Does a conviction as an accomplice to a theft, rather than as the principal, constitute a “theft offense” that satisfies the “aggravated felony” standard of the Immigration and Nationality Act?
In 2002, Duenas-Alvarez, a Peruvian national, was found guilty of a violation of California Vehicle Code § 10851(a), which makes it illegal to take a vehicle without the owner’s consent or to aid or abet in such a taking. The Department of Homeland Security (DHS) sought Duenas-Alvarez’s deportation based on the Immigration and Nationality Act (INA), which allows the government to deport aliens convicted of an “aggravated felony.” “Theft offenses” are one type of crime included in the category of aggravated felonies. The Ninth Circuit Court of Appeals overturned the deportation order, reasoning that because the California statute allows for convictions based solely on aiding and abetting, conviction under the statute did not necessarily mean that Duenas-Alvarez had committed a “theft offense.” The DHS contends that simply because accomplice liability involves a lower level of involvement in an offense, that does not remove it from the category of “theft offenses.” The Supreme Court’s decision in this case will affect the immigration status of over 8,000 resident aliens who currently face deportation.
Questions as Framed for the Court by the Parties
Whether a “theft offense,” which is an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)((G), includes aiding and abetting.
In 2002, Luis Alexander Duenas-Alvarez, a Peruvian citizen and lawful permanent resident in the United States since 1998, pled guilty in the Superior Court of California to unlawfully driving or taking a vehicle. Petition for a Writ of Certiorari, at 5. The court sentenced him to a three year prison term. Id. Based on this conviction, the Department of Homeland Security (DHS) initiated removal proceedings against Duenas-Alvarez in 2004. Id.
At the hearing phase, the Immigration Law Judge found that, under the Immigration and Nationality Act (INA), unlawfully driving or taking a vehicle constituted an aggravated felony as a theft offense. Id. Consequently, the judge ordered Duenas-Alvarez removed to Peru. Id. Duenas-Alvarez appealed this decision to the Board of Immigration Appeals (BIA) where the removal decision was affirmed. Id. While Duenas-Alvarez’s case was on appeal to the Ninth Circuit Court of Appeals, that court decided Penuliar v. Gonzales. Id. at 6; see also, Penuliar v. Gonzales, 395 F.3d 1037 (9th Cir. 2005). In Penuliar, the Ninth Circuit held that California’s vehicle theft statute is broader than the definition of “theft offense” in the INA. 395 F.3d at 1044. As a result, where a defendant is convicted of a theft offense because he aided and abetted a theft, the conviction does not necessarily meet the INA’s categorical definition of a theft offense. Id. at 1044–45.
The Ninth Circuit Court of Appeals remanded Duenas-Alvarez’s case to the BIA to reconsider the case in light of its earlier ruling in Penuliar. Duenas-Alvarez v. Gonzales, 176 Fed.Appx. 820 (2006).
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).
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 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.
The INA provides that the government can deport any alien who is convicted of an aggravated felony after the alien entered the United States. 8 U.S.C. § 1227(a)(2)(A)(iii). As defined by the INA, an aggravated felony includes a theft offense where the prison term is at least one year. 8 U.S.C. § 1101(a)(43)(G). The Ninth Circuit Court of Appeals decided in Penuliar that, in California, theft convictions where the alien aided and abetted a theft offense are not necessarily aggravated felonies for removal purposes. 395 F.3d at 1045.
The government primarily argues that the Ninth Circuit’s rule in Penuliar, that “theft offenses” under the INA excludes aiding and abetting, is incorrect. Petition for a Writ of Certiorari, at 7. The government states that the generic definition of an offense is the definition used in a majority of state criminal codes. Id. at 7–8. In the case of theft offenses, all fifty states’ criminal codes as well as the criminal title of the United States Code define a “theft offense” to include aiding and abetting. Id. Accordingly, a theft offense under the INA should include aiding and abetting. Id.
Duenas-Alvarez, on the other hand, contends that Penuliar does not extend to aiding and abetting. Respondent's Brief in Opposition, at 10. Instead, Penuliar only excludes aliens convicted as accessories after the fact from removal. Id. Duenas-Alvarez maintains that aiding and abetting is a separate and distinct theory of liability from accessory after the fact liability. Id. Namely, principals are persons who actually engage in the criminal act, aiders and abettors are persons who aid, counsel, command, or otherwise aid or abet the crime and are held responsible as principals, while accessories after the fact are involved only after the crime has been committed and do not participate in the actual crime. Id. at 10–11. Further, although all fifty states’ criminal codes and the criminal title of the United States Code include aiding and abetting in the generic definition of theft, none similarly include accessory after the fact liability. Id. at 13. Thus, under the criminal code, the majority of jurisdictions do not subject accessories after the fact to the same criminal penalties imposed on principals. Id. at 14. Consequently, accessories after the fact are distinguishable from principals and should not be included as aggravated felons under the INA. Id.
As reported by the DHS, there are approximately 8,000 aliens in the Ninth Circuit who are removable because they were convicted of a theft offense. Petition for a Writ of Certiorari, at 16. If the Supreme Court rules in favor of Duenas-Alvarez, the removability of these 8,000 aliens would be called into question. Id. at 17. In order to properly order aliens who were convicted of theft removable, the immigration courts would have to determine whether these and all future aliens convicted of theft actually committed theft, and are removable, or whether they aided and abetted the theft and are not removable. Id. This could place a considerable burden on the immigration court system. In addition, such a rule would treat aliens convicted of theft differently under the criminal code and under the INA. Id. at 6. For instance, if an alien was convicted of aiding and abetting a theft, he would face the same criminal penalties as though he were convicted as a principal. Id. However, unlike a principal, this alien would not face removal under the INA. Id.
If the Court rules in favor of Duenas-Alvarez, aliens who are convicted of theft, and possibly other aggravated felonies, will have an opportunity to challenge their removal by presenting evidence that they were convicted as an accessory after the fact rather than as a principal or aider or abettor. This will expand aliens’ grounds for being able to remain in the United States. In certain respects, aliens will experience more protection under the INA than under state and federal criminal laws because the latter do not necessarily distinguish accessory after the fact liability from other forms of liability, while the INA would. Moreover, removing an alien who is an accessory after the fact and therefore has not participated in the actual crime is an unjust reading of the INA.
The Supreme Court’s decision in this case will affect the immigration status of over 8,000 resident aliens who currently face deportation. A victory for the government will mean the deportation of a larger number of convicted criminals, while a victory for Duenas-Alvarez will provide those resident aliens with the opportunity to remain in the United States. Written by: