BATISTA
(2) The respondent‘s conviction pursuant to
HOLMES, Board Member:
In a decision dated April 19, 1995, the Immigration Judge found the respondent deportable as charged and certified the case to this Board pursuant to
I. PROCEDURAL HISTORY
The respondent is a native and citizen of the Dominican Republic who originally entered the United States without inspection on or about May 1, 1985. On November 16, 1988, the Immigration and Naturalization Service granted the respondent temporary resident status pursuant to section 210 of
II. THE RESPONDENT‘S CONVICTION
The respondent was convicted as an accessory after the fact pursuant to section
Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.
[A]n accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment or fined not more than one-half the maximum fine prescribed for the punishment of the principal, or both....
The respondent‘s indictment tracks the statutory language and charges that the respondent, knowing that both a conspiracy to distribute and the distribution of heroin had been committed, nonetheless received, relieved, comforted, and assisted the offender, Radhames Franco, in order to hinder and prevent Mr. Franco‘s apprehension, trial, and punishment. The Immigration Judge found that the respondent‘s conviction under this statute was one “relating to a controlled substance” violation for purposes of establishing deportability under section 241(a)(2)(B)(i) of the Act because the respondent assisted Mr. Franco, a controlled substance trafficker. Similarly, the Immigration Judge found that the respondent has committed an aggravated felony because his crime “directly relate[d]” to Mr. Franco‘s underlying controlled substance trafficking crime. While we find that the respondent‘s conviction pursuant to
The respondent was charged with deportability under section 241(a)(2)(B)(i) of the Act,1 which provides:
Any alien who at any time after entry has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (
21 U.S.C. 802 )), other than a single offense involving possession for one‘s own use of 30 grams or less of marijuana, is deportable.
A. The Service‘s Argument Regarding Crimes Involving Moral Turpitude
On certification, the Service initially argues that we should find that the respondent‘s conviction relates to a controlled substance because the underlying substantive crime committed by Mr. Franco relates to a controlled substance. In support of its argument, the Service cites to Board precedent holding that if the underlying or substantive crime for which an alien is convicted involves moral turpitude, then a conviction for aiding in the commission of that crime or for otherwise acting as an accessory before the fact is also a conviction for a crime involving moral turpitude. See Matter of Short, 20 I&N Dec. 136 (BIA 1989). The Service notes that in Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965), the Board held that an alien convicted for accessory to manslaughter after the fact had been convicted of a crime involving moral turpitude because manslaughter is a crime involving moral turpitude. See also Cabral v. INS, 15 F.3d 193 (1st Cir. 1994).
However, the issue whether the respondent‘s conviction might establish his deportability arising from a conviction for a crime involving moral turpitude is not before us, as the Service has not charged him under section 241(a)(2)(A) of the Act. Rather, the Service has charged him as an alien convicted of an aggravated felony and a controlled substance violation. Also, the analysis in the cases cited above does not directly control the issue of the respondent‘s deportability under section 241(a)(2)(B)(i) of the Act, which requires that he have been convicted of a violation of “any law . . . relating to a controlled substance.” We do not find that the respondent was convicted of violating such a law.
The Service notes that laws pertaining to various inchoate crimes, such as solicitation, facilitation, and accessory before the fact, have been found to relate to controlled substance violations for deportability purposes. See Coronado-Durazo v. INS, 108 F.3d 210 (9th Cir. 1997). It is true that we have generally held that section 241(a)(2)(B)(i) of the Act, and its predecessor, section 241(a)(11) of the Act,
that which is not yet completed or finished. Inchoate offenses are those offenses such as attempt, solicitation, or conspiracy to commit a crime, all of which involve conduct designed to culminate in the commission of a substantive offense but has either failed or has not yet achieved its culmination because there is something that the actor or another still must do.
Barron‘s Law Dictionary 222 (1984);see also Model Penal Code art. 5 introduction at 293 (1985).
