In 2006, in Matter of Robles-Urrea, the Board of Immigration Appeals (BIA) adopted the rational of an 11th Circuit decision and held that misprision of felony is a crime involving moral turpitude.  In 2012, the Ninth Circuit reversed the BIA's decision in Robles-Urrea v. Holder.  The Second Circuit, faced with the question of whether a federal conviction for misprision of a felony, determined that remand to the BIA was necessary, to allow it to issue a precedential decision addressing the Ninth Circuit's more recent decision.  The remand would promote uniformity in the interpretation of the immigration laws.

The court also addressed whether the BIA's decision in Matter of Robles-Urrea, which was issued after the petitioner had been convicted, could be retroactively applied to her, given that the BIA, prior to the petitioner's conviction, had issued a precedential decision in Matter of Sloan determining that misprision of a felony was not a crime involving moral turpitude.  Whether an 14 agency decision may permissibly be applied retroactively is determined by looking at five 15 factors: (1) whether the case is one of first impression, (2) whether the new rule presents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order places on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. 

The court determined that the first and fourth factors clearly favored the petitioner.  As to the other three factors, the court determined that the BIA should have the opportunity to address them in the first instance.  With regard to the second factor, the court observed that the BIA needed to address  whether its holding in Matter of Robles-Urrea was a departure from prior law.  As to the third factor, the court asked the BIA to consider whether a defendant should automatically be assumed to have relied on existing rules limiting deportation at the time she pled guilty to a crime where that guilty plea, because of a change in rules, subsequently becomes a basis for deporting her.  As to both the second and third factors, the court invited the BIA "should it find that these factors do not automatically favor the petitioner in a case such as this, to consider (A) whether Ms. Lugo in fact had notice that her guilty plea could lead to deportation, (B) whether she relied on the prior rule that it could not, and (C) whether such reliance was reasonable."  Finally, with respect to the fifth factor, the court invited the BIA to "consider the extent of the statutory interest in applying its ruling in Robles-Urrea retroactively to Ms. Lugo’s conviction and thus 16 rendering her ineligible for cancellation of removal."

This is a fabulous decision! Too often, immigrants plead guilty to crimes, only to have the immigration consequences of their convictions become much most severe at a later date.  The Second Circuit's decision recognizes, at least in certain narrow circumstances, that the retroactive application of this change in law may not be permissible.

The full text of Lugo v. Holder can be found here: