27 I. & N. Dec. 219
BIA2018Background
- Respondent Tomas Mendez, a Dominican native and lawful permanent resident (conditions removed 2006), was convicted in 2010 in D. Md. of misprision of felony under 18 U.S.C. § 4.
- DHS initiated removal proceedings after he sought readmission as a returning resident in 2016.
- The Immigration Judge found the conviction was for a crime involving moral turpitude (CIMT) under INA § 212(a)(2)(A)(i)(I), pretermitted his cancellation of removal application, and ordered removal.
- The IJ relied on BIA precedent Matter of Robles, which held misprision is categorically a CIMT; the Ninth Circuit had rejected that view in Robles-Urrea.
- The BIA reconsidered the issue in light of a circuit split (2nd, 5th, 9th, 11th) and its Silva-Trevino framework for CIMTs and concluded misprision is categorically a CIMT.
- The Board dismissed Mendez’s appeal, reaffirming Robles and declining to follow Robles-Urrea outside the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument (Mendez) | Defendant's Argument (DHS/BIA) | Held |
|---|---|---|---|
| Whether misprision of felony under 18 U.S.C. § 4 is categorically a crime involving moral turpitude | Misprision should not be a CIMT unless the underlying felony is a CIMT; otherwise result is absurd | The affirmative concealment element is deceitful, involves culpable intent, and is morally turpitudinous regardless of the underlying felony | Misprision under § 4 is categorically a CIMT; Robles reaffirmed |
| Whether intent requirement for CIMT is met given § 4’s text | § 4 lacks explicit intent language; mens rea uncertain | Courts and charging/jury materials show concealment requires intentional, affirmative steps; scienter is satisfied | The concealment element implies intentionality sufficient for moral turpitude |
| Whether comparing misprision to accessory-after-the-fact (18 U.S.C. § 3) dictates CIMT analysis | Accessory-after-the-fact analysis (which ties to underlying crime) should control misprision | Misprision differs in elements, punishment structure, and necessarily involves concealment; the comparison is inapposite | Misprision’s distinct features mean underlying-felony CIMT status is irrelevant |
| Whether BIA’s reaffirmation is retroactive to Mendez’s conduct | Robles precedent published earlier; respondent argued impermissible retroactivity | Mendez’s offense occurred after Robles; retroactivity need not be addressed here | No retroactivity problem for this case; appeal dismissed |
Key Cases Cited
- Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (held misprision is not categorically a CIMT)
- Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (treated misprision as a CIMT; analysis followed by BIA)
- Villegas-Sarabia v. Sessions, 874 F.3d 871 (5th Cir. 2017) (held § 4 is categorically a CIMT and aligned with Eleventh Circuit/BIA)
- Moncrieffe v. Holder, 569 U.S. 184 (U.S. 2013) (clarified categorical approach and focus on minimum conduct)
- United States v. Cefalu, 85 F.3d 964 (2d Cir. 1996) (set out elements of misprision, including affirmative steps to conceal)