Accessory after the fact
Aggravated Felony (AF)
Get 364 days or less on any single count to avoid a possible AF as obstruction of justice, but see Advice re Ninth Circuit opinion.
See § N.4 Sentence for suggestions on how to avoid one year while accepting significant custody time.
Crime Involving Moral Turpitude (CIMT)
Never a CIMT per Ninth Cir, but BIA holds it is a CIMT if principal’s offense is a CIMT.1Pen C § 32 as a CIMT. The Ninth Circuit held that Pen C § 32 is categorically not a CIMT (never is one), because it lacks the element of depravity required by the generic definition of moral turpitude. Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007)(en banc). In a case arising outside of the Ninth Circuit, however, the Board of Immigration Appeals held that accessory after the fact is divisible: it is a CIMT only if the principal’s offense is one. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (regarding federal accessory, 18 USC § 3).
Because of this conflict between the BIA and the Ninth Circuit, criminal defenders should try to act conservatively and follow the BIA’s rule: identify in the record a specific non-CIMT that the principal committed, or at least keep the record vague as to the principal’s offense.
Immigration advocates will point out that the BIA’s opinion in Rivens is not controlling in cases arising within the Ninth Circuit, and within the Ninth Circuit no conviction of Pen C § 32 is a CIMT regardless of the principal’s offense. Note that in Rivens the BIA acknowledged that Navarro-Lopez holds that Pen C § 32 never is a CIMT, and specifically did not rule on how it would treat cases within the Ninth Circuit. Id. at 629. (Even if the BIA ever holds otherwise, the Ninth Circuit then will have to decide whether or not to defer to the BIA and withdraw Navarro-Lopez). In addition, immigration advocates can investigate arguments that § 32 is not “divisible” as to the principal’s felony, on the grounds that a jury is not required to agree unanimously in every case as to which felony the principal committed. As always with unproved arguments, counsel should consider other defense strategies, including obtaining post-conviction relief, at the same time. Immigration advocates should also be aware of the discussion of the similar offense misprision of felony. See Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), holding that this is never a CIMT and declining to follow Matter of Robles-Urrea, 24 I&N Dec. 22 (BIA 2006), which held that misprision always is a CIMT. The BIA declined to apply the Ninth Circuit’s Robles-Urrea decision outside of the Ninth Circuit, in Matter of Mendez 27 I&N Dec. 219 (BIA 2018).
(Note that Navarro-Lopez, supra, was overruled on other grounds (regarding the application of the categorical approach), but that decision was in turn overruled by the Supreme Court. See Descamps v. United States, 570 U.S. 254 (2013), overruling U.S. v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). Navarro-Lopez also was partially overruled along with several other cases, to the extent that they relied on prior precedent regarding Pen C § 245. See Ceron v. Holder, 747 F.3d 773, 782 (9th Cir. 2014) (en banc).)
So best practice where possible is to name in the ROC a specific non-CIMT committed by the principal. See Advice for suggestions.
Imm advocates should cite Ninth Cir law that PC 32 is never a CIMT, regardless of the principal’s offense. See above endnote.
Other Removal Grounds
No other removal ground.
PC 32 is excellent plea to avoid a conviction relating to CS, DV, violence, firearms, AFs (other than maybe obstruction) etc., because it does not take on the character of the principal’s offense (except perhaps for CIMT purposes). For example, accessory to CS offense or a COV is not itself a CS offense or COV.2Pen C § 32 and other removal grounds. This is where Pen C § 32 is tremendously useful. Accessory and the similar offense misprision of felony are not drug convictions even where the principal offense involves drugs. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997) (federal accessory after the fact), Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) (federal misprision of felony), following Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977). See also Matter of Carrillo, 16 I&N Dec. 625, 626 (BIA 1978) (conviction of unlawful carrying of firearm during commission of a felony under a former federal statute was not a drug offense even where felony was identified as drug offense). The Ninth Circuit held that accessory after the fact is not a crime of violence under 18 USC § 16 even where the principal offense involved violence. United States v. Innie, 7 F.3d 840 (9th Cir. 1993). See also 136.1(b)(1). But try to get 364 days or less to avoid a possible AF.
Advice and Comments
AF. This analysis also is relevant to PC 69, 136.1(b)(1), 148, VC 10851, and any offense that could reach avoiding, or helping a perpetrator to avoid, an initial arrest. See endnote3Pen §32 as the AF Obstruction of Justice. An offense that meets the generic definition of “an offense relating to obstruction of justice” is an AF if a sentence of one year or more is imposed on a single count. 8 USC §1101(a)(43)(S). The Ninth Circuit and the BIA have set out conflicting generic definitions of obstruction of justice, which has led the BIA to find that PC 32 is obstruction and the Ninth Circuit to find that it is not. See history of the decisions in Valenzuela Gallardo v. Barr, 968 F.3d 1053, 1056-58 (9th Cir. 2020) (“Valenzuela Gallardo II”). In August 2020, the Ninth Circuit published Valenzuela Gallardo II and definitively rejected the BIA’s definition. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less on PC 32 (see alternative pleas in PC 32 Advice on the chart); for immigration advocates to wait to file affirmative applications based on this holding, at the least until the Ninth Circuit rules on the petition for rehearing; and of course for advocates in removal proceedings to aggressively assert Valenzuela Gallardo II.
Even if the Valenzuela Gallardo II were to be overruled en banc and the BIA’s definition were to be upheld, counsel can assert that the BIA definition cannot be applied to convictions from before Sept. 11, 2018, which was the date the BIA set out this definition in Matter of Valenzuela Gallardo, 27 I&N Dec. 449 (BIA 2018). The BIA held that this definition can be applied retroactively, and that question also is pending on appeal to the Ninth Circuit. Matter of Cordero-Garcia, 27 I&N Dec. 652, 657-663 (BIA 2019) (PC 136.1(b)(1) is obstruction because an investigation or proceeding is reasonably foreseeable, and the BIA definition applies retroactively to convictions from before 9/1/2018).
The substantive issue is whether the generic definition of obstruction requires interference with an already existing proceeding or investigation. If it does require this, as the Ninth Circuit asserts, then PC 32 is not obstruction because it includes, e.g., helping the person avoid an initial arrest before any proceeding or investigation has started. If it does not require an existing proceeding, but only a “reasonably foreseeable” one, as the BIA asserts, then PC 32 is obstruction and is an AF if a year or more is imposed.
The BIA’s most recent generic definition of obstruction is “crimes involving (1) an affirmative and intentional attempt (2) that is motivated by a specific intent (3) to interfere with an investigation or proceeding that is ongoing, pending, or reasonably foreseeable by the defendant.” Matter of Valenzuela Gallardo, 27 I&N Dec. 449, 456 (BIA 2018) (emphasis altered and internal quotation marks omitted).
The Ninth Circuit rejected this definition. “The precise question at issue in this case is whether an offense relating to obstruction of justice under § 1101(a)(43)(S) requires a nexus to an ongoing or pending proceeding or investigation. We conclude that Congress has clearly answered this question in the affirmative.” Valenzuela Gallardo II at 1062.
A larger issue in the case, which eventually must be addressed in an en banc decision, is whether federal courts in general should give Chevron deference to the BIA’s generic definition of an aggravated felony, given that the aggravated felony category has “dual application” in both immigration and federal criminal proceedings (where it is a basis for sentence enhancement). Valenzuela Gallardo II noted that there are strong arguments that courts should not defer in a dual application context, under Chevron Step Zero. However, the court found that precedent required it to apply Chevron in this case. It rejected the BIA’s definition under Chevron Step One, finding that there was no ambiguity in the statute, and Congress clearly intended the § 1101(S) definition to require “a nexus to an ongoing or pending proceeding or investigation.” Id. at 1062, and see discussion at 1062-1069.
(For a basic introduction to Chevron, see ILRC, Who Decides: Overview of Chevron, Brand X, and Mead Principles (2011) at https://www.ilrc.org/who-decides-overview-chevron-brand-x-and-mead-principles.) for case citations and further discussion.
Obstruction of justice is an AF if a year or more is imposed. 8 USC 1101(a)(43)(S). After some litigation, in 2020 the Ninth Cir rejected the BIA’s generic definition of obstruction and held that PC 32 never meets the AF definition of obstruction of justice. Valenzuela-Gallardo II. However, a petition for rehearing en banc is pending in the case, so defenders should continue to act conservatively and seek 364 days or less.
The panel in Valenzuela-Gallardo II held that obstruction requires interference with an existing investigation or proceeding. PC 32 reaches other conduct, e.g., avoiding an arrest or tampering with evidence before there is any investigation or proceeding, or without knowledge of one. The panel found that PC 32 is not divisible as to whether there is an existing proceeding, and therefore no conviction meets the definition of obstruction. Therefore, no PC 32 conviction is an AF, even if a year or more is imposed.
The BIA had held that obstruction of justice includes interference in an investigation or proceeding that already exists, or that is “reasonably foreseeable” by the defendant. Under that test, it held PC 32 is obstruction. The Ninth Circuit overruled this in Valenzuela Gallardo II.
If Valenzuela Gallardo II were to go en banc, and the en banc panel were to uphold the BIA’s definition, immigration counsel further could argue that the BIA’s definition cannot apply retroactively to convictions from before September 11, 2018, the date the definition was published. The BIA found that its definition can be retroactively applied, and that decision, Matter of Cordero-Garcia, also is pending before the Ninth Circuit. Again, see above endnote for citations and further discussion of these issues.
Defenders who cannot avoid 1 yr or more can consider safer pleas such as PC 487, 530.5, 459/460(a) or (b), 591, 594, or probably 69, 236/237, 207. See also § N.4 Sentence.
CIMT: Because the BIA and Ninth Circuit also disagree here, the best practice to avoid a CIMT is to identify a principal’s specific felony that is not a CIMT, such as 136.1(b)(1), 236/237, 459/460, or 594 for a violent offense, or 530.5, 496, 459, or 10851 for a theft or fraud offense. If that is not possible, create an inconclusive (vague) ROC that does not ID the principal’s offense. Creating an inconclusive ROC is discussed at 11377.
SB 54. This is one of a few wobblers that does not destroy SB 54 protections limiting jail cooperation with ICE. See SB 54 advisory at www.ilrc.org/crimes.