Ortiz-Magana v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GERARDO ORTIZ-MAGANA, 
Petitioner, No. 06-72797
v.
 Agency No.
A75-184-118
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted February 15, 2008*
San Francisco, California

Filed April 28, 2008

Before: Barry G. Silverman, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

4561
4564 ORTIZ-MAGANA v. MUKASEY
COUNSEL

Kari E. Hong, Esq., Law Offices of Kari E. Hong, Portland,
Oregon, for the petitioner.

Dalin R. Holyoak, Esq., Office of Immigration Litigation,
Civil Division, United States Department of Justice, Washing-
ton, D.C., for the respondent.

OPINION

TALLMAN, Circuit Judge:

Assault with a deadly weapon under California Penal Code
§ 245(a)(1) is a crime of violence as defined by 18 U.S.C.
§ 16; therefore, an alien convicted of that offense generally is
an “aggravated felon” for immigration purposes. We must
decide as a matter of first impression whether an alien is also
an “aggravated felon” when he is convicted under section
245(a)(1) as an aider and abettor instead of as a principal. The
Board of Immigration Appeals (BIA) ruled that no principled
distinction can be drawn for immigration purposes between an
alien’s status as an accessory and his role as a principal in the
commission of a section 245(a)(1) aggravated felony. We
agree, and deny the petition for review.

I

In 1991, Gerardo Ortiz-Magana (Ortiz-Magana), an eight-
year-old native and citizen of Mexico, entered the United
States without inspection or admission. On November 27,
1998, at the age of fifteen, he adjusted his status to become
a lawful permanent resident.

On December 29, 2003, Ortiz-Magana was charged, in a
criminal information by the State of California, with assault-
 ORTIZ-MAGANA v. MUKASEY 4565
ing Robert Mora with a knife, employing force likely to pro-
duce great bodily injury. The information further alleged that
Ortiz-Magana committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang, with
the specific intent to promote, further, and assist in criminal
conduct by gang members. Finally, the information charged
that for purposes of limiting the availability of probation as a
sentence, Cal. Penal Code § 1203(e)(3), and as a sentencing
enhancement under Cal. Penal Code § 12022.7, Ortiz-Magana
“personally inflicted great bodily injury upon Robert Mora, a
person not an accomplice to the offense.” On July 1, 2004,
Ortiz-Magana pleaded guilty to, and was convicted of,
“[a]ssault with a deadly weapon by force” likely to produce
great bodily injury contrary to California Penal Code section
245(a)(1). He received a sentencing enhancement for partici-
pation in a criminal street gang, see Cal. Penal Code
§ 186.22(b)(1), which the abstract of judgment indicates was
stayed.

On November 11, 2005, the Department of Homeland
Security (DHS) served Ortiz-Magana with a notice to appear
for removal proceedings alleging that he had been convicted
of an aggravated felony. After several attempts to obtain
counsel and receiving continuances to get a lawyer, Ortiz-
Magana eventually appeared pro se before an Immigration
Judge (IJ), waived his privilege of representation by counsel,
and asked to proceed with his case. During proceedings,
Ortiz-Magana conceded all allegations in the notice to appear,
save for one. He contended that he was convicted of section
245(a)(1) not as a principal, but as an aider or abettor under
section 245(a)(5). He urges us to conclude that this character-
ization matters in deciding whether he was convicted of an
aggravated felony when he says he did not personally wield
the knife.

Confusingly, the documents submitted as part of the record
contain handwriting by an unknown party appearing to strike
out the section 12022.7 sentencing enhancement and designat-
4566 ORTIZ-MAGANA v. MUKASEY
ing such enhancement as “stricken.” This designation is prob-
lematic. An enhancement under California Penal Code section
12022.7 applies to those “who personally inflict great bodily
injury on any person other than an accomplice in the commis-
sion of a felony or attempted felony.” Thus, facially, it is
unclear whether Ortiz-Magana personally committed the
offense.

