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.