Criminal Defense of Immigrants


§ 19.16 (A)

Skip to § 19.

For more text, click "Next Page>"

(A)  Supreme Court Decision.   In Gonzales v. Duenas-Alvarez,[145] the Supreme Court held that the term “theft offense,” in the aggravated felony definition,[146] includes the crime of “aiding and abetting” a theft offense.  The nearly unanimous court reasoned that when Congress used the term “theft offense,” it meant it in “the generic sense in which the term is now used in the criminal codes of most States.”[147]  The court found that every “American jurisdiction [has] eliminated the distinction” between aiders and abettors and those who commit the substantive offense.[148]


The court therefore concluded:


Since criminal law now uniformly treats [aiders and abettors and principals] alike, the generic sense in which the term theft is now used in the criminal codes of most states, Taylor, 495 U.S. at 598, 110 S.Ct. 2143, covers such “aiders and abettors” as well as principals.  And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term “theft” in the federal statute.[149]


In so holding, the court overruled Ninth Circuit decisions holding to the contrary.[150]  At least one other circuit had already determined that aiding and abetting was included in at least some aggravated felony categories.[151]

                The Duenas decision appears to be limited to convictions of aiding and abetting, or accessory before the fact, since the court reasoned that those convictions are indistinguishable from convictions of the substantive offenses under all state laws.  The same cannot be said of other non-substantive offenses, such as solicitation, misprision of a felony, facilitation, and attempt.  Therefore, convictions of these non-substantive offenses, that cannot be said to be equivalent to convictions of the substantive offense, would not be included within the aggravated felony definitions following the reasoning in Duenas.  It is a closer question how the non-substantive offense of conspiracy would be treated under the Duenas principles, since the sentence for conspiracy to commit an offense is often as great as, or even greater than, the sentence for the substantive offense.

[145] Gonzales v. Duenas-Alvarez, 549 U.S. ___, 127 S.Ct. 815, 820  (Jan. 17, 2007).

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

[147] Gonzales v. Duenas-Alvarez, 127 S.Ct. at 818 (emphasis deleted), citing Taylor v. United States,  495 U.S. 575, 598 (1990).

[148] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding and abetting statutes.

[149] Ibid.

[150] E.g., Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005); Huerta-Guevara v. Ashcroft, 321 F.2d 883, 887 (9th Cir. Mar. 4, 2003); United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. June 6, 2002) (en banc) (California theft statute held to be divisible partly because it included aiding and abetting, which was not listed with attempt and conspiracy as aggravated felony collateral offenses)

[151] James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction of aiding and abetting bank fraud, in violation of 18 U.S.C. § § 2, 1344, constituted an offense “involving” fraud or deceit, since the elements of aiding and abetting bank fraud “necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful.”; “Significantly, ‘the aiding and abetting statute, 18 U.S.C. § 2, does not define a separate crime,’ but rather provides another means of convicting someone of the underlying offense.” (Footnote omitted.)).



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).