(A)

Accessory After the Fact.  Arguably, accessory after the fact should not be considered a CMT, since it is not of the same nature as the underlying offense.  However, the BIA long ago held that accessory after the fact to murder was a CMT.[215]  While the United States Supreme Court has recently held aiding and abetting an offense to be necessarily included in the principal offense, it noted that accessory after the fact is distinct from the principal offense in all States and under Federal law.[216]  Therefore, accessory after the fact is not included in the substantive offense, and should not trigger the same immigration consequences as the substantive offense.

 

In 2006, the Ninth Circuit that held that a California conviction of accessory after the fact,[217] was a CMT, regardless of the underlying offense, on the theory that assisting “one known to have committed a felony is clearly contrary to the accepted rules owed between members of society.”[218]  However, on rehearing en banc, the Ninth Circuit reversed this decision, noting that the minimum conduct necessary to qualify as an accessory after the fact would include a mother giving food to her felon child.[219]  The court also noted that it would be absurd to treat an accessory after the fact as a CMT even where the underlying offense was not, itself, a crime of moral turpitude.[220]

[215] Matter of Sanchez-Marin, 11 I. & N. Dec. 264 (BIA 1965).

[216] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 820 (Jan. 17, 2007).

[217] California Penal Code § 32.

[218] Navarro-Lopez v Gonzales, 455 F.3d 1055, 1056-1057 (9th Cir. Jul. 31, 2006), rehearing granted, 469 F.3d 800 (9th Cir. Nov. 8, 2006).

[219] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1071 (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).

[220] Ibid.

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).

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."