Argument Preview: U.S. v. Duenas-Alvarez on 12/5

The following argument preview was written by Steven C. Wu, an attorney with Akin Gump in Washington, DC.

On Tuesday, December 5, the Court will hear argument in United States v. Duenas-Alvarez (No. 05-1629). The question in this case is whether the unlawful driving or taking of a vehicle, in violation of the California Vehicle Code, is a deportable “theft offense” under federal immigration law even though the statute covers aiding-and-abetting liability. In the decision below, the Ninth Circuit held that it was not. Dan Himmelfarb, an Assistant to the Solicitor General, will argue for the United States. Christopher J. Meade, of Wilmer Cutler Pickering Hale & Dorr, will argue for respondent Duenas-Alvarez.

Aliens are subject to removal from the United States if they are convicted of “a theft offense (including receipt of stolen property) . . . . for which the term of imprisonment [is] at least one year.” “Theft offense” refers not to any particular state’s crime, but rather to a “generic” definition of theft: i.e., the sense in which the term is used in the criminal codes of most states.

To determine whether a particular state’s crime is a “theft offense,” courts engage in a two-step test outlined by the Supreme Court in 1990 in Taylor v. United States. The first step is a “categorical approach” that evaluates whether all the conduct covered by the statute falls within the generic definition. If not, then the second step is a “modified categorical approach” in which courts consider a limited number of documents (such as the charging instrument) to determine whether the defendant’s offense falls within the generic definition.

Luis Duenas-Alvarez, an immigrant from Peru, was convicted in 2002 of violating California Vehicle Code § 10851, which prohibits the taking or driving of a vehicle “without the consent of the owner” 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 Ninth Circuit, applying its recent decision in Penuliar v. Ashcroft, held that a violation of § 10851 was not a “theft offense” under Taylor‘s categorical approach because the California statute covers aiding-and-abetting liability, while the generic definition of a “theft offense” does not.

The Government’s brief before the Court begins by arguing that the generic definition of a “theft offense” certainly does include aiding-and-abetting liability. The Government notes that all fifty states have found that aiding-and-abetting liability is part of the generic definition of every offense because aiding and abetting is no longer considered to be an offense distinct from the underlying substantive crime. A number of federal circuits have, accordingly, found that the generic definitions of other offenses (arson, burglary, crime of violence, drug trafficking, bank fraud, etc.) include aiding-and-abetting liability.

To hold otherwise, the Government argues, would gut federal immigration law: deportation would only be possible in the extremely narrow set of cases in which the Government could prove that the defendant was convicted (or pleaded guilty) as a true principal. The Government also notes an anomaly with excluding aiding-and-abetting liability: because immigrants may be deported for conspiracy and attempt (both of which are specifically enumerated in the immigration laws), the Ninth Circuit’s rule would allow defendants “further away” from the crime to be deported, even as others “closer” to the crime can stay.

Because the generic definition of a “threat offense” includes aiding-and-abetting liability, the Government argues that a conviction under § 10851 of the California Vehicle Code constitutes a “theft offense” under the categorical approach. In the alternative, the Government argues that Duenas-Alvarez’s conviction is also a “theft offense” under the modified categorical approach because he was charged as a principal.

Duenas-Alvarez’s brief gives three reasons why a conviction under California Vehicle Code § 10851 is not a “theft offense” under the categorical approach. The three reasons are essentially examples of specific possible convictions under § 10851 that do not fall under the generic definition of a “theft offense.” (Notably, none of the three reasons contests the Government’s opening claim that aiding-and-abetting liability is generally included in the generic definitions of offenses.)

First, Duenas-Alvarez argues that § 10851 covers liability for accessories after the fact (those who offer assistance after the completion of a crime), while the generic definition of a “theft offense” does not. Second, Duenas-Alvarez argues that California law allows aiding-and-abetting liability to be imposed under § 10851 when a violation of § 10851 is a “natural and probable consequence” of a separate crime that the defendant actually aided and abetted; this extension of ordinary aiding-and-abetting liability is also beyond the scope of the generic definition. Third, Duenas-Alvarez argues that § 10851 encompasses a lesser mens rea than that of the generic definition of a “theft offense” because it permits conviction “with or without intent to steal.” (Taking a car “without intent to steal” involves taking the car only with an intent to use it temporarily; it’s more popularly known as joyriding.) Duenas-Alvarez argues that an intent to effect such temporary dispossession is not part of the generic definition of a “theft offense.”

Assuming that the Court rules for the Government on the categorical approach, Duenas-Alvarez urges the Court to remand to the Board of Immigration Appeals to apply the modified categorical approach, since no court has yet moved past the categorical approach. If the Court decides to resolve the case, Duenas-Alvarez argues that he should prevail on the modified categorical approach for two reasons. First, the mere fact that Duenas-Alvarez was charged as a principal is irrelevant, because § 10851 allows (perhaps even requires) accessories after the fact to be charged as principals. Second, the text of the charging document is irrelevant in any event because California law allows informal, oral amendments of pleadings. Thus, the charging document does not ensure that Duenas-Alvarez was charged as a principal.

The Government’s reply chides Duenas-Alvarez for raising such novel arguments but rebuts them anyway. First, the Government argues that California Vehicle Code § 10851 does not encompass liability for accessories after the fact because “accessories” in that statute means something different from “accessories” in the California Penal Code. Second, the Government contends that the “natural and probable consequences” doctrine of aiding-and-abetting liability is, in fact, a part of the generic definition of a “theft offense,” and that, to the extent it is not, it is merely a minor variation that does not preclude a violation of § 10851 from being a “theft offense.” Third, the Government argues that temporary thefts — such as joyriding — are “theft offenses” because the Board of Immigration Appeals has so ruled, and, as an executive agency, its interpretation of the federal immigration laws deserves Chevron deference. Finally, the Government argues that Duenas-Alvarez’s suggested application of the modified categorical approach is so narrow that it makes the Taylor test unworkable.

Among the amici, the brief of the National Lawyers Guild’s National Immigration Project is particularly noteworthy. That brief steps away from Government’s “highly technical argument” and notes the absurd consequences of its proposed rule: under the Government’s interpretation, immigrants may be deported or sentenced to lengthy prison terms for crimes as minor as rummaging through somebody else’s glove compartment. Surely, the brief concludes, Congress intended such severe consequences to follow only from the most serious crimes.