(A)  In General.  The aggravated felony deportation ground lists dozens of substantive criminal offenses.[12]  It also specifically lists “attempt and conspiracy to commit an offense described in this paragraph” as falling within the aggravated felony definition.[13]  This specific listing of two non-substantive offenses, attempt and conspiracy, gives rise to the argument that Congress did not include other similar non-substantive offenses since it did not list them in the aggravated felony statute.[14]  Other non-substantive generic offenses that are similar to attempt and conspiracy, in that they apply to all substantive offenses, include: (a) accessory after the fact, (b) aiding and abetting, (c) facilitation, (d) misprision of a felony, (e) solicitation, and (f) other non-substantive offenses.  See § § 7.8-7.13, infra.

 

            Many of the crime-related grounds of deportation and inadmissibility specifically list one or more of these non-substantive offenses, which are therefore expressly included in the particular ground.  See Appendix H, Non-Substantive Offenses.  If a defendant was convicted of a non-substantive offense, other than attempt or conspiracy, this Appendix can be checked for particular instances in which the particular non-substantive offense of conviction was expressly listed by Congress in other grounds, to establish that Congress knew how to include it when it wished to, thus strengthening the argument that Congress did not wish to include it as part of the aggravated felony definition statute.

 

            Thus, convictions of all non-substantive offenses, except attempt and conspiracy, constitute safe havens, unless they are included within the particular aggravated felony category under consideration.  For example, the crime of violence aggravated felony category includes offenses with an element of attempted use of force.[15]  Some of the statutes specifically listed in the aggravated felony definition may also include certain non-substantive offenses.  Generally speaking, however, unless an express reference including a particular non-substantive offense can be found in the specific aggravated felony category, no non-substantive offense other than attempt or conspiracy will constitute an aggravated felony.

 

            Appendix H lists Congress’ specific references to various non-substantive offenses within different grounds of deportation.

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

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

[14] See Matter of Batista-Hernandez, 21 I. & N. Dec. 955 (BIA 1997) (accessory after the fact). 

[15] 18 U.S.C. § 16(a); INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F); United States v. Sarbia, 362 F.3d 558 (9th Cir. March 22, 2004), opinion withdrawn 367 F.3d 1079 (9th Cir. May 14, 2004) (Nevada conviction for attempted discharge of a firearm at occupied structure an aggravated felony crime of violence for sentencing purposes; no distinction drawn between violent conduct and attempted violent conduct).

Ninth Circuit

AIDING AND ABETTING - ABSENCE OF CO-DEFENDANTS NOT DISPOSITIVE
The Ninth Circuit vacated its decision in Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), vacated __ F.3d __ (9th Cir. August 3, 2005), in which the Court had wrongly assumed that since a co-defendant did not appear in the record of conviction, this necessarily meant that there was in fact no person whom the defendant may have aided and abetted in committing a theft offense. The in vacating the decision, the Court recognized that the California theft statute includes aiding and abetting offenses. The Court also recognized that the absence of codefendants is not dispositive. There is no requirement in California criminal law that codefendants be charged in the same complaint, or even the same case number. Many courts charge each in a wholly separate case while still being free to handle related cases together for purposes of judicial efficiency. It is not necessarily true that all codefendants are arrested or charged, or even identified. Even if a codefendant is acquitted, the defendant can still be convicted of aiding and abetting anyway without the verdict being overturned as an inconsistent verdict. See Model Penal Code 2.07(7)(1985) ("An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.").      Furthermore, Immigration courts cannot even consider the record of conviction of a codefendant to be part of the record of conviction of the defendant. Matter of Short, 20 I. & N. Dec. 136 (BIA 1989) (record of conviction of a noncitizen does not include the record of conviction of the persons codefendant).

