In re Batista-Hernandez
| Decision Date | 15 July 1997 |
| Docket Number | File A91 548 877.,Interim Decision No. 3321. |
| Parties | In re Juan BATISTA-HERNANDEZ, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
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 8 C.F.R. § 3.1(c) (1995). The decision of the Immigration Judge will be reversed in part and affirmed in part.
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 the Immigration and Nationality Act, 8 U.S.C. § 1160 (1988). He thereafter adjusted his status to that of a lawful permanent resident. The record reflects that the respondent was convicted on April 5, 1993, in the United States District Court for the District of Connecticut, of the offense of accessory after the fact in violation of 18 U.S.C. § 3 (Supp. V 1993). The Service charged that the respondent was deportable pursuant to sections 241(a)(2)(A)(iii) and (B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2) (A)(iii)and (B)(i) (1994), as an alien convicted of an aggravated felony and a controlled substance violation. The Immigration Judge found the respondent deportable on both grounds and certified his decision to the Board. On certification, the Service has offered additional arguments in support of the decision of the Immigration Judge.
The respondent was convicted as an accessory after the fact pursuant to section 18 U.S.C. § 3. This statute criminalizes the following behavior:
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 18 U.S.C. § 3 supports a finding that he is deportable as an aggravated felon under current law, we do not find that the respondent was "convicted of a violation of . . . [a] law . . . relating to a controlled substance." See section 241(a)(2)(B)(i) of the Act.
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.
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, 8 U.S.C. § 1251(a)(11) (1988), encompasses many inchoate or preparatory crimes when the underlying substantive crime involves a drug offense. See Matter of Beltran, 20 I&N Dec. 521, 528 (BIA 1992)(solicitation); Matter of Del Risco, 20 I&N Dec. 109 (BIA 1989) (facilitation); Matter of Bronsztejn, 15 I&N Dec. 281 (BIA 1974) (attempt); Matter of N-, 6 I&N Dec. 557 (BIA, A.G. 1955) (conspiracy); Matter of G-, 6 I&N Dec. 353 (BIA 1954)(attempt). Many inchoate crimes "relate to" an underlying controlled substance offense because, while these crimes are not lesser included offenses of controlled substance violations, they nonetheless involve acts closely related to the culmination of the substantive controlled substance offense. In Matter of Beltran, supra, we discussed these "preparatory crimes" and noted that the introduction to Article 5 of the Model Penal Code, which deals with inchoate crimes, indicates that these offenses always presuppose a purpose to commit another substantive offense. Similarly, Barron's Law Dictionary defines an inchoate crime as
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 18 U.S.C. § 3 must, by its nature, take place subsequent to the completion of the underlying felony. Courts have held that United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972); see also United States v. Nava-Maldonado, 566 F. Supp. 1436 (D. Nev. 1983). Given the nature of the respondent's crime, we do not find that his accessory after the fact conviction ...
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