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US Supreme Court Clarifies Deportation Law

The United States Supreme Court recently reviewed the use of California’s vehicle theft code to deport a legal alien under the Immigration and Nationality Act, 66 Stat. 163, 8 USC § 1101 et seq. The Court held in Gonzales v. Duenas-Alvarez (January 17, 2007), that the term “theft offense” includes the crime of “aiding and abetting” as a theft offense.

Duenas-Alvarez, a permanent resident alien, was arrested and convicted of violating California’s Vehicle Code which states:

“Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense.”

Duenas-Alvarez. Cal. Veh. Code Ann. § 10851(a) (West 2000). (Emphasis original in Duenas-Alvarez). The Federal Government began removal proceedings under the Immigration and Nationality Act. The Act list several crimes for which a legal alien can be deported. Among these is “a theft offense . . . for which the term of imprisonment [is] at least one year.” 8 USC § 1101(a)(43)(G); § 1227(a)(2)(A). The Bureau of Immigration Appeals affirmed the Immigration Judge’s ruling deporting Duenas-Alvarez, but the Court of appeals for the Ninth Circuit reversed the Bureau.

The Ninth Circuit held, while Duenas-Alvarez’s appeal was pending, that the relevant California Vehicle Code provision sweeps more broadly than generic theft. Penuliar v. Ashcroft, 395 F3d 1037 (2005). The Ninth Circuit said that the Vehicle Code includes a crime that contains an element beyond those of generic theft, aiding and abetting a theft. The Circuit Court remanded Duenas-Alvarez’s case to the immigration court.

Christopher J. Meade, Duenas-Alvarez’s criminal defense attorney, argued before the US Supreme Court that the California Vehicle Code was too broad to fit into the Immigration and Nationality Act’s generic term “theft offense,” so the Federal Government could not use conviction under the Code to justify deporting a legal alien.

The Supreme Court held against Duenas-Alvarez. The Court reviewed whether someone who aids or abets a theft falls within the generic definition of theft. The Court pointed out that every state and the Federal Government has eliminated the distinction between a first-degree principle, accessories before the fact, accessories during the fact, and accessories after the fact. Every jurisdiction has rolled principles and accessories before and during the fact into the generic crime of theft. 2 W LaFave, Substantive Criminal Law § 13.1(e), p333 (2d ed 2003) (La Fave). The Court held that since criminal law now uniformly treats those who fall into the first three categories alike, “the generic sense in which” the term “theft” as “now used in the criminal codes of most States, “Taylor v. United States, 495 US 575, 598 (1990), covers such “aiders and abettors” as well as principals. Conviction under the California Vehicle Code for aiding and abetting a theft can be used to deport a legal alien under the Immigration and Nationality Act.


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