Gonzales v. Duenas-Alvarez
The Department of Homeland Security (DHS) seeks to remove Duenas-Alvarez from the United States under Section 237(a)(2)(A)(iii) of the Immigration and Naturalization Act, 8 U.S.C. § 1227(a)(2)(A)(iii), for having been convicted of a theft offense for which the term of imprisonment is at least one year, 8 U.S.C. § 1101(a)(43)(G). Duenas-Alvarez is a native and citizen of Peru who became a lawful permanent resident of the United States in 1998. In 2002, Duenas-Alvarez pleaded guilty to the charge of unlawful driving or taking of a vehicle, in violation of California Vehicle Code § 10851(a), and was sentenced to three years in prison.
In February 2004, the DHS initiated removal proceedings. The immigration judge ruled that the California offense of unlawful driving or taking of a vehicle was a "theft offense" and ordered Duenas-Alvarez removed to Peru. The Board of Immigration Appeals (BIA) dismissed Duenas-Alvarez's appeal.
While respondent's petition for review was pending in the Ninth Circuit Court of Appeals, that court decided Penuliar v. Ashcroft, 395 F.3d 1037 (2005), amended, 435 F.3d 961 (2006), which held that a violation of California Vehicle Code § 10851(a) is not a theft offense as a "categorical" matter. The Ninth Circuit reasoned that the California statute can be violated if the defendant is "a party or an accessory to or an accomplice in" the unauthorized taking of the vehicle, and that such conduct does not necessarily require the taking of property or the exercise of control over property, which the court considered an essential element of the generic definition of "theft offense." Furthermore, because a defendant in California may be convicted as an aider and abettor even when an aiding-and-abetting theory is not recited in the indictment, the court held that being charged as a principal in a crime did not show that the defendant had been convicted as a principal.
After the amended decision in Penuliar was issued, the court of appeals granted Duenas-Alvarez's petition for review based on its decision that a violation of section 10851(a) does not categorically qualify as a theft offense. The court remanded the petition to the BIA for further proceedings in light of Penuliar.
Question Presented:
Whether a “theft offense,” which is an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G), includes aiding and
abetting.
Decisions under Review:
Penuliar v. Ashcroft, 395 F.3d 1037 (2005), amended,435 F.3d 961 (2006)
