Criminal Defense of Immigrants


§ 19.16 3. Aiding and Abetting

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An aider and abettor to a crime is punished as a principal.[143]  In drafting the Immigration and Nationality Act, Congress chose explicitly to include “aiding and abetting” an offense within some grounds of removal,[144] but did not do so for others.  See Appendix G, infra.


[143] See, e.g., 18 U.S.C. § 2.

[144] 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).



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 ___.

Third Circuit

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

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

Kawashima v. Holder, 593 F.3d 979 (9th Cir. Jan. 27, 2010) (federal conviction for aiding and assisting in the preparation of a false tax return, in violation of 26 U.S.C. 7206(2), constituted an aggravated felony fraud offense under INA 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), rejecting argument that tax offenses other than those described in 26 U.S.C. 7201 cannot qualify as aggravated felonies under subsection (M)(i) because subsection (M)(ii)'s specific reference to 7201 indicates Congress's intent to exclude all federal tax offenses from the definition of aggravated felonies under the more general subsection (M)(i)), withdrawing and superceding 530 F.3d 1111 (9th Cir. July 1, 2008); accord, Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. April 22, 2008); but see Ki Se Lee v. Ashcroft, 368 F.3d 218 (3d Cir.2004) (the presence of subsection (M)(ii) reflected Congress's intent to specify tax evasion as the only removable tax offense, and thereby exclude tax offenses from the scope of subsection (M)(i)).
Arteaga v. Mukasey, 511 F.3d 940 (9th Cir. Dec. 27, 2007) (California conviction of unauthorized driving of a vehicle, in violation of Vehicle Code 10851(a), constitutes an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G); rejecting an argument that the statute does not define a categorical theft offense because it prohibits aiding and abetting as well as direct commission of the act, and rejecting respondent's argument that applying the modified categorical approach, there is no evidence in the record of conviction showing he committed a theft offense), following Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 818, 823 (2007) (holding the generic term "theft offense" in INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), includes the crime of aiding and abetting, and vacating a Ninth Circuit decision holding that 10851(a) was not a categorical theft offense).