ESPINOZA

Interim Decision #3402

In re Rafael ESPINOZA-Gonzalez, Respondent

File A91 893 414 - Eloy

Decided June 11, 1999

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

A conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute
a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruc-
tion of justice. Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997), distinguished.

Pro se

Daniel J. Santander, Assistant District Counsel, for the Immigration and Naturalization
Service

Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEIL-
MAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, GUENDELS-
BERGER, JONES, GRANT, SCIALABBA, and MOSCATO, Board Members. Concurring
and Dissenting Opinion: ROSENBERG, Board Member.

GRANT, Board Member:

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 dis-
missed.

I. ISSUE ON APPEAL

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)

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of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S)
(Supp. II 1996).1

II. FACTS

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 viola-
tion 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 con-
victed 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).

III. PRELIMINARY MATTER

This Board has been notified by the Service that the respondent has
departed the United States. We do not know, however, whether that depar-
ture is intended to be temporary or permanent. We held in a recent prece-
dent 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 conse-
quences 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.

IV. ANALYSIS

A. Relevant Authority

Pursuant to 18 U.S.C. § 4, misprision of a felony is defined as follows:

1
Section 101(a)(43)(S) of the Act provides that “an offense relating to obstruction of jus-
tice, perjury or subornation of perjury, or bribery of a witness, for which the term of impris-
onment is at least one year” is an aggravated felony.

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“Whoever, having knowledge of the actual commission of a felony cogniz-
able by a court of the United States, conceals and does not as soon as pos-
sible make known the same to some judge or other person in civil or mili-
tary 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 mis-
prision 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 jus-
tice” 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 tamper-
ing, and threatening or intimidation of witnesses.2 Obstructing justice is
defined elsewhere as “[i]mpeding or obstructing those who seek justice in a
court, or those who have duties or powers of administering justice therein.
The act by which one or more persons attempt to prevent, or do prevent, the
execution of lawful process.” 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) (accessory after
the fact) 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 jus-
tice and preventing the arrest of the offender. United States v. Barlow, 470
F.2d 1245, 1252-53 (D.C. Cir. 1972).

B. Arguments on Appeal

2
The Obstruction of Justice offenses in chapter 73 are titled as follows: Assault on
process server (§ 1501); Resistance to extradition agent (§ 1502); Influencing or injuring
officer or juror generally (§ 1503); Influencing juror by writing (§ 1504); Obstruction of
proceedings before departments, agencies, and committees (§ 1505); Theft or alteration of
record or process; false bail (§ 1506); Picketing or parading (§ 1507); Recording, listening
to, or observing proceedings of grand or petit juries while deliberating or voting (§ 1508);
Obstruction of court orders (§ 1509); Obstruction of criminal investigations (§ 1510);
Obstruction of State or local law enforcement (§ 1511); Tampering with a witness, victim,
or an informant (§ 1512); Retaliating against a witness, victim, or an informant (§ 1513);
Civil action to restrain harassment of a victim or witness (§ 1514); Obstruction of Federal
audit (§ 1516); Obstructing examination of financial institution (§ 1517); Obstruction of
criminal investigations of health care offenses (§ 1518).

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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 defin-
ing 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 sec-
tions 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.

C. Discussion

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 proceed-
ings 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 (prohibiting persons from
influencing or injuring an officer or juror generally) and § 1510 (prohibit-
ing obstruction of criminal investigations), is to protect individuals assist-
ing in a federal investigation or judicial proceeding and to prevent a mis-
carriage 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 communica-
tion, 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 author-
ity . . . . 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 knowl-
edge 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
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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 inves-
tigation, 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) (holding that the concealment element was
satisfied where an untruthful statement was given to the authorities).
However, our inquiry is limited to the elements of the crime as provided in
the statute and relevant case law. We find that the elements of misprision of
a felony are too attenuated from the elements of the crimes of obstruction
of justice to fall within the ambit of section 101(a)(43)(S) of the Act.
We are aware that at least one court has stated that “many crimes,
including Contempt and Misprision of Felony, are offenses which by their
very nature obstruct justice.” United States v. Cefalu, 85 F.3d 964, 968 (2d
Cir. 1996). In designating the relevant crimes as aggravated felonies, how-
ever, Congress used the phrase, “an offense relating to obstruction of jus-
tice, perjury or subornation of perjury, or bribery of a witness.” Section
101(a)(43)(S) of the Act. Congress did not adopt a generic descriptive
phrase such as “obstructing justice” or “obstruct justice,” but chose instead
a term of art utilized in the United States Code to designate a specific list of
crimes. It employed that term in conjunction with other crimes (e.g., perjury
and bribery) that also are clearly associated with the affirmative obstruction
of a proceeding or investigation. We do not believe that every offense that,
by its nature, would tend to “obstruct justice” is an offense that should prop-
erly be classified as “obstruction of justice.” The United States Code delin-