In contrast to the crimes referenced in the Service‘s appellate brief, the respondent‘s accessory after the fact offense does not constitute an inchoate crime because the act criminalized by
Extending our analysis beyond the inchoate crimes cited by the Service, we find it relevant to examine the federal crimes which immediately precede and succeed the crime of accessory after the fact in the United States Code. Like
1. 18 U.S.C. § 4—Misprision of a felony
An essential element of the crime of misprision is that the perpetrator must know that a felony has already been committed. Therefore, misprision, like accessory after the fact, is not an inchoate crime.2 The United States Court of Appeals for the Sixth Circuit found in Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977), that a conviction for misprision of a felony under
2. 18 U.S.C. § 2—Aiding and Abetting
On the other hand, the courts have found that a conviction for the federal crime of aiding and abetting under
D. The Respondent‘s Accessory After the Fact Conviction
Although accessory after the fact falls somewhere between misprision of a felony and aiding and abetting in terms of its relation to the underlying crime, we find that it is more akin to misprision. In Matter of Beltran, supra, and the cases discussed therein, we focused our analysis on the historical treatment of the crime in question and the penalties invoked therefor. While courts treat a person who aids and abets others as an additional party to the substantive crime, one who is an accessory after the fact, like an individual guilty of misprision, has been found to have committed a separate and distinct crime from the substantive offense committed by the principal. See Bollenbach v. United States, 326 U.S. 607, 611 (1946)(distinguishing aiding and abetting from accessory after the fact, and noting that while the criminal code “made aiders and abettors of an offense principals, Congress has not made accessories after the fact principals. Their offense is distinct and is differently punished.“); see also United States v. Jackson, 448 F.2d 963 (9th Cir. 1971), cert. denied sub nom. Willis v. United States, 405 U.S. 924 (1972); United States v. Varelli, 407 F.2d 735 (7th Cir. 1969), cert. denied sub nom. Saletko v. United States, 405 U.S. 1040 (1972); United States v. Nava-Maldonado, supra.
Our review of section 241(a)(2)(B)(i) cases also indicates that if the crime in question is punishable equally as the underlying substantive crime, then it is more likely to be a deportable offense. The penalty invoked for accessory after the fact does not mirror that of the principal drug-trafficker, and as such is more akin to the penalty for misprision. While an aider and abettor of drug trafficking is punishable as a principal drug-trafficker, a conviction for misprision mandates only a 3-year prison sentence, regardless of the underlying offense. Similarly, the penalty for accessory after the fact is only “one-half the maximum term of imprisonment or fine prescribed for the punishment of the principal.”
Lastly, as noted above, we find significant the fact that the respondent‘s accessory after the fact conviction is not an inchoate crime. In Matter of Beltran, supra, we found that the crime of solicitation and the underlying drug-trafficking offense are so interrelated that the solicitation “‘takes its character and its quality from the nature of the law toward whose violation it is . . . directed.‘” Id. at 526 (quoting Matter of Bronsztejn, supra, at 282 (attempt)); see also Matter of Del Risco, supra (facilitation). Conversely, inasmuch as the crime of accessory after the fact, by its nature, takes place after the completion of the principal crime, it therefore does not require any planning and involvement in the principal drug-trafficking crime. As the Court pointed out in United States v. Barlow, supra, the crime of accessory after the fact differs from aiding and abetting, as well as various inchoate crimes, because the accessory does not aid in the commission of the offense. In contrast to the various inchoate crimes discussed above, the nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender. Id. The accessory after the fact offense is therefore more akin to the crime of misprision, which also requires, as an integral element, that the defendant, with full knowledge of the felony, take an affirmative step to conceal the crime. See generally United States v. Warters, 885 F.2d 1266 (5th Cir. 1989).
