(A)  General Argument Aiding is Not an Aggravated Felony.  An aider and abettor to a crime is punished as a principal, but Congress did not list “aiding and abetting” when it added “attempt” and “conspiracy” to the list of deportable firearms offenses.[369]  It did specifically provide that aiding and abetting behavior will trigger deportation under some other specific grounds of deportation and inadmissibility.[370]  It is possible to argue, particularly in the Ninth Circuit, that a conviction for aiding and abetting an aggravated felony offense is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony” argument.  See § 3.48(B), supra.  Aiding and abetting an aggravated felony also should not be considered an offense “related to” that offense.[371]  However, aiding and abetting an aggravated felony may be considered an aggravated felony for illegal re-entry sentencing purposes.[372]

 

            Immigration counsel can also argue that a person convicted of aiding and abetting the commission of a deportable offense is not deportable unless the definition of aiding and abetting, under the law of the jurisdiction of conviction, is coextensive with the federal definition of aiding and abetting. For example, in California, a person can be convicted of aiding and abetting on the basis of mere encouragement, even if no actual assistance is provided. This broad form of aiding a theft offense has been held insufficient to constitute a theft offense aggravated felony.[373]  This same argument could be used to argue that a conviction of aiding and abetting any other aggravated felony also does not fall within the ground of deportation. Criminal defense counsel, however, should assume that a conviction of aiding a deportable offense also constitutes a deportable offense and avoid such a conviction if possible.

[369] See United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. June 6, 2002) (en banc) (California theft statute held to be divisible partly because it included aiding and abetting, which was not listed with attempt and conspiracy as aggravated felony collateral offenses); Huerta-Guevara v. Ashcroft, 321 F.2d 883, 887 (9th Cir. Mar. 4, 2003).

[370] E.g., INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i) (reason to believe ground of inadmissibility applies not only to illicit traffickers in a controlled substance, but also to a person who “is or has been a knowing aider, abettor, assister, conspirator or colluder with others in the illicit trafficking . . . .”) (emphasis supplied).

[371] See § 4.37, infra.

[372] United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code § 10851, constitutes an aggravated felony under the U.S.S.G., for purposes of an eight-level increase in the base offense level for an illegal re-entry sentence).  See § 4.40, infra.

[373] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc).

AGGRAVATED FELONY - THEFT OFFENSE - AUTO THEFT - AIDING AND ABETTING
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851(a), constituted theft offense aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the crime of "aiding and abetting" a theft offense is included within the substantive offense).