3
For example, a conviction under § 1505, obstruction of proceedings before departments,
agencies, and committees, requires that three elements be present: there must be a proceed-
ing pending before a department or agency of the United States, the defendant must be aware
of the pending proceedings, and the defendant must have intentionally endeavored corruptly
to influence, obstruct, or impede the pending proceedings. 18 U.S.C. § 1505; United States v.
Price, 951 F.2d 1028, 1031 (9th Cir. 1991).

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eates a circumscribed set of offenses that constitute “obstruction of justice,”
and although misprision of a felony bears some resemblance to these
offenses, it lacks the critical element of an affirmative and intentional
attempt, motivated by a specific intent, to interfere with the process of jus-
tice. As noted above, where the obstruction of justice offenses are broadly
stated, courts have interpreted them narrowly. United States v. Aguilar,
supra, at 598-99. To include all offenses that have a tendency to, or by their
nature do, obstruct justice would cast the net too widely.4
We note further that obstruction of justice and misprision of a felony
are treated as distinct offenses under federal law, not as interchangeable
terms. See, e.g., Castaneda de Esper v. INS, 557 F.2d 79, 83 (6th Cir. 1977)
(citing United States v. Dye, 508 F.2d 1226 (6th Cir. 1974) (holding that an
indictment which charged accessory after the fact and misprision of a
felony was not duplicitous because the proof necessary for conviction of
each of the charges is not the same), cert. denied, 420 U.S. 974 (1975)). For
instance, the United States Sentencing Guidelines for obstruction of justice
offenses do not include misprision of a felony. See U.S.S.G. §§ 2J1.2,
2X4.1; 18 U.S.C.A. ch. 2, §§ 2J1.2, 2X4.1 (West 1996). Misprision of a
felony also is not included in the chapter entitled “Offenses Involving the
Administration of Justice.” U.S.S.G., ch. 2, pt. J.
Our conclusions are not altered by focusing, as the Service urges us to
do, on the term “relating to” in section 101(a)(43)(S) of the Act. We believe
that our primary task in construing this provision is to identify the contours
of those offenses that constitute “obstruction of justice.” Only then can we
determine whether the respondent’s conviction “relates to” such an offense.
In this regard, we agree with the Immigration Judge’s analysis distinguish-
ing our decision in Matter of Batista-Hernandez, supra, which found that
the crime of accessory after the fact falls within an offense relating to
obstruction of justice. The definition of the federal crime of accessory after
the fact in 18 U.S.C. § 3 requires an affirmative action knowingly under-
taken “in order to hinder or prevent [another’s] apprehension, trial or pun-
ishment.” Although misprision of a felony has as an element the affirma-
tive concealment of the felony, there is, unlike § 3, nothing in § 4 that ref-
erences the specific purpose for which the concealment must be undertak-
en. The specific purpose of hindering the process of justice brings the fed-
eral “accessory after the fact” crime within the general ambit of offenses

4
We recognize that in section 101(a)(43)(S) of the Act, Congress did not specifically tie “obstruction
of justice” to those crimes that fall under that heading in title 18 of the United States Code. However, we
believe the classification in title 18 provides substantial guidance, consistent with judicial pronounce-
ments on the subject, as to the contours of the “obstruction of justice” category of offenses. Although we
do not purport here to decide the full scope of section 101(a)(43)(S), specifically with regard to state
offenses that may be classified as obstruction of justice crimes, we are persuaded that offenses under 18
U.S.C. § 4 fall outside that scope.

