United States v. Xochitl Garcia-Santana

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10471

Plaintiff-Appellant,

D.C. No.

v. 3:12-cr-00023-

RCJ-VPC-1

XOCHITL GARCIA-SANTANA,

Defendant-Appellee. ORDER AND

OPINION

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted

September 11, 2013—San Francisco, California

Filed December 15, 2014

Before: Arthur L. Alarcón, and Marsha S. Berzon, Circuit

Judges, and Jack Zouhary, District Judge.*

Order;

Opinion by Judge Berzon

*

The Honorable Jack Zouhary, District Judge for the U.S. District Court

for the Northern District of Ohio, sitting by designation.

2 UNITED STATES V. GARCIA-SANTANA

SUMMARY**

Criminal Law

The panel filed an order (1) withdrawing an opinion filed

February 20, 2014, and (2) filing a superseding opinion

affirming the district court’s dismissal of an illegal reentry

indictment, in a case in which the district court determined

that the defendant’s prior removal order, based on her prior

conviction for conspiracy to commit burglary under Nev.

Rev. Stat. §§ 199.480 and 205.060(1), was constitutionally

inadequate because the defendant was denied her right to seek

discretionary relief from removal.

The panel held that the generic definition of “conspiracy”

under the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(43)(U), includes proof of an overt act in

furtherance of the conspiracy. In so holding, the panel

explained that the question in this case is how to interpret an

undefined offense, “conspiracy,” when it refers to convictions

for that crime in various jurisdictions for the purpose of

determining collateral consequences; and that the Supreme

Court’s cases provide a clear answer: interpret such

provisions using the Taylor v. United States contemporary

sources methodology, not the common law meaning. The

panel wrote that Taylor’s methodology controls regardless of

whether the contemporary definition of a given crime is

broader or narrower than the common-law understanding, and

held that the BIA’s contrary conclusion is due no Chevron

deference.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. GARCIA-SANTANA 3

The panel concluded that because Nevada’s conspiracy

statute requires no proof of an overt act, and the generic

definition of conspiracy does, the defendant’s prior

conviction for conspiracy to commit burglary is not an

aggravated felony under the Immigration and Nationality Act.

COUNSEL

Elizabeth O. White (argued), Assistant United States

Attorney; Daniel G. Bogden; United States Attorney; and

Robert L. Ellman, Appellate Chief, Office of the United

States Attorney, Reno, Nevada, for Plaintiff-Appellant.

Lauren Gorman (argued), Assistant Federal Defender; Rene

Valladares, Federal Defender; and Dan C. Maloney, Research

& Writing Attorney, Office of the Federal Public Defender,

Reno, Nevada, for Defendant-Appellee.

ORDER

The opinion filed February 20, 2014, and published at

743 F.3d 666, is withdrawn. The superseding opinion shall

be filed concurrently with this order.

Further petitions for rehearing or petitions for rehearing

en banc shall be allowed in the above-captioned matter. See

G.O. 5.3(a).

4 UNITED STATES V. GARCIA-SANTANA

OPINION

BERZON, Circuit Judge:

The government appeals the dismissal of Xochitl Garcia-

Santana’s indictment for unlawful reentry in violation of

8 U.S.C. § 1326. The district court determined that Garcia’s

prior removal order was constitutionally inadequate because

Garcia was denied her right to seek discretionary relief from

removal. We affirm. In doing so, we hold that the generic

definition of “conspiracy” under the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(U), includes

proof of an overt act in furtherance of the conspiracy.

I.

In 2002, Garcia pleaded guilty to “conspiracy to commit

the crime of burglary” in violation of Nev. Rev. Stat.

§§ 199.480, 205.060(1). A Nevada court found her guilty and

sentenced her to a suspended twelve-month term in county

jail.

Just over two weeks later, a Deciding Service Officer of

the Immigration and Naturalization Service, proceeding under

the summary removal procedures codified at 8 U.S.C.

§ 1228(b), ordered Garcia removed as an undocumented alien

“convicted of an aggravated felony pursuant to . . . 8 U.S.C.

[§] 1227(a)(2)(A)(iii).” The Deciding Service Officer

determined that Garcia was subject to “a final conviction of

an aggravated felony as defined in . . . 8 U.S.C. 1101(a)(43),

and [was] ineligible for any relief from removal that the

Attorney General may grant in an exercise of discretion.”

She was removed.

UNITED STATES V. GARCIA-SANTANA 5

In 2009, Garcia unlawfully reentered the United States.

Some years later, Nevada law enforcement officials notified

U.S. Immigration and Customs Enforcement (“ICE”) that

they had booked Garcia, a previously removed alien, into a

local detention center. ICE officials subsequently took

Garcia into custody at her home.

A grand jury indicted Garcia on the charge that she was

a previously removed alien found unlawfully in the United

States, in violation of 8 U.S.C. § 1326. She moved to dismiss

the indictment, arguing that her previous removal order was

fundamentally unfair. The Deciding Service Officer erred,

she asserted, in finding that her previous conviction qualified

as an “aggravated felony” that rendered her ineligible for all

discretionary relief. Denying her an opportunity to seek such

relief, she concluded, constituted a violation of due process.