Other

AIDING AND ABETTING - SENTENCING VS. IMMIGRATION CASES
The sentencing guidelines for illegal reentry cases were amended on November 1, 2001 to add Application Note 4, which provided: "4. Aiding and Abetting, Conspiracies, and Attempts.--Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." This Application Note was in effect until November 1, 2003, when it was deleted from the guideline commentary. USSG, 2L1.2, 18 U.S.C.A. (Effective November 1, 1987, and amended effective January 15, 1988; November 1, 1989; November 1, 1991; November 1, 1995; November 1, 1997; November 1, 2001; November 1, 2002; November 1, 2003.) The Vidal case dealt with an offense that arose under the guidelines as they existed between November 1, 2001, and November 1, 2003, when the aiding provision was deleted from the commentary.
     The Ninth Circuits decision in United States v. Vidal, 426 F.3d 1011 (9th Cir. Oct. 24, 2005) ", decision withdrawn pending hearing en banc, United States v. Vidal, __ F.3d__, 2006 WL 1822282 (9th Cir. Jun 29, 2006)." (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851, constitutes an aggravated felony under the US Sentencing Guidelines, for purposes of an eight-level increase in the base offense level for an illegal reentry sentence), is limited only to sentencing (i.e. illegal reentry) cases where the sentencing occurred between November 1, 2001 and November 1, 2003. The "aiding and abetting" language in United States v. Penuliar, 395 F.3d 1037, 1041 (9th Cir. 2005), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002), still control for immigration cases, and illegal reentry cases not applying the sentencing guidelines effective during the 2001-2003 window.      Arguably, Corona-Sanchez should apply regardless of the sentencing date, since the distinguishing factor in Vidal was merely the addition of a comment to the sentencing guidelines, which arguably contradicted Congressional intent. The Sentencing Reform Act did not authorize Guideline commentary. Stinson v. United States, 113 S. Ct. 1913, 1917 (1993).  In Stinson, the Supreme Court held that Guideline commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." As a matter of statutory constuction, the Ninth Circuit has often held Congress did not intend to include in the aggravated felony definition inchoate crimes that were not mentioned expressly.  See, e.g., Leyva-Licea v INS, 187 F.3d 1147 (9th Cir. 1999) (involving solicitation offenses); Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005) (involving aiding and abetting).  Congress knew how to include "aiding and abetting" offenses in 8 U.S.C. 1101(a)(43)(U), but chose instead to include only attempts and conspiracies. As a result, the commentarys blanket inclusion of aiding and abetting offenses is inconsistent with 8 U.S.C. 1101(a)(43).  Vidal relies on Rodriguez-Rodriguez, which interpreted whether burglary is a crime of violence for purposes of U.S.S.G. 2L1.2, cmt. n. 1(B)(iii).  The 16-level crime of violence enhancement at issue in Rodriguez-Rodriguez is not dependent on the statutory definition of "aggravated felony" under 8 U.S.C. 1101(a)(43).  As such, Guideline commentary need not conform with the definition of aggravated felony. The panel in Vidal adopted Rodriguez-Rodriguezlanguage about Guideline commentary without noting that Rodriguez did not involve a statutory definition of aggravated felony.  Since Rodriguez-Rodriguez did not involve a comment that was inconsistent with the aggravated felony definition, Stinson was not applicable.      In Vidal, the Ninth circuit did not apply Stinson to the commentary to see whether the aiding and abetting comment exceeded the scope of the Commissions authority because it thought that Rodriguez-Rodriguez controlled and this does not appear to have been raised.  If the Ninth Circuit applied Stinson, there is a reasonably good argument that the statutory construction cases like Levya, Penuliar and Coronado-Durazo control as to Congressional intent, which arguably limits what the commentary can say, especially since in Leocal the Supreme Court held the aggravated felony statute means the same in civil and criminal cases. Thanks to Dan Kesselbrenner.

AIDING AND ABETTING - STATE VS. FEDERAL DEFINITION
In Vidal the Court recognized that the California definition of aiding and abetting includes "encouragement," which in California includes "promotion and instigation." In California, A person may be considered an aider and abettor if he/she acts "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose of either committing, or of encouraging or facilitating commission of, the offense." People v. Beeman, 35 Cal.3d 547, 560 (1984). See also, People v. Prettyman, 14 Cal. 4th 248 (1996).      This is language in not included in the Federal definition aiding and abetting, and one can argue that the California definition of aiding and abetting is broader than the federal definition.      In Vidal, the Ninth Circuit neglected to explain how the federal definition of aiding and abetting" addresses the issue of "encouraging." It only relies on the language of jury instructions related to 18 U.S.C.S. 2(a) aiding and abetting and the decision in United States v. Barnett, 667 F.2d 835 (9th Cir. 1982). However, the Barnett decisions inclusion of the words "otherwise encourages" in its definition of "abettor" is only in passing. The facts of the case do not specifically relate to an aider-abettor who only "encouraged." The defendant in Barnett gave information to the co-defendant as to where the co-defendant could obtain certain illegal substances. Arguably, this action was more than just passively supporting the co-defendant in perpetrating the crime. Thanks to Kathy Brady.