Aggravated Felonies

Chapter

§ 5.12 . Conspiracy

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The statute explicitly states that conspiracy to commit an aggravated felony constitutes an aggravated felony.[91] Conversely, conspiracy to commit a non-aggravated felony would not constitute an aggravated felony.

The BIA held that a state conspiracy statute does not have to be exactly analogous to the federal conspiracy statute for the state conviction to be a controlled substances aggravated felony.[92] This decision was limited to the “general” drug trafficking test, however, and arguably does not apply to a conspiracy to commit other offenses. Therefore, counsel should compare the state conspiracy statute at issue with the federal statutes.[93] If the elements of state conspiracy are broader than the federal version, the state conviction may not amount to aggravated felony conspiracy.

[91] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U). See, e.g., Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy constitutes an aggravated felony, under 8 U.S.C. § 1101(a)(43)(U), triggering deportability under 8 U.S.C. § 1227(a)(2)(A)(iii), so long as the substantive offense that is the object of the conspiracy constitutes an aggravated felony, without regard to whether the elements of the conspiracy crime themselves establish the underlying aggravated felony offense).

[92] In Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992), the BIA considered conspiracy in the context of aggravated felony drug convictions. There are two distinct tests to determine whether a state drug offense is an aggravated felony. The offense must either be “trafficking” as the term is generally understood, or it must be an exact analogue to a federal drug felony. In Davis, the BIA found that if the underlying offense is an aggravated felony because it meets the “common definition” of trafficking, conviction of conspiracy or attempt to commit the offense does not need to be analogous to the federal statute to be considered an aggravated felony. Id. at 544-545.

[93] See American Law Institute, Model Penal Code § 5.03 (criminal conspiracy) (1985).

Updates

BIA

AGGRAVATED FELONY - CONSPIRACY
Matter of Richardson, 25 I. & N. Dec. 226 (BIA Apr. 23, 2010) (a person who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U), may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense).

AGGRAVATED FELONY - CONSPIRACY - FRAUD
Matter of SIK, 24 I. & N. Dec. 324 (BIA Oct. 4, 2007) (federal conviction for violation of 18 U.S.C. 371, conspiracy, where the substantive crime that was the object of the conspiracy was an is an aggravated felony under INA 101(a)(43)(M)(i), (U), 8 U.S.C. 1101(a)(43)(M)(i), (U), since the offense involved "fraud or deceit" and the potential loss to the victim(s) exceeded $10,000).

First Circuit

PRACTICE ADVISORY " AGGRAVATED FELONY " CONSPIRACY " TARGET OFFENSE IS NOT AN ELEMENT UNDER CALIFORNIA LAW SO CONSPIRACY OFFENSE IS NOT DIVISIBLE WITH RESPECT TO THE TARGET OFFENSE
In jurisdictions in which the target offense is an element of conspiracy, then that offense would be an aggravated felony if the target offense is an aggravated felony. In California, however, the target offense of a conspiracy not an element of the offense, since the jury need not unanimously agree on the identity of the target offense. The California conspiracy offense is therefore indivisible with respect to the target offense, and the modified categorical analysis does not apply. The immigration authorities are precluded from examining the record of conviction to discern the identity of the target offense. A California conspiracy conviction may therefore never constitute an aggravated felony conviction or a conviction of a crime of moral turpitude or be considered in determining whether the conspiracy conviction triggers any other conviction-based ground of removal or bar to relief. While no court has yet held to this effect, the Ninth Circuit adopted this exact reasoning in concluding that because the target offense is not an element of a California burglary offense, burglary can never be an aggravated felony. Rendon v. Holder, 764 F.3d 1077 (9th Cir. Aug. 22, 2014). This conclusion on conspiracy offenses is no more in tension with 8 USC 1101(a)(43)(U), than the fact that California burglary is indivisible with 8 USC 1101(a)(43)(G), as Rendon held. This interpretation of the aggravated felony definition would not be underinclusive because other states would be covered, wherever the target offense is an element. Counsel should be conservative, however, and if possible wait to adopt this plea strategy until the immigration or federal courts agree or there is no better argument available. This strategy would not be successful for controlled substance trafficking because the underlying conduct may give the government reason to believe the defendant was an illicit trafficker. If the defendant actually committed the target offense, there would also be exposure for controlled substance or moral turpitude inadmissibility because an immigration factfinder could seek to cause the noncitizen to admit to the commission of the target offense, which, if successful, would make the noncitizen inadmissible. Immigration counsel, however, could freely use this argument in immigration court where there is no downside. Caution: If the jury in a federal conspiracy case is not required unanimously to agree on the target offense, the government could argue that this interpretation would render 8 U.S.C. 1101(a)(43)(U) meaningless. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONY - CONSPIRACY - BANK FRAUD
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (Federal conviction for conspiracy under 18 U.S.C. 371, where the underlying offense was a violation of 18 U.S.C. 1344 [bank fraud] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes). http://laws.lp.findlaw.com/1st/051282.html

