[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 22, 2002
No. 01-13624 THOMAS K. KAHN
________________________ CLERK
INS No. A26-646-200
ABDUL ITANI,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(April 22, 2002)
Before BLACK and HULL, Circuit Judges, and HAND*, District Judge.
PER CURIAM:
Abdul Itani petitions for review of a decision of the Board of Immigration
*
Honorable William B. Hand, U.S. District Judge for the Southern District of
Alabama, sitting by designation.
Appeals (“BIA”) dismissing an appeal from his order of deportation. Itani argues
that his criminal conviction for misprision of a felony, 18 U.S.C. § 4, does not
constitute a crime of moral turpitude for which he can be deported, and that he is
entitled to a discretionary waiver of inadmissibility. After review and oral
argument, we affirm the BIA’s decision and deny Itani’s petition for review.
I. BACKGROUND
Itani is a native and citizen of Lebanon. He last entered the United States in
1984 on a non-immigrant student visa. On January 20, 1987, the FBI arrested Itani
in South Carolina for participating in a scheme to rent automobiles, report them
stolen to local police and export them from Texas to Kuwait. On February 6, 1987,
a federal grand jury in Houston indicted Itani on charges related to the interstate
transportation of stolen automobiles, 18 U.S.C. §§ 2, 371, 2312. On January 5,
1988, Itani pleaded guilty to one count of misprision of a felony, 18 U.S.C. § 4.
On January 7, 1988, the district court in Houston sentenced Itani to three years in
prison and ordered him to pay a $25,000 fine, but suspended
these sanctions in favor of three years of probation.
On August 29, 1991, Respondent Immigration and Naturalization Service
(“INS”) issued an Order to Show Cause charging Itani with being deportable (1)
because he had been convicted of a crime of moral turpitude within five years after
his date of entry and sentenced to confinement for a year or more, 8 U.S.C. §
2
1251(a)(2)(A)(i) (1991), and (2) because he was an alien who had remained in the
United States for longer than the time permitted, 8 U.S.C. § 1251(a)(1)(B) (1991).
After a hearing on July 26, 1993, the immigration judge (“IJ”) found Itani
deportable as charged, denied his request for discretionary relief, and ordered Itani
deported to Lebanon. On May 30, 2001, the BIA dismissed Itani’s appeal,
concluding that (1) misprision of a felony is a crime of moral turpitude because it
requires the affirmative, intentional concealment of a known felony and has been
condemned at common law, and (2) Itani had not shown the required hardship
necessary for a discretionary waiver of inadmissibility. Itani timely filed a petition
for review of the BIA’s decision.1
II. DISCUSSION
A. Classification of Misprision of A Felony As Crime of Moral
Turpitude
Itani first argues that the crime of misprision of a felony in 18 U.S.C. § 4
does not qualify as a crime of moral turpitude for which he can be deported.
Immigration law provides that an alien is deportable if he “(I) is convicted of a
crime involving moral turpitude committed within five years after the date of entry,
1
Itani subsequently filed a motion to reconsider and reopen the BIA’s
decision, but the denial of that motion was not included in any notice of appeal to
this Court. Regardless, we conclude that the BIA’s ruling on the motion to
reconsider and reopen, which the INS submitted to this Court with its brief, does
not impact our analysis here.
3
and (II) either is sentenced to confinement or is confined therefor in a prison or
correctional institution for one year or longer.” 8 U.S.C. § 1251(a)(2)(A)(i)
(1991).2
Although the term “moral turpitude” is not defined by statute, courts have
taken note of its meaning, observing that it involves:
An act of baseness, vileness, or depravity in the private and social duties
which a man owes to his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man and man.
Generally, a crime involving dishonesty or false statement is considered to
be one involving moral turpitude.
2
Both parties agree that because Itani’s deportation proceedings began prior
to April 1, 1997, the transitional rules of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, 110 Stat.
3009 (1996), govern this case. As we have held:
IIRIRA’s transitional rules provide that “there shall be no appeal permitted
in the case of an alien who is inadmissible or deportable by reason of having
committed a criminal offense” described in specific enumerated sections
[including crimes of moral turpitude, 8 U.S.C. § 1182(a)(2)]. IIRIRA §
309(c)(4)(G), reprinted in 8 U.S.C. § 1101 note. Notwithstanding this
restriction, this Court retains jurisdiction to determine whether an alien is
deportable under the immigration statute. See Lettman v. Reno, 168 F.3d
463, 465 (11th Cir. 1999). Because judicial review is limited by statutory
conditions, courts retain jurisdiction to determine whether those conditions
exist. See id. As explained in Lettman, this determination involves
considering whether the petitioner is (1) an alien (2) deportable (3) by reason
of a criminal offense listed in the statute. See id. We thus have jurisdiction
over [an alien’s] petition for direct review to determine whether the BIA
correctly concluded that [an alien] is deportable.
Farquharson v. U.S. Att’y Gen’l, 246 F.3d 1317, 1320 (11th Cir. 2001). We review
the BIA’s statutory interpretation de novo, but defer to its reasonable
interpretations. Moore v. Ashcroft, 251 F.3d 919, 921 (11th Cir. 2001).
4
United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974) (quoting United States v.
Smith, 420 F.2d 428, 431 (5th Cir. 1970) and Black’s Law Dictionary 1160 (4th ed.
