(B)  Unlisted Non-Substantive Offenses Do Not Trigger Deportation.  The maxim of statutory interpretation, “expressio unius est exclusio alterius,” means that where a statute lists the items to which it applies, “all omissions should be understood as exclusions.”[16]  Therefore, a statute that specifies a ground of deportation, and which lists certain offenses as coming within the ground of deportation, will be interpreted as excluding offenses which are not listed.  For example, the statute defining aggravated felonies lists a number of substantive offenses, and then provides that attempt and conspiracy to commit a listed substantive offense are also within the definition of aggravated felony.[17]  When Congress listed certain collateral offenses, i.e., attempt and conspiracy, it omitted others, i.e., accessory after the fact,[18] misprision of a felony,[19] solicitation,[20] and aiding and abetting.[21]  Even attempt and conspiracy offenses were not deemed part of the firearms conviction ground of deportation until Congress expressly added them.[22]  Therefore, the Board of Immigration Appeals and the federal courts, particularly within the Ninth Circuit, follow the rule that when a statute defining a ground of deportation expressly lists certain offenses as coming within the ground of deportation, other similar offenses are excluded and do not trigger deportation.

[16] N. Singer, Statutes and Statutory Construction § 47:23, p. 307 (6th ed. 2002).

[17] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[18] E.g., Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (aggravated felony drug trafficking ground of deportation lists attempt and conspiracy, but not accessory after the fact).

[19] Matter of Espinoza, 22 I. & N. Dec. 889 (BIA 1999) (en banc) (conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under INA § 101(a)(43)(S), 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice, distinguishing Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997)).

[20] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (offer to sell is equivalent to solicitation, which is not listed in aggravated felony statute); Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (attempt and conspiracy are listed as deportable controlled substances offenses, but solicitation is not); but see Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime relating to a controlled substance).

[21] United States v. Corona-Sanchez, 29 F.3d 1201 (9th Cir. 2002) (en banc) (aiding and abetting not included within theft offense aggravated felony definition); see Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. Jan. 12, 2005) (same).

[22] Matter of Hou, 20 I. & N. Dec. 513 (BIA 1992) (conspiracy to possess a firearm held not a deportable offense under former INA § 241(a)(2)(C), prior to amendment adding conspiracy and attempt to the firearms ground of deportation); Drax v. Ashcroft, 178 F.Supp.2d 296, 307-308 (E.D.N.Y. 2001) (1994 amendment adding attempt and conspiracy to firearms conviction ground of deportation could not be applied retroactively, under the Supreme Court’s analysis in INS v. St. Cyr, 533 U.S. 289 (2001)).

Ninth Circuit

AIDING AND ABETTING - ABSENCE OF CO-DEFENDANTS NOT DISPOSITIVE
The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses. The Court also recognized that the absence of codefendants is not dispositive. There is no requirement in California criminal law that codefendants be charged in the same complaint, or even the same case number. Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency. It is not necessarily true that all codefendants are arrested or charged, or even identified. Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting anyway without the verdict being overturned as an inconsistent verdict. See Model Penal Code 2.07(7)(1985) ("An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.").      Furthermore, Immigration courts cannot even consider the record of conviction of a codefendant to be part of the record of conviction of the defendant. Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the persons codefendant).

