FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERARDO ORTIZ-MAGANA,  No. 06-72797

Petitioner, Agency No.

v. A75-184-118

MICHAEL B. MUKASEY, Attorney  ORDER

General, AMENDING

Respondent. OPINION AND

AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 15, 2008*

San Francisco, California

Filed April 28, 2008

Amended September 9, 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). 

12405
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, Washington, D.C., for the respondent. 

ORDER

The opinion filed on April 28, 2008, and published at 523

F.3d 1042 (9th Cir. 2008), is AMENDED as follows: 

Page 1050: The second full paragraph (under subsection 3)

reads: 

“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. Gonzales, 501 F.3d 1111, 1113

(9th Cir. 2007) (citing Skidmore v. Swift & Co., 323

U.S. 134, 140 (1944)) (reasoning that “because 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BIA’s decision was an unpublished disposition,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 standard” (quotation omitted)). Skidmore

instructs that the deference we afford to an agency’s

judgment “will depend upon the thoroughness evi12408 ORTIZ-MAGANA v. MUKASEY
dent in its consideration, the validity of its reasoning,

its consistency with earlier and later pronouncements, and all those factors which give it power to

persuade, if lacking power to control.” 323 U.S. at

140.” 

Replace with the following language: 

“Finally, we are persuaded by the BIA’s determination that aiding and abetting falls within the definition of a violent crime. Although concise, the BIA’s

interpretation is well-taken. The BIA reasoned:” 

Page 1050: Delete the third full paragraph, which states: 

“The BIA’s interpretation here, although concise,

is well-taken. The BIA reasoned:” 

No petitions for rehearing or rehearing en banc will be

accepted. 

The mandate shall issue forthwith. 

IT IS SO ORDERED.

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

ORTIZ-MAGANA v. MUKASEY 12409
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 eightyear-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 assaulting Robert Mora with a knife, employing force likely to produce 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 participation 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

12410 ORTIZ-MAGANA v. MUKASEY
of an aggravated felony. After several attempts to obtain

counsel and receiving continuances to get a lawyer, OrtizMagana 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 characterization 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 designating such enhancement as “stricken.” This designation is problematic. 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 commission 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 Information a [count for violating Penal

Code] 12022.7(a). It is my understanding that may have been an

error. In any event that is going

to be stricken. 

Is that correct? 

ORTIZ-MAGANA v. MUKASEY 12411
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.

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 OrtizMagana submitted an affidavit from his former defense attorney, 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 bodily injury. 

For its part, DHS submitted an affidavit from the state’s

prosecuting attorney in the matter. The assistant district attorney 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

12412 ORTIZ-MAGANA v. MUKASEY
other than Penal Code Section 245(a)(1) is errant.” The district 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 allegation under Penal Code Section 186.22(b)(1) that he committed 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 personally committed the assault, and the crime was one of violence and an aggravated felony rendering him ineligible for

discretionary cancellation of removal. The IJ explained: 

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 affirming 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

ORTIZ-MAGANA v. MUKASEY 12413
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.”

Finally, the BIA agreed that the charging document and

abstract of judgment were sufficient to sustain OrtizMagana’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 questions 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 written decision, we review the BIA’s determination in combination with the IJ’s decision as a guide to the BIA’s reasoning.

Gu v. Gonzales, 454 F.3d 1014, 1019 (9th Cir. 2000).

12414 ORTIZ-MAGANA v. MUKASEY
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

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 judgment, the information, and the plea colloquy, are contradictory. 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 judgment 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 admission 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

ORTIZ-MAGANA v. MUKASEY 12415
most likely was human error, either the product of inadvertence on the prosecutor’s behalf or stenographic mistake. We

therefore cannot say on this record that Ortiz-Magana’s conviction unequivocally was based on his role as a principal.1

B

Resort to the modified categorical approach is not dispositive 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 status 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 jurisdictions of the United States, including the federal courts. Initially, the Court explained, “[t]he common law divided

participants in a felony into four basic categories: (1) firstdegree 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

1We 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 conviction. Two factors militate against remand. First, the IJ presented the

parties with ample opportunity to present additional evidence. Both submitted 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 previously was not, and a remand therefore would be futile. Second, as discussed below, we can resolve the legal question on the basis of the

available evidence. 

12416 ORTIZ-MAGANA v. MUKASEY
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 aiders 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

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 immigration 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 felony 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 proposition 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 construction, not a crime recognized at common law. Therefore, he

ORTIZ-MAGANA v. MUKASEY 12417
asserts that simply because the Supreme Court has found that

aiding and abetting a vehicle theft may constitute an aggravated 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

support for any distinction under the common law between

aiding and abetting assault with a deadly weapon and personally 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 convicts aiders and abettors under the same statute, and there is

no material distinction between an aider and abettor and principals in any jurisdiction of the United States including California 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 violence, 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. 

12418 ORTIZ-MAGANA v. MUKASEY
To qualify under California’s three-strikes provision, convictions must be for “serious felonies.” See People v. Rodriguez, 17 Cal. 4th 253, 261 (Cal. 1998). Consequently, in

three-strike cases, the California courts have drawn a distinction 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 accomplice, 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 element, the personal commission of a serious felony. The statutory 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 foreclose 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 probability 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 doctrinefor example, that California in applying it criminalizes conduct 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

ORTIZ-MAGANA v. MUKASEY 12419
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 criminal may be punished for violating section 245(a)(1) by aiding

and abetting that offense. Ortiz-Magana’s status as an accessory 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 conviction 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 California’s version of the doctrine,” id., that would alter the outcome in this case. 

2

The plain language of the statute does not compel the opposite result. A crime of violence under 18 U.S.C. § 16 is

defined as: 

12420 ORTIZ-MAGANA v. MUKASEY
(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, OrtizMagana could have aided and abetted the charged offense by

threatening the use of force. 

Ortiz-Magana insists, however, that had Congress intended

18 U.S.C. § 16 to include aiding and abetting, accessorial language would plainly appear in the text. For example, Congress 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 particular 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 construction had force under these circumstances, it did not prevent the Supreme Court from interpreting aiding and abetting

vehicle theft to fall within the enumerated aggravated felony

ORTIZ-MAGANA v. MUKASEY 12421
of theft. See Alvarez, 127 S.Ct. at 820. The concerns OrtizMagana 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 are persuaded by the BIA’s determination

that aiding and abetting falls within the definition of a violent

crime. Although concise, the BIA’s interpretation is welltaken. 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 otherwise 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

12422 ORTIZ-MAGANA v. MUKASEY
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

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 removable as a matter of law regardless of whether he was a principal or an accessory. 

PETITION DENIED. 

ORTIZ-MAGANA v. MUKASEY 12423