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that fall under the “obstruction of justice” designation.
Furthermore, concealment of a crime is qualitatively different from an
affirmative action to hinder or prevent another’s apprehension, trial, or pun-
ishment. It is a lesser offense to conceal a crime where there is no investi-
gation or proceeding, or even an intent to hinder the process of justice, and
where the defendant need not be involved in the commission of the crime.
Further, accessory after the fact has been defined as obstructing justice.
United States v. Barlow, supra, at 1252-53. Although the crime of accesso-
ry after the fact is placed before misprision of a felony in the same section
in the sentencing guidelines, see U.S.S.G. § 2X3.1, 18 U.S.C.A. ch. 2, §
2X3.1 (West 1996), and is also not included in Part J, it is specifically cross-
referenced in both the obstruction of justice, perjury or subornation of per-
jury, and bribery of witness sections. See U.S.S.G. §§ 2J1.2, 2J1.3, 18
U.S.C.A. ch. 2, §§ 2J1.2, 2J1.3 (West 1996).
The Service’s argument that the “relating to” language in section
101(a)(43)(S) of the Act should be given broad effect does not alter our con-
clusion. The Service cites to decisions interpreting former section 241(a)(11)
of the Act, 8 U.S.C. § 1251(a)(11) (1994), which provided for the deportabil-
ity of aliens who have been “convicted of a violation of, or a conspiracy to
violate, any law relating to a controlled substance.” See, e.g., Matter of
Beltran, 20 I&N Dec. 521, 525-26 (BIA 1992); Matter of Bronsztejn, 15 I&N
Dec. 281, 283 (BIA 1974), aff’d, 526 F.2d 1290 (2d Cir. 1975). See general-
ly Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (stating that the
ordinary meaning of the words “relating to” is a broad one); Aloha Islandair
v. Tseu, 128 F.3d 1301, 1302 (9th Cir. 1997) (construing the phrase “relating
to” to mean “has a connection with or reference to” but stating that the con-
nection cannot be too “tenuous, remote, or peripheral”).
In each of our prior decisions interpreting the phrase “relating to,” we
were interpreting whether the offense in question was related to the under-
lying offense. Here we are interpreting the nature of the underlying offense
itself. In Matter of Beltran, supra, we considered whether former section
241(a)(11) of the Act, which provided for the deportability of aliens who
have been “convicted of a violation of, or a conspiracy to violate, any law
relating to a controlled substance,” included a conviction for solicitation to
commit a crime involving a controlled substance. Id. at 526 (holding that
solicitation does “relat[e] to” the underlying offense).5 We have also con-
sidered whether section 241(a)(11) of the Act encompassed other inchoate

5
The United States Court of Appeals for the Ninth Circuit, in Coronado-Durazo v. INS,
123 F.3d 1322 (9th Cir. 1997), declined to follow our holding in Beltran. It held instead that
an Arizona conviction for solicitation to possess cocaine was not a conviction relating to a
controlled substance for purposes of section 241(a)(2)(B)(i) of the Act, 8 U.S.C. §
1251(a)(2)(B)(i) (Supp. II 1990).

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or preparatory crimes of attempt, conspiracy, and facilitation when the
underlying substantive crime involves a drug offense. See Matter of Del
Risco, 20 I&N Dec. 109 (BIA 1989) (facilitation); Matter of Bronsztejn,
supra (attempt); Matter of N-, 6 I&N Dec. 557 (BIA, A.G. 1955) (con-
spiracy); cf. Matter of Batista-Hernandez, supra (holding that accessory
after the fact is not sufficiently related to a controlled substance violation
under section 241(a)(2)(B)(i) of the Act); Matter of Velasco, 16 I&N Dec.
281 (BIA 1977) (finding that misprision of a felony (possession of mari-
huana with intent to distribute) is not a crime relating to the illicit posses-
sion of or trafficking in narcotic drugs or marihuana and following
Castaneda de Esper v. INS, supra). In Castaneda de Esper, the court
noted that misprision of a felony has long been separate and distinct from
the felony concealed.
Our decisions holding that inchoate crimes, such as attempt and solic-
itation, “relate to” controlled substance offenses are of limited value with
respect to our judgment in this case. In those cases, there was no question
whether the underlying offense or conduct involved a controlled sub-
stance.6 Rather, the issue was whether the specific conviction was “so
closely related to the underlying offense . . . that it [could not] be consid-
ered separate or distinct from that crime.” Matter of Beltran, supra, at
528; see also Londono-Gomez v. INS, 699 F.2d 475, 476 (9th Cir. 1983)
(holding that aiding and abetting does not define a separate and distinct
offense from that set forth in section 241(a)(11) of the Act); Castaneda de
Esper v. INS, supra; Matter of Batista-Hernandez, supra. This is the
inquiry we must undertake in determining whether a conviction for mis-
prision of a felony relates to obstruction of justice. We conclude that it
does not, precisely because misprision is considered separate and distinct
from the crimes categorized as “obstruction of justice.” It is so consid-
ered because it lacks the critical element of an affirmative and intentional
attempt, motivated by a specific intent, to interfere with the process of jus-
tice. The broad coverage we have given the phrase “relating to” does not
lead us in this case to “relate” the crime of misprision of a felony to
obstruction of justice, thereby imparting to the first offense an element of
culpability that is present only in the latter.

V. CONCLUSION
6
See also Johnson v. INS, 971 F.2d 340, 342 (9th Cir. 1992) (holding that a conviction
for traveling in interstate commerce with the intention of distributing proceeds derived from
the unlawful distribution of narcotics and substances under 18 U.S.C. § 1952 (1988) falls
within the proscription set forth in section 241(a)(11) of the Act). In Johnson, the court dis-
tinguished Castaneda de Esper v. INS, supra, stating that the offense at issue in that case did
not pertain to or mention a controlled substance, whereas the offense of which the defendant
was convicted clearly pertained to a controlled substance.

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In sum, we find the respondent’s conviction for misprision of a
felony does not meet the definition of an aggravated felony pursuant to
section 101(a)(43)(S) of the Act. Accordingly, the Service’s appeal is dis-
missed.
ORDER: The appeal of the Immigration and Naturalization Service
is dismissed.

CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,
Board Member

I respectfully concur in part and dissent in part.
I agree with the majority’s holding that a conviction for misprision
of a felony does not constitute a conviction for an offense “relating to
obstruction of justice,” within the meaning of section 101(a)(43)(S) of
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II
1996). I also agree 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.” Matter of Espinoza, 22 I&N Dec.
3402, at 5 (BIA 1999) (citing 18 U.S.C. §§ 1501-1518 (1994)). I concur
with the majority’s reasoning that §§ 1501-1518 set the federal standard
against which we must evaluate any conviction alleged to constitute
“obstruction of justice” under section 101(a)(43)(S) of the Act.
Specifically, although Congress did not expressly mandate that “obstruc-
tion of justice,” as used in section 101(a)(43)(S) of the Act, must be
interpreted in accordance with the United States Code,
Congress did not adopt a generic descriptive phrase such as “obstructing justice” or
“obstruct justice,” but chose instead a term of art utilized in the United States Code to
designate a specific list of crimes. It employed that term in conjunction with other
crimes (e.g., perjury and bribery) that also are clearly associated with the affirmative
obstruction of a proceeding or investigation.

Matter of Espinoza, supra, at 6-7; see also Matter of Batista-Hernandez,
21 I&N Dec. 955 (BIA 1997) (Rosenberg, concurring and dissenting)
(noting that the term “obstruction of justice” is a term of art used in the
federal statute to refer to a series of specific offenses); 18 U.S.C. §§
1501-1518.
I write separately to clarify my understanding of the Board’s actual
holding today, which ostensibly construes section 101(a)(43)(S) of the
Act in relation to a conviction for misprision of a felony, and that part of
the majority’s opinion that seeks to distinguish the crime of accessory
after the fact from that of misprision of a felony, in justification of the
Board’s prior holding in Matter of Batista-Hernandez, supra.1 In my

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view, the crime of accessory after the fact is not necessarily an offense
“relating to obstruction of justice,” and the Board’s prior decision in Matter
of Batista-Hernandez, supra, should be deemed superseded or overruled.

I. MISPRISION OF A FELONY AND OBSTRUCTION OF JUSTICE

As the majority states quite clearly, the crime of misprision does not
constitute obstruction of justice because the elements of misprision require
only the defendant’s knowledge that a felony was committed, his failure to
notify authorities, and his affirmative action to conceal the crime. The
majority emphasizes that the conduct covered in statutory sections pertain-
ing to “obstruction of justice” under title 18 is more narrowly tailored to
relate to interference in proceedings “such as perjury, bribery, interference
in investigation of financial transactions, jury tampering, and threatening or
intimidation of witnesses.” Matter of Espinoza, supra, at 3. I agree.
I concur with the majority that a common feature of each section of the
offenses denominated as “Obstruction of Justice” at 18 U.S.C. §§ 1501-
1518 is the element of “interference with the proceedings of a tribunal or .
. . an intent to harm or retaliate against others who cooperate in the process
of justice.” Id. at 5. The majority acknowledges that the two broadest sec-
tions, §§ 1503 and 1510, prohibit influencing or injuring an officer or juror,
or obstructing a criminal investigation. As the majority recognizes, “The
elements of the remaining offenses likewise involve an active attempt with
specific intent to interfere with the process of justice.” Id. at 5-6; see also,
e.g., 18 U.S.C. § 1505 (requiring that a defendant must be aware of pend-
ing proceedings and intentionally act corruptly to influence or impede
them).
Section 1503 of title 18 was construed narrowly by the Supreme Court
in United States v. Aguilar, 515 U.S. 593, 598 (1995) (finding the “Omnibus
Clause” of § 1503 to provide a “catchall, prohibiting persons from endeav-
oring to influence, obstruct, or impede the due administration of justice”
that required a narrow interpretation). The Court reiterated that “‘a person
is not sufficiently charged with obstructing or impeding the due adminis-
tration of justice in a court unless it appears that he knew or had notice that
justice was being administered in such court,’” and that “‘a person lacking
knowledge of a pending proceeding necessarily lacked the evil intent to
obstruct.’” Id. at 599 (quoting Pettibone v. United States, 148 U.S. 197,

1
In addition, but for the fact that we decide in the respondent’s favor, I would ordinarily
be troubled that we are designating as a precedent decision a case in which the respondent is
unrepresented, as this case presents a question of statutory construction that is virtually of
first impression.

