ROBLES

Cite as 24 I&N Dec. 22 (BIA 2006) Interim Decision #3542

In re Marco Antonio ROBLES-Urrea, Respondent

File A37 805 968 - Eloy

Decided September 27, 2006

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(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

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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.

1

In Matter of Espinoza, supra, we held that misprision of a felony was not an aggravated

felony offense “relating to obstruction of justice” under section 101(a)(43)(S) of the Act,

8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996). As this decision relates only tangentially to, and

does not materially support, the respondent’s contention that a conviction pursuant to

18 U.S.C. § 4 is not for a crime involving moral turpitude, we shall give this argument no

further consideration.

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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

2

In addition, the cases are legion in which a decision is cited for a proposition,

notwithstanding the fact that it was reversed or overruled on other grounds. E.g., Salmi v.

Secretary of Health and Human Services, 774 F.2d 685 (6th Cir. 1985) (citing Timmreck v.

United States, 577 F.2d 372, 376 n.15 (6th Cir. 1978), rev’d on other grounds, 441 U.S. 80

(1979)).

3

We note that a different relationship exists between the Board and the Attorney General,

as compared to that between a higher and lower Federal court.

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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;

4

We recognize that in Smalley v. Ashcroft, 354 F.3d 332, 339 n.6 (5th Cir. 2003), the Fifth

Circuit noted that the Attorney General’s reversal of Matter of Sloan had extinguished its

precedential value regarding misprision of a felony, but we are not persuaded by this dicta,

as the court offered no analysis of the issue.

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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. 2005); Smalley v. Ashcroft, 354 F.3d 332 (5th Cir. 2003).

In Navarro-Lopez v. Gonzales, supra, the Ninth Circuit considered the

question whether the California crime of accessory after the fact constitutes

a crime involving moral turpitude.5 Citing the Eleventh Circuit’s holding in

Itani v. Ashcroft, supra, the Ninth Circuit concluded:

Similarly, because an accessory after the fact conviction under [the California Penal

Code] requires a knowing, affirmative act to conceal a felony with the specific intent

to hinder or avoid prosecution of the perpetrator, it is contrary to the duties owed

society and constitutes a crime of moral turpitude.

Navarro-Lopez v. Gonzales, supra, at 1058-59.

We agree with the Eleventh Circuit’s analysis in Itani v. Ashcroft, supra,

which was adopted by the Ninth Circuit in Navarro-Lopez v. Gonzales, supra.

Misprision of a felony represents conduct that is inherently base or vile and

contrary to the accepted rules of morality and the duties owed between

persons or to society in general. See, e.g., Roberts v. United States, 445 U.S.

552, 558 (1980) (stating that “gross indifference to the duty to report known

criminal behavior remains a badge of irresponsible citizenship”); Matter of

Torres-Varela, supra; Matter of Ajami, 22 I&N Dec. 949 (BIA 1999).

We therefore conclude that misprision of a felony in violation of 18 U.S.C.

§ 4 qualifies categorically as a crime involving moral turpitude within the

meaning of the Act. Our holding to the contrary in Matter of Sloan, supra, is

accordingly overruled. We have little hesitation in so finding, having had the

benefit of some 40 years of intervening decisions of the Federal courts and the

Board interpreting the standard for crimes involving moral turpitude since

Matter of Sloan was decided.

5

The offense of accessory after the fact under California law is defined as follows:

Every person who, after a felony has been committed, harbors, conceals or aids a

principal in such felony, with the intent that said principal may avoid or escape from

arrest, trial, conviction or punishment, having knowledge that said principal has

committed such felony or has been charged with such felony or convicted thereof, is an

accessory to such felony.

Cal. Penal Code § 32 (1999).

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We find no merit in the respondent’s claim that the Ninth Circuit applies a

stricter test for determining moral turpitude than do other circuits or the Board

and that misprision of a felony would not qualify under its standard. While

the Ninth Circuit couches the test in terms of “evil intent,” such intent is

implicit in the statutory requirement that the actor take an affirmative step to

conceal a felony from the proper authorities. See Notash v. Gonzales, 427

F.3d 693 (9th Cir. 2005) (finding that the intent may be implicit);

Gonzalez-Alvarado v. INS, 39 F.3d 245 (9th Cir. 1994) (same). Accordingly,

we conclude that the respondent was convicted of a crime involving moral

turpitude.

