Safe Havens

 

(D)  Non-Substantive Offense Safe Havens.  

 

            (1)  In General.  For nearly all aggravated felony categories, there is an argument that when Congress expressly included the non-substantive offenses of attempt and conspiracy, it in effect excluded all other non-substantive offenses, such as aiding and abetting, accessory after the fact, misprision of a felony, solicitation, and other non-substantive offenses.  See § § 7.8-7.13, supra.

(2)  Aiding and Abetting.  The Ninth Circuit in Corona-Sanchez held California’s basic theft statute[918] was an overbroad divisible statute, with respect to the generic definition of “theft” employed in the aggravated felony definition,[919] because it included a number of nontraditional grounds of conviction, including (a) theft of services, and (b) causing another to produce a false credit report, and (c) aiding and abetting.[920]  Aiding and abetting conduct was not included within the generic definition of theft, since aiding and abetting a theft permitted conviction where the defendant neither took nor exercised control over property.[921]

 

In Huerta-Guevara v. Ashcroft,[922] the Ninth Circuit granted a petition for review and vacated a removal order predicated on an Arizona conviction of possession of a stolen vehicle,[923] holding the conviction did not fall within the generic definition of “theft offense” necessary to constitute an aggravated felony adopted by the circuit en banc in Corona-Sanchez v. INS.[924]  The court held, under the categorical approach, that the Arizona statute was overbroad with respect to the generic definition of “theft offense” in three respects, one of which was that the statute prohibited aiding and abetting, which also falls outside the generic definition of theft.[925]  Accordingly, a conviction under A.R.S. § 13-1802 does not facially qualify as a theft offense that is an aggravated felony under the INA.[926]

            On the other hand, the Ninth Circuit held that a California conviction for grand theft by taking property from the person of another, in violation of Penal Code § 487(c), constitutes a theft offense, and therefore is an aggravated felony for deportation purposes, because California courts have held an intent permanently to deprive the owner of property is an essential element of this offense, and because the record of conviction — i.e., the charge and the absence of any codefendants — negated the possibility the defendant was convicted on an aiding and abetting theory which renders the statute divisible.[927]  See also § 7.9, supra.[928]

[918] California Penal Code § 484(a).

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

[920] United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc).

[921] United States v. Rodriguez-Lopez, 51 Fed. Appx. 664 (9th Cir. Nov. 19, 2002) (California conviction of grand theft auto, in violation of Penal Code § 487(b)(3), did not constitute an aggravated felony under INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G), since the underlying theft offense, Penal Code § 484(a), was broader than generic aggravated felony theft, since it included the offense of aiding and abetting a theft and permitted conviction where the defendant neither took nor exercised control over property, and the record of conviction in this case did not establish the defendant was convicted of the narrower offense of generic theft, for purposes of a sentence enhancement for illegal re-entry after deportation), following United States v. Corona-Sanchez, 291 F.3d 1201, 1207-1208 (9th Cir. 2002) (en banc).

[922] Huerta-Guevara v. Ashcroft, 321 F.3d 883 (9th Cir. March 4, 2003).

[923] A.R.S. § 13-1802(A) provides:  “A person commits theft if, without lawful authority, the person knowingly:

            1. Controls property of another with the intent to deprive the other person of such property; or

            2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant’s possession for a limited, authorized term or use; or

            3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or

            4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person’s own or another’s use without reasonable efforts to notify the true owner; or

            5. Controls property of another knowing or having reason to know that the property was stolen; or

            6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another’s services to the person’s own or another’s benefit without authority to do so.”

[924] Corona-Sanchez v. INS, 291 F.3d 1201, 1205 (9th Cir. 2002) (en banc).

[925] Ibid., citing Corona-Sanchez, 291 F.3d at 1208.

[926] Id. at 887.

[927] Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004).  The Ninth Circuit sua sponte requested further briefing that could result in rehearing and a new decision of this case.

[928] Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), following Corona-Sanchez, supra.