In sum, we find that the respondent‘s accessory after the fact offense insufficiently relates to Mr. Franco‘s underlying drug-trafficking crime to establish the respondent‘s deportability pursuant to section 241(a)(2)(B)(i) of the Act. In so finding, we have considered that the crime of accessory after the fact has historically been treated as a crime separate and apart from the underlying crime. Moreover, we have found significant the differences in severity between the penalties levied against the accessory after the fact and the principal offender. Lastly, we have considered the fact that the respondent‘s accessory after the fact offense is not an inchoate crime and does not take its “character and quality” from the underlying drug crime.
The Immigration Judge also found that the respondent‘s accessory after the fact offense is an aggravated felony that renders him deportable under section 241(a)(2)(A)(iii) of the Act. The Immigration Judge found that the respondent‘s crime “directly related” to the distribution of narcotics and, thus, his conviction was for “illicit trafficking in a controlled substance” under section 101(a)(43)(B) of the Act,
The definition of an aggravated felony is set forth at section 101(a)(43) of the Act. This section of law has been subject to many amendments since the term “aggravated felony” was introduced into the Act in 1988. It was most recently amended by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627 (“IIRIRA“). Section 321(b), which expands the scope of the “aggravated felony” definition, provides that “[n]otwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.” Moreover, section 321(c) of the IIRIRA provides that “[t]he amendments made by this section shall apply to actions taken on or after the date of the e.actment of this Act, regardless of when the conviction occurred.” Inasmuch as this Board‘s consideration of the Immigration Judge‘s certification of the case constitutes an “action,” the respondent is subject to this current definition. Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997).
The “aggravated felony” definition now includes “an offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year.” See section 101(a)(43)(S) of the Act,
Thus, the remaining issue concerns the imposition of the respondent‘s sentence for purposes of his deportability under section 241(a)(2)(A)(iii) of the Act. The record of conviction indicates that the respondent was sentenced to 33 months’ imprisonment commencing on April 5, 1993. Under the new IIRIRA definition of a “term of imprisonment,” found at section 101(a)(48)(B) of the Act,
[a]ny reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. IIRIRA § 322(a)(1), 110 Stat. at 3009-628.6
In accordance with section 101(a)(48) of the Act, no further investigation of the respondent‘s actual incarceration is required to determine his deportability as an aggravated felon. His sentence of 33 months, regardless of any subsequent suspension of its imposition, meets the definition of a “term of imprisonment” of more than one year, as required under section 101(a)(43)(S) of the Act.
V. CONCLUSION
In conclusion, we find that the respondent‘s conviction pursuant to
ORDER: The decision of the Immigration Judge finding the respondent deportable under section 241(a)(2)(B)(i) of the Act is reversed.
FURTHER ORDER: The decision of the Immigration Judge finding the respondent deportable under section 241(a)(2)(B)(iii) of the Act is affirmed.
I respectfully dissent.
While I agree with the majority that the respondent‘s accessory after the fact conviction constitutes an aggravated felony pursuant to section 101(a)(43) of the Act,
I do not find that the respondent‘s crime is a separate and distinct crime “more akin to a misprision conviction,” but rather the respondent‘s accessory after the fact conviction is more analogous to an inchoate offense because the character and quality of his crime is so interrelated to the underlying drug-trafficking offense. The majority has erred in its evaluation of the independent nature of the respondent‘s crime. This accessory after the fact conviction is clearly related to the overall drug-trafficking endeavor. It is so interrelated to the drug-trafficking crime that it even takes its penalty from the law or penalty for the relevant principal offender. The penalty for accessory after the fact is “one-half the maximum term of imprisonment or fine prescribed for the punishment of the principle.” In this case the respondent aided a drug trafficker and was sentenced to 33 months’ imprisonment, one-half the maximum sentence prescribed for the drug-trafficking offense.