The plea transcript lends further support to Ortiz-Magana’s
theory that he was not convicted as a principal. At the plea
hearing, the following exchange occurred between the judge
and the prosecutor:

Judge: For clarification on the record,
there is charged in the Informa-
tion a [count for violating Penal
Code] 12022.7(a). It is my under-
standing that may have been an
error. In any event that is going
to be stricken.
Is that correct?

District Attorney: That’s correct. That’s always
been an aiding and abetting on
the 245(a)(5) and [Ortiz-Magana]
did not personally inflict great
bodily injury.

Judge: Therefore, Mr. Magana, it
appears you will be eligible for
half time credits[.]

During the immigration proceedings, the attorney for the
government examined the relevant penal code sections and
confirmed that “I don’t see that there’s an (a)(5) . . . . They
may have referred to the (a)(1), showing that there’s an aiding
and abetting within the (a)(1).” The IJ agreed: “There’s no
(a)(5) that I can see directly under the California Penal Code.
 ORTIZ-MAGANA v. MUKASEY 4567
The transcript may have an error on it.” As a result, the IJ
continued the hearing for fifteen days so that the parties could
clarify Ortiz-Magana’s role in the offense.

On January 18, 2006, the parties again appeared, and Ortiz-
Magana submitted an affidavit from his former defense attor-
ney, which provides in relevant part:

2. Mr. Magana pled guilty to aiding and abetting
an assault with a deadly weapon with a gang
enhancement in this matter.

3. I am informed and believe that Mr. Magana did
not plead guilty to any personal use allegations,
including use of the knife or causing great bod-
ily injury.

For its part, DHS submitted an affidavit from the state’s
prosecuting attorney in the matter. The assistant district attor-
ney averred that “Section 245(a)(5) does not and has never
existed . . . . Any plea transcript in the above entitle[d] case
reflecting the defendant pleading guilty to any code section
other than Penal Code Section 245(a)(1) is errant.” The dis-
trict attorney also insisted that Ortiz-Magana “ple[ ]d guilty to
a violation of California Penal Code Section 245(a)(1)
(assault with a deadly or dangerous weapon with force likely
to commit great bodily injury) and admitted the special alle-
gation under Penal Code Section 186.22(b)(1) that he com-
mitted the assault with the deadly weapon to benefit a
criminal street gang.”

After considering the affidavits, the fact that no section
245(a)(5) exists under California law, and the information and
abstract of judgment, the IJ concluded that Ortiz-Magana per-
sonally committed the assault, and the crime was one of vio-
lence and an aggravated felony rendering him ineligible for
discretionary cancellation of removal. The IJ explained:
4568 ORTIZ-MAGANA v. MUKASEY
The Court also finds that in this specific case there
is no accessory issue and or aiding and abetting
issue. There is no princip[a]l issue as listed by the
various Ninth Circuit case decisions. [Ortiz-Magana]
was convicted of a substantive aggravated felony,
crime of violence, sentenced to one year or more.

Ortiz-Magana timely appealed to the BIA. Represented by
counsel, he argued that (1) aiding and abetting is included
under California Penal Code section 245(a)(1); (2) under our
decision in Penuliar v. Ashcroft, 435 F.3d 961 (9th Cir. 2006),
vacated, Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007),
his conviction for aiding and abetting an assault with a deadly
weapon was not an aggravated felony; and (3) because a
crime of violence as contemplated by 18 U.S.C. § 16 excludes
aiding and abetting, he was not convicted of an aggravated
felony. Thereafter, DHS moved for summary affirmance.

On May 23, 2006, the BIA issued a written decision affirm-
ing the IJ’s determination. The BIA concluded:

[Ortiz-Magana] does not dispute that section
245(a)(1) of the California Penal Code qualifies as a
crime of violence. [Ortiz-Magana] was convicted of
that offense. He thus meets the requirement for
removability under the literal language of the statute.
It does not matter how [he] committed the crime or
whether he was convicted as a principal or for aiding
and abetting the crime. In either case he was still
convicted of a crime that is “a crime of violence.”