The district court denied Garcia’s motion, ruling that

conspiracy to commit the crime of burglary under Nevada

law constituted an aggravated felony, so she did not qualify

for any discretionary relief. Upon reconsideration, however,

the court struck its order denying Garcia’s motion to dismiss

for the constitutional inadequacy of her previous removal

order. Instead, the court granted Garcia’s previous request

“upon the grounds contained in Defendant[’s] motion.”

This appeal followed.

II.

The Due Process Clause guarantees an individual charged

with illegal reentry, 8 U.S.C. § 1326, the opportunity to

challenge “a prior [removal] that underlies [the] criminal

charge, where the prior [removal] proceeding effectively

6 UNITED STATES V. GARCIA-SANTANA

eliminated the right of the alien to obtain judicial review.”

United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir.

2010) (citing United States v. Mendoza-Lopez, 481 U.S. 828

(1987)). Section 1326(d) codifies this principle. See id. It

authorizes collateral attack on three conditions: (1) that the

defendant exhausted available administrative remedies;

(2) that the removal proceedings “deprived the alien of the

opportunity for judicial review”; and (3) that the removal

order “was fundamentally unfair.” 8 U.S.C. § 1326(d).

Removal is “fundamentally unfair,” in turn, if “‘(1) [a

defendant’s] due process rights were violated by defects in

his underlying [removal] proceeding, and (2) he suffered

prejudice as a result of the defects.’” United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (first

alteration in original) (quoting United States v. Zarate-

Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on

other grounds as recognized in United States v.

Ballesteros-Ruiz, 319 F.3d 1101, 1105 (9th Cir. 2003)).

An immigration official’s failure to advise an alien of his

apparent eligibility for relief from removal, including

voluntary departure, violates his due process rights. See, e.g.,

United States v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir.

2012) (per curiam); United States v. Lopez-Valasquez,

629 F.3d 894, 897 (9th Cir. 2010) (en banc). An alien who

has been convicted of an aggravated felony is not eligible for

voluntary departure in lieu of removal. See 8 U.S.C.

§ 1229c(a)(1); United States v. Vidal-Mendoza, 705 F.3d

1012, 1014 n.2 (9th Cir. 2013). Garcia’s prior removal order

stated that she was “ineligible for any relief,” because she had

previously been convicted of an aggravated felony. The

government challenges the grant of collateral relief only on

the ground that Garcia’s conviction for burglary conspiracy

qualifies as an aggravated felony, contrary to Garcia’s

UNITED STATES V. GARCIA-SANTANA 7

contention and the district court’s ruling.1 “Aggravated

felony” is defined to include “a theft offense . . . or burglary

offense for which the term of imprisonment [is] at least one

year,” 8 U.S.C. § 1101(a)(43)(G), or a “conspiracy to commit

an offense described in” § 1101(a)(43), 8 U.S.C.

§ 1101(a)(43)(U), which includes a “theft offense . . . or

burglary.”

III.

To determine whether an offense is an aggravated felony,

we “use the categorical and modified categorical approaches

of Taylor v. United States, 495 U.S. 575 (1990), and Shepard

v. United States, 544 U.S. 13 (2005).” Hernandez-Cruz v.

Holder, 651 F.3d 1094, 1100 (9th Cir. 2011). Under the

categorical approach, “we look ‘not to the facts of the

particular prior case,’ but instead to whether ‘the state statute

defining the crime of conviction’ categorically fits within the

‘generic’ federal definition of a corresponding aggravated

1

In addition to demonstrating eligibility for discretionary relief in the

prior removal proceeding, an alien seeking to avoid criminal conviction

for reentry under § 1326(d) must establish that it was plausible — not

inevitable — the agency would have exercised its discretion in favor of

granting the requested relief. Melendez-Castro, 671 F.3d at 954–55. In

granting Garcia’s motion on the grounds on which Garcia had argued, the

district court found it plausible that voluntary departure relief would have

been granted. The government has not challenged that finding on appeal,

so any such challenge is now forfeited. See, e.g., Cruz v. Int’l Collection

Corp., 673 F.3d 991, 998 (9th Cir. 2012); see also Arias-Ordonez,

597 F.3d at 978 (affirming the district court’s prejudice finding where the

government did not challenge it on appeal). The government also does not

contend that this prosecution could proceed even if the offense of which

Garcia was convicted is not an aggravated felony. We do not reach any

alternative basis the government might have offered for affirming this

conviction.

8 UNITED STATES V. GARCIA-SANTANA

felony.” Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186

(2007)). The “generic” definition of an offense is determined

by “the contemporary usage of the term.” Taylor, 495 U.S.

at 592. “[A] state offense is a categorical match [with a

generic federal offense] only if a conviction of the state

offense ‘“necessarily” involved . . . facts equating to [the]

generic [federal offense].’” Moncrieffe, 133 S. Ct. at 1684

(some alterations in original) (quoting Shepard v. United

States, 544 U.S. 13, 24 (2005) (plurality opinion)). That is,

“an offense is an aggravated felony if ‘the full range of

conduct covered by the [state criminal statute] falls within the

meaning’ of the relevant definition of an aggravated felony.”

Ngaeth v. Mukasey, 545 F.3d 796, 800 (9th Cir. 2008) (per

curiam) (quoting Penuliar v. Mukasey, 528 F.3d 603, 608

(9th Cir. 2008), abrogated on other grounds as recognized in

United States v. Martinez, — F.3d — No. 13-10563, 2014

WL 5904925, at *4 (9th Cir. Nov. 14, 2014)). By contrast,

where the state statute of conviction “sweeps more broadly

than the generic crime, a conviction under the law cannot

count as an [aggravated felony], even if the defendant

actually committed the offense in its generic form.”

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).

“Nevada law defines a conspiracy as ‘an agreement

between two or more persons for an unlawful purpose.’”

Bolden v. State, 124 P.3d 191, 194 (Nev. 2005) (quoting

Doyle v. State, 921 P.2d 901, 911 (Nev. 1996), overruled on

other grounds by Kacsmarek v. State, 91 P.3d 16 (Nev.

2005)); see also Nev. Rev. Stat. § 199.480. Conviction of a

conspiracy in Nevada requires no proof “that any overt act

was done in pursuance of such unlawful conspiracy or

combination.” Nev. Rev. Stat. § 199.490.

UNITED STATES V. GARCIA-SANTANA 9

For reasons we shall explain shortly, we are convinced

that, applying the methodology prescribed by the Supreme

Court for defining generic offenses for categorical purposes,

the generic federal definition of conspiracy, codified at

8 U.S.C. § 1101(a)(43)(U), conditions conviction on

performance of an overt act in pursuit of the conspiratorial

objective.2 Because Nevada’s conspiracy statute criminalizes

a broader range of conduct than the properly determined

generic definition of conspiracy, Garcia’s conviction does not

qualify as an aggravated felony.3

IV.

A.

“[C]ontemporary usage of [a] term” governs its generic

definition under the categorical approach. Taylor, 495 U.S.

at 592. To identify that “contemporary usage,” we survey the

definitions codified in state and federal statutes, adopted by

the Model Penal Code (“MPC”), and endorsed by scholarly

commentary. See, e.g., United States v. Esparza-Herrera,

557 F.3d 1019, 1023 (9th Cir. 2009) (per curiam).

2

We recently considered whether a 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). United States v. Chandler,

743 F.3d 648 (9th Cir. 2014). Chandler does not affect our analysis here.

It concerned whether the conviction in that case was a violent felony

under 18 U.S.C. § 924(e)(1), not, as here, whether the crime of conviction

is an aggravated felony under 8 U.S.C. § 1101(a)(43).

3

The Nevada conspiracy statute is not a divisible statute that “list[s]

potential offense elements in the alternative,” Descamps, 133 S. Ct. at

2283; see also Nev. Rev. Stat. § 199.480. We thus need not apply the

modified categorical approach of Taylor and Shepard to it.

10 UNITED STATES V. GARCIA-SANTANA

i. The generic definition of an offense “roughly

correspond[s] to the definitions of [the offense] in a majority

of the States’ criminal codes.” Taylor, 495 U.S. at 589. A

survey of state conspiracy statutes reveals that the vast

majority demand an overt act to sustain conviction. By our

count, thirty-six states do so; if the District of Columbia,

Guam, Puerto Rico, and the Virgin Islands are included, then

the tally rises to forty of fifty-four jurisdictions.4

4

See Ala. Code § 13A-4-3(a); Alaska Stat. § 11.31.120(a); Ariz. Rev.

Stat. § 13-1003(A); Ark. Code Ann. § 5-3-401; Cal. Penal Code § 184;

Colo Rev. Stat. § 18-2-201(2); Conn. Gen Stat. § 53a-48(a); Ga. Code

Ann. § 16-4-8; Haw. Rev. Stat. § 705-520; Idaho Code Ann. § 18-1701;

720 Ill. Comp. Stat. 5/8-2(a); Ind. Code. § 35-41-5-2(b); Iowa Code

§ 706.1(3); Kan. Stat. Ann. § 21-5302(a); La. Rev. Stat. Ann. § 13:26(A);

Me. Rev. Stat. tit. 17-A, § 151(4); Minn. Stat.§ 609.175(1); Mo. Rev. Stat.

§ 564.016(4); Mont. Code. Ann. § 45-4-102(1); Neb. Rev. Stat. § 28-

202(1)(b); N.H. Rev. Stat. Ann. § 629:3(I); N.J. Stat. Ann. § 2C:502(d);

N.Y. Penal Law§ 105.20; N.D. Cent. Code § 12.1-06-04(1); Ohio Rev.

Code Ann. § 2929.01(B); Okla. Stat. tit. 21, § 423; 18 Pa. Cons. Stat.

§ 903(e); S.D. Codified Laws § 22-3-8; Tenn. Code Ann. § 39-12-103(d);

Tex. Penal Code Ann. § 15.02 (d); Utah Code Ann. § 76-4-201; Vt. Stat.