A violation resulting in an accessory after the fact conviction, by its very nature, must relate to the underlying crime involved. In the respondent‘s case, the underlying crime consisted of drug trafficking. Without the semantics of the majority‘s analysis, the respondent‘s crime clearly relates to drug trafficking, and this result conforms with the actual language of the current section 241(a)(2)(B)(i). I also believe that this result honors Congress’ intent in expanding the reach of section 241(a)(2)(B)(i) of the Act.
The majority cites various cases in support of its analysis to find that the respondent‘s accessory after the fact conviction does not qualify as a controlled substance violation. However, the majority fails to consider that such cases address a prior, more limited interpretation of the controlled substance deportability charge. For example, in prior case law, this Board, as well as various circuit courts, analyzed former section 241(a)(11) of the Act to find that misprision, a crime which the majority compares with the respondent‘s conviction, does not sufficiently relate to a controlled substance violation for purposes of the prior language of section 241(a)(2)(B)(i) of the Act. See, e.g., Matter of Velasco, 16 I&N Dec. 281 (BIA 1977). However, since that time Congress has expanded the statutes‘s reach over controlled substance violators.
The majority would also mandate a link between the respondent‘s specific conviction and a specific controlled substance law. However, section 241(a)(2)(B)(i) of the Act may also be read to link the respondent‘s “violation,” rather than his “conviction,” with its relation to controlled substances, and therefore the respondent‘s violation of
I would find, consistent with the plain meaning of section 241(a)(2)(B)(i) of the Act, and with Congress’ intent, that the respondent‘s conviction, pursuant to
CONCURRING AND DISSENTING OPINION: Lory D. Rosenberg, Board Member, in which Paul W. Schmidt, Chairman, joined.
The respondent was convicted of the offense of accessory after the fact under
In proceedings before the Immigration Judge below, the respondent denied that he was deportable for having been so convicted, either under section 241(a)(2)(B)(i) or under section 241(a)(2)(A)(iii) of the Act. The Immigration Judge found him to be deportable on these charges and certified the record to the Board for review.
I agree with the majority that the respondent is not deportable under section 241(a)(2)(B)(i). I concur in the decision of the majority with respect to the distinctions between inchoate offenses and those which, like the offense of accessory after the fact under section
I disagree, however, that the respondent is deportable under section 241(a)(2)(A)(iii), as charged. I must dissent from the majority‘s holding that the respondent is deportable on account of having been convicted of an offense “relating to obstruction of justice,” which is an aggravated felony under section 241(a)(2)(A)(iii) of the Act. See section 101(a)(43)(S) of the Act,
(1) The Service must have properly alleged and charged that the respondent is deportable on account of a particular conviction which is classifiable under the statute as an aggravated felony. Sections 242(b), 242B of the Act,
(2) The respondent must have been notified of the allegations and charges, and given the opportunity to respond to and defend against them. Section 242(b) of the Act; see also sections 239(a)(1), 240(a)(2), (b)(4)(B) of the Act,
(3) The evidence in the record must establish that the Service met its burden of proving such allegations and charges by evidence which is clear, unequivocal, and convincing. Woodby v. INS, 385 U.S. 276 (1966);
Although the preceding elements may appear to be self-evident and noncontroversial factors, fundamental to the statute and regulations which govern findings of deportability and orders of deportation, I do not believe that the majority can reach the decision it does without abrogating them. The majority rules that the respondent‘s conviction under
The majority reaches this result not because the conviction is, as alleged, a controlled substance trafficking conviction which necessarily involves knowledge of the principals’ involvement in a heroin conspiracy. See section 101(a)(43)(B) of the Act. That cannot be the case, since we have found conclusively that the respondent‘s accessory after the fact offense does not “relate to” a controlled substance. Consequently, it certainly cannot be classified as a controlled substance offense in its own right. The majority reaches the result it does because, as an alternative basis to constitute an aggravated felony, it concludes that the underlying conviction is one “relating to obstruction of justice.” See section 101(a)(43)(S) of the Act.
