Criminal Defense of Immigrants

(B)  Non-Substantive Offenses Are Not Included.  The fact that the statute does not list any non-substantive offenses gives rise to a strong argument that no non-substantive offense (other than aiding and abetting) is included in this ground of deportation, since Congress knew how to list them when it wished to do so.  See Introduction, Appendix G, infra.  See also § 19.13, supra.

                (1)  Accessory After the Fact.  This argument is particularly strong with respect to the non-substantive offense of accessory after the fact, because of the recent Supreme Court decision in Duenas.  See § 19.15, supra.

                (2)  Other Non-Substantive Offenses.  The Duenas[70] 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.  See § § 19.13 – 19.20, supra.  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, or even greater, than the sentence for the substantive offense, but the elements and name of the offense are quite different.

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