Lugo v. Holder, 783 F.3d 119

Maria C. Lugo, a Venezuelan national, pled guilty in 2005 to misprision of felony (18 U.S.C. § 4) after counsel advised she faced up to five years; sentence was time served and a $100 fine.
DHS charged Lugo removable in 2007; she applied for cancellation of removal (ten-year continuous physical presence requirement) and CAT protection.
The IJ and then the BIA held Lugo ineligible for cancellation because the BIA had classified misprision of felony as a crime involving moral turpitude (CIMT); they also denied CAT relief.
The Second Circuit reviews legal questions de novo, defers to published BIA precedent on INA interpretation, but not to the BIA on federal criminal law.
There is a circuit split: the Eleventh Circuit (and the BIA in Matter of Robles-Urrea) treated misprision as a CIMT; the Ninth Circuit in Robles-Urrea v. Holder held it is not a CIMT.
The Second Circuit vacated and remanded for the BIA to address (1) whether it will adhere to treating misprision as a CIMT in light of the split and (2) whether applying such a rule to Lugo’s 2005 plea would be retroactive and impermissible; the court did not decide the CAT claim.

Issue	Lugo's Argument	Government's Argument	Held
Whether misprision of felony is a CIMT	Misprision should not be treated as a CIMT (relying on Ninth Circuit analysis)	BIA precedent treats misprision as a CIMT and makes plea-disqualifying consequences	Court remanded for the BIA to reconsider and issue a precedential opinion given the circuit split
Whether BIA’s CIMT rule may be applied retroactively to Lugo’s 2005 plea	Retroactive application is impermissible; Lugo relied on earlier rule and counsel’s advice	Agency interest supports application of its rule to cases like this	Court vacated and remanded for the BIA to apply the five-factor retroactivity test and make factual findings as needed
Whether non‑precedential BIA decisions can give notice equivalent to precedential opinions	Lugo argues non-precedential decisions should not be treated as binding notice	Government relies on BIA’s later precedential treatment of the issue	Court asked the BIA to address whether non‑precedential decisions provided adequate notice and whether reliance was reasonable
Convention Against Torture claim	Lugo argued she would be tortured if returned	Government argued claim not established	Court did not reach the CAT claim because it vacated the CIMT/cancellation ruling and remanded to the BIA

Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (held misprision of felony is not a CIMT)
Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (held misprision of felony is a CIMT)
St. Cyr, 533 U.S. 289 (2001) (retroactivity and reliance concerns where guilty pleas led to changed immigration consequences)
Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise defendants about immigration consequences of plea)
Oakes Machine Corp. v. NLRB, 897 F.2d 84 (2d Cir. 1990) (articulating multi-factor test for agency retroactivity)
Rosario-Mijangos v. Holder, 717 F.3d 269 (2d Cir. 2013) (deference principles to BIA precedent)
Higgins v. Holder, 677 F.3d 97 (2d Cir. 2012) (no deference to BIA on interpretation of federal criminal law)
Morris v. Holder, 676 F.3d 309 (2d Cir. 2012) (discussing retroactivity and Ex Post Facto concerns)
NLRB v. Coca-Cola Bottling Co., 55 F.3d 74 (2d Cir. 1995) (agency should address retroactivity in first instance)