BIA

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).

DISTRIBUTE CONTROLLED SUBSTANCE - CONSPIRACY
Matter of Davis, 20 I. & N. Dec. 536 (BIA May 28, 1992) (Maryland conviction of conspiracy to distribute a controlled substance, in violation of article 27, section 286(a)(1) of the Maryland Annotated Code, constitutes a "drug trafficking crime" as defined in 18 U.S.C. § 924(c)(2) (1988), and is therefore an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), triggering deportation, because the underlying state trafficking offense would have been a felony under federal law, even though the state conspiracy conviction was a misdemeanor), holding modified by Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA May 13, 2002).

Second Circuit

COUNTERFEITING - CONSPIRACY
Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy to utter and possess counterfeit securities, in violation of 18 U.S.C. § 371, 513(a), constitutes an aggravated felony, as "an offense relating to . . . counterfeiting," under INA § 101(a)(43)(R), (U), 8 U.S.C. § 1101(a)(43)(R), (U), triggering deportability under INA § 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), rejecting an argument that an offense relates to counterfeiting only if it involves the creation of counterfeit instruments or a scheme to do so, and that the present conviction cannot be a crime "related to counterfeiting" because a defendant can be guilty of such a conspiracy without proof that the conspirators ever dealt in counterfeit securities, much less that they made or intended to make such instruments).

EXPORT FIREARMS WITHOUT LICENSE - CONSPIRACY
Kuhali v. Reno, 266 F.3d 93 (2d Cir. Sept. 27, 2001) (federal conviction for conspiracy to export firearms without license, in violation of 18 U.S.C. § 371 and 22 U.S.C. 2778, constitutes an aggravated felony under INA § 101(a)(43)(C), (U), 8 U.S.C. 1101(a)(43)(C), (U), for immigration purposes, since it necessarily exhibits a business or merchant nature, regardless of any nexus with commerce as an element of the offense or of a similar "match" between elements).

Lower Courts of Second Circuit

TAX EVASION - CONSPIRACY
Evangelista v. Ashcroft, 204 F.Supp.2d 405, 406 (E.D.N.Y. May 7, 2002) (federal convictions of conspiracy to impede the IRS in collection of income and payroll taxes in violation of 18 U.S.C. § 371, failure to collect or pay income/FICA taxes in violation of 26 U.S.C. § 7202, and attempt to evade or defeat tax in violation of 26 U.S.C. § 7201, constituted tax evasion aggravated felony convictions under INA § 101(a)(43)(M)(ii), (U), 8 U.S.C. § 1101(a)(43)(M)(ii), (U) for removal purposes).

Lower Courts of Third Circuit

BANK FRAUD - CONSPIRACY
United States v. Ogembe, 41 F.Supp.2d 567 (E.D.Pa. Mar. 3, 1999) (federal conviction of conspiracy to commit bank fraud in violation of 18 U.S.C. § 371 constitutes an aggravated felony as an offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" under INA § 101(a)(43)(M)(i), (U), 8 U.S.C. § 1101(a)(43)(M)(i), (U), regardless of sentence).

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.

CONSPIRACY TO ENGAGE IN CHECK FRAUD - THEFT OFFENSE
United States v. Dabeit, 231 F.3d 979 (5th Cir. Oct. 30, 2000), cert. denied, 531 U.S. 1202, 121 S.Ct. 1214 (2001) (federal conviction for conspiracy to perpetrate a checking and savings account kite scheme, in violation of 18 U.S.C. § 2113(b), was an "aggravated felony," under an attempted theft theory of INA § 101(a)(43)(G), (U), 8 U.S.C. § 1101(a)(43)(G), (U), so as to permit enhancement of the illegal re-entry sentence in defendants base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)).