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206-07 (1893)) (emphasis added). The Court stressed that “[r]ecent deci-
sions of Courts of Appeals have likewise tended to place metes and bounds
on the very broad language of the catchall provision.” Id. at 599 (citing, e.g.,
United States v. Brown, 688 F.2d 596, 598 (9th Cir. 1982), which held that
interference with the due administration of justice cannot be extended to
conduct that takes place wholly outside the context of a judicial or quasi-
judicial proceeding). The Court concluded that “[w]e do not believe that
uttering false statements to an investigating agent—and that seems to be all
that was proved here—who might or might not testify before a grand jury
is sufficient to make out a violation of the catchall provision of § 1503.” Id.
at 600.
Notably, the terms of section 101(a)(43)(S) of the Act refer not only to
obstruction of justice, but also to crimes relating to “perjury or subornation
of perjury, or bribery of a witness.” Like the offenses articulated in the
United States Code relating to obstruction of justice, the offenses of perjury,
subornation of perjury, or bribery of a witness refer to criminal acts com-
mitted in connection with a formal proceeding or an actual trial. The inclu-
sion of the phrase “obstruction of justice” in this string of crimes should be
read consistently with the scope of the other specific forms of criminal con-
duct included as convictions that constitute an aggravated felony if a sen-
tence of more than 1 year is imposed. See K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988) (citing Bethesda Hospital Ass’n v. Bowen, 485 U.S.
399, 403-05 (1988) (instructing that in interpreting a particular provision,
the language and design of the statute should be read as a whole)).
Congress reenacted section 101(a)(43)(S) of the Act in 1996, following
the Supreme Court’s 1995 decision in United States v. Aguilar, supra, and
continued to use the term “obstruction of justice” to refer to a category of
offenses that, like perjury and bribery, would constitute an aggravated
felony if a sentence of 1 year or more was imposed. Congress is deemed to
be aware not only of prior interpretations of a statute, but also of pre-exist-
ing case law when it acts. Lorillard v. Pons, 434 U.S. 575, 580 (1978) (stat-
ing that “Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts
a statute without change” and citing Albemarle Paper Co. v. Moody, 422
U.S. 405, 414 n.8 (1975); NLRB v. Gullett Gin Co., 340 U.S. 361, 366
(1951); National Lead Co. v. United States, 252 U.S. 140, 147 (1920);
Scheidemann v. INS, 83 F.3d 1517, 1526 (3d Cir. 1996); 2A C. Sands,
Sutherland on Statutory Construction § 49.09 (4th ed. 1973), and cases
cited therein). Consequently, I read the reenactment of section
101(a)(43)(S) of the Act, without modification as to the substantive offens-
es covered, to reflect Congress’ awareness of the narrow construction of
“obstruction of justice” offenses allowed by the Supreme Court.
The Supreme Court’s narrow construction of “obstruction of justice” is
consistent with its mandate that we construe criminal convictions in favor of

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the alien because of the dire consequences of deportation, which has never
been overruled or superseded. Fong Haw Tan v. Phelan, 333 U.S. 6, 10
(1948). In light of the aforecited authorities, the Board’s unexplained inter-
pretation of “obstruction of justice” as used in section 101(a)(43)(S) of the
Act in Matter of Batista-Hernandez, supra, does not constitute a permissible
interpretation of the statute and is unreasonable. Cf. Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984);
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mutual Auto. Ins. Co.,
463 U.S. 29, 30 (1983) (holding that the agency must generate a “reasoned
analysis” and “articulate a satisfactory explanation for its action”). The major-
ity’s efforts to differentiate the offense of accessory after the fact and the
offense of misprision of a felony, as though the former constitutes obstruction
of justice and the latter does not, are not only unnecessary in order for us to
reach a decision in this case, but also are unpersuasive.

