Gonzales v. Duenas-Alvarez

Legal Background

The INA makes aliens who have committed certain types of crimes subject to deportation. Among those types of crimes are “aggravated felonies.” 8 U.S.C. § 1227(a)(2). The Act then defines aggravated felony as including “theft offense[s] (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year”. 8 U.S.C. § 1101(a)(43)(G). The Ninth Circuit Court of Appeals, in Huerta-Guevara v. Ashcroft, defined a “theft offense” as a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.” 321 F.3d 883, 886 (9th Cir. 2003).

Under California law, any person who takes a vehicle without the owner’s consent is guilty of a felony. Cal. Veh. Code § 10851(a). Additionally, anyone who aids or abets in the taking of the vehicle is guilty of the same offense. Id.

Duenas-Alvarez, a resident alien, was convicted for violating § 10851(a) in 2002 and sentenced to three years imprisonment. Petition for a Writ of Certiorari, at 3–4. Therefore, he would be eligible for deportation if § 10851(a) qualified as a “theft offense” under 8 U.S.C. § 1227(a)(2). DHS sought Duenas-Alvarez’s removal under this statute in 2004. Petition for a Writ of Certiorari, at 4. Both the immigration judge and the Board of Immigration Appeals panel found that Duenas-Alvarez was subject to deportation under the DHS reading of the statute. Id.

However, while Duenas-Alvarez’s appeal was pending, the Ninth Circuit (which covers the state of California) decided that a violation of § 10851(a) was not a theft offense. Penuliar, 395 F.3d at 1044–45. The situation in Penuliar was factually quite similar to Duenas-Alvarez’s case, except that in Penuliar the defendant was a citizen of the Philippines and was charged with several other crimes in addition to § 10851(a). See id. at 1039–41. In reaching its decision, the Ninth Circuit applied the two-step inquiry developed by the Supreme Court in Taylor v. United States. See id. at 1041; see also 495 U.S. 575 (1990).

The first step in the inquiry is the “categorical approach,” which seeks to determine whether the full range of conduct proscribed under the statute falls within one of the categories of “aggravated felonies.” See Penuliar, 395 F.3d at 1041. Because, in California, accomplice liability falls within the range of “theft offenses,” an individual who had not actually taken any property could be convicted under the statute without satisfy the Ninth Circuit’s definition of “theft offense” in Huerta-Guevara. See id. at 1045. As such, in applying the “categorical approach,” a conviction under § 10851(a) does not fall within the category of “theft offenses” that trigger deportation under the INA. See id. at 1044–45. Additionally, the Court noted that it had eliminated other California code provisions from the category of “theft offenses” for similar reasons. See id. at 1044.

The Court then went on to the second step of the inquiry, the “modified categorical approach.” Id. at 1041. The inquiry under this step applies when the statute in question proscribes conduct beyond that which falls into the aggravated felony category, as is the case with § 10851, and asks whether there is sufficient evidence in the documentary record to conclude that a defendant was convicted as a principal or accomplice. See id. Under California law, the indictment need not even specify whether the defendant is being charged as the principal or as an accomplice. See id. at 1045–46. Therefore, the defendant’s status as either principal or accomplice will be indeterminate even after a trial and conviction, so it is difficult to determine whether or not the defendant actually took any property. See id. at 1046. Thus, according to Penuliar, convictions under § 10851 fail the second test, as well. See id.

Based on its ruling in Penuliar, the Ninth Circuit Court of Appeals remanded the case to the Board of Immigration Appeals for further consideration consistent with its decision in Penuliar. Duenas-Alvarez v. Gonzales, 176 Fed.Appx. 820 (9th Cir. 2005).

Government’s Argument

The Government’s argument, primarily, is that the presence of accomplice liability in § 10851(a) does not remove the provision from the category of “theft offenses.” Petition for a Writ of Certiorari, at 6. In modern American criminal law, there is no important distinction between principal and accomplice liability. Id. at 7. Indeed, the criminal statutes of all 50 states treat accomplices exactly as principals with respect to criminal offenses. Id. at 9. Therefore, aiding and abetting is encompassed within the generic definition of “theft offense.” Id.

Furthermore, the Ninth Circuit’s opinion goes against the weight of precedent in this area. Id. at 11. The First, Second, Seventh, and Eighth circuits, while confronting closely analogous circumstances, each found that accomplice liability did not render a criminal offense outside of the generic definition of “theft offenses.” Id. As there is no significant distinction between § 10851(a) and the state statutes at issue in those cases, the Ninth Circuit’s opinion in Penuliar is an outlier that should be corrected by the Supreme Court. Id. at 14–15.

Finally, the Government rejects the “modified categorical” approach as applied by the Ninth Circuit in Penuliar. Id. at 17. The Ninth Circuit standard ignores whether or not the defendant was actually charged as a principal, instead finding no theft offense because an accomplice to the crime could have been charged in the same manner. Id. Thus, despite the fact that Duenas-Alvarez was, in fact, explicitly charged as a principal, he was found not to have committed a theft offense under the modified categorical approach. Id.

Duenas-Alvarez’s Argument

Duenas-Alvarez argues that the entirety of the Government’s position is based on a misunderstanding of both Penuliar and of California Law. Respondent’s Brief in Opposition at 6. According to Duenas-Alvarez’s reading of Penuliar, § 10851(a) was held to be outside the category of theft offenses because it affects accessories after the fact, not aiders and abettors. Id. at 7. This eliminates the Government’s argument that Penuliar should be overturned because it assumes a division between principal liability and aiding and abetting liability, as under Duenas-Alvarez’s reading, the presence or absence of such a division is irrelevant. Id.

The Government’s misunderstanding may be due to the fact that, under California law, the term “accessory” is limited solely to accessories after the fact, and does not include aiders and abettors. Id. at 11–12. Therefore, Penuliar does not stand for the proposition that liability for aiders and abettors removes an offense from the theft offense category, and does not represent a Circuit split as indicated by the Government. Id. at 6–7.

Furthermore, as accessory after the fact liability is distinguished from principal liability in American criminal law, the Ninth Circuit’s holding is correct that the presence of accessory after the fact liability removes an offense from the theft offense category. Id. at 17–19. As accessory after the fact liability is typically handled with separate code provisions than principal liability, it falls outside the “generic definition” of theft offense. Id. at 17. Thus, the Ninth Circuit’s ruling in Penuliar was correct, as was the remand of Duenas-Alvarez’s case for further consideration consistent with that holding. Id. at 7.