quick reference chart and annotations for determining immigration ...

Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project,
Maricopa County Public Defender August 2012
conviction for helping someone who may have committed a drug offense, firearms offense, or sexual
offense is not itself a drug, firearms, or sexual offense conviction.
However, the BIA has held that that accessory after the fact does constitute “obstruction of
justice,” and therefore is an aggravated felony under 8 USC 1101(a)(43)(S) if a one-year sentence is
imposed. Matter of Batista-Hernandez, 21 I&N 955 (BIA 1997) (accessory after the fact is not an offense
“relating to controlled substances” but is an aggravated felony as obstruction of justice if a one-year
sentence is imposed); Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012). While the BIA held
in Matter of Espinoza, 22 I&N 889 (BIA 1999) that misprision is not obstruction of justice even if a oneyear
sentence is imposed, that decision relied on the absence of a specific intent in the federal misprision
statute. Matter of Valenzuela-Gallardo, 25 I&N Dec. at 841 (“[t]his element—the affirmative and
intentional attempt, with specific intent, to interfere with the process of justice—demarcates the category
of crimes constituting obstruction of justice”). Since Hindering requires “the intent to hinder the
apprehension, prosecution, conviction or punishment of another,” it will likely be found analogous to
accessory after the fact, rather than misprision.
The Ninth Circuit and the BIA currently disagree on whether obstruction of justice requires
“active interference with proceedings of a tribunal or investigation.” See Hoang v. Holder, 641 F.3d
1157, 1161 (9th Cir. 2011); Matter of Valenzuela-Gallardo, 25 I&N Dec. 838 (BIA 2012). Hindering
does not require that there be an ongoing investigation or prosecution in order to be convicted under the
statute. Therefore, counsel should attempt to plead to a factual basis that suggests there was no ongoing
investigation or prosecution at the time of the offense in hopes that the Ninth Circuit’s position will
ultimately prevail. But for the time being, counsel should assume that any Hindering conviction with a
sentence of one year or more will be an aggravated felony.
There may also be some dispute about whether a Hindering offense that was committed during a
police investigation, but before a formal judicial proceeding was commenced qualifies as an obstruction
of justice. Compare Salazar-Luviano v. Mukasey, 551 F.3d 857, 863 (9th Cir. 2008) (escape that
occurred after arrest but before the commencement of any judicial proceedings is not obstruction of
justice), with Hoang v. Holder, 641 F.3d 1157, 1165 (9th Cir. 2011) (obstruction of justice includes
offense in which defendant “provided assistance to an individual who was subject to a pending judicial
proceeding or ongoing police investigation”). Defense counsel should create a factual basis that leaves
open the possibility that the Hindering offense was committed before a police investigation was initiated.
Crime Involving Moral Turpitude. The Ninth Circuit has held that accessory after the fact
under California law is not categorically a crime involving moral turpitude. Navarro-Lopez v. Gonzales,
503 F.3d 1063 (9th Cir. 2007) (en banc) (overturned on other grounds). It also recently held that a
misprision of a felony under federal law is not a CMT because it does not require a specific intent to
conceal or obstruct justice, but only knowledge of the felony. Robles-Urrea v. Holder, 678 F.3d 702, 710
(9th Cir. 2012). But since Hindering requires “the intent to hinder the apprehension, prosecution,
conviction or punishment of another,” it may be found a CMT under Robles-Urrea. However, the BIA
has held that accessory after the fact is only a CMT if the underlying offense in which the principal
engaged is a CMT. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). Therefore, counsel should assume
that Hindering will be a CMT but attempt to plead to accessory of a non-CMT offense in order to leave
immigration counsel arguments against this.
IMPORTANT: Recent case law has altered the process by which immigration judges decide
whether an offense is a CMT. See Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). While judges
Arizona Criminal Chart with Explanatory Endnote – August 2012
73