Crimes of Moral Turpitude

(A)

In General.  An aider and abettor to a crime is punished as a principal.[1]  In drafting the Immigration and Nationality Act, Congress chose explicitly to include “aiding and abetting” as an offense within some grounds of removal,[2] but did not do so for others.  Nevertheless, the United States Supreme Court held, in Gonzales v. Duenas-Alvarez,[3] that the term “theft offense,” in the aggravated felony definition,[4] includes the crime of “aiding and abetting” a theft offense, even though “aiding and abetting” is not an enumerated inchoate offense.[5]  The nearly unanimous court reasoned that when Congress used the term “theft offense,” it meant it in “the generic sense in which the term is now used in the criminal codes of most States.”[6]  The court found that every “American jurisdiction [has] eliminated the distinction” between aiders and abettors and those who commit the substantive offense.[7]

            The court therefore concluded:

Since criminal law now uniformly treats [aiders and abettors and principals] alike, the generic sense in which the term theft is now used in the criminal codes of most states, Taylor, 495 U.S. at 598, 110 S.Ct. 2143, covers such “aiders and abettors” as well as principals.  And the criminal activities of these aiders and abettors of a generic theft must themselves fall within the scope of the term “theft” in the federal statute.[8]

In so holding, the court overruled Ninth Circuit decisions holding the contrary.[9] 

            The Duenas decision is expressly limited to convictions of aiding and abetting, or accessory before the fact, since the court reasoned that those convictions are indistinguishable from convictions of the substantive offenses under all state laws.  The same cannot be said of other non-substantive offenses, such as solicitation, misprision of a felony, facilitation, and attempt.  Therefore, convictions of these non-substantive offenses, that cannot be said to be equivalent to convictions of the substantive offense, are not included within the aggravated felony definitions following the reasoning in Duenas.  It is a closer question how the non-substantive offense of conspiracy would be treated under the Duenas principles, since the sentence for conspiracy to commit an offense is often as great as, or even greater than, the sentence for the substantive offense.  On the other hand, conspiracy as an offense is clearly distinguishable from the substantive offense in its elements, its duration, and in some states, its punishment.

[6] See, e.g., 18 U.S.C. § 2.

[7] E.g., INA § 212(a)(2)(C)(i), 8 U.S.C. § 1182(a)(2)(C)(i) (reason to believe ground of inadmissibility applies not only to illicit traffickers in a controlled substance, but also to a person who “is or has been a knowing aider, abettor, assister, conspirator or colluder with others in the illicit trafficking . . . .”) (emphasis supplied).

[8] Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 820  (Jan. 17, 2007).

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

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

[11] Gonzales v. Duenas-Alvarez, 127 S.Ct. at 818 (emphasis deleted), citing Taylor v. United States,  495 U.S. 575, 598 (1990).

[12] Id. at 820. See Appendix A to the opinion, citing the 50 state aiding and abetting statutes.

[13] Ibid.

[5] E.g., Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005); Huerta-Guevara v. Ashcroft, 321 F.2d 883, 887 (9th Cir. Mar. 4, 2003); United States v. Corona-Sanchez, 291 F.3d 1201, 1208 (9th Cir. June 6, 2002) (en banc) (California theft statute held to be divisible partly because it included aiding and abetting, which was not listed with attempt and conspiracy as aggravated felony collateral offenses)