Immigration · Primary-source case analysis

Duenas-Alvarez: Generic Theft Includes Ordinary Aiding-and-Abetting Liability

By Aneeta Mishra and Timothy Chan

Published April 30, 2026 · Updated October 17, 2026

Decision: Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).

Duenas-Alvarez explains both the generic theft definition and the realistic-probability requirement in categorical analysis.

The conviction involved aiding vehicle theft

Luis Duenas-Alvarez was convicted under California Vehicle Code section 10851(a). He argued the statute swept beyond generic theft because it also covered aiding and abetting. The Supreme Court addressed that legal argument; it did not identify his personal conduct as the test for the statutory comparison. Duenas-Alvarez, 549 U.S. at 187–190.

Generic crimes include traditional accomplice liability

Modern criminal law generally treats aiders and abettors as principals. That feature alone does not make a state statute broader than the generic federal offense.

Hypothetical breadth is insufficient

To establish overbreadth based on unusual applications, a noncitizen generally must show a realistic probability that the state actually applies its statute to the asserted nongeneric conduct, including by identifying cases.

Disposition

The Court rejected the aiding-and-abetting theory on January 17, 2007, and remanded. It left unresolved separate arguments about accessories after the fact and joyriding because they were outside the question presented and the lower court had not considered them. Duenas-Alvarez, 549 U.S. at 194. It did not hold that every section 10851 conviction necessarily satisfies every aggravated-felony requirement.

Key takeaways

• Compare statutory elements with the generic definition.
• Treat ordinary accomplice liability as part of the generic offense.
• Support asserted overbreadth with actual state applications.
• Analyze sentence length and divisible alternatives separately.