Crimes of Moral Turpitude

(B)

Aiding and Abetting.  The United States Supreme Court held that a conviction for aiding and abetting a criminal offense should be treated the same as a conviction for the principal offense for immigration purposes: “knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime.”[221]  This case will most likely be applied in the CMT context as well, but immigration counsel are still free to argue that aiding and abetting a CMT is not a CMT because Congress failed to list it as such, even though Congress did expressly use aiding and abetting elsewhere.[222]

[221] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 821 (Jan. 17, 2007) (California conviction for theft constitutes a “theft” for aggravated felony purposes, even though California theft offense includes aiding and abetting a theft), citing People v. Nguyen, 21 Cal.App.4th 518, 530 (1993).  This case overrules a number of prior Ninth Circuit decisions, including Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), Martinez-Perez v. Ashcroft, 393 F.3d 1018 (9th Cir. Dec. 29, 2004), and United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) on this point.

[222] See, e.g., James v. Gonzales, 464 F.3d 505 (5th Cir. Sept. 5, 2006) (federal conviction of aiding and abetting bank fraud, in violation of 18 U.S.C. § § 2, 1344, constituted an offense “involving” fraud or deceit, since the elements of aiding and abetting bank fraud “necessarily entailed the criminal intent to see bank fraud committed, some affirmative conduct designed to aid the bank fraud, and his seeking, by his own action, to make the bank fraud successful.”; “Significantly, ‘the aiding and abetting statute, 18 U.S.C. § 2, does not define a separate crime,’ but rather provides another means of convicting someone of the underlying offense.” (Footnote omitted.)); Matter of O’Cealleagh, 23 I. & N. Dec. 976 (BIA 2006) (Irish conviction for aiding and abetting murder is a crime of moral turpitude).