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