Other

AIDING AND ABETTING - SENTENCING VS. IMMIGRATION CASES
The sentencing guidelines for illegal reentry cases were amended on November 1, 2001 to add Application Note 4, which provided: "4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." This Application Note was in effect until November 1, 2003, when it was deleted from the guideline commentary. USSG, 2L1.2, 18 U.S.C.A. (Effective November 1, 1987, and amended effective January 15, 1988; November 1, 1989; November 1, 1991; November 1, 1995; November 1, 1997; November 1, 2001; November 1, 2002; November 1, 2003.) The Vidal case dealt with an offense that arose under the guidelines as they existed between November 1, 2001, and November 1, 2003, when the aiding provision was deleted from the commentary.
     The Ninth Circuits decision in United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) ", decision withdrawn pending hearing en banc, United States v. Vidal, __ F.3d__, 2006 WL 1822282 (9th Cir. Jun 29, 2006)." (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal reentry sentence), is limited only to sentencing (i.e. illegal reentry) cases where the sentencing occurred between November 1, 2001 and November 1, 2003. The "aiding and abetting" language in United States v. Penuliar, 395 F.3d 1037, 1041 (9th Cir. 2005), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), still control for immigration cases, and illegal reentry cases not applying the sentencing guidelines effective during the 2001-2003 window.      Arguably, Corona-Sanchez should apply regardless of the sentencing date, since the distinguishing factor in Vidal was merely the addition of a comment to the sentencing guidelines, which arguably contradicted Congressional intent. The Sentencing Reform Act did not authorize Guideline commentary. Stinson v. United States, 113 S. Ct. 1913, 1917 (1993).  In Stinson, the Supreme Court held that Guideline commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." As a matter of statutory constuction, the Ninth Circuit has often held Congress did not intend to include in the aggravated felony definition inchoate crimes that were not mentioned expressly.  See, e.g., Leyva-Licea v INS, 187 F.3d 1147 (9th Cir. 1999) (involving solicitation offenses); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (involving aiding and abetting).  Congress knew how to include "aiding and abetting" offenses in 8 U.S.C. 1101(a)(43)(U), but chose instead to include only attempts and conspiracies. As a result, the commentarys blanket inclusion of aiding and abetting offenses is inconsistent with 8 U.S.C. 1101(a)(43).  Vidal relies on Rodriguez-Rodriguez, which interpreted whether burglary is a crime of violence for purposes of U.S.S.G. 2L1.2, cmt. n. 1(B)(iii).  The 16-level crime of violence enhancement at issue in Rodriguez-Rodriguez is not dependent on the statutory definition of "aggravated felony" under 8 U.S.C. 1101(a)(43).  As such, Guideline commentary need not conform with the definition of aggravated felony. The panel in Vidal adopted Rodriguez-Rodriguezlanguage about Guideline commentary without noting that Rodriguez did not involve a statutory definition of aggravated felony.  Since Rodriguez-Rodriguez did not involve a comment that was inconsistent with the aggravated felony definition, Stinson was not applicable.      In Vidal, the Ninth circuit did not apply Stinson to the commentary to see whether the aiding and abetting comment exceeded the scope of the Commissions authority because it thought that Rodriguez-Rodriguez controlled and this does not appear to have been raised.  If the Ninth Circuit applied Stinson, there is a reasonably good argument that the statutory construction cases like Levya, Penuliar and Coronado-Durazo control as to Congressional intent, which arguably limits what the commentary can say, especially since in Leocal the Supreme Court held the aggravated felony statute means the same in civil and criminal cases. Thanks to Dan Kesselbrenner.

AIDING AND ABETTING - STATE VS. FEDERAL DEFINITION
In Vidal the Court recognized that the California definition of aiding and abetting includes "encouragement," which in California includes "promotion and instigation." In California, A person may be considered an aider and abettor if he/she acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense." People v. Beeman, 35 Cal.3d 547, 560 (1984). See also, People v. Prettyman, 14 Cal. 4th 248 (1996).      This is language in not included in the Federal definition aiding and abetting, and one can argue that the California definition of aiding and abetting is broader than the federal definition.      In Vidal, the Ninth Circuit neglected to explain how the federal definition of aiding and abetting" addresses the issue of "encouraging." It only relies on the language of jury instructions related to 18 U.S.C.S. 2(a) aiding and abetting and the decision in United States v. Barnett, 667 F.2d 835 (9th Cir. 1982). However, the Barnett decisions inclusion of the words "otherwise encourages" in its definition of "abettor" is only in passing. The facts of the case do not specifically relate to an aider-abettor who only "encouraged." The defendant in Barnett gave information to the co-defendant as to where the co-defendant could obtain certain illegal substances. Arguably, this action was more than just passively supporting the co-defendant in perpetrating the crime. Thanks to Kathy Brady.