II. ACCESSORY AFTER THE FACT AND
OBSTRUCTION OF JUSTICE

The crime of “accessory after the fact” codified at 18 U.S.C. § 3 (1994)
provides that “[w]hoever, 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 acces-
sory after the fact.” The elements necessary to sustain a conviction under
18 U.S.C. § 3 for the crime of accessory after the fact include: the princi-
pal’s commission of a felony offense, the defendant’s knowledge of that
act, the defendant’s extension of some form of relief or assistance, which
was accorded for one of a variety of purposes, including to hinder or pre-
vent the offender’s apprehension, trial, or punishment.2
In United States v. Aguilar, supra, the Supreme Court made clear that
to constitute obstruction of justice, there must be evidence that the defen-
dant acted with knowledge that a designated proceeding was pending. As
majority recognizes, “‘The action taken by the accused must be with an
intent to influence judicial or grand jury proceedings; it is not enough that

2
See also Government of Virgin Islands v. Aquino, 378 F.2d 540, 553 n.20 (3d Cir. 1967)
(stating that “‘[a]n accessory after the fact is one who, knowing a felony to have been com-
mitted, harbors the felon, or renders him any other assistance to elude punishment.’ 1 Bishop,
New Commentaries on the Criminal Law (8th ed. 1892) § 692.” The court further emphasized
that “‘generally, any assistance whatever given to a felon . . . makes the assistor an accesso-
ry (after the fact). As furnishing him with a horse to escape his pursuers, money or victuals
to support him, a house or other shelter to conceal him, or open force and violence to rescue
or protect him.’” Id. at 553 n.21 (quoting IV William Blackstone, Commentaries, *37-38)

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there be an intent to influence some ancillary proceeding . . . .’” Matter of
Espinoza, supra, at 5 (quoting United States v. Aguilar, supra, at 598); see
also Haili v. United States, 260 F.2d 744, 746 (9th Cir. 1958) (holding that
the statute penalizes conduct designed to interfere with the process of arriv-
ing at an appropriate judgment in a pending case and which would disturb
the ordinary and proper functions of the court).
In other words, to commit an offense that amounts to obstruction of jus-
tice, it is not enough that one who conceals or harbors or gives comfort to
the principal perpetrator does so with the intent of protecting him from
apprehension. What is critical is whether the criminal act is performed by
the defendant with knowledge that his conduct will affect certain ongoing
proceedings and have the natural and probable effect of interfering with the
due administration of justice. United States v. Aguilar, supra, at 598-99. A
conviction for accessory after the fact, like a conviction for misprision does
not require a showing that any proceedings are pending or that the defen-
dant was aware of such pending proceedings and acted to frustrate them. Id.
Rather, a conviction for accessory after the fact can be sustained on a show-
ing that the defendant concealed the crime, or sheltered the principal
offender, or impeded the offender’s apprehension.
Thus, contrary to the majority opinion, a conviction for accessory after
the fact does not necessarily require evidence that the conduct on which the
conviction is founded effected “the due administration of justice,” discussed
in United States v. Aguilar, supra, at 598-99, i.e., a formal proceeding or
actual trial. First, United States v. Barlow, 470 F.2d 1245 (D.C. Cir. 1972),
cited by the majority, says little more than that “[t]he gist of being an acces-
sory after the fact lies essentially in obstructing justice by rendering assis-
tance to hinder or prevent the arrest of the offender after he has committed
the crime.” Id. at 1252-53 (emphasis added). The Barlow court’s reference
to obstruction of justice is as generic as the United States Court of Appeals
for the Second Circuit’s reference to obstruction of justice made 20 years
later in United States v. Cefalu, 85 F.3d 964, 968 (2d Cir. 1996), which the
majority distinguishes as having little bearing on whether misprision con-
stitutes an aggravated felony under section 101(a)(43)(S) of the Act because
the court employed the reference generically and not as a “term of art.” As
the majority emphasizes, not every offense that might tend to “obstruct jus-
tice” by its nature is an offense that entails the “obstruction of justice” as
used by Congress in section 101(a)(43)(S) of the Act. Matter of Espinoza,
supra, at 7 (emphasis added).
Second, an accessory after the fact conviction can be sustained on the
basis of conduct that has no relationship to any ongoing proceeding, or even
any official investigation, but simply involves assisting a perpetrator in
changing his appearance. See, e.g., United States v. Dye, 508 F.2d 1226,
1236 (6th Cir. 1974) (“It was alleged that he was an accessory after the fact
because of assistance he gave the defendant McFee in changing his appear-

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ance and that he was guilty of misprision of felony in concealing the hijack-
ing of the whiskey and not reporting it to proper authorities.”), cert. denied,
420 U.S. 973 (1975). Similarly, removing a license plate from a car that
proved to be a getaway vehicle in an armed bank robbery supported an
inference that the defendant knew of the principal crime and was acting to
assist the robber after the fact. United States v. Burnette, 698 F.2d 1038 (9th
Cir.), cert. denied 461 U.S. 936 (1983). Such conduct may constitute a
crime, but it is not necessarily obstruction of justice. Nor is conduct
required to prove “accessory after the fact” necessarily any other aggravat-
ed felony. United States v. Innie, 7 F.3d 840, 852 (9th Cir. 1993) (conclud-
ing that it is far from obvious that, in every case, receiving, relieving, com-
forting, or assisting a “hired” murderer in order to hinder or prevent that
murderer’s apprehension, trial, or punishment involves a substantial risk
that physical force may be used against the person or property of another),
cert. denied, 511 U.S. 1042 (1994).
Furthermore, not every accessory after the fact offense must include
“an affirmative action undertaken . . . to hinder the process of justice,” as
the majority contends. As the majority is forced to acknowledge, 18 U.S.C.
§ 3 includes even actions intended to “hinder or prevent [another’s] appre-
hension.” (Emphasis added.) Although the majority uses the amorphous
phrase “process of justice,” this phrase cannot be applied as broadly as the
majority might like. See United States v. Aguilar, supra, at 598-99 (limiting
the concept of interference with the administration of justice to knowing
interference with a judicial or grand jury proceeding); United States v.
Brown, supra, at 958 (distinguishing interference with the execution of a
search warrant in connection with a police investigation from interference
with the production of documents subpoenaed in a grand jury proceeding);
Haili v. United States, supra, at 746 (distinguishing conduct designed to
encourage a prisoner to escape from a penitentiary from offenses that could
be punished under § 1503). The majority’s attempt to distinguish the crime
of misprision, which involves affirmative concealment, from the crime of
accessory after the fact, which equally could involve concealment or har-
boring, but does not necessarily involve interference with any phase of the
work of a tribunal or administrative body, is factually incorrect and simply
unpersuasive.
It is longstanding Board practice to construe a respondent’s offense
according to the minimum conduct necessary to sustain a conviction.
Matter of Short, 20 I&N Dec. 136 (BIA 1989). Our jurisprudence holds that
in determining whether the respondent’s conviction under an ambiguous or
divisible criminal statute constitutes a violation as defined in the Act, it is
necessary to look to the record of conviction, and to other documents
admissible as evidence in proving a criminal conviction, to determine the
specific offense of which the alien was convicted. Id.; see also Matter of
Sweetser, 22 I&N Dec. 3390 (BIA 1999). I emphasize that it is not what the

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respondent did, but the crime of which he was convicted, determined by the
record of conviction, that is dispositive. Matter of Pichardo, 21 I&N Dec.
330 (BIA 1996) (rejecting the Immigration Judge’s reliance on such extrin-
sic evidence as the respondent’s testimony when deportability was denied
and the record contained no documentary evidence that his conviction
involved a weapon that was a firearm); Matter of Teixeira, 21 I&N Dec. 316
(BIA 1996).
By its terms, a federal conviction for accessory after the fact is a divis-
ible offense, as some accessory after the fact convictions may involve hin-
dering or preventing the operation of an official investigation or tribunal,
while other convictions may not. Matter of Sweetser, supra. Only a convic-
tion for the former conduct amounts to an offense comparable to “obstruc-
tion of justice” as described in the United States Code. As I stated in Matter
of Batista-Hernandez, supra, the possibility that the conduct underlying a
conviction pursuant to 18 U.S.C. § 3 could be shown to be an offense “relat-
ing to obstruction of justice,” is not clear, unequivocal, or convincing evi-
dence of such a fact. Id. at 971 (Rosenberg, concurring and dissenting);
accord Matter of Sweetser, supra.

III. BATISTA-HERNANDEZ REEXAMINED: MISPRISION OF A
FELONY AND ACCESSORY AFTER THE FACT

The majority and I agree that “[t]o include all offenses that have a ten-
dency to, or by their nature do, obstruct justice would cast the net too wide-
ly.” Matter of Espinoza, supra, at 7. It does not follow that, because mis-
prision and accessory after the fact offenses do not contain identical ele-
ments, and we have found that misprision does not relate to obstruction of
justice as defined in the United States Code, a conviction for accessory after
the fact necessarily must constitute an offense relating to obstruction of jus-
tice. Just as “obstruction of justice and misprision of a felony are treated as
distinct offenses under federal law,” so too are the offenses of obstruction of
justice and accessory after the fact. Id.
The majority’s effort to portray these two crimes as opposites is con-
trary to our own precedent. Indeed, as the Board noted in Matter of Batista-
Hernandez, supra, at 960, “Although accessory after the fact falls some-
where between misprision of a felony and aiding and abetting in terms of
its relation to the underlying crime, we find that it is more akin to mispri-
sion.” See also United States v. Daddano, 432 F.2d 1119, 1129 (7th Cir.
1970) (“Whether misprision and being an accessory after the fact are dis-
tinct from each other seems a closer question. Probably most instances of
misprision involve, in actuality, being an accessory after the fact.”), cert.
denied, 402 U.S. 905 (1971). In addition, just as misprision may be com-
mitted by “conceal[ing] a crime where there is no investigation or proceed-