Ann. tit. 13, § 1404(b); Wash. Rev. Code § 9A.28.040(1); W. Va. Code

§ 61-10-31; Wis. Stat. § 939.31; Wyo. Stat. Ann. § 6-1-303(a); see also

D.C. Code § 221805(a)(b); 9 Guam Code Ann. § 13.30; P.R. Laws Ann.

tit. 33, § 4878; V.I. Code Ann. tit. 14, § 552. But see Del. Code Ann. tit.

11 §§ 511–521; Fla. Stat. § 777.04(3); Ky. Rev. Stat. Ann. § 506.040(1);

Md. Code Ann., Crim. Law § 1-203; Carroll v. Maryland, 53 A.3d 1159,

1169 (Md. 2012); Mass. Gen. Laws ch. 274, § 7; Massachusetts v. Nee,

935 N.E.2d 1276, 1282 (Mass. 2010); Mich. Comp. Laws § 740.151;

Michigan v. Mass, 628 N.W.2d 540, 556 (Mich. 2001); Miss. Code Ann.

§ 97-1-1; Berry v. Mississippi, 996 So. 2d 782, 789 (Miss.2008); Nev.

Rev. Stat. § 199.490; N.M. Stat. Ann. § 30-28-2; New Mexico v. Walters,

168 P.3d 1068, 1079 (N.M. 2007); North Carolina v. Gibbs, 436 S.E.2d

321, 347 (N.C. 1993); Or. Rev. Stat. § 151.450; R.I. Gen. Laws § 11-1-6;

Rhode Island v. Disla, 874 A.2d 190, 197 (R.I. 2005); S.C. Code Ann.

§ 16-17-410; South Carolina v. Buckmon, 555 S.E.2d 402, 405 (S.C.

UNITED STATES V. GARCIA-SANTANA 11

Such a great predominance of jurisdictions is more than

sufficient to establish the generic federal definition of a

crime. We have held the agreement of thirty-three

jurisdictions qualifies as sufficient consensus to establish the

generic definition of a crime. See Esparza-Herrera, 557 F.3d

at 1025. Here, the even more widespread agreement among

jurisdictions on an overt act requirement for the general crime

of conspiracy indicates that conviction for generic conspiracy

requires an overt act.

The federal government’s general conspiracy statute,

which criminalizes conspiracies “to commit any offense

against the United States, or to defraud the United States,”

also requires an overt act. 18 U.S.C. § 371. Parallel federal

crimes are probative, but not independently determinative, of

the contemporary, generic definition of an offense. See

United States v. Medina-Villa, 567 F.3d 507, 515–16 (9th Cir.

2009).

ii. Taylor, which first established the proper mode of

analysis in this area of law, used both the MPC and a

scholarly treatise — Wayne R. LaFave & Austin W. Scott,

Substantive Criminal Law (1st ed. 1986) — as aids in its

survey of generic “burglary.” Taylor, 495 U.S. at 598. These

two sources agree that “conspiracy” to commit an offense

now requires proof of an overt act, and so confirm the results

of our survey of contemporary state and federal statutes.

The MPC conditions conviction for general conspiracy on

proof of “an overt act in pursuance of [the] conspiracy . . .

done by [the defendant] or by a person with whom he

2001); Va. Code Ann. § 18.2-22; Gray v. Virginia, 537 S.E.2d 862, 865

(Va. 2000).

12 UNITED STATES V. GARCIA-SANTANA

conspired,” unless the conspiracy concerns the commission

of a first or second degree felony. Model Penal Code

§ 5.03(5). Because the MPC defines burglary as a felony in

the third degree unless particular, narrow conditions are met,5

conviction for conspiracy to commit burglary typically

requires proof of an overt act.6

The oft-cited treatise, Substantive Criminal Law, also

supports an overt act requirement.7 As that treatise observes,

5

The precise language of the Code is as follows:

(2) Grading. Burglary is a felony of the second degree

if it is perpetrated in the dwelling of another at night, or

if, in the course of committing the offense, the actor:

(a) purposely, knowingly or recklessly inflicts or

attempts to inflict injury on anyone; or

(b) is armed with explosives or a deadly weapon.

Otherwise, burglary is a felony of the third degree. An

act shall be deemed “in the course of committing” an

offense if it occurs in an attempt to commit the offense

or in flight after the attempt or commission.

Model Penal Code § 221.1(2).

6

Recent recodifications of state criminal law can be especially probative

of the contemporary generic definition. See United States v. Dominguez-

Ochoa, 386 F.3d 639, 644–46 (5th Cir. 2004). We note that the most

recent criminal codes have departed from the MPC by requiring an overt

act even for the most serious conspiracies. See 2 Wayne R. LaFave,

Substantive Criminal Law § 12.2 (2d ed. 2003).

7

In 2013, the Supreme Court twice cited the most recent edition of

Substantive Criminal Law in applying the categorical approach. See

Descamps, 133 S. Ct. at 2285; Moncrieffe, 133 S. Ct. at 1701.