C. Retroactivity of the “Stop-time” Rule

The respondent argues that the “stop-time” provision of section

240A(d)(1)(B) of the Act should not apply in this case because his crime was

committed prior to the effective date of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208,

110 Stat. 3009-546 (“IIRIRA”). He acknowledges that we have previously

addressed and decided this retroactivity issue in Matter of Perez, supra, where

we held that the “stop-time” provision applies, even if the commission of the

offense preceded the enactment of the IIRIRA. The respondent asserts that

our decision predated the Supreme Court’s ruling regarding retroactivity in

INS v. St. Cyr, 533 U.S. 289 (2001), and should be therefore overruled.

We are unpersuaded by the respondent’s assertions. The respondent’s

situation is distinguishable from that of the alien in INS v. St. Cyr, supra,

where the Court found that the amendments and repeal of former

section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), cannot be retroactively

applied against aliens who pled guilty to their crimes in reliance on the

possible availability of that waiver. Section 240A was not in existence, or

even pending enactment, at the time the respondent committed his offense

more than a decade earlier. It is therefore difficult to understand how he

might have relied on the future availability of such relief as undergirding a

retroactivity claim. Cf. Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422

(2006) (finding that section 241(a)(5) of the Act, 8 U.S.C. § 1231(a)(5)

(2000), which permits reinstatement of a removal order, may be applied to an

alien who reentered before the effective date of the reinstatement provision).

The fact that the respondent has not specifically asserted that he would have

acted differently but for the enactment of the “stop-time” rule further

undermines his argument that applying the rule to his case has an

impermissible retroactive effect. Cf. Arenas-Yepes v. Gonzales, 421 F.3d 111,

117 (2d Cir. 2005) (holding that the “stop-time” rule at section 240A(d)(1)(A)

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of the Act, which cuts off time when a charging document is issued, had no

impermissible retroactive effect on the petitioner).

We note that the Ninth Circuit has found that the “stop-time” rule must be

applied in proceedings after the effective date of the IIRIRA. Sotelo v.

Gonzales, 430 F.3d 968, 972 n.2 (9th Cir. 2005); Ram v. INS, 243 F.3d 510

(9th Cir. 2001). Although the respondent cites several Federal district court

decisions, none arises in Ninth Circuit, which is the controlling jurisdiction in

this case. See, e.g., Henry v. Ashcroft, 175 F.Supp.2d 688 (S.D.N.Y. 2001).

In any event, we are not bound to follow the published decision of a district

court, even in cases arising in the same district. See Matter of K-S-, 20 I&N

Dec. 715 (BIA 1993). The respondent has not otherwise cited any

precedential case law indicating that the “stop-time” rule cannot be applied to

crimes which predate the effective date of the IIRIRA. We therefore find no

basis to overturn our decision in Matter of Perez, supra.

III. CONCLUSION

When the Attorney General reverses only one holding in a precedent

decision of the Board, any alternative holding in the case retains its

precedential value. Although our holding in Matter of Sloan, supra, that

misprision of a felony is not a crime involving moral turpitude survived the

Attorney General’s reversal of our decision on other grounds, we now find

that our conclusion in that regard should be overruled. We therefore conclude

that misprision of a felony in violation of 18 U.S.C. § 4 is a crime involving

moral turpitude.

We also reject the respondent’s argument that the “stop-time” rule of

section 240A(d)(1)(B) of the Act should not be applied retroactively. We

therefore again find that he is ineligible for cancellation of removal based on

his conviction for a crime involving moral turpitude, which terminated his

continuous residence within 7 years of his admission. Accordingly, upon

reconsideration, we conclude that the respondent’s appeal should be

dismissed.

ORDER: The respondent’s motion to reconsider is granted.

FURTHER ORDER: Upon reconsideration, our April 10, 2006, decision

dismissing the respondent’s appeal is reaffirmed.

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