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ing,” so too may the offense of accessory after the fact be committed by
comforting or harboring the perpetrator of another offense without any
requirement that there be an ongoing investigation or actual trial. Matter of
Espinoza, supra, at 8. Contrary to what the majority posits, both offenses
require an affirmative act. United States v. Daddano, supra, at 1124 (agree-
ing that 18 U.S.C. § 4 requires an affirmative act of concealment in addition
to failure to disclose the felony to the authorities); see also Bratton v. United
States, 73 F.2d 795 (10th Cir. 1934). Furthermore, misprision and accesso-
ry after the fact are treated similarly, not differently, in the United States
Sentencing Guidelines. United States v. Cefalu, supra, at 968.
Although the majority opinion tends to obscure the fact, the Board’s
decision in Matter of Batista-Hernandez, supra, entailed only the most min-
imal analysis of section 101(a)(43)(S) of the Act. It did not address “our
primary task in construing this provision,” as the majority identifies it here,
and failed to “identify the contours of those offenses that constitute
‘obstruction of justice.’” Matter of Espinoza, supra, at 7-8. Despite the fact
that the majority now asserts that “[o]nly then can we determine whether
the respondent’s conviction ‘relates to’ such an offense,” id. at 8, the Board
did not engage in any such analysis in Batista-Hernandez.
In fact, in Batista-Hernandez, the Board merely concluded that
“Congress incorporated within the aggravated felony definition an offense
which encompasses the respondent’s accessory after the fact crime because
the respondent’s conviction pursuant to 18 U.S.C. § 3 clearly relates to
obstruction of justice.” Id. at 10. The Board never examined the respon-
dent’s conviction with respect to whether it constituted a conviction for
obstruction of justice beyond citing to the general statement in United
States v. Barlow, supra, regarding “obstructing justice,” which the majority
today deems an inadequate basis to conclude that a federal offense consti-
tutes an aggravated felony as defined in section 101(a)(43)(S) of the Act.
Furthermore, in Batista-Hernandez, the Board noted, incorrectly, that “the
wording of 18 U.S.C. § 3 itself indicates its relation to obstruction of jus-
tice, for the statute criminalizes actions knowingly taken to ‘hinder or pre-
vent [another’s] apprehension, trial or punishment.’” Id. at 10 (quoting 18
U.S.C. § 3).
In addition, the respondent in Batista-Hernandez never was put on
notice that he could be found subject to removal based on this provision of
the Act and had no chance to develop or present his position regarding such
a charge. See Matter of Espinoza, supra, at 12 n.1 (Rosenberg, concurring
and dissenting). Such a charge was never levied by the Service and the
Service never set forth any theory to buttress such a charge, because it was
the Board, on review, that elected to construe the respondent’s conviction in
relation to the statutory terms of section 101(a)(43)(S) of the Act. This type
of adjudication without notice is frowned on by the courts. See Chue Xiong
v. INS, 173 F.3d 601, 608 (7th Cir. 1999) (“However, lack of notice is just

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as problematic . . . . It is often the case that an alien cannot challenge the
fact of conviction, but can challenge the characterization of the convic-
tion.”); Choeum v. INS, 129 F.3d 29, 33 (1st Cir. 1997) (stating that “the INS
may not substitute alternative grounds for deportation at this stage in the
proceedings”).
I conclude that if it was so clear which offenses were included in the
provision, as the majority in Batista-Hernandez claimed it was, we would
have little need to undertake the thorough examination of the United States
Code obstruction of justice offenses in which we are engaging today, in
order to determine whether the crime of misprision falls within the very
same aggravated felony provision. Nevertheless, the majority seeks to reha-
bilitate Batista-Hernandez by somehow bootstrapping our current analysis
and projecting it onto that decision. That approach unsuccessfully glosses
over the lack of analysis on which the flawed holding in Batista-Hernandez
is based, and it needlessly contorts the Board’s decision in the instant case.
I would issue the instant decision without using the passages attempting to
contrast misprision of a felony crimes with accessory after the fact offens-
es, indicating that by today’s decision we are modifying or superseding the
Board’s decision in Matter of Batista-Hernandez, supra.

905