UNITED STATES V. GARCIA-SANTANA 13

“most of the states now require that an overt act in

furtherance of the plan be proven for all or specified

conspiratorial objectives.” 2 LaFave, supra, § 12.2. The

treatise goes on to observe that the overt-act requirement is in

some instances treated as “part of the offense” and in others

as “merely an element of proof.” Id. Under the categorical

approach, this distinction does not matter; “‘a “constituent

part” of the offense [that] must be proved by the prosecution

in every case to sustain a conviction under a given statute[,]’”

is an element of the crime for purposes of categorical

analysis. United States v. Beltran-Munguia, 489 F.3d 1042,

1045 (9th Cir. 2007) (emphasis and alteration in original)

(quoting United States v. Hasan, 983 F.2d 150, 151 (9th Cir.

1992) (per curiam)). The scholarly assessment thus confirms

that generic conspiracy requires proof of an overt act.

The agreement of a majority of states, the federal general

conspiracy statute, the MPC, and scholarly commentary

reflects the importance of an overt-act requirement to

contemporary criminal jurisprudence. At common law,

conviction for conspiracy required no proof of an overt act.

See, e.g., Whitfield v. United States, 543 U.S. 209, 213–14

(2005). Instead, agreement was seen as the “essence” of

conspiracy, Iannelli v. United States, 420 U.S. 770, 777

(1975), and “‘an evil in itself, independently of any other evil

[the criminal agreement] seeks to accomplish[,]’” id. at 779

(quoting Dennis v. United States, 341 U.S. 494, 573 (1951)

(Jackson, J., concurring)). The “evil” of a conspiracy was

understood to lie in the tendency of “‘[c]oncerted action both

[to] increase[] the likelihood that the criminal object will be

successfully attained and [to] decrease[] the probability that

the individuals involved will depart from their path of

criminality.’” Id. at 778 (quoting Callanan v. United States,

36 U.S. 587, 593 (1961)).

14 UNITED STATES V. GARCIA-SANTANA

The move toward requiring proof of an overt act was but

one manifestation of a larger shift in legal thought concerning

the general crime of conspiracy, as jurists and scholars began

to “view with disfavor attempts to broaden the already

pervasive and wide-sweeping nets of conspiracy

prosecutions.” Grunewald v. United States, 353 U.S. 391,

404 (1957); see also 2 LaFave, supra, § 12.1 (describing

some common criticisms of conspiracy). A range of concerns

informed that jurisprudential disfavor, among them the

observation that “the minimum of proof required to establish

conspiracy is extremely low,” Krulewitch v. United States,

336 U.S. 440, 452 (1949) (Jackson, J., concurring), and

recognition that the procedural rules attached to conspiracy

allegations make convictions easier to obtain than for

substantive crimes, id. at 452–54. Proof of an overt act is

often the only external evidence of a crime “predominantly

mental in composition.” Krulewitch, 336 U.S. at 447–48

(internal quotation marks omitted). For this reason, “[t]he

function of the overt act in a conspiracy prosecution is simply

to manifest that the conspiracy is at work and is neither a

project still resting solely in the minds of the conspirators nor

a fully completed operation no longer in existence.” Yates v.

United States, 354 U.S. 298, 334 (1957) (internal quotation

marks and citation omitted), overruled on other grounds by

Burks v. United States, 437 U.S. 1 (1970); see generally Peter

Buscemi, Note, Conspiracy: Statutory Reform Since the

Model Penal Code, 75 Colum. L. Rev. 1122, 1153–59 (1975)

(tracking legislative revision of the common law of

conspiracy to include an overt-act requirement and outlining

the motivations for reform). The contemporary overt act

requirement thus developed to guard against the punishment

of evil intent alone, and to assure that a criminal agreement

actually existed.

UNITED STATES V. GARCIA-SANTANA 15

As all the indicia we have been instructed to use under

Taylor and its progeny to determine the elements of the

general crime of conspiracy point toward an overt act

element, we conclude that such an overt act is an element of

the generic definition of conspiracy.

B.

The government maintains, however, that the reference to

“conspiracy” in 8 U.S.C. § 1101(a)(43)(U) incorporates only

the common-law definition of that term, without the

contemporary, widely adopted overt-act safeguard. For

support, the government cites a line of Supreme Court cases

interpreting “conspiracy” as used in specific federal criminal

statutes, rather than in the generic federal conspiracy statute.

Those offense-specific cases rest on a “‘settled principle of

statutory construction that, absent contrary indications,

Congress intends to adopt the common law definition of

statutory terms,’” and hold that, absent express language to

the contrary, a federal statute establishing a specific federal

conspiracy offense does not require an overt act, only an

agreement. Whitfield, 543 U.S. at 213 (emphasis added)

(quoting United States v. Shabani, 513 U.S. 10, 13–14

(1994)) (conspiracy to commit money laundering in violation

of 18 U.S.C. § 1956(h)); see also Shabani, 513 U.S. at 13–14

(conspiracy to distribute cocaine in violation of 21 U.S.C.

§ 846); Singer v. United States, 323 U.S. 338, 340 (1945)

(conspiracy to aid another in evading service in the armed

forces); Nash v. United States, 229 U.S. 373, 378 (1913)

(Sherman Act conspiracy).

