(B)  Ninth Circuit Authority.  In United States v. Corona-Sanchez, the Ninth Circuit expressly held that the California theft statute was divisible with respect to the aggravated felony definition of a theft offense,[51] because it included aiding and abetting, whereas the aggravated felony theft definition did not.[52]  In Penuliar v. Ashcroft,[53] the Ninth Circuit expanded the safe haven created by United States v. Corona-Sanchez, holding that California Penal Code § 484 was not an aggravated felony “theft” offense, based on the possibility that the defendant might have been convicted for aiding and abetting, rather than commission of the substantive theft offense, “even if that [aiding and abetting] theory is not specifically charged.” Corona-Sanchez excludes a crime from the definition of “theft” offense[54] if an aider and abettor may stand convicted as the principal even if the charge of conviction does not specifically refer to the underlying theory of aiding and abetting.

            In Londono-Gomez v. INS,[55] the Ninth Circuit found that aiding and abetting was not a separate offense, and the BIA cited that decision and distinguished it from misprision of a felony several times after the aggravated felony statute was created.  Although Londono dealt with an earlier version of the statute, the current federal aiding and abetting statute[56] explicitly “punishes as a principal one who aids or abets” the commission, arguing that the omission of the verbs ‘aiding’ and ‘abetting’ in the removal statute indicates that Congress meant to exclude them, like solicitation.  The government might argue that, since aiders and abettors are known to be “punished as principals,” Congress did not believe it was necessary to include it expressly in the statute.  On the other hand, Congress specified aiding and abetting in the “reason to believe” ground of inadmissibility,[57] and in a number of other grounds of deportation and inadmissibility, see Appendix H, infra, but did not specify attempt or conspiracy, thus giving rise to the argument that it meant to exclude aiding and abetting from the aggravated felony deportation ground.

            The aggravated felony definition includes “an attempt or conspiracy to commit an offense described in this paragraph.”[58]  While expressly listing attempt and conspiracy, the aggravated felony definition does not include “aiding and abetting,” except where specifically mentioned in a referenced statute.[59]  Therefore, where aiding and abetting is not expressly included in the specific aggravated felony offense definition, a conviction for aiding and abetting an aggravated felony offense should not be considered an aggravated felony, because, “[s]imply put, [it] is not on the list.”[60]

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

[52] United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002).

[53] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005).

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

[55] Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983).

[56] 18 U.S.C. § 2.

[57] INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i).

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

[59] See, e.g. INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N).

[60] Coronado-Durazo v. INS, 123 F.3d 1322, 1325 (9th Cir. 1997) (solicitation of a controlled substance is not a controlled substance offense under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), since that section only covers violations, or conspiracy or attempt to violate, a controlled substance offense).

AGGRAVATED FELONY " AIDING AND ABETTING
Rosemond v. United States, ___ U.S. ___ (2014) (discussion of elements of aiding and abetting). The court stated: When an accomplice knows beforehand of a confederates design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a 924(c) violation unless he has foreknowledge that his confederate will commit the offense with a firearm. Brief for United States 38; see also infra, at 15"17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it"most notably, opt to walk away. Id. at ___.

AGGRAVATED FELONY - THEFT OFFENSE - AUTO THEFT - AIDING AND ABETTING
Gonzales v. Duenas-Alvarez, ___ U.S. ___, 2007 WL 98723 (Jan. 17, 2007) (California conviction of unlawful taking of a vehicle, in violation of Vehicle Code 10851(a), constituted theft offense aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), since the crime of "aiding and abetting" a theft offense is included within the substantive offense).

Third Circuit

AGGRAVATED FELONY - ALIEN SMUGGLING - AIDING AND ABETTING
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (federal misdemeanor conviction of violating 8 U.S.C. 1324(a)(2)(A), aiding and abetting alien smuggling, is an "aggravated felony" even though only punishable as a misdemeanor under federal law).

Fifth Circuit

AIDING AND ABETTING
United States v. Rabhan, 540 F.3d 344 (5th Cir. Aug. 11, 2008) (under federal criminal law, aiding and abetting is a form of derivative liability, and should be treated the same as the substantive or underlying offense).

Ninth Circuit

SAFE HAVENS - GENERAL SAFE HAVENS - CONVICTION-BASED GROUNDS OF DEPORTATION
Immigration counsel can argue that a person convicted of aiding and abetting the commission of a deportable offense is not deportable unless the definition of aiding and abetting, under the law of the jurisdiction of conviction, is coextensive with the federal definition of aiding and abetting. For example, in California, a person can be convicted of aiding and abetting on the basis of mere encouragement, even if no actual assistance is provided. This form of aiding a theft offense has been held insufficient to constitute a theft offense aggravated felony. United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). This same argument could be used to argue that a conviction of aiding and abetting any other deportable offense - a firearms conviction, crime of moral turpitude, domestic violence conviction, or controlled substances conviction - does not fall within the ground of deportation. Criminal defense counsel, however, should assume that a conviction of aiding a deportable offense also constitutes a deportable offense and avoid such a conviction if possible.

Other

AIDING AND ABETTING - GUIDELINES ISSUE
The "aiding and abetting" guideline was not deleted, but just renumbered, so aiding and abetting is still listed under the guidelines. The better argument is that the Guidelines and federal sentencing cases do not control for immigration purposes. In United States v. Vidal, after stating that United States v. Corona-Sanchez does not control because it was decided under guidelines which have since been amended, the court stated: "This commentary [U.S.S.G. 2L1.2, cmt. n.4 (2002)] governs Vidal's sentence" and that "Penuliar is distinguishable for the same reason, because it construed 1101(a)(43)(G) alone, without the commentary to U.S.S.G. 2L1.2 that includes aiding and abetting for purposes of enhancing the offense level for prior convictions." Thus, Vidal and Martinez-Perez v. Gonzales control in immigration cases. Casares-Gutierrez and Ferreira v. Ashcroft and many other Ninth Circuit immigration cases do not follow the guidelines. Some cases like Ferreira v. Gonzales state that sentencing cases should not be used as authority in the immigration context, but other cases find sentencing cases controlling in the immigration context. The Ninth Circuit immigration-law outline downplays the footnote in Leocal pointing out that in Valencia v. Gonzales, the court cautioned that the different definitions of "crime of violence" in the sentencing guidelines and in 18 U.S.C. 16 could be dispositive in other cases. The sentencing guidelines often go way beyond what the law is and make new law, for example, expanding the statutory crime of violence definitions. Therefore, Stinson does not have to be argued as a first line of defense. The first argument is that U.S.S.G. application notes and guidelines are not controlling. The second argument is that Stinson would apply.      With regard to aiding and abetting, the federal definition and the definition in the majority of states (the generic definition of aiding and abetting) is not the same as the California aiding and abetting natural and probable consequences doctrine. In California, the aider and abettor need not have the same intent as the actual perpetrator if the target offense is different than the offense actually committed.