RICO OFFENSES - CONSPIRACY
Alfarache v. Cravener, 203 F.3d 381, 384 (5th Cir. Feb. 22, 2000), cert. denied, 531 U.S. 813, 121 S.Ct. 46 (2000) (federal conviction of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d), was an "aggravated felony" under INA § 101(a)(43)(J), 8 U.S.C. § 1101(a)(43)(J), for immigration purposes).

POSSESS HEROIN WITH INTENT TO DISTRIBUTE - CONSPIRACY
Martins v. INS, 972 F.2d 657 (5th Cir. Sept. 23, 1992) (federal conviction for conspiracy to possess heroin with intent to distribute was "drug trafficking crime," and was thus an aggravated felony under INA § 101(a)(43)(B), (U), 8 U.S.C. 1101(a)(43)(B), (U), which rendered noncitizen statutorily ineligible to apply for asylum).

Seventh Circuit

CONSPIRACY TO POSSESS STOLEN MOTOR VEHICLES - FRAUD OFFENSE
Iysheh v. Gonzales, 437 F.3d 613 (7th Cir. Feb. 1, 2006) (federal conviction of "conspiracy to transport, receive, possess, etc. stolen motor vehicles" in violation of 18 U.S.C. § 371 and 2313(a), constituted a fraud aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), even though the statute did not have an element of fraud or deceit, because the record of conviction establishes fraud, since noncitizen pleaded guilty to "count one of the superseding indictment," which describes a conspiracy (1) "to defraud a financial institution ... in violation of [18 U.S.C. § ] 1344"; (2) "to transport in interstate commerce [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2312"; and (3) "to receive, possess, conceal, store, and sell [stolen] motor vehicles ... in violation of [18 U.S.C. § ] 2313(a)" and the plea agreement established a total loss from the conspiracy in excess of $200,000).

POSSESS WITH INTENT TO DISTRIBUTE - CONSPIRACY
Jideonwo v. INS, 224 F.3d 692 (7th Cir. Aug. 23, 2000) (federal conviction of conspiracy to possess heroin with intent to distribute is an "aggravated felony" under INA § 101(a)(43)(B), (U), 8 U.S.C. 1101(a)(43)(B), (U), for purposes of disqualifying a noncitizen from eligibility for a discretionary waiver of deportation).

DISTRIBUTE CONTROLLED SUBSTANCE - CONSPIRACY
Turkhan v. INS, 123 F.3d 487, 488 (7th Cir. Aug. 12, 1997) (federal conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 constituted aggravated felony conviction under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), (U), for deportation purposes), overruled on other grounds by LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. Dec. 22, 1998).

Eighth Circuit

HARBOR ALIENS - CONSPIRACY
Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. Jan. 9, 2002) (federal conviction of conspiracy to transport and harbor illegal aliens, in violation of INA § 274(a)(1)(A)(ii) and (iii), 8 U.S.C. 1324(a)(1)(A)(ii) and (iii), constituted an aggravated felony under INA § 101(a)(43)(N), 8 U.S.C. § 1101(a)(43)(N), despite parenthetical mentioning smuggling).

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)).

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)).

CONSPIRACY TO DEFRAUD THE UNITED STATES - FRAUD OFFENSE
Li v. Ashcroft, 389 F.3d 892 (9th Cir. Nov. 19, 2004) (federal conviction of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, is divisible with respect to the fraud offense aggravated felony defined in INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it does not require proof of any monetary loss and so does not automatically satisfy the element of this aggravated felony definition requiring a loss to the victim(s) in excess of $10,000, so the record of conviction must be examined to determine whether the conviction falls within the definition).

Eleventh Circuit

BANK FRAUD - CONSPIRACY
Bejacmar v. Ashcroft, 291 F.3d 735 (11th Cir. May 14, 2002) (federal conviction of conspiracy to commit bank fraud, a violation of 18 U.S.C. § 371, constituted an aggravated felony under INA § 101(a)(43)(M)(I), (U), 8 U.S.C. § 1101(a)(43)(M)(i), (U), since the loss to the victim exceeded $10,000).