In re Robles-Urrea

• Decision Date: 27 September 2006
• Docket Number: Interim Decision No. 3542.,File A37 805 968.
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re Marco Antonio ROBLES-Urrea, Respondent.

24 I&N Dec. 22

In re Marco Antonio ROBLES-Urrea, Respondent.

Interim Decision No. 3542.

File A37 805 968 - Eloy.

Board of Immigration Appeals.

Decided September 27, 2006.

(1) When the Attorney General overrules or reverses only one holding in a precedent decision of the Board of Immigration Appeals and expressly declines to consider any alternative holding in the case, the remaining holdings retain their precedential value.

(2) Misprision of a felony in violation of 18 U.S.C. § 4 (2000) is a crime involving moral turpitude. Matter of Sloan, 12 I&N Dec. 840 (A.G. 1968; BIA 1966), overruled in part.

(3) Under the "stop-time" rule in section 240A(d)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1)(B) (2000), an offense is deemed to end an alien's continuous residence as of the date of its commission, even if the offense was committed prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaffirmed.

FOR RESPONDENT: Holly S. Cooper, Esquire, Davis, California.

BEFORE: Board Panel: FILPPU and PAULEY, Board Members; O'LEARY, Temporary Board Member.

PAULEY, Board Member.

In a decision dated December 21, 2005, an Immigration Judge found the respondent removable and denied his application for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2000). We dismissed the appeal from that decision on April 10, 2006. The respondent has filed a motion to reconsider our decision. The motion will be granted. Upon reconsideration, our decision dismissing the respondent's appeal will be reaffirmed.

I. FACTS AND PROCEDURAL BACKGROUND

The respondent is a native and citizen of Mexico who entered the United States as a lawful permanent resident on July 6, 1983. On March 3, 2003, he was convicted in the United States District Court, District of Arizona, of misprision of a felony in violation of 18 U.S.C. § 4 (2000), which is a Class E felony. The record reflects that the offense occurred between September 1986 and October 1987, and that the underlying felony was conspiracy to possess marijuana and cocaine with intent to distribute, in violation of 21 U.S.C. § 846 (2000). The respondent was sentenced to 9 months in prison, which was to be followed by 1 year of supervised release.

The Department of Homeland Security ("DHS") initially charged that the respondent was inadmissible under section 212(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(C) (2000), as an alien who the Attorney General had reason to believe had been an illicit trafficker in a controlled substance. An additional charge was lodged that the respondent was also inadmissible under section 212(a)(2)(A)(i)(I) of the Act as an alien who had been convicted of a crime involving moral turpitude.

The Immigration Judge ordered the respondent removed but did not specify the ground on which he based his decision. The Immigration Judge also found the respondent ineligible for cancellation of removal by operation of the "stop-time" rule of section 240A(d)(1)(B) of the Act, which prevented the respondent from accruing the necessary 7 years of continuous residence to qualify for such relief. We dismissed the respondent's appeal, finding him removable as charged and ineligible for relief from removal.

The respondent has filed a motion to reconsider our decision, arguing, as he did on appeal, that Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999), supports a finding that misprision of a felony is not a crime involving moral turpitude.¹ He further urges that our holding in Matter of Sloan, 12 I&N Dec. 840, 854 (A.G. 1968; BIA 1966), that misprision of a felony is not a crime involving moral turpitude, is still binding precedent, as the Attorney General's decision in that case reversed the Board on another ground and did not address that question. Alternatively, he argues that the United States Court of Appeals for the Ninth Circuit, the jurisdiction in which this matter arises, requires an evil intent in order for an offense to be a crime involving moral turpitude and that no such evil intent inheres in the crime of misprision of a felony. Lastly, the respondent urges that the "stop-time" rule should not be applied retroactively so as to cut off his accrual of continuous residence in September 1986, when his offense was committed, and he requests that we overrule our decision in Matter of Perez, 22 I&N Dec. 689 (BIA 1999). The DHS has not filed a response to the motion.

