In a published decision released last week, the BIA held that a state conspiracy conviction may be categorized as a conspiracy type of aggravated felony even if the state statute does not require an overt act for a conviction. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (Pauley, Adkins-Blanch, and Guendelsberger). Board Member Pauley wrote the decision for the panel.
This case involved an LPR who was convicted of conspiracy to commit robbery in violation of New Jersey Statutes Annotated § 2C:5-2, 15-1, and 12-1b4, and sentenced to a term of imprisonment of 7 years. Matter of Richardson, 25 I&N Dec. at 226. Richardson was not charged with the underlying substantive offense, robbery. Matter of Richardson, 25 I&N Dec. at 227. The IJ nonetheless concluded that Richardson was removable under two aggravated felony categories—a theft offense, INA § 101(a)(43)(G), and conspiracy, INA § 101(a)(43)(U).
Because Richardson was not convicted of robbery (or, for that matter, even charged with robbery), the BIA had no difficulty concluding that Richardson had not been convicted of a theft offense under § 101(a)(43)(G). The underlying substantive offense of robbery, the BIA held, “is not necessarily included in a conspiracy.” Matter of Richardson, 25 I&N Dec. at 227.
The BIA then turned to the IJ’s conclusion that Richardson was convicted of a conspiracy under § 101(a)(43)(U). Under the New Jersey conspiracy statute under which Richardson was convicted, the BIA explained, “no overt act need be established to convict a defendant of conspiracy to commit a crime…such as robbery….” Matter of Richardson, 25 I&N Dec. 227-228. The BIA added that this is also true of certain federal statutes, including conspiracy statutes related to money laundering and controlled substances, as well as state conspiracy offenses that follow the common law. Matter of Richardson, 25 I&N Dec. at 228. Under these types of conspiracy statutes, an agreement is enough to convict for conspiracy; no other act is necessary.
The BIA, therefore, was required to determine “whether the reference in section 101(a)(43)(U) to a ‘conspiracy to commit an offense described in this paragraph’ is limited to conspiracies that require a member of the conspiracy to perform an overt act in furtherance of the conspiracy.” Matter of Richardson, 25 I&N Dec. 228. The BIA clearly held that it is not: “we now conclude that the term ‘conspiracy’ in section 101(a)(43)(U) of the Act is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators.” Matter of Richardson, 25 I&N Dec. at 228.
The opposite holding, the BIA went on, would mean that convictions under statutes that do not require an overt act, such as the New Jersey conspiracy statute, some federal statutes, or the statutes of states that follow the common law approach to conspiracy, would not fall within the aggravated felony definition of a conspiracy. This, the BIA concluded, would “be an unlikely reflection of congressional design.” Matter of Richardson, 25 I&N Dec. at 230