Safe Havens

(B)  Ninth Circuit Authority.  In United States v. Corona-Sanchez, the Ninth Circuit expressly held that the California theft statute was divisible with respect to the aggravated felony definition of a theft offense,[51] because it included aiding and abetting, whereas the aggravated felony theft definition did not.[52]  In Penuliar v. Ashcroft,[53] the Ninth Circuit expanded the safe haven created by United States v. Corona-Sanchez, holding that California Penal Code § 484 was not an aggravated felony “theft” offense, based on the possibility that the defendant might have been convicted for aiding and abetting, rather than commission of the substantive theft offense, “even if that [aiding and abetting] theory is not specifically charged.” Corona-Sanchez excludes a crime from the definition of “theft” offense[54] if an aider and abettor may stand convicted as the principal even if the charge of conviction does not specifically refer to the underlying theory of aiding and abetting.

            In Londono-Gomez v. INS,[55] the Ninth Circuit found that aiding and abetting was not a separate offense, and the BIA cited that decision and distinguished it from misprision of a felony several times after the aggravated felony statute was created.  Although Londono dealt with an earlier version of the statute, the current federal aiding and abetting statute[56] explicitly “punishes as a principal one who aids or abets” the commission, arguing that the omission of the verbs ‘aiding’ and ‘abetting’ in the removal statute indicates that Congress meant to exclude them, like solicitation.  The government might argue that, since aiders and abettors are known to be “punished as principals,” Congress did not believe it was necessary to include it expressly in the statute.  On the other hand, Congress specified aiding and abetting in the “reason to believe” ground of inadmissibility,[57] and in a number of other grounds of deportation and inadmissibility, see Appendix H, infra, but did not specify attempt or conspiracy, thus giving rise to the argument that it meant to exclude aiding and abetting from the aggravated felony deportation ground.

            The aggravated felony definition includes “an attempt or conspiracy to commit an offense described in this paragraph.”[58]  While expressly listing attempt and conspiracy, the aggravated felony definition does not include “aiding and abetting,” except where specifically mentioned in a referenced statute.[59]  Therefore, where aiding and abetting is not expressly included in the specific aggravated felony offense definition, a conviction for aiding and abetting an aggravated felony offense should not be considered an aggravated felony, because, “[s]imply put, [it] is not on the list.”[60]

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

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

[53] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005).

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

[55] Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983).

[56] 18 U.S.C. § 2.

[57] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

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

[59] See, e.g. INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).

[60] Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir. 1997) (solicitation of a controlled substance is not a controlled substance offense under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), since that section only covers violations, or conspiracy or attempt to violate, a controlled substance offense).