Safe Havens

(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”).