The government’s reliance on these decisions tracks the

BIA’s reasoning in a precedential opinion, which relied on

the same line of Supreme Court cases. See In re Richardson,

16 UNITED STATES V. GARCIA-SANTANA

25 I. & N. Dec. 226, 228 (BIA 2010). On the basis of those

cases, Richardson interpreted “conspiracy” under

§ 1101(a)(43)(U) as referring to the common-law definition,

and thus as omitting any overt-act requirement. Id. at 230.

We cannot accept this interpretation.

i. The cases cited by the government, and by Richardson,

interpret specific penal statutes, each of which directly

imposes criminal liability for particular acts, as well as

conspiracy to carry out those same acts. Whitfield recognized

this limitation, explaining that the line of cases on which the

government relies established “the governing rule” to

determine whether an overt act is a required element of a

particular “conspiracy offense.” Whitfield, 543 U.S. at 214

(emphasis added). That is, those cases explain how courts

should interpret federal statutes criminalizing conspiracies.

The INA is quite different than those statutes. It is not a

“conspiracy offense.” It defines “aggravated felonies” for the

purpose not of defining and penalizing criminal conduct, but

of assigning various immigration consequences to prior

convictions. See, e.g., United States v. Corona-Sanchez,

291 F.3d 1201, 1209 n.8 (9th Cir. 2002) (en banc) (listing the

various uses of the “aggravated felony” concept in the INA).8

Such collateral consequences attach to convictions from all

jurisdictions, not merely to federal convictions.

8

The definition of an aggravated felony under the INA can also affect

the sentence for criminals who were previously deported or unlawfully

remained in the United States after being convicted for an “aggravated

felony.” United States Sentencing Guidelines Manual § 2L1.2(b)(1)(C)

& cmt. n.3(A); see also Medina-Villa, 567 F.3d at 511–12 (“[D]ecisional

law defining the term ‘sexual abuse of a minor’ in the sentencing context

. . . is informed by the definition of the same term in the immigration

context, 8 U.S.C. § 1101(a)(43)(A), and vice versa.” (footnote omitted)).

UNITED STATES V. GARCIA-SANTANA 17

In applying the Taylor approach, we presume that the

statute employs “uniform, categorical definitions to capture

all offenses of a certain [type] . . . regardless of technical

definitions and labels under state law.” Taylor, 495 U.S. at

590. The definitions of aggravated felonies codified at

8 U.S.C. § 1101(a)(43) are thus descriptive, not proscriptive.

They define a class of prior convictions, rather than

prohibiting particular conduct. To interpret this kind of

statute, Taylor instructed us to identify the “contemporary

understanding of” an offense and to spurn “[t]he arcane

distinctions embedded in the common-law definition.”

495 U.S. at 593 (emphasis added).

A close look at Taylor illuminates how the government’s

argument, and the BIA’s holding in Richardson, disregard

entirely the mode of analysis applicable to defining generic

crimes under the categorical approach. Taylor interpreted the

meaning of “burglary” within the Armed Career Criminal

Act, 18 U.S.C. § 924(e). That Act imposed enhanced

sentences for offenders previously convicted of, among other

things, a “violent felony,” which the statute defined to include

“burglary.” Taylor, 495 U.S. at 578. The sentencing

enhancement applied to convictions under either federal or

state law, as does the aggravated felony definition at issue

here. At common law, burglary was defined as “the breaking

and entering of the dwelling house of another in the nighttime

with the intent to commit a felony.” Id. at 580 n.3 (internal

quotation marks and citation omitted). But most

contemporary state statutes, the Court noted in Taylor, had

deviated from the common-law understanding of burglary, by

criminalizing conduct involving “entry without a ‘breaking,’

structures other than dwellings, offenses committed in the

daytime, entry with intent to commit a crime other than a

felony, etc.” Id. at 593. Stressing that “[t]he arcane

18 UNITED STATES V. GARCIA-SANTANA

distinctions embedded in the common-law definition have

little relevance to modern law enforcement concerns[,]”

Taylor concluded that it was “unlikely that the Members of

Congress, immersed in the intensely practical concerns of

controlling violent crime, would have decided to abandon

their modern, generic . . . definition of burglary and revert to

a definition developed in the ancient English law.” Id. at

593–94.

Duenas-Alvarez, 549 U.S. 183, reinforces this

conclusion. That case, applying Taylor, considered, as do

we, the description of a generic aggravated felony.

Subsection 1101(a)(43)(G), at issue in Duenas-Alvarez, lists

a “theft offense” as an aggravated felony. Duenas-Alvarez

turned on whether the term “theft offense” included the crime

of aiding and abetting a theft offense. The common law had

distinguished between first-degree principals, second-degree

principals, and accessories before the fact, precluding

automatic incorporation of the broad concept of “aiding and

abetting” into the description of a substantive crime. Id. at

189. But, as Duenas-Alvarez explained, “criminal law now

uniformly treats those who fall into th[ose] categories alike.”

Id. at 190. Rejecting, as in Taylor, reliance on common law

concepts, Duenas-Alvarez used the prevalent, contemporary

law of aiding and abetting instead, and concluded that the

bare statutory reference to those convicted of “theft” included

aiders and abetters, as well as principal offenders.

