(B)

Aiding and Abetting.  The United States Supreme Court held that a conviction for aiding and abetting a criminal offense should be treated the same as a conviction for the principal offense for immigration purposes: “knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime.”[221]  This case will most likely be applied in the CMT context as well, but immigration counsel are still free to argue that aiding and abetting a CMT is not a CMT because Congress failed to list it as such, even though Congress did expressly use aiding and abetting elsewhere.[222]

[221] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 821 (Jan. 17, 2007) (California conviction for theft constitutes a “theft” for aggravated felony purposes, even though California theft offense includes aiding and abetting a theft), citing People v. Nguyen, 21 Cal.App.4th 518, 530 (1993).  This case overrules a number of prior Ninth Circuit decisions, including Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) on this point.

[222] See, e.g., 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.)); Matter of O’Cealleagh, 23 I. & N. Dec. 976 (BIA 2006) (Irish conviction for aiding and abetting murder is a crime of moral turpitude).

First Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Fifth Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."