1957)). Whether a crime involves the depravity or fraud necessary to be one of
moral turpitude depends upon the inherent nature of the offense, as defined in the
relevant statute, rather than the circumstances surrounding a defendant’s particular
conduct. See, for example, Rodriguez-Herrera v. INS, 52 F.3d 238, 239-40 (9th
Cir. 1995).
The offense of 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 three years, or both.
18 U.S.C. § 4. Such activity has been a federal crime since the First Congress, for
“the common law recognized a duty to raise the ‘hue and cry’ and report felonies
to the authorities. . . . It is apparent from this statute, as well as from our history
and that of England, that concealment of crime and agreements to do so are not
looked upon with favor. Such conduct deserves no encomium.” Branzburg v.
Hayes, 408 U.S. 665, 696-97 (1972) (citation omitted).
Misprision of a felony “require[s] both knowledge of a crime and some
affirmative act of concealment or participation.” Id. at 696 n.36. See, for example,
United States v. Gravitt, 590 F.2d 123, 125-26 (5th Cir. 1979) (requiring
5
“affirmative action to conceal the crime” for conviction of misprision of a felony).
Thus, mere failure to report a known felony would not violate 18 U.S.C. § 4.
United States v. Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977).
We conclude that misprision of a felony is a crime of moral turpitude
because it necessarily involves an affirmative act of concealment or participation in
a felony, behavior that runs contrary to accepted societal duties and involves
dishonest or fraudulent activity. As the Supreme Court has observed:
Concealment of crime has been condemned throughout our history. . . .
Although the term “misprision of felony” now has an archaic ring, gross
indifference to the duty to report known criminal behavior remains a badge
of irresponsible citizenship. This deeply rooted social obligation is not
diminished when the witness to crime is involved in illicit activities himself.
Unless his silence is protected by the privilege against self-incrimination . . .
the criminal defendant no less than any other citizen is obliged to assist the
authorities.
Roberts v. United States, 445 U.S. 552, 557-58 (1980).3 See also Dirks v. SEC,
463 U.S. 646, 678 (1983) (“Misprison [sic] of a felony long has been against
public policy.”) (Blackmun, J., dissenting).
3
The Roberts Court went on to state that for a Fifth Amendment privilege to
be relevant, “[a]t least where the Government had no substantial reason to believe
that the requested disclosures [were] likely to be incriminating, the privilege may
not be relied upon unless it is invoked in a timely fashion.” 445 U.S. at 559. Thus,
because the defendant in Roberts did not raise any self-incrimination issues before
the sentencing court, the Supreme Court deemed them waived and described his
assertion of them on appeal to be “an afterthought.” Id. at 560 (quoting Vajtauer v.
Commissioner of Immigration, 273 U.S. 103, 113 (1927)). Itani has not raised any
Fifth Amendment issues in this case.
6
Thus, because Itani was convicted of misprision of a felony within five years
after his date of entry and was sentenced to confinement for more than one year,
the BIA properly found him deportable under 8 U.S.C. § 1251(a)(2)(A)(i).4
B. Waiver of Inadmissibility
Itani also argues that the BIA improperly rejected his request for a waiver of
inadmissibility, which would permit him to remain in the United States. One of the
requirements for receiving the waiver requested by Itani, known as a § 212(h)
waiver, is a showing that his deportation would “result in extreme hardship” to a
family member who is a United States citizen or lawful permanent resident. 8
U.S.C. § 1182(h) (1994). The BIA found Itani failed to establish this requirement.
Regardless of the merits of this decision, we have no jurisdiction to review such
discretionary decisions of the Attorney General under IIRIRA’s transitional rules.
4
We need not discuss an alternative ground for Itani’s deportation –
overstaying his visa – because Itani does not raise any issue related to it on appeal.
In addition, we note that our conclusion, supra, that Itani was convicted of a crime
of moral turpitude forecloses his adjustment of status. An alien in the United
States applying for adjustment of status must be able to show he would qualify for
admission to the United States, but conviction of a crime of moral turpitude renders
an alien inadmissible. See 8 U.S.C. § 1255(a) (1994) (requiring alien to be
admissible in order to be eligible for adjustment of status to permanent resident); 8
U.S.C. § 1182(a)(2) (1994) (declaring inadmissible “any alien convicted of . . . a
crime involving moral turpitude”).
7
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1297-98 (11th Cir. 2001) (stating that
“IIRIRA commands that in the case of a transitional alien, ‘there shall be no appeal
of any discretionary decision under section . . . 212(h)’” and finding determination
of “extreme hardship” to be discretionary decision) (quoting IIRIRA §
309(c)(4)(E), 8 U.S.C. § 1101 note).5
III. CONCLUSION
Therefore, for the reasons stated herein, we AFFIRM the decision of the BIA
and DENY Itani’s petition for review.
5
Itani contends that his family’s circumstances “drastically changed”
between the IJ hearing in 1993 and the BIA’s decision in 2001 and suggests he
now can establish “extreme hardship.” This argument does not impact our lack of
jurisdiction to consider the denial of a § 212(h) waiver. And Itani’s contention at
oral argument – that the BIA’s eight-year delay in issuing its decision violated his
Due Process rights – also lacks merit.
8