We must apply the same approach here, as our issue is

parallel to those in Taylor and Duenas-Alvarez: What set of

prior state and federal criminal convictions did Congress

mean to encompass in a provision assigning consequences to

such previous convictions? As the INA aggravated felony

definition is used to impose collateral consequences for

UNITED STATES V. GARCIA-SANTANA 19

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. “In the absence of any specific

indication that Congress meant to incorporate the common-

law meaning of [a term], we shall not read into the statute a

definition . . . so obviously ill suited to its purposes.” Taylor,

495 U.S. at 594; see also Corona-Sanchez, 291 F.3d at 1205

(“Although the common law definition informs us and is the

starting point of our analysis, it is not the end point. Indeed,

such an approach was rejected by the Supreme Court in

Taylor, 495 U.S. at 592–96 . . . .”).

The government retorts that adopting the contemporary,

generic definition of conspiracy — that is, requiring an overt

act — is an implausible interpretation of congressional intent,

because a “wide range of criminal conduct . . . would fall

outside this reading.” Not so. As we have seen, the

predominant majority of state statutes already subscribe to the

generic understanding of general conspiracy, as does the

general federal crime of conspiracy. Only a small subset of

conspiracy convictions, emanating from that minority of

jurisdictions that retain the common-law definition of

conspiracy, will not trigger adverse immigration

consequences.9 Even were it otherwise, some measure of

9

Nor do we expect that aliens convicted under those federal conspiracy

statutes without an overt act requirement will escape adverse collateral

consequences because of that omitted element. Conspiracy to commit

money laundering under § 18 U.S.C. § 1956(h), Whitfield, 543 U.S. at

219, may be an aggravated felony under 8 U.S.C. § 1101(a)(43)(D),

without any reference to the generic conspiracy offense described in

subsection (U). Conspiracy to distribute cocaine in violation of 21 U.S.C.

§ 846, Shabani, 513 U.S. at 17, may be an aggravated felony under

8 U.S.C. § 1101(a)(43)(B), without any reference to the generic

20 UNITED STATES V. GARCIA-SANTANA

underinclusiveness is inevitable under the categorical

approach, as the Supreme Court has expressly noted. See

Moncrieffe, 133 S. Ct. at 1693; see also Descamps, 133 S. Ct.

at 2287–89.

ii. In its petition for rehearing, the government contends

that United States v. Castleman, 134 S. Ct. 1405 (2014),

undermines our basis for concluding that Taylor, not the

Whitfield line of cases, controls. It argues that, in Castleman,

the Supreme Court relied on a common-law definition in

interpreting a statute that, like the INA, creates subsequent

liability based on convictions from all jurisdictions, rather

than directly imposing federal criminal liability for the

relevant conduct.

Castleman confronted a statute prohibiting possession of

a firearm by anyone who had been convicted of a

“misdemeanor crime of domestic violence.” 18 U.S.C.

§ 922(g)(9). “[M]isdemeanor crime of domestic violence”

was, in turn, defined as a misdemeanor offense committed

within certain intimate relationships which, among other

things, “has, as an element, the use or attempted use of

conspiracy offense described in subsection (U). See Leyva-Licea v. INS,

187 F.3d 1147, 1150 (9th Cir. 1999) (observing that 8 U.S.C.

§ 1101(a)(43)(B) includes felonies punishable under the Controlled

Substances, Act, which, in turn, includes 21 U.S.C. § 846). The statute

prohibiting the evasion of service in the armed forces, which Singer,

323 U.S. at 340, held not to require an overt act, has been repealed. Even

were it otherwise, violation of it, or of the Sherman Act, Nash, 229 U.S.

at 378, would seem not to satisfy any of the enumerated categories of

aggravated felony, whether or not conviction requires proof of an overt

act.

UNITED STATES V. GARCIA-SANTANA 21

physical force.” 18 U.S.C. § 921(a)(33)(A).10 The question

was how to interpret the term “physical force” within the

definition in § 921(a)(33)(A). Castleman, 134 S. Ct. at 1409,

1412. The Court did not adopt its recent construction of

“physical force” in the definition of “violent felony” in

18 U.S.C. § 924(e)(2)(B)(i) as requiring “violent force,” and

instead looked to the common-law-meaning canon of

statutory construction. Castleman, 134 S.Ct. at 1409–10

(emphasis and internal quotation marks omitted) (citing

Johnson v. United States, 559 U.S. 133, 140 (2010)). The

government argues that Castleman shows that the common-

law presumption applies not only to direct penal statutes, but

also to statutes that apply later consequences to earlier

convictions from various jurisdictions.

Castleman is inapposite. As discussed above, in Taylor

the Court interpreted the term “burglary,” which was used but

not defined in 18 U.S.C. § 924(e)(2)(B)(ii). It first rejected

the idea that the definition was supplied by the statute of

conviction, finding Congress intended a consistent standard.

