(C)

Misprision of a Felony.  In its now-reversed decision in Navarro-Lopez,[223] the Ninth Circuit found accessory after the fact to be a CMT.  The BIA relied on this decision to overrule its own prior decisions,[224] and hold that misprision of a felony is a crime of moral turpitude.[225]  The BIA position now agrees with Itani v. Ashcroft,[226] in which 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.[227] 

            As with accessory after the fact, 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.[228]  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 necessarily dishonest or fraudulent activity.  Even if it is dishonest, it is not necessarily fraudulent.[229]  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.[230]  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.[231]  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, [232] the even lesser offense of aiding a loved one to escape detection for an offense should a fortiori not be considered a CMT.

[223] Navarro-Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. Jul. 31, 2006), rev’d en banc 503 F.3d 1063 (9th Cir. Sept. 19, 2007).

[224] Matter of Sloan, 12 I. & N. Dec. 840 (BIA A.G. 1968; BIA 1966); Matter of SC, 3 I. & N. Dec. 350 (BIA 1949).

[225] Matter of Robles, 24 I. & N. Dec. 22 (BIA 2006).

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

[227] 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).  See also Padilla v. Gonzalez, 397 F.3d 1016 (7th Cir. Feb. 22, 2005) (knowingly furnishing false information to a police officer with intent to avoid apprehension or obstruct the prosecution or defense of any person, in violation of 720 Ill. Comp. Stat. 5/31-4(a), is a crime of moral turpitude for immigration purposes).

[228] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1070-1071 (9th Cir. Sept. 19, 2007).

[229] Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1077-1078 (9th Cir. Sept. 19, 2007) (suggesting misprision is not a CMT).

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

[231] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997).

[232] 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). 

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 . . . ."