I. A FINDING OF DEPORTABILITY ON A GROUND NOT ALLEGED AND CHARGED VIOLATES THE RESPONDENT‘S RIGHT TO NOTICE AND AN OPPORTUNITY TO BE HEARD
The Service did not either allege or charge that the respondent‘s conviction constituted an aggravated felony on this basis of being one “relating to obstruction of justice” either prior to or during the course of the hearing that concluded with the decision of the Immigration Judge on April 19, 1995. Indeed, it could not have done so, since a conviction relating to obstruction of
An alien in deportation proceedings is to be afforded due process under the Constitution. See Mathews v. Diaz, 426 U.S. 67, 77 (1976); Wong Yang Sung v. McGraff, 339 U.S. 33, modified on other grounds, 339 U.S. 908 (1950); Bridges v. Wixon, 326 U.S. 135, 154 (1945)(stating that deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom ....Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.“). In determining the constitutional sufficiency of deportation procedures in relation to due process protections, we must look to the risk of the erroneous deprivation of the alien‘s interest through the procedures used and the probable value of additional procedural safeguards. See Matthews v. Eldridge, 424 U.S. 319 (1976).
Compliance with due process in immigration proceedings has been accomplished historically through the observance of the statutory and regulatory safeguards which govern the procedural aspects of the deportation hearing. In particular, the Service must initiate proceedings by issuing an Order to Show Cause, which is required to contain a statement of the nature of the proceeding, the legal authority under which the proceeding is conducted, a concise statement of factual allegations informing the respondent of the act or conduct alleged to be in violation of the law, and a designation of the charge against the respondent and of the statutory provisions alleged to have been violated. See section 242(b) of the Act;
The regulations provide that the factual allegations and the charges in the OSC are to be explained to the respondent in “nontechnical language.”
The opportunity to lodge additional charges in a deportation hearing is a right reserved by the Service. See
Upon receiving these new factual allegations and charges, the respondent may be afforded a continuance in order to either secure counsel or properly respond.
The Service neither presented new charges during the course of the hearing nor offered the respondent written notice that his conviction for accessory after the fact was alleged to be an aggravated felony under the recently amended section 101(a)(43)(S) of the Act. Indeed the Service cannot be expected to have done so, as such a ground of deportability did not exist when the conviction occurred, when the OSC was issued, or at any time during the period in which the proceedings before the Immigration Judge were conducted and his decision was rendered.
Only recently, the United States Court of Appeals for the First Circuit held that “the INS may not substitute alternative grounds for deportation at this stage in the proceedings.” Choeum v. INS, 118 F.3d 17 (1st Cir. 1997). In that case, the court addressed the effort of the Service to substitute charges following appeal to the federal circuit court. Here, although the case remains on administrative appeal and it is not the Service who seeks to substitute charges, the result is no different.
Although they do not expressly so state, the majority‘s finding that the respondent‘s conviction is not an aggravated felony by virtue of being a controlled substance trafficking conviction is a necessary conclusion. Having found that the respondent‘s conviction is not one related to a controlled substance for purposes of section 241(a)(2)(B)(i) of the Act, the majority cannot find that the respondent is deportable as an aggravated felon under section 241(a)(2)(A)(iii) for having been convicted of a controlled substance violation as described in section 101(a)(43)(B) of the Act. I agree, and find therefore, that the proceedings should be terminated.
Nevertheless, appearing to inappropriately usurp the function of the Service, the majority in this case “sub silentio” charges the respondent with an additional charge of deportability—conviction of a crime relating to obstruction of justice. See section 101(a)(43)(S) of the Act. We are without the statutory or regulatory authority to amend the OSC to include additional charges
The ordinary and obvious meaning of a phrase is not to be lightly discounted. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (citing Russello v. United States, 464 U.S. 16, 21 (1983)). The statute states specifically that the respondent “shall be given notice, reasonable under all the circumstances of nature of the charges.” Section 242(b) of the Act; see also section 239(a)(1)(A) of the Act,
Even were such a prosecutorial function to be appropriate when taken by the adjudicating body, which it is not, the majority cannot simply substitute new allegations and charges as a basis for its decision finding the respondent deportable. The respondent was provided no prior notice in writing, nor was he afforded any opportunity to either examine this new allegation or to respond to it in support of the aggravated felony charge. This violation of the regulations prejudiced respondent directly by resulting in a finding of deportability by the majority on allegations regarding which he had neither notice nor an opportunity to respond.
We are bound to follow regulations promulgated by the Attorney General. Matter of Ponce de Leon, 21 I&N Dec. 154 (BIA 1996). We also may take appropriate action when the regulations that function to secure a respondent‘s rights are not followed or when an improper implementation of those regulations violates fundamental fairness. Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980); see also Matter of Santos, 19 I&N Dec. 105 (BIA 1984). Such is the case here. A determination that the respondent is deportable on an allegation and charge never presented to him, or heard by the Immigration Judge below, cannot support the decision of the majority.
II. THE RESPONDENT‘S CONVICTION HAS NOT BEEN PROVEN TO BE AN AGGRAVATED FELONY UNDER SECTION 101(A)(43)(S) BY CLEAR, UNEQUIVOCAL, AND CONVINCING EVIDENCE
The majority‘s reliance on section 101(a)(43)(S) of the Act as support for its disposition in this case is erroneous, as there is no substantial evidence in the record on which to come to such a conclusion. See section 242(b) of the Act; see also IIRIRA § 321(a), 110 Stat. at 3009-627. That the respondent‘s
The burden of demonstrating that such a conviction comes within the aggravated felony definition rests with the Service,
As noted above, even were one inclined to consider that such an “accessory after” conviction might be, per se, one “relating to obstruction of justice” within the terms of section 101(a)(43)(S) of the Act, the state of the record before us would not allow a conclusion that such is the case. This is because the respondent has had no opportunity to consider or respond to such an allegation, or to provide evidence or authority in support of a defense that it is not, necessarily, such a conviction. Although we need not determine that question to resolve the case before us, I note that the term “obstruction of justice” is a term of art used in the federal statute to refer to a series of specific offenses. See
We have recognized that, in determining whether or not a specific offense falls within a classification described in deportation provisions under the Act, it is proper to look to the federal definition. See Matter of L-G-, 21 I&N Dec. 89 (BIA 1995) (holding that our determination of which controlled substance crimes constitute a “felony” for purposes of the aggravated felony definition requires reference to the federal criminal statute); Matter of Manrique, 21 I&N Dec. 58 (BIA 1995)(holding that our determination of the nature of a disposition resulting from certain state offenses is properly made according to its possessing the same or similar characteristics as those found in the federal statute). This approach is consistent with that taken by the Supreme Court of the United States which holds that a generic definition based on a federal standard is an appropriate mechanism by which to determine whether or not there has been a conviction for a particular crime. See Taylor v. United States, 495 U.S. 575 (1990) (holding that a state conviction for burglary only constitutes such an offense for purposes of the Anti-Drug Abuse Act of 1986,
Moreover, the legislative mandate in section 321(b) of the IIRIRA that aggravated felony convictions shall be considered to be such without regard to the fact that they occurred before, on, or after the date of the IIRIRA, provides no authority to the contrary. I note that this retroactive classification is tempered by section 321(c) of the IIRIRA which provides that the retroactive definition applies to “actions taken” after the enactment date of the IIRIRA, but that this limitation has been essentially obviated in the regulations, which define the clause as meaning all pending matters. See 62 Fed. Reg. 10,312, 10,330 (1997) (to be codified at
I find no basis on the record to conclude that the respondent is deportable for an aggravated felony conviction as alleged or charged. Therefore, I would dismiss the charges and terminate the proceedings, finding that the respondent is not deportable.
Notes
Misprision of felony. - Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.