Mendez v. Barr, 960 F.3d 80

Tomas Mendez, a lawful permanent resident, was convicted in 2010 of misprision of a felony under 18 U.S.C. § 4 (knowledge of a federal felony, concealment, and failure to report).
In 2016 DHS charged him as inadmissible under INA § 212(a)(2)(A)(i)(I) as a noncitizen convicted of a crime involving moral turpitude (CIMT); an IJ and the BIA sustained the charge.
The BIA had shifted from an earlier view (Matter of Sloan) and, after circuits like the Eleventh (Itani) and the Fifth (Villegas‑Sarabia), treated misprision as a CIMT; the Ninth Circuit disagreed in Robles‑Urrea.
The Second Circuit reviewed de novo the BIA’s statutory construction (the BIA has no special expertise construing federal criminal statutes) and applied the categorical approach to CIMTs.
The majority held § 4 does not categorically involve the culpable intent (fraudulent or otherwise “evil” intent) required for a CIMT because the statute lacks an express mens rea as to motive for concealment; it vacated the BIA decision.
Judge Sullivan dissented, arguing for Chevron deference to the BIA’s reasonable CIMT definition and that § 4’s requirement of an affirmative act to conceal implies intentional, deceitful conduct sufficient to be a CIMT.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a conviction under 18 U.S.C. § 4 (misprision of a felony) is categorically a crime involving moral turpitude (CIMT)	Mendez: § 4 lacks an element establishing the evil/fraudulent intent required for a CIMT; the statute criminalizes innocent or non‑reprehensible conduct in some applications	Government: The affirmative concealment element necessarily entails deceit/dishonesty and historically has been treated as morally turpitudinous	Held: No—§ 4 is not categorically a CIMT because it can be violated without the requisite culpable (fraudulent/depraved) intent
Whether the BIA’s interpretation that § 4 is a CIMT is entitled to Chevron deference	Mendez: BIA lacks expertise construing federal criminal statutes; deference not warranted for interpretation of § 4	Government: BIA’s published holdings on CIMTs deserve deference under Chevron	Held: No Chevron deference to the BIA’s construction of a federal criminal statute; the court reviews de novo
Whether any ambiguity in § 4’s mens rea should be resolved against the government (rule of lenity)	Mendez: Ambiguity about required intent invokes rule of lenity; doubts resolved in alien’s favor	Government: Intent can be implied from the concealment/affirmative act requirement (and historical authorities)	Held: Ambiguity supports refusing to read a categorical intent requirement into § 4; lenity and categorical approach weigh for Mendez

Rodriguez v. Gonzales, 451 F.3d 60 (2d Cir. 2006) (articulates CIMT standard and categorical approach)
Gill v. I.N.S., 420 F.3d 82 (2d Cir. 2005) (describes categorical inquiry to offense’s minimum conduct)
Mendez v. Mukasey, 547 F.3d 345 (2d Cir. 2008) (prior Second Circuit guidance on CIMT analysis)
United States v. Apel, 571 U.S. 359 (U.S. 2014) (BIA lacks special expertise construing federal criminal statutes)
Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) (held misprision categorically a CIMT)
Robles‑Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) (rejected BIA’s conclusion; § 4 lacks required intent)
Villegas‑Sarabia v. Sessions, 874 F.3d 871 (5th Cir. 2017) (held misprision a CIMT)
Jordan v. De George, 341 U.S. 223 (U.S. 1951) (fraud as ingredient traditionally supports CIMT finding)
Roberts v. United States, 445 U.S. 552 (U.S. 1980) (historical condemnation of concealment of crime)
United States v. Cefalu, 85 F.3d 964 (2d Cir. 1996) (lists elements required to prove misprision)