II. ANALYSIS

A. Precedential Viability of a Decision Reversed in Part on Other Grounds

A motion to reconsider shall specify "the errors of fact or law in the prior Board decision and shall be supported by pertinent authority." 8 C.F.R. § 1003.2(b) (2006). In his motion, the respondent argues that our holding in Matter of Sloan, supra, that misprision of a felony under 18 U.S.C. § 4 is not a crime involving moral turpitude, was still binding precedent at the time of his removal proceedings, because the Attorney General did not address that question in his decision. The respondent correctly notes that a precedent decision of the Board applies to all proceedings involving the same issue unless and until it is modified or overruled by the Attorney General, the Board, Congress, or a Federal court. Matter of E-L-H-, 23 I&N Dec. 814 (BIA 2005). In Matter of Sloan, supra, we held that neither concealing a person for whom an arrest warrant was issued nor misprision of felony was a crime involving moral turpitude. The Attorney General reversed the former determination but found it "unnecessary to consider any of the other grounds suggested for reversal." Id. at 854. We have never addressed the question whether a holding in a decision that was reversed by the Attorney General on another ground survives as precedent.

We observe that the Federal courts have consistently concluded that holdings that have been overruled or reversed on other grounds nevertheless retain their precedential viability.² For example, in Central Pines Land Co. v. United States, 274 F.3d 881, 893-94 (5th Cir. 2001), the court found that even though a prior panel decision had been reversed by the Supreme Court on one ground, the remaining grounds were unaffected and continued to be binding precedent, such that another panel could not overturn them. The court noted that the prior decision had not been vacated by the Supreme Court but was merely reversed on other grounds.

We need not determine whether that Federal rule is generally applicable when the Attorney General overrules or reverses a decision of the Board, because it is clear that the Attorney General did not intend to vacate the Board's alternative holding in Matter of Sloan, supra, that misprision of a felony is not a crime involving moral turpitude.³ The Attorney General's decision expressly stated that no other aspect of the Board's decision was being considered. We therefore conclude that Matter of Sloan, supra, remained binding authority on the question whether a violation of 18 U.S.C. § 4 is a crime involving moral turpitude. Consequently, it should have been applied by both the Immigration Judge and the Board. To that extent, the respondent's motion to reconsider is meritorious.⁴ However, we now determine that our alternative ruling in Matter of Sloan, supra, regarding misprision of a felony, should also be overruled.

B. Misprision of a Felony as a Crime Involving Moral Turpitude

As a general rule, a crime involves moral turpitude if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Matter of Olquin, 23 I&N Dec. 896 (BIA 2006); Matter of Torres-Varela, 23 I&N Dec. 78, 83 (BIA 2001); see also Grageda v. U.S. INS, 12 F.3d 919, 921 (9th Cir. 1993) (noting that courts have described moral turpitude in general terms as "an `act of baseness or depravity contrary to accepted moral standards'" (quoting Guerrero de Nodahl v. INS, 407 F.2d 1405, 1406 (9th Cir. 1969)), and as "`basically offensive to American ethics and accepted moral standards'" (quoting Castle v. INS, 541 F.2d 1064, 1066 (4th Cir. 1976))). Whether a particular crime involves moral turpitude is determined by reference to the statutory definition of the offense and, if necessary, to authoritative court decisions in the convicting jurisdiction that elucidate the meaning of equivocal statutory language. See Matter of Olquin, supra, at 897 & n.1. However, we may not consider the actual conduct underlying the conviction. Matter of Torres-Varela, supra, at 84 (citing McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)).

The offense of misprision of a felony under 18 U.S.C. § 4 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 three years, or both.

A conviction under this statute requires proof that a person having knowledge of the commission of a Federal felony concealed the same from the appropriate authorities. Mere failure to report an offense is not sufficient there must be affirmative conduct constituting concealment. E.g., Branzburg v. Hayes, 408 U.S. 665, 696 n.36 (1972); United States v. Ciambrone, 750 F.2d 1416 (9th Cir. 1984).

In Itani v. Ashcroft, 298 F.3d 1213 (11th Cir. 2002), the Eleventh Circuit, which is the only court of appeals to have considered the question, found that 18 U.S.C. § 4 is a crime involving moral turpitude. This decision has been cited with approval by other circuits, including the Ninth Circuit. Navarro-Lopez v. Gonzales, 455 F.3d 1055 (9th Cir. 2006); Padilla v. Gonzales, 397 F.3d 1016 (7th Cir. ...