Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
219
Matter of Tomas MENDEZ, Respondent
Decided February 23, 2018
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime
involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed.
Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.
FOR RESPONDENT: Andrew L. Friedman, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sarah L. Martin, Associate
Legal Advisor
BEFORE: Board Panel: PAULEY, GUENDELSBERGER, and MALPHRUS, Board
Members.
PAULEY, Board Member:
In a decision dated July 21, 2016, an Immigration Judge found the
respondent inadmissible as an alien convicted of a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality
Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012). On the same day, she issued a
second decision incorporating the finding of inadmissibility, pretermitting
the respondent’s application for cancellation of removal under section
240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012), and ordering him removed
from the United States. The respondent has appealed from that decision. The
appeal will be dismissed.1
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic. The
record reflects that he was admitted to the United States as a conditional
permanent resident on January 28, 2004, and that the conditions of his
residence were removed in 2006. On December 17, 2010, the respondent
was convicted in the United States District Court for the District of Maryland
1 We acknowledge and have considered the arguments submitted by the parties and amici
curiae in response to our request for supplemental briefing.
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
220
of misprision of felony in violation of 18 U.S.C. § 4 (2006).2 After he sought
admission to the country as a returning resident on March 31, 2016, the
Department of Homeland Security (“DHS”) initiated removal proceedings.
The Immigration Judge determined that the respondent’s offense is a
crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act,
which terminated his period of continuous residence under section 240A(d)
and rendered him ineligible for cancellation of removal. She based her ruling
on our precedent decision in Matter of Robles, 24 I&N Dec. 22 (BIA 2006),
which held that misprision of felony under § 4 is categorically a crime
involving moral turpitude. In Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir.
2012), the United States Court of Appeals for the Ninth Circuit rejected our
holding. The Immigration Judge determined that she was bound to follow
Board precedent in the absence of contrary precedent from the Second
Circuit, in whose jurisdiction this case arises. The respondent challenges the
Immigration Judge’s determination that misprision of felony is a crime
involving moral turpitude, and he urges us to reverse our holding in Robles.
Our 2006 decision in that case expressly followed the analysis of the
Eleventh Circuit in Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), which
held that misprision of felony under § 4 is categorically a crime involving
moral turpitude. In 2015, the Second Circuit requested that we clarify our
position in light of the split between the Ninth and Eleventh Circuits on this
issue. Lugo v. Holder, 783 F.3d 119, 120−21 (2d Cir. 2015). We later
clarified the framework for determining whether a conviction is for a crime
involving moral turpitude in Matter of Silva-Trevino, 26 I&N Dec. 826
(BIA 2016). Thereafter, the Fifth Circuit joined the Eleventh in concluding
that a violation of § 4 is categorically a crime involving moral turpitude.
Villegas-Sarabia v. Sessions, 874 F.3d 871, 878−81 (5th Cir. 2017).
Given this circuit split and our clarification regarding crimes involving
moral turpitude, we find it appropriate to revisit the question whether
misprision of felony under § 4 is categorically a crime involving moral
turpitude.3 For the following reasons, we conclude that it is and will reaffirm
our holding in Robles.
2 The crime of misprision of felony is defined in 18 U.S.C. § 4 as follows:
Whoever, having knowledge of the actual commission of a felony cognizable by a
court of the United States, conceals and does not as soon as possible make known
the same to some judge or other person in civil or military authority under the United
States, shall be fined under this title or imprisoned not more than three years, or both.
3 We did not resolve this issue in Lugo because the case was administratively closed after
the Second Circuit rendered its decision. Moreover, Lugo presented retroactivity issues
that are not present here. See Lugo, 783 F.3d at 121−23 (remanding for consideration of
the question of retroactivity).
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
221
II. ANALYSIS
We have held that the categorical and modified categorical approaches
provide the proper framework for determining whether a conviction is for a
crime involving moral turpitude. Matter of Silva-Trevino, 26 I&N Dec. at
827, 831. Unless circuit law dictates otherwise, the realistic probability test,
which focuses on the minimum conduct that has a realistic probability of
being prosecuted under the statute of conviction, is applied in determining
whether an offense is a categorical crime involving moral turpitude. See id.
at 831−33; see also Moncrieffe v. Holder, 569 U.S. 184, 191 (2013);
Efstathiadis v. Holder, 752 F.3d 591, 595 (2d Cir. 2014) (noting that the
focus is on “whether or not ‘the minimum conduct criminalized by the
statute’ would support classification of a crime as a [crime involving moral
turpitude]” (quoting Moncrieffe, 569 U.S. at 191)). If a violation of the
statute of conviction is not categorically a crime involving moral turpitude,
the next step is to determine whether the statute is divisible so that the
modified categorical approach may be applied. See Matter of Silva-Trevino,
26 I&N Dec. at 833; Matter of Chairez, 26 I&N Dec. 819, 822 (2016).
Moral turpitude refers generally to conduct that is “inherently base, vile,
or depraved, and contrary to the accepted rules of morality and the duties
owed between persons or to society in general.” Mendez v. Mukasey, 547
F.3d 345, 347 (2d Cir. 2008) (citation omitted); see also Matter of Sejas,
24 I&N Dec. 236, 237 (BIA 2007). Further, to involve moral turpitude, a
crime requires both a culpable mental state and reprehensible conduct. See,
e.g., Efstathiadis, 752 F.3d at 595 (“[I]t is in the intent that moral turpitude
inheres . . . .” (citation omitted)); Matter of Silva-Trevino, 26 I&N Dec. at
828 n.2; Matter of Ortega-Lopez, 26 I&N Dec. 99, 100 (BIA 2013).
Applying the framework articulated in Silva-Trevino for determining
whether a crime involves moral turpitude, we conclude that misprision of
felony under 18 U.S.C. § 4 is categorically such a crime. The elements of
misprision of felony are “1) the principal committed and completed the
alleged felony; 2) defendant had full knowledge of that fact; 3) defendant
failed to notify the authorities; and 4) defendant took steps to conceal the
crime.” United States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996).
First, we agree with the DHS’s argument that taking steps to conceal a
felony is reprehensible conduct that is morally turpitudinous. Courts have
long held that concealment offenses are crimes involving moral turpitude.
See, e.g., Villatoro v. Holder, 760 F.3d 872, 877−78 (8th Cir. 2014) (holding
that tampering with records under Iowa law is a crime involving moral
turpitude where the statute required an intent to conceal wrongdoing);
Fuentes-Cruz v. Gonzales, 489 F.3d 724, 726 (5th Cir. 2007) (per curiam)
(holding that unlawful transport of an individual in a manner “designed to
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
222
conceal” that person from law enforcement under Texas law is a crime
involving moral turpitude (emphasis omitted)); Padilla v. Gonzales, 397 F.3d
1016, 1020−21 (7th Cir. 2005) (holding that obstruction of justice under
Illinois law is a crime involving moral turpitude because the offense required
the concealment of criminal activity), overruled on other grounds, Ali
v. Mukasey, 521 F.3d 737, 743 (7th Cir. 2008); Smalley v. Ashcroft, 354 F.3d
332, 336−39 (5th Cir. 2003) (holding that a money laundering offense is a
crime involving moral turpitude where the intent was to conceal the proceeds
of illegal drug activity); United States ex rel. Medich v. Burmaster, 24 F.2d
57, 58 (8th Cir. 1928) (holding that the concealment of assets in bankruptcy
is a crime involving moral turpitude).
Further, as both the Fifth and Eleventh Circuits have explained, the
affirmative act of concealment in the misprision context involves dishonest
and deceitful behavior, which runs contrary to accepted societal duties and is
morally turpitudinous conduct. Villegas-Sarabia, 874 F.3d at 881 (finding
that the act of concealing a felony “necessarily entails deceit” (citation
omitted)); Itani, 298 F.3d at 1216 (finding that the act of concealing a felony
in the crime of misprision necessarily involves dishonest or fraudulent
activity and is therefore a crime involving moral turpitude).
The respondent and the amici in support of the respondent assert on
appeal that we should consider the act of concealment to be insufficient to
render misprision of felony a categorical crime involving moral turpitude
unless the underlying felony is a crime involving moral turpitude.
Specifically, the respondent and amici argue that a contrary determination
would lead to the alleged “absurd result” that a person who has committed
misprision would be guilty of a crime involving moral turpitude even though
the principal felony offender is not.
In Robles-Urrea, 678 F.3d at 710−11, the Ninth Circuit observed that
it had recognized this “absurd result” in the context of a different statute,
the Federal accessory-after-the-fact statute at 18 U.S.C. § 3 (2012), and
concluded that the same reasoning would apply in the context of misprision
of felony.4 Like the Ninth Circuit, we have also held that accessory after the
4 18 U.S.C. § 3 provides:
Whoever, knowing that an offense against the United States has been committed,
receives, relieves, comforts or assists the offender in order to hinder or prevent his
apprehension, trial or punishment, is an accessory after the fact.
[A]n accessory after the fact shall be imprisoned not more than one-half the
maximum term of imprisonment or . . . fined not more than one-half the maximum
fine prescribed for the punishment of the principal, or both; or if the principal is
punishable by life imprisonment or death, the accessory shall be imprisoned not more
than 15 years.
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
223
fact under § 3 may be a crime involving moral turpitude only if the
underlying felony is a crime involving moral turpitude. Matter of Rivens,
25 I&N Dec. 623, 627 (BIA 2011).
However, we respectfully disagree that this reasoning extends to the
misprision of felony offense at issue here. We recognize that accessory after
the fact carries a higher potential range of punishment than misprision.
Furthermore, in comparing misprision to accessory after the fact, we have
found that “[i]t is a lesser offense to conceal a crime where there is no
investigation or proceeding, or even an intent to hinder the process of
justice.” Matter of Espinoza, 22 I&N Dec. 889, 895 (BIA 1999). However,
these comparative distinctions between misprision of felony and accessory
after the fact do not inform or dictate our moral turpitude analysis. See
Matter of Solon, 24 I&N Dec. 239, 240 (BIA 2007) (“Neither the seriousness
of the underlying offense nor the severity of the punishment imposed is
determinative of whether a crime involves moral turpitude.”).
Considering the language of the misprision statute, we conclude that the
affirmative act of concealing a known felony is deceitful and dishonest and
is therefore reprehensible conduct that involves moral turpitude, regardless
of whether the underlying felony is also a crime involving moral turpitude.
See, e.g., Villegas-Sarabia, 874 F.3d at 881; Itani, 298 F.3d at 1216.
Notably, accessory after the fact does not necessarily involve an act of
concealment of an underlying felony. See 18 U.S.C. § 3 (requiring that the
offender receive, relieve, comfort, or assist the principal, “knowing that an
offense against the United States has been committed”). Moreover, the range
of punishment for misprision is fixed without regard to the underlying felony,
while the range for accessory after the fact is directly tied to the potential
punishment of the principal. Compare 18 U.S.C. § 3, with 18 U.S.C. § 4.
This further supports our conclusion that, in the misprision context, whether
the underlying felony involves moral turpitude is irrelevant.
We are also satisfied that the misprision statute encompasses the requisite
scienter for the offense to be a crime involving moral turpitude. While
the language of 18 U.S.C. § 4 does not explicitly require that the act of
concealment be intentional, such intent is implicit because it must be shown
that the “defendant took steps to conceal the crime.” See Cefalu, 85 F.3d at
969; see also United States v. Bolden, 368 F.3d 1032, 1037 (8th Cir. 2004)
(stating that “this statutory offense requires proof of ‘affirmative steps’ to
conceal a known felony” (citation omitted)); United States v. Vasquez-Chan,
978 F.2d 546, 555 (9th Cir. 1992) (same), overruled on other grounds,
United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010); United States
v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (same).
The act of taking steps to conceal a crime under § 4 has been interpreted
by the courts to be a willful act. See, e.g., United States v. Davila, 698 F.2d
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
224
715, 717 (5th Cir. 1983) (stating that a violation of the misprision statute
“requires some positive act designed to conceal from authorities the fact that
a felony has been committed” (emphasis added)); United States v. Sampol,
636 F.2d 621, 653 (D.C. Cir. 1980) (per curiam) (noting that misprision
requires “knowledge of the commission of a felony, and wilful concealment
from the authorities by some affirmative act” (emphasis added)); see also
United States v. King, 402 F.2d 694, 697 (9th Cir. 1968); Bratton v. United
States, 73 F.2d 795, 797−98 (10th Cir. 1934); Black’s Law Dictionary 478
(8th ed. 2004) (defining “design” as a “[p]urpose or intention combined with
a plan”); cf. Fuentes-Cruz, 489 F.3d at 726 (holding that the requisite mental
state for purposes of moral turpitude existed where the Texas statute required
the perpetrator to transport a person in a manner that was “designed to
conceal” that individual from law enforcement (emphasis omitted)).
Significantly, charging documents for misprision have included
allegations that the act of concealment was intentional. See United States
v. Adams, 961 F.2d 505, 509 (5th Cir. 1992) (per curiam) (noting that the
information charging the defendant with misprision stated that he “did
knowingly and unlawfully conceal” the crime); Sullivan v. United States, 411
F.2d 556, 557 (10th Cir. 1969) (noting that the indictment stated that the
defendant “did wilfully conceal” the crime). Similarly, jury instructions
regarding the elements of misprision have included statements that the
defendant’s concealment must be deliberate. See United States v. Salinas,
956 F.2d 80, 83 (5th Cir. 1992) (providing that the jury instruction on the
elements of misprision required that the defendant “deliberately took an
affirmative step to conceal the crime”); Sampol, 636 F.2d at 653 (discussing
the instruction that “[t]o commit the crime [of misprision] of a felony the
defendant’s knowledge must be actual and his concealment must be
purposeful and deliberate”); see also United States v. Clemons, 166 F.3d
1215 (6th Cir. 1998) (per curiam) (unpublished).
Based on the language of the misprision statute and the elements of the
offense, as set forth in charging documents and jury instructions and as
interpreted by the courts, we conclude that the concealment element of
misprision requires an intentional act that is sufficiently reprehensible to be
considered morally turpitudinous.
Finally, the respondent asserts that our holding in Matter of Espinoza,
22 I&N Dec. at 892, that misprision of felony is not an obstruction of
justice aggravated felony under section 101(a)(43)(S) of the Act, 8 U.S.C.
§ 1101(a)(43)(S) (2012), conflicts with our determination that misprision
encompasses the requisite scienter for a crime involving moral turpitude. We
concluded there that misprision “lacks the critical element of an affirmative
and intentional attempt, motivated by a specific intent, to interfere with the
process of justice.” Id. at 896. We made no determination in Matter of
Cite as 27 I&N Dec. 219 (BIA 2018) Interim Decision #3916
225
Espinoza concerning the mens rea attached to the actual act of concealment
or to the question whether the offense is a crime involving moral turpitude.
We are therefore unpersuaded by the respondent’s contention.
We conclude that misprision of felony in violation of 18 U.S.C. § 4 is
categorically a crime involving moral turpitude and will therefore reaffirm
our holding in Matter of Robles. 5 In addition, we respectfully decline to
follow Robles-Urrea v. Holder in cases arising outside the jurisdiction of the
Ninth Circuit. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.
5 The respondent contends that the application of our precedent decision in Matter of
Robles would be impermissibly retroactive. We disagree. We need not reach the question
whether our decision can be applied to conduct that predated that order, because the
respondent’s conviction documents make clear that his offense was committed in 2010,
years after Matter of Robles was published.