9 Cir: Conspiracy aggravated felony requires overt act; rejects BIA position

The U.S. Court of Appeals for the Ninth Circuit held the generic definition of “conspiracy” used in the aggravated felony definition requires an overt act in furtherance of the conspiracy, but Nevada’s conspiracy offense does not. This discrepancy between the federal generic definition and the state statute means a conviction under the Nevada conspiracy statute is not a conspiracy type of aggravated felony. United States v. García-Santana, No. 12-10471, slip op. (9th Cir. Feb. 20, 2014) (Alarcón, Berzon, and Zouhary, JJ.). Judge Berzon wrote the panel’s opinion.

This case involved a woman who was convicted in 2002 of conspiracy to commit burglary in violation of Nevada Rev. Statute §§ 199.480, 205.060(1). Two weeks later she was removed from the United States using the summary removal procedure authorized by INA § 238(b). García-Santana, No. 12-10471, slip op. at 3. This procedure grants immigration officials authority to remove a non-LPR who they deem to have been convicted of an aggravated felony. Individuals subject to summary removal usually do not see an immigration judge.

Seven years after having been summarily removed, García reentered the United States without authorization. Eventually she came to ICE’s attention and was indicted for illegal reentry, the federal felony found at INA § 276. She moved to dismiss that prosecution on the basis that her prior removal was unconstitutional insofar as she had been denied her right, based in the Due Process Clause, to a fundamentally fair immigration proceeding. She claimed that her 2002 removal was fundamentally unfair because she had been denied the right to seek relief—namely, voluntary departure—for which she was eligible. Because immigration officials denied her the opportunity to seek relief because they concluded her Nevada conspiracy conviction constituted an aggravated felony, the key question before the court was whether immigration officials in 2002 erred. Id. at 4. The district court found that they did and the Ninth Circuit affirmed. Id. at 5.

To decide this, though, the court had to determine whether Nevada’s conspiracy offense matches the definition of “conspiracy” used for aggravated felony purposes. Whether the state and federal definitions match turns on whether an overt act in furtherance of the conspiracy is required. The Ninth Circuit easily concluded that Nevada’s conspiracy offense “requires no proof ‘that any overt act was done in pursuance of such unlawful conspiracy or combination.’” Id. at 8 (quoting Nev. Rev. Stat. § 199.490).

The federal generic definition used the aggravated felony definition, INA § 101(a)(43)(U), provided little more difficulty though more legwork. The court first explained that the generic definition of a crime turns on its “contemporary usage” and to glean that “we survey the definitions codified in state and federal statutes, adopted by the Model Penal Code (‘MPC’), and endorsed by scholarly commentary.” Id. at 9. All point toward a generic definition that requires an overt act. First, the court canvassed state penal codes as well as the penal codes of Washington, DC, Guam, Puerto Rico, and the Virgin Islands. Of these 54 jurisdictions, 40 require an overt act. Id. at 9. Second, the MPC requires an overt act. Lastly, a scholarly treatise regularly relied upon by the Supreme Court does too. Id. at 11. This was more than enough for the court to comfortably conclude that contemporary usage of “conspiracy” requires an overt act.

Though the court had no trouble identifying the generic definition’s requirements, it did spend a bit of time explaining that its holding constitutes a rejection of the BIA’s position in Matter of Richardson, 25 I&N Dec. 226, 228 (BIA 2010), that “conspiracy” as used in INA § 101(a)(43)(U) refers to the term’s definition at common law which does not require an overt act. Id. at 15. Nothing in the statutory text or legislative history indicates that Congress sought to use the common law definition that most jurisdictions had ceased to follow, the court explained. In the court’s words, “As the INA aggravated felony definition is used to impose collateral consequences for earlier state and federal convictions, Taylor and Duenas-Alvarez direct us to presume that Congress sought to track contemporary state criminal practice, not now-abandoned common law concepts.” Id. at 18 (discussing Taylor v. United States, 495 U.S. 575 (1990), and Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007)).

The proper interpretation of “conspiracy” as used in INA § 101(a)(43)(U), therefore, is in light of contemporary trends requiring “performance of an overt act in pursuit of the conspiratorial objective. García-Santana, No. 12-10471, slip op. at 8. Because Nevada’s conspiracy offense lacks an overt act requirement, a conviction under the Nevada statute is not an aggravated felony under INA § 101(a)(43)(U).