Criminal Defense of Immigrants

The statute explicitly states that conspiracy to commit an aggravated felony constitutes an aggravated felony.[390]  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.[391]   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.[392]  If the elements of state conspiracy are broader than the federal version, the state conviction may not qualify as aggravated felony conspiracy.

[390] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).  See, e.g., Conteh v. Gonzales, 461 F.3d 45 (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); Kamagate v. Ashcroft, 385 F.3d 144 (2d Cir. Sept. 21, 2004) (federal conviction of conspiracy constitutes an aggravated felony, under INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U), triggering deportability under INA § 237(a)(2)(A)(iii), 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).

[391] 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.

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