Board Requests Amicus Briefs on Whether the Federal Offense of Misprision of a Felony is a CIMT

Written by Alexander J. Segal on

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Introduction

On January 5, 2017, the Board of Immigration Appeals (BIA) issued Amicus Invitation No. 17-01-05 [PDF version], asking for briefs on the issue of whether the federal offense of misprision of a felony under 18 U.S.C. 4 is categorically a crime involving moral turpitude (CIMT) under the Immigration and Nationality Act (INA) and on the collateral issue of the possible retroactive effect of a ruling. Briefs are due by February 6, 2017. In this article we will offer a brief overview of the issues and what the Board wants interested members of the public to address in amicus curiae (“friends of the court”) briefs.

Issues Presented

The Board is asking for briefs to address whether the offense of misprision of a felony under 18 U.S.C. 4 — a federal criminal statute — categorically qualifies as a CIMT. In order for the offense to categorically qualify as a CIMT, any conviction under any provision of 18 U.S.C. 4 must constitute a CIMT. The language of 18 U.S.C. 4 is as follows:

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.

The Board is asking for briefs to address the issue in light of the following decisions:

  • Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006) [PDF version];
  • Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012) [PDF version]; and
  • Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002) [PDF version].

In the Matter of Robles-Urrea, the Board had held in 2006 that 18 U.S.C. 4 is a categorical CIMT. In so doing, it overruled in part a previous precedent decision, the Matter of Sloan, 12 I&N Dec. 840 (AG 1968; BIA 1966) [PDF version]. In its decision, the Board noted that the Seventh Circuit Court of Appeals, in Itani v. Ashcroft, had been the only Court of Appeals to have previously considered the question, and in 2002 it had also concluded that 18 U.S.C. 4 is a CIMT. In 2012, however, in Robels-Urrea v. Holder, the Ninth Circuit reversed the Board's precedent decision, ruling that 18 U.S.C. 4 is not a categorical CIMT.

The Board asked for amicus curiae briefs to address whether the Board should adhere to its decision in the Matter of Robles-Urrea in circuits other than the Ninth. This would be an option since the Ninth Circuit's decision to reverse the Matter of Robles-Urrea only controls in the Ninth Circuit. The Board also asked for briefs to address an interesting issue that would arise if the Board chooses to adhere to the Matter of Robles-Urrea in all circuits — that is, whether applying the Matter of Robles-Urrea to convictions for acts committed prior to its publication in 2006 would be impermissibly retroactive. This issue would arise because the Matter of Robels-Urrea overruled a previous administrative precedent decision in the Matter of Sloan, 12 I&N Dec. 840 (AG 1968; BIA 1966), that had held that the crime of misprison of a felony was not a CIMT.

Conclusion

The amicus invitation can be readily broken into two parts. The first part is the question of whether 18 U.S.C. 4 is a categorical CIMT. The second part comes into play only if the Board were to reaffirm its position that 18 U.S.C. 4 is a categorical CIMT. The first issue is whether the Board should hold to its position outside of the Ninth Circuit, notwithstanding the Ninth Circuit's contrary position. The second issue is whether the Matter of Robels-Urrea could be applied retroactively to pre-2006 cases if the Board stands by it outside of the Ninth Circuit.

We will update the site if the Board renders a new precedent opinion that clarifies its position on these issues.