Circuit

MORAL TURPITUDE " MISPRISION OF A FELONY
Lugo v. Holder, 783 F.3d 119 (2d Cir. Apr. 9, 2015) (remanding to BIA to determine whether to continue to adhere to Matter of Robles"Urrea, 24 I. & N. Dec. 22 (BIA 2006), holding that conviction of misprision of a felony, under 18 U.S.C. 4, is still a crime of moral turpitude in light of circuit split), citing Itani v. Ashcroft, 298 F.3d 1213, 1216 (11th Cir.2002), and Robles"Urrea v. Holder, 678 F.3d 702, 711 (9th Cir. 2012).

Fifth Circuit

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

INCHOATE OFFENSES - MISPRISION OF A FELONY - MISPRISION IS A SEPARATE OFFENSE, DISTINCT FROM THE UNDERLYING FELONY, UNLIKE AIDING AND ABETTING
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) ("Moreover, unlike the federal aiding and abetting statute involved in James, the federal misprision of a felony statute defines a separate offense, distinct from the underlying felony. See James, 464 F.3d at 510 n. 24 (citing Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir.1983)). Thus, the fact that Patel was specifically indicted for misprision of a bank fraud is irrelevant to our inquiry of whether the statutory definition of the offense itself necessarily entails fraud or deceit.").

INCHOATE OFFENSES - MISPRISION OF A FELONY - ELEMENTS OF FEDERAL OFFENSE
Patel v. Mukasey, 526 F.3d 800, ___ (5th Cir. Apr. 29, 2008) (the elements of the federal offense of misprision of a felony, in violation of 18 U.S.C. 4, were described as "(1) knowledge that a felony was committed; (2) failure to notify the authorities of the felony; and (3) an affirmative step to conceal the felony. See United States v. Adams, 961 F.2d 505, 508 (5th Cir.1992). "[U]nder the misprision statute, the defendant must commit an affirmative act to prevent discovery of the earlier felony." Id. "Mere failure to make known does not suffice." Id. at 508-09 (citation omitted). It is irrelevant whether at the time of concealment the Government had knowledge of either the crime or the identity of the perpetrator. Lancey v. United States, 356 F.2d 407, 409 (9th Cir.1966).").

Ninth Circuit

CRIMES OF MORAL TURPITUDE " MISPRISION OF A FELONY
Robles-Urrea v. Holder, 678 F.3d 702, 705 (9th Cir. Apr. 23, 2012) (A crime involving moral turpitude is either one that involves fraud or one that involves grave acts of baseness or depravity, such that its commission offend[s] the most fundamental values of society. Navarro"Lopez v. Gonzales, 503 F.3d 1063, 1074"75 (9th Cir.2007) (en banc) (Reinhardt, J., concurring for the majority), overruled on other grounds by United States v. Aguila"Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). That an offense contravenes societal duties is not enough to make it a crime involving moral turpitude; otherwise, every crime would involve moral turpitude. Id. at 1070 (majority opinion). Because the BIA relied on this flawed rationale in concluding that misprision of a felony is a crime involving moral turpitude, we cannot defer to its interpretation of the Immigration and Nationality Act (INA). Instead, we hold that misprision of a felony is not categorically a crime involving moral turpitude.). Note: While this ought to be good news signaling that California accessory after the fact, in violation of Penal Code 32, is not a CIMT, the ILRC strongly suggests that criminal defense counsel continue to assume conservatively that it will be charged as a CIMT, however wrongly. There are three reasons to be conservative here: 1. Misprision is somewhat different from accessory, in that misprision does not require intent to help someone avoid arrest, sentence, etc., and accessory does. The federal offense of misprision of a felony, under 18 U.S.C. 4, in Robles, prohibits someone who, knowing a felony has been committed, "conceals" or fails to report it, with no further intent required. At one point, the opinion points out that misprision does not have this intent unlike other concealing offenses, including accessory after the fact, as yet another reason why misprision is not CIMT. ICE is likely to use this to assert that even if misprision is not CIMT, accessory after the fact is. While this goes against the thrust of the whole rest of the opinion, it still gives ICE its opening. 2. The court made clear that misprision is a divisible statute and that the immigration judge may review the record of conviction under the modified categorical approach to see if a fact "necessary" to the conviction showed moral turpitude, although the court found it hard to see how that could happen. (The Ninth Circuit appears to hold that the regular categorical approach applies, contrary to Silva-Trevino. On the other hand, Silva-Trevino had not been decided at the time the BIA made its decision in this case, so that issue was not before the court.) 3. It is possible that this case will go en banc. For one thing, this is a very rare instance where a court acknowledges that it owes Chevron deference to an agency opinion, but declines to give it because the agency's reasoning is so bad as to be impermissible. 4. Immigration counsel in removal proceedings should argue that a California conviction of accessory after the fact, in violation of Penal Code 32, is not a CIMT. Thanks to Katherine Brady, Senior Staff Attorney, Immigrant Legal Resource Center.

Tenth Circuit

CRIMES OF MORAL TURPITUDE " SEX OFFENSES " FAILURE TO REGISTER AS A SEX OFFENDER
Efagene v. Holder, ___ F.3d ___, ___, 2011 WL 1614299 (10th Cir. Apr. 29, 2011) (Colorado misdemeanor conviction of failure to register as a sex offender, in violation of Colo.Rev.Stat. 18-3-412.5(1)(a), (3), does not constitute a crime of moral turpitude, because it is a regulatory offense, malum prohibitum, and lacks an evil intent; the BIAs contrary conclusion in Tobar-Lobo is not supported by the decisions on which it relies, and is inconsistent with many prior BIA decisions, rendering it worthy of much less deference: The BIA's interpretation of moral turpitude in Tobar"Lobo is unreasonable for the additional reason that the rationale for the decision could apply to any and every criminal infraction. Any obligation on which society has placed a threat of imprisonment for failure to comply can be characterized as too important not to heed, as the BIA said of the obligation to register as a sex offender.).

Other

SAFE HAVENS " MISPRISON OF A FELONY
Active concealment, whether physical or verbal, is required for the elements [of misprision of a felony] to be established. See Christopher Mark Curenton, The Past, Present, and Future of 18 U.S.C. 4: An Exploration of the Federal Misprision of Felony Statute, 55 ALA. L. REV. 183, 185"86 (2003) (explaining the dichotomy between physical and verbal concealment, and noting the heightened standard for verbal concealment to include cases such as knowingly providing the police with completely false information); see also Roberts v. United States, 445 U.S. 552, 558 n.5 (1980) (requiring some affirmative act of concealment); United States v. Worcester, 190 F. Supp. 548, 565"66 (D. Mass. 1960) (summarizing federal court holdings as requiring active concealment rather than mere failure to disclose for the establishment of the crime of misprision of felony).