AGGRAVATED FELONY - CONSPIRACY - COUNTERFEITING
Conteh v. Gonzales, __ F.3d __ (1st Cir. Aug. 22, 2006) (Federal conviction for conspiracy under 18 U.S.C. 371, where the underlying offense was a violation of 18 U.S.C. 513(a) [possession of counterfeit security] with a loss in excess of $10,000, is an aggravated felony fraud offense for immigration purposes). http://laws.lp.findlaw.com/1st/051282.html

Fifth Circuit

AGGRAVATED FELONIES " CONSPIRACY " CONSPIRACY TO COMMIT MURDER IS AGGRAVATED FELONY
United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. Apr. 11, 2014) (Nevada conviction for violation of N.R.S. 199.480, 200.010, 200.030, conspiracy to commit murder, is a categorical crime of violence for illegal re-entry sentencing guidelines purposes since the generic federal definition of conspiracy to commit murder does not require an overt act). NOTE: The court here distinguished between conspiracy to commit murder from other forms of conspiracy, finding that, even under federal criminal law, there are varying definitions of conspiracy, and the court must look to the underlying offense to determine which generic definition of conspiracy applies.

Ninth Circuit

CAL CRIM DEF " CONSPIRACY " OBJECT OF A CONSPIRACY IS NOT AN ELEMENT AGGRAVATED FELONY " CONSPIRACY
People v. Vargas, 110 Cal. Rptr. 2d 210, 247 (2001) (the object of a conspiracy is not an element of a California conspiracy offense: [T]he specific crimes that constitute the object of the conspiracy are not elements of the conspiracy. Rather, they are the means by which the purpose of the conspiracy was to be achieved.); id. at 245 (So long as there is unanimity that crime was the object of the agreement, conspiracy is established regardless of whether some jurors believe that crime to be murder and others believe that crime to be something else.). Note: As long as Rendon v. Holder, ___ F.3d ___, ___, 2014 WL 4115930 (9th Cir. August 22, 2014), remains the law of the Ninth Circuit, the target offense of the conspiracy does not constitute part of the elements of the offense of conviction. Under the same reasoning, a conspiracy offense is not divisible in terms of the elements, so the immigration authorities cannot use the modified categorical analysis to consult the record of conviction documents to determine the nature of the conviction for immigration purposes. Thanks to Dan Kesselbrenner.

AGGRAVATED FELONY " CONSPIRACY " DEFINITION
United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. Feb. 20, 2014) (Nevada conviction of conspiracy to commit the crime of burglary in violation of Nev.Rev.Stat. 199.480, 205.060(1), does not constitute an aggravated felony conspiracy, where Nevada law does not require as an element of conspiracy the commission of an overt act in pursuance of the conspiracy, Nev.Rev.Stat. 199.490; aggravated felony conspiracy, INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U), require commission of an overt act in furtherance of the conspiracy, so the state offense is overbroad); distinguishing United States v. Chandler, 743 F.3d 648 (9th Cir. Feb. 20, 2014) (Nevada conviction for conspiracy to commit robbery is a violent felony within the meaning of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), which employs a different definition of conspiracy than that used for the aggravated felony definition under INA 101(a)(43) (U), 8 U.S.C. 1101(a)(43)(U)).