UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MCKENZY ALII ALFRED, No. 19-72903 Petitioner, Agency No. v. A215-565-401 MERRICK B. GARLAND, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted En Banc September 8, 2022 Pasadena, California Filed March 30, 2023

Before: Mary H. Murguia, Chief Judge, and Sidney R. Thomas, M. Margaret McKeown, Jay S. Bybee, Consuelo M. Callahan, Ryan D. Nelson, Eric D. Miller, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee and Lawrence VanDyke, Circuit Judges.

Opinion by Judge Bybee; Partial Concurrence and Partial Dissent by Judge Collins; Concurrence in the Judgment by Judge Callahan; Dissent by Judge McKeown; Dissent by Judge VanDyke 2 ALFRED V. GARLAND

SUMMARY *

Immigration

Denying McKenzy Alii Alfred’s petition for review of a Board of Immigration Appeals’ decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the en banc court held that second-degree robbery under Wash. Rev. Code § 9A.56.190 is a categorical match with generic theft and is therefore a theft offense under § 1101(a)(43)(G). Alfred was convicted under Wash. Rev. Code § 9A.56.190 and served a fifteen-month prison sentence. The BIA concluded that he was removable for having committed an aggravated felony under 8 U.S.C. § 1101(a)(43)(G), which describes “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year.” A panel of this court granted Alfred’s petition for review based on United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which this court held that: (1) because aiding and abetting liability is implicit in every criminal charge, a state’s aiding and abetting statute must be folded into the analysis under the categorical approach, and (2) Washington’s aiding and abetting statute is broader than its generic equivalent. Based on Valdivia-Flores, the Alfred panel found that Washington’s robbery statute is a mismatch to its generic

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ALFRED V. GARLAND 3

equivalent such that the Washington statute was not an aggravated felony, and therefore, Alfred was not removable. The en banc court explained that in United States v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), this court concluded that a conviction for Washington second-degree robbery, where accompanied by a sentence of at least one year, qualifies as a theft aggravated felony. Neither Alfred nor the government questioned that decision; rather, the parties disagreed over whether and how Washington’s accomplice liability statute affected Alfred’s robbery conviction. A plurality of the en banc court concluded that it was necessary to consider Washington accomplice liability in conducting the categorical analysis of Washington robbery. The plurality explained that, in Valdivia-Flores, the court relied on Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), in which the Supreme Court concluded that generic theft encompasses aiding and abetting. Noting that Duenas- Alvarez left open the question of whether accomplice liability should be considered when—as is the case with Washington law—a separate statute integrates accomplice liability, the plurality concluded this is a distinction without a difference. The plurality explained that nothing confines the cate