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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. 

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; 

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. NavarroLopez 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. 

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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