Taylor, 495 U.S. at 590. It then concluded that Congress

used that term not in the common-law sense, but in the

“generic sense in which the term is now used in the criminal

codes of most States.” Id. at 594, 598. That is, the Court

found that the undefined offense of “burglary” was meant as

10

18 U.S.C. § 921(a)(33)(A) provides that “the term ‘misdemeanor

crime of domestic violence’ means an offense that–(i) is a misdemeanor

under Federal, State, or Tribal law; and (ii) has, as an element, the use or

attempted use of physical force, or the threatened use of a deadly weapon,

committed by a current or former spouse, parent, or guardian of the

victim, by a person with whom the victim shares a child in common, by

a person who is cohabiting with or has cohabited with the victim as a

spouse, parent, or guardian, or by a person similarly situated to a spouse,

parent, or guardian of the victim.”

22 UNITED STATES V. GARCIA-SANTANA

a stand-in for a consistent set of elements, and that those

elements should be discerned by reference to the consensus

of contemporary sources. In this case, we have proceeded in

the same way for the undefined offense of “conspiracy.”

By contrast, in Castleman there was no call to look to

contemporary sources for a definition of “misdemeanor crime

of domestic violence,” 18 U.S.C. § 922(g)(9), because the

statute itself provided such a definition – namely, the use (or

attempted use) of force within certain intimate relationships.

18 U.S.C. § 921(a)(33)(A). The question was how to

interpret an element within a definition that was explicitly

provided by Congress. Thus the interpretive question at issue

in Castleman was very different from the problem of

construing what Congress means when it refers to a specific

crime, such as “burglary” or “conspiracy,” without providing

a definition.

Consistent with that difference, none of the opinions in

Castleman addressed the contemporary-sources methodology.

The majority adopted a common-law interpretation of the

term “force,” as Justice Alito, concurring in the judgment,

would have also done for different reasons. Castleman, 134

S.Ct. at 1410, 1422. Neither discussed the contemporary-

sources methodology. Justice Scalia, concurring in part and

concurring in the judgment, argued that the Court should give

“force” the same meaning as it had in Johnson, principally

based on “the presumption of consistent usage,” but he also

made no reference to the contemporary-sources methodology.

UNITED STATES V. GARCIA-SANTANA 23

Id. at 1417. Moreover, none of the parties’ briefs advocated

a contemporary-sources approach.11

Thus, the contemporary-sources methodology was simply

not at issue in Castleman.12 That being the case, Castleman

cannot answer the core issue in this case: should the court

rely on a common-law, or contemporary-sources, definition

of “conspiracy?”

In short, our response to the government’s argument

based on Castleman is essentially the same as our response to

its argument based on the Whitfield line of cases. While the

presumption of common-law meaning was appropriate in

considering the statutes at issue in those cases, the

interpretive question at issue here is critically different. The

11

See Brief for United States, 2013 WL 6091510; Brief for Respondent

Castleman, 2013 WL 6665058; Reply Brief for United States, 2014 WL

60717.

12

We note that the Court did survey state law in Castleman. 134 S.Ct.

at 1413. But, in doing so, it was not looking to state definitions of the

term “force” as an indication of the contemporary generic meaning of the

term. Rather, the court examined what effect the competing

interpretations would have in light of the variety of statutes under which

domestic violence is prosecuted. See id. (“An additional reason to read

the statute as we do is that a contrary reading would have rendered

§ 922(g)(9) inoperative in many States at the time of its enactment.”).

We recognize, of course, that Castleman did “follow the analytic

approach” established in Taylor. Id. at 1413. But the relevant portion of

the opinion is an application of a different part of Taylor, namely the

categorical and modified categorical approaches to determining whether

a particular conviction qualifies under the federal definition at issue. Id.

at 1413. . .15. The Court did not discuss Taylor’s separate “analytic

approach” to determining the generic definition of a named, but not

defined, offense.

24 UNITED STATES V. GARCIA-SANTANA

question in this case is how to interpret an undefined offense,

“conspiracy,” when it refers to convictions for that crime in

various jurisdictions for the purpose of determining collateral

consequences. The Supreme Court’s cases provide a clear

answer to that question: we interpret such provisions using

Taylor’s contemporary sources methodology, not the

common law meaning.

The government also argues in its petition for rehearing

that Castleman illustrates another error in our reasoning.

According to the government, it may be appropriate to adopt

the contemporary definition of a given crime when, as in

Taylor, that definition is broader than the common-law

understanding. But when, as in Castleman, the common-law

definition would capture more conduct than the alternative,

the government suggests that the common-law definition is

the right one.

We decline to adopt such an asymmetrical principle.

Taylor instructs us to look to the contemporary definition of

the offense at issue, not the broadest available definition. The

cases applying Taylor have so understood its directive.

For example, courts considering the interpretation of

generic “manslaughter” have concluded that the

contemporary definition requires a mens rea of at least

recklessness. See, e.g., Dominguez-Ochoa, 386 F.3d at 646;

United States v. Roblero-Ramirez, 716 F.3d 1122, 1126 (8th

Cir. 2013) (collecting cases). Those cases applied the

narrower contemporary definition of manslaughter rather

than the broader common-law definition, which would

include manslaughter convictions based on a negligence

theory. See Dominguez-Ochoa, 386 F.3d at 646; 2 LaFave,

supra, § 15.4. As the manslaughter cases illustrate, Taylor’s

UNITