In re Espinoza-Gonzalez
| Decision Date | 11 June 1999 |
| Docket Number | Interim Decision #3402 |
| Parties | In re Rafael ESPINOZA-Gonzalez, Respondent File A91 893 414 - Eloy |
| Court | U.S. DOJ Board of Immigration Appeals |
The Immigration and Naturalization Service appeals a decision of an Immigration Judge dated December 30, 1997, terminating proceedings upon a finding that the Service failed to establish that the respondent is removable as an aggravated felon. The Service's appeal will be dismissed.
The issue in this case is whether the crime of which the respondent was convicted, misprision of a felony (conspiracy to possess marijuana with intent to distribute) in violation of 18 U.S.C. § 4 (1994), and for which he was sentenced to imprisonment for a year and 1 day, constitutes an offense relating to obstruction of justice under section 101(a)(43)(S)
of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996).1
The respondent is a 41-year-old native and citizen of Mexico who first entered the United States on October 7, 1988. The respondent became a lawful permanent resident on December 1, 1990. On July 28, 1997, the respondent was convicted of the offense of misprision of a felony, in violation of 18 U.S.C. § 4. The respondent was placed in removal proceedings on November 24, 1997, and was charged with removability as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996).
This Board has been notified by the Service that the respondent has departed the United States. We do not know, however, whether that departure is intended to be temporary or permanent. We held in a recent precedent decision that an alien's departure from the United States does not serve as a constructive withdrawal of an appeal filed by the Service. Matter of Luis, 22 I&N Dec. 3395, at 8 (BIA 1999). Furthermore, we decided that the Board has, as a matter of prudence, reserved the discretion to dismiss appeals and deny motions as moot. Id. at 9. We find, as we did in Matter of Luis, that the instant case is not moot because a resolution of the Service's appeal that is adverse to the respondent would have significant legal consequences were the respondent to seek admission to the United States in the future. Furthermore, because the respondent is a lawful permanent resident, the question whether he is entitled to retain that status is not mooted by his mere departure from this country.
Pursuant to 18 U.S.C. § 4, misprision of a felony is defined 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 3 years, or both." Elements of the crime of misprision of a felony are that the principal committed and completed the felony alleged and that the defendant had full knowledge of that fact, failed to notify the authorities, and took an affirmative step to conceal the crime. United States v. Ciambrone, 750 F.2d 1416, 1417 (9th Cir. 1985).
The United States Code does not define the term "obstruction of justice" or "obstructing justice." Instead, chapter 73 of title 18 lists a series of offenses collectively entitled "Obstruction of Justice." 18 U.S.C. §§ 1501-1518 (1994 & Supp. II 1996). Misprision of a felony is not among the crimes listed in this chapter, which does include offenses such as perjury, bribery, interference in investigation of financial transactions, jury tampering, and threatening or intimidation of witnesses.2 Obstructing justice is defined elsewhere as Blacks Law Dictionary 1077 (6th ed. 1990).
In a related case, Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), we held that a conviction under 18 U.S.C. § 3 (1994) () constitutes a conviction for an aggravated felony under section 101(a)(43)(S) of the Act. We determined that 18 U.S.C. § 3 clearly "relates to obstruction of justice" because it criminalizes actions knowingly taken to "`hinder or prevent [another's] apprehension, trial or punishment.'" Id. at 10 (quoting 18 U.S.C. § 3). We relied in part on a decision holding that the nature of being an accessory after the fact lies essentially in obstructing justice and preventing the arrest of the offender. United States v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972).
In his decision, the Immigration Judge noted the above authority and concluded that nothing in the offense of misprision of a felony rises to the level of obstruction of justice. He found that the statutory language defining the offense of accessory after the fact is directly related to obstruction of justice, but that the language defining misprision of a felony is not.
In its brief, the Service argues that the offense does not have to fall within the definition of obstruction of justice as outlined in 18 U.S.C. §§ 1501-1518 because the wording of section 101(a)(43)(S) of the Act only requires that the offense "relate to" obstruction of justice. The Service argues that the phrase should be broadly construed because Congress has expanded the definition of what constitutes an aggravated felony, other sections of the aggravated felony definition refer to offenses "described in" or "defined in" various sections of the code, and the term "related to" has been broadly construed in the controlled substance violation context.
We find that the elements of the offense of misprision of a felony do not constitute the crime of obstruction of justice as that term is defined in the United States Code. In general, the obstruction of justice offenses listed in 18 U.S.C. §§ 1501-1518 have as an element interference with the proceedings of a tribunal or require an intent to harm or retaliate against others who cooperate in the process of justice or might otherwise so cooperate. The intent of the two broadest provisions, § 1503 () and § 1510 (), is to protect individuals assisting in a federal investigation or judicial proceeding and to prevent a miscarriage of justice in any case pending in a federal court. United States v. Cuesta, 597 F.2d 903, 918 (5th Cir.), cert. denied, 444 U.S. 964 (1979); United States v. Metcalf, 435 F.2d 754, 756 (9th Cir. 1970).
For example, § 1503 contains a catchall phrase prohibiting a person who "corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct or impede, the due administration of justice." 18 U.S.C. § 1503. The Supreme Court has construed this catchall phrase narrowly. According to the court:
The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the Court's or grand jury's authority . . . . In other words, the endeavor must have the "`natural and probable effect'" of interfering with the due administration of justice . . . . [I]f the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.
United States v. Aguilar, 515 U.S. 593, 598-99 (1995) (holding that a judge's
utterance of false statements to the Federal Bureau of Investigation regarding a wiretap was not an endeavor to obstruct the due administration of justice, absent evidence that the judge knew the statements would be provided to a grand jury) (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir. 1993))). The elements of the remaining offenses likewise involve an active attempt with specific intent to interfere with the process of justice.3
The offense of misprision of a felony, by contrast, does not require as an element either active interference with proceedings of a tribunal or investigation, or action or threat of action against those who would cooperate in the process of justice. A conviction for misprision of a felony does not require proof that the defendant acted with a motive, or even knowledge, of the existence of the work of an investigation or tribunal. Moreover, it is not necessary to prove that the defendant had any contact with, was influenced by, or acted with any motive toward the participants in the underlying crime. We recognize, however, that there may be convictions for misprision of a felony with factual scenarios where the concealment element did involve an investigation or tribunal. See, e.g., United States v. Hodges, 566 F.2d 674, 675 (9th Cir. 1977) (...
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