(C)  Offenses “Related to” Another Offense.  Many, but not all, specific aggravated felony categories have parentheticals describing the offenses contained in specific statutes as “relating to” a given offense.  At least within the Ninth Circuit, the fact that the aggravated felony definition may contain “related to” language should not be a reason to include aiding and abetting offenses, since the Ninth Circuit has stated that the “relating to” language, found in various section of the Act “although broad, does have some limits.”  Specifically, the “related to” language has been limited “where to read it broadly would render meaningless other words in the statutory language.”[61]  To read the “related to” language in the definition of offenses relating to failure to appear,[62] for example, to include aiding and abetting offenses would render meaningless the “conspiracy or attempt” language applicable to all aggravated felonies,[63] since conspiracy or attempt to commit an aggravated felony offense would certainly be “related to” the aggravated felony offense as well.  If the generic offenses of conspiracy and attempt were automatically included as offenses “related to” an aggravated felony offense, there would have been no need for Congress specifically to add to the aggravated felony ground of deportation the language “an attempt or conspiracy to commit an offense described in this paragraph.”[64]

            This idea finds further support in United States v. Corona-Sanchez,[65] which found that the California definition of “theft,” in California Penal Code § 484(a) is broader than the “generic” definition of theft under Taylor v. United States.[66]  In dictum, the court noted that a defendant can be convicted of the substantive offense of violating California Penal Code § 484(a) for aiding and abetting a theft, for theft of labor, and for solicitation of false credit reporting, none of which are included in the generic aggravated felony definition of theft.  The court observed that California Penal Code § 484(a) “allows a conviction for theft when the defendant has neither taken, nor exercised control over, the property.”[67]  A later case applied this reasoning to hold that a conviction under California Vehicle Code § 10851(a) (unlawful driving and taking of a vehicle), was not an aggravated felony theft offense since the offense includes aiding and abetting.[68]

 

            While the aggravated felony definition of theft offenses[69] does not contain the “related to” language, these cases strongly suggest that aiding and abetting an aggravated felony offense should generally not be considered an aggravated felony (unless, as in the alien smuggling context, aiding and abetting is specifically included in the referenced statute).[70]

[61] Luu-Le v. INS, 224 F.3d 911, 196 (9th Cir. 2000), citing Leyva-Licea, supra, and Coronado-Durazo, supra.

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

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

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

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

[66] Taylor v. United States, 495 U.S. 575, 602 (1990).

[67] Corona-Sanchez, 291 F.3d at 1207-08 (9th Cir. 2002).

[68] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005); but see Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004) (California Penal Code § 484(a) is an aggravated felony theft offense where record of conviction does not evidence possibility that the noncitizen could have been convicted under an aiding and abetting theory).

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

[70] INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N) (“an offense described in paragraph (1)(A) or (2) of section 274(a) (relating to alien smuggling), except in the case of a first offense for which the alien has affirmatively shown that the alien committed the offense for the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other individual) to violate a provision of this Act.”); see also INA § 274(a)(1)(A)(V)(II), 8 U.S.C. § 1324(a)(1)(A)(V)(II) (“aids or abets the commission of any of the preceding acts”).

AGGRAVATED FELONY " AIDING AND ABETTING
Rosemond v. United States, ___ U.S. ___ (2014) (discussion of elements of aiding and abetting). The court stated: When an accomplice knows beforehand of a confederates design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a 924(c) violation unless he has foreknowledge that his confederate will commit the offense with a firearm. Brief for United States 38; see also infra, at 15"17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it"most notably, opt to walk away. Id. at ___.

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).

Third Circuit

AGGRAVATED FELONY - ALIEN SMUGGLING - AIDING AND ABETTING
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Fifth Circuit

AIDING AND ABETTING
United States v. Rabhan, 540 F.3d 344 (5th Cir. Aug. 11, 2008) (under federal criminal law, aiding and abetting is a form of derivative liability, and should be treated the same as the substantive or underlying offense).

Ninth Circuit

SAFE HAVENS - GENERAL SAFE HAVENS - CONVICTION-BASED GROUNDS OF DEPORTATION
Immigration counsel can 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 form of aiding a theft offense has been held insufficient to constitute a theft offense aggravated felony. United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). This same argument could be used to argue that a conviction of aiding and abetting any other deportable offense - a firearms conviction, crime of moral turpitude, domestic violence conviction, or controlled substances conviction - 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.

Other

AIDING AND ABETTING - GUIDELINES ISSUE
The "aiding and abetting" guideline was not deleted, but just renumbered, so aiding and abetting is still listed under the guidelines. The better argument is that the Guidelines and federal sentencing cases do not control for immigration purposes. In United States v. Vidal, after stating that United States v. Corona-Sanchez does not control because it was decided under guidelines which have since been amended, the court stated: "This commentary [U.S.S.G. 2L1.2, cmt. n.4 (2002)] governs Vidal's sentence" and that "Penuliar is distinguishable for the same reason, because it construed 1101(a)(43)(G) alone, without the commentary to U.S.S.G. 2L1.2 that includes aiding and abetting for purposes of enhancing the offense level for prior convictions." Thus, Vidal and Martinez-Perez v. Gonzales control in immigration cases. Casares-Gutierrez and Ferreira v. Ashcroft and many other Ninth Circuit immigration cases do not follow the guidelines. Some cases like Ferreira v. Gonzales state that sentencing cases should not be used as authority in the immigration context, but other cases find sentencing cases controlling in the immigration context. The Ninth Circuit immigration-law outline downplays the footnote in Leocal pointing out that in Valencia v. Gonzales, the court cautioned that the different definitions of "crime of violence" in the sentencing guidelines and in 18 U.S.C. 16 could be dispositive in other cases. The sentencing guidelines often go way beyond what the law is and make new law, for example, expanding the statutory crime of violence definitions. Therefore, Stinson does not have to be argued as a first line of defense. The first argument is that U.S.S.G. application notes and guidelines are not controlling. The second argument is that Stinson would apply.      With regard to aiding and abetting, the federal definition and the definition in the majority of states (the generic definition of aiding and abetting) is not the same as the California aiding and abetting natural and probable consequences doctrine. In California, the aider and abettor need not have the same intent as the actual perpetrator if the target offense is different than the offense actually committed.