Simmons, Jannace & Stagg
Gonzales v. Duenas-Alvarez
In the case of Duenas-Alvarez, the Department of Homeland Security (DHS) decided 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 being convicted of theft with a prison term in excess of one year, 8 U.S.C. § 1101(a)(43)(G). Duenas-Alvarez became a U.S. resident in 1998 but was born as a citizen of Peru. Duenas-Alvarez pleaded guilty in 2002 and received a three-year prison term for the unlawful driving or taking a vehicle, in violation of California Vehicle Code § 10851(a).
The DHS started removal proceedings towards Duenas-Alvarez in February of 2004. The immigration judge ruled that the Duenas-Alvarez' offense was a "theft offense" and proceeded to order his removal to Peru. Duenas-Alvarez appealed the decision to the Board of Immigration Appeals, but they dismissed the appeal.
While Duenas-Alvarez' review petition was pending in the 9th Circuit Court of Appeals, the court decided the case of Penuliar v. Ashcroft, 395 F.3d 1037 (2005), amended, 435 F.3d 961 (2006), stating that a violation of California Vehicle Code § 10851(a) is not a theft offense of a "categorical" matter. The 9th Circuit reasoned that the statute in California can be violated if the defendant is "a party or an accessory to or an accomplice in" the unauthorized taking of the vehicle. Furthermore, 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." They also concluded that the defendant in the state of California could be convicted of aiding and abetting, even when the theory of aiding and abetting is not stated in the indictment. The court held that the defendant was charged as a principal in a crime, but did not show the defendant was convicted as a principal in the case.
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