With respect to Ortiz-Magana’s contention that Penuliar, in
which we were unwilling to extend accessorial liability to the
aggravated felony of theft as theft had been defined under
California law, was dispositive of his case, the BIA concluded
that “[f]or us to extend the ‘aiding and abetting’ theory of
Penuliar to cases other than theft offenses would appear to
warp the Act so that any alien convicted in California could
 ORTIZ-MAGANA v. MUKASEY 4569
immediately claim to have been an accomplice instead of a
principal, and avoid the consequences of criminal acts.”
Finally, the BIA agreed that the charging document and
abstract of judgment were sufficient to sustain Ortiz-
Magana’s removal. This timely petition for review followed.

II

We lack jurisdiction to review final orders of removal
unless they raise constitutional questions or questions of law.
See 8 U.S.C. § 1252(a)(2)(C) & (a)(2)(D). Whether a crime
constitutes an aggravated felony is a question of law, which
we review de novo. Morales-Alegria v. Gonzales, 449 F.3d
1051, 1053 (9th Cir. 2006). Although we review such ques-
tions de novo, we give appropriate deference to the BIA’s
legal determinations. Gonzales-Gonzales v. Ashcroft, 390
F.3d 649, 651 (9th Cir. 2004). Because the BIA issued a writ-
ten decision, we review the BIA’s determination in combina-
tion with the IJ’s decision as a guide to the BIA’s reasoning.
Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2000).

III

A

As an initial matter, the government urges us to ignore the
principal-accessory issue in this case because, in its view, the
charging and conviction documents are sufficiently clear that
he personally committed the offense. We disagree.

[1] Ortiz-Magana asserts that his conviction cannot qualify
as an aggravated felony because it falls outside the generic
definition of a crime of violence. His argument therefore is
premised on the notion that the government cannot sustain its
burden under the modified categorical approach set forth in
Taylor v. United States, 495 U.S. 575, 599-602 (1990). It is
well established that under that approach, we “consider
whether documentation or other judicially noticeable facts in
4570 ORTIZ-MAGANA v. MUKASEY
the record indicate that [the petitioner] was convicted of the
elements of the generically defined crime.” Huerta-Guevara
v. Ashcroft, 321 F.3d 883, 887 (9th Cir. 2003).

[2] The modified categorical approach offers no assistance
here. The judicially noticeable facts, here the abstract of judg-
ment, the information, and the plea colloquy, are contradic-
tory. As noted, the information alleged that Ortiz-Magana
personally committed the offense and added sentencing
enhancements for his personal role as well as for participating
in a criminal gang. On the other hand, the abstract of judg-
ment contains handwriting purporting to strike the sentencing
enhancement for personally committing the offense, creating
an ambiguity as to Ortiz-Magana’s exact role. Lending further
support to his argument, the plea colloquy contains an admis-
sion by the prosecuting attorney that Ortiz-Magana’s charge
had “always been an aiding and abetting on the 245(a)(5) and
[Ortiz-Magana] did not personally inflict great bodily injury.”
Although the parties agree that the California Penal Code
does not include a subsection (a)(5), that fact alone is of no
moment. The citation to the non-existent criminal provision
most likely was human error, either the product of inadver-
tence on the prosecutor’s behalf or stenographic mistake. We
therefore cannot say on this record that Ortiz-Magana’s con-
viction unequivocally was based on his role as a principal.1
1
We have considered whether we should remand to the BIA because the
record is unclear as to Ortiz-Magana’s precise role in the offense of con-
viction. Two factors militate against remand. First, the IJ presented the
parties with ample opportunity to present additional evidence. Both sub-
mitted affidavits, which were of little help. No additional record from the
state court was discovered that would conclusively resolve the question.
We believe that no additional information would be available that previ-
ously was not, and a remand therefore would be futile. Second, as dis-
cussed below, we can resolve the legal question on the basis of the
available evidence.
 ORTIZ-MAGANA v. MUKASEY 4571
B

Resort to the modified categorical approach is not disposi-
tive to support the conclusion that Ortiz-Magana personally
committed the offense. Nevertheless, the record does support,
and the parties do not dispute, that he pleaded guilty to, and
was convicted of, violating section 245(a)(1) of the California
Penal Code. As a result, we proceed to consider whether
Oritiz-Magana’s conviction as an aider and abettor makes any
difference. Three factors persuade us that Ortiz-Magana’s sta-
tus as an accessory does not.

1

In Gonzales v. Duenas-Alvarez, 127 S.Ct. 815 (2007), the
Supreme Court undertook an exhaustive analysis examining
the common law evolution of accomplice liability in jurisdic-
tions of the United States, including the federal courts. Ini-
tially, the Court explained, “[t]he common law divided
participants in a felony into four basic categories: (1) first-
degree principals, those who actually committed the crime in
question; (2) second-degree principals, aiders and abettors
present at the scene of the crime; (3) accessories before the
fact, aiders and abettors who helped the principal before the
basic criminal event took place; and (4) accessories after the
fact, persons who helped the principal after the basic criminal
event took place.” Id. at 820.

In recent times, however, the lines between these historical
categories have blurred. In fact, “[i]n the course of the 20th
century, . . . American jurisdictions eliminated the distinction
among the first three categories.” Id. Presently, “every
jurisdiction—all States and the Federal Government—has
expressly abrogated the distinction among principals and aid-
ers and abettors who fall into the second and third categories.”
Id. (internal quotation marks omitted).

[3] These observations led the Court to conclude that
“[s]ince criminal law now uniformly treats those who fall into
4572 ORTIZ-MAGANA v. MUKASEY
the first three categories alike, the generic sense in which the
term theft is now used in the criminal codes of most States
covers such aiders and abettors as well as principals.” Id.
(internal quotation marks and citation omitted). For immigra-
tion purposes, the Court reasoned, “the criminal activities of
these aiders and abettors of a generic theft must themselves
fall within the scope of the term ‘theft’ ” as it appears in the
federal statute defining aggravated felonies. Id.

[4] As a general matter, then, those who aid and abet a fel-
ony are treated the same as if they had personally committed
the offense. Ortiz-Magana’s reliance on Penuliar, which the
Supreme Court vacated in Alvarez, for the opposite proposi-
tion is thus foreclosed.

a

Ortiz-Magana nonetheless maintains that despite Alvarez’s
reasoning, his case presents a critical distinction: theft is an
aggravated felony and traces its roots to the common law. On
the other hand, a crime of violence is a legislative construc-
tion, not a crime recognized at common law. Therefore, he
asserts that simply because the Supreme Court has found that
aiding and abetting a vehicle theft may constitute an aggra-
vated felony, it does not mean that aiding and abetting falls
within the scope of a crime of violence under 18 U.S.C. § 16.
We remain unpersuaded.

First, Ortiz-Magana does not dispute that a conviction as a
principal under section 245(a)(1) is a crime of violence.
Indeed, we have repeatedly held that “it is undisputed that
assault with a deadly weapon is included in . . . the amended
definition of ‘aggravated felony.’ ” Aragon-Ayon v. INS, 206
F.3d 847, 851 (9th Cir. 2000). Second, the California courts
have included aiding and abetting within the definition of
assault with a deadly weapon under section 245(a)(1). Gill v.
Ayers, 342 F.3d 911, 915 (9th Cir. 2003) (citing People v.
Rodriguez, 17 Cal. 4th 253, 261 (1998)). Third, there is little
 ORTIZ-MAGANA v. MUKASEY 4573
support for any distinction under the common law between
aiding and abetting assault with a deadly weapon and person-
ally accomplishing the offense. Alvarez, 127 S.Ct. at 820. The
same specific intent is required for each as is the resulting
harm.

[5] As a result, because it is conceded that a conviction
under section 245(a)(1) is a crime of violence, California con-
victs aiders and abettors under the same statute, and there is
no material distinction between an aider and abettor and prin-
cipals in any jurisdiction of the United States including Cali-
fornia and federal courts: aiding and abetting an assault with
a deadly weapon is the functional equivalent of personally
committing that offense. Since that offense is a crime of vio-
lence, it constitutes an aggravated felony.

b

Ortiz-Magana also urges us to analogize crimes of violence
under federal immigration law to “serious felonies” as defined
by California law. We find such an analogy unhelpful.

To qualify under California’s three-strikes provision, con-
victions must be for “serious felonies.” See People v. Rodri-
guez, 17 Cal. 4th 253, 261 (Cal. 1998). Consequently, in
three-strike cases, the California courts have drawn a distinc-
tion between aiding and abetting and personally committing
an offense charged under California Penal Code section
245(a)(1): the former may not be used as a “strike,” but the
latter may. See id. Indeed, statutorily, “only those crimes are
‘serious’ felonies in which the defendant ‘personally inflict-
[ed] great bodily injury on any person, other than an accom-
plice, or . . . personally use[d] a firearm’ or personally use[d]
a dangerous or deadly weapon.’ ” People v. Watts, 131 Cal.
App. 4th 589, 595 (Cal. 2005) (citing Cal. Penal Code
§ 1192.7(c)(8); (c)(23)) (emphasis added).

Thus, California’s legislative scheme requires, as an ele-
ment, the personal commission of a serious felony. The statu-
4574 ORTIZ-MAGANA v. MUKASEY
tory language of 18 U.S.C. § 16 contains no such analogue,
and, in our view, comparison to California law is unavailing.

c

[6] Ortiz-Magana correctly notes that Alvarez did not fore-
close all possibility that an offense committed by an aider and
abettor potentially would fall outside the generic definition of
an aggravated felony. However, the Supreme Court squarely
placed the burden on the alien to demonstrate a realistic prob-
ability that the state would apply the offense in a way that
falls outside the generic definition of the crime. Alvarez, 127
S.Ct. at 822 (reasoning that “Duenas-Alvarez must show
something special about California’s version of the doctrine-
for example, that California in applying it criminalizes con-
duct that most other States would not consider ‘theft.’ ”). The
Court further instructed:

[T]o find that a state statute creates a crime outside
the generic definition of a listed crime in a federal
statute requires more than the application of legal
imagination to a state statute’s language. It requires
a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that
falls outside the generic definition of a crime. To
show that realistic possibility, an offender, of course,
may show that the statute was so applied in his own
case. But he must at least point to his own case or
other cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner for
which he argues.

Id.

[7] Ortiz-Magana has not met this burden. Although he
points to his own case, he presents no evidence that California
has applied aiding and abetting assault outside the generic
definition of a crime of violence. It is undisputed that a crimi-
 ORTIZ-MAGANA v. MUKASEY 4575
nal may be punished for violating section 245(a)(1) by aiding
and abetting that offense. Ortiz-Magana’s status as an acces-
sory did not change the mens rea required to prove the crime.
In other words, he pleaded guilty to intending that an assault
with a deadly weapon take place and that harm occur as a
result. Because, as discussed above, an alien’s status as an
aider or abettor makes no practical difference in whether his
crime is one of violence, he cannot demonstrate that his con-
viction was not for an aggravated felony. Nor does he attempt
to point to other cases in which the California courts have
applied section 245(a)(1) in a “special (non-generic) manner.”
Alvarez, 117 S.Ct. at 822. We are therefore persuaded that
Ortiz-Magana cannot show “something special about Califor-
nia’s version of the doctrine,” id., that would alter the out-
come in this case.

2

The plain language of the statute does not compel the oppo-
site result. A crime of violence under 18 U.S.C. § 16 is
defined as:

(a) an offense that has as an element the use,
attempted use, or threatened use of physical force
against the person or property of another, or

(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be
used in the course of committing the offense.

Facially, nothing in the statutory definition requires the
offense to be personally committed by the individual. Indeed,
the terms “attempted use” and “threatened use” appear to lend
support that inchoate crimes, ones that need not be completed,
are encompassed in the definition. Theoretically, Ortiz-
Magana could have aided and abetted the charged offense by
threatening the use of force.
4576 ORTIZ-MAGANA v. MUKASEY
Ortiz-Magana insists, however, that had Congress intended
18 U.S.C. § 16 to include aiding and abetting, accessorial lan-
guage would plainly appear in the text. For example, Con-
gress could have amended 8 U.S.C. § 1101(a)(43)(U) to
include aiding and abetting along with the designation that
“conspiracy” and “attempt” offenses constitute aggravated
felonies. In essence, Ortiz-Magana attempts to draw on the
well-established principle that when “Congress includes par-
ticular language in one section of a statute but omits it in
another[,] . . . it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432
(1987) (quotation omitted). His reasoning is misplaced.

Ortiz-Magana has not cited any examples of the inclusion
of “aiding and abetting” in one section and its exclusion in
another. He simply believes Congress should have included
that term in two distinct provisions. Even if this rule of con-
struction had force under these circumstances, it did not pre-
vent the Supreme Court from interpreting aiding and abetting
vehicle theft to fall within the enumerated aggravated felony
of theft. See Alvarez, 127 S.Ct. at 820. The concerns Ortiz-
Magana cites were equally present in Alvarez. We therefore
conclude that the statutory language encompasses crimes of
violence that an alien aids and abets.

3

[8] Finally, we must afford at least some deference to the
BIA’s legal determination that aiding and abetting falls within
the definition of a violent crime. Ortega-Cervantes v. Gon-
zales, 501 F.3d 1111, 1113 (9th Cir. 2007) (citing Skidmore
v. Swift & Co., 323 U.S. 134, 140 (1944)) (reasoning that “be-
cause the BIA’s decision was an unpublished disposition,
issued by a single member of the BIA, which does not bind
third parties, we employ the less deferential Skidmore stan-
dard” (quotation omitted)). Skidmore instructs that the defer-
ence we afford to an agency’s judgment “will depend upon
 ORTIZ-MAGANA v. MUKASEY 4577
the thoroughness evident in its consideration, the validity of
its reasoning, its consistency with earlier and later pronounce-
ments, and all those factors which give it power to persuade,
if lacking power to control.” 323 U.S. at 140.

The BIA’s interpretation here, although concise, is well-
taken. The BIA reasoned:

[Ortiz-Magana] does not dispute that section
245(a)(1) of the California Penal Code qualifies as a
crime of violence. [Ortiz-Magana] was convicted of
that offense. He thus meets the requirement for
removability under the literal language of the statute.
It does not matter how [he] committed the crime or
whether he was convicted as a principal or for aiding
and abetting the crime. In either case he was still
convicted of a crime that is “a crime of violence.”

With respect to Ortiz-Magana’s contention that Penuliar, in
which we were unwilling to extend accessorial liability to the
aggravated felony of theft as theft had been defined under
California law, was dispositive of his case, the BIA concluded
that “[f]or us to extend the ‘aiding and abetting’ theory of
Penuliar to cases other than theft offenses would appear to
warp the Act so that any alien convicted in California could
immediately claim to have been an accomplice instead of a
principal, and avoid the consequences of criminal acts.” We
agree.

[9] It is unlikely that Congress intended for aliens, who oth-
erwise committed crimes of violence, to be able to escape the
attendant immigration consequences simply because of their
status in the commission of the offense as an accessory. The
BIA’s reasoning is especially persuasive in light of the fact
that no jurisdiction of the United States makes a distinction
between the conduct of an aider and abettor and a principal,
Alvarez, 127 S.Ct. at 820, and the statutory definition does not
preclude classification based on an alien’s accessorial role in
4578 ORTIZ-MAGANA v. MUKASEY
the offense of conviction. Like the BIA, we conclude that
Ortiz-Magana was convicted of a crime of violence and is
removable as an aggravated felon.

IV

An alien, like Ortiz-Magana, who is convicted of aiding
and abetting an assault with a deadly weapon under California
Penal Code § 245(a)(1) has committed a crime of violence as
if he had personally committed the offense. The BIA correctly
reached this result in finding that Ortiz-Magana was remov-
able as a matter of law regardless of whether he was a princi-
pal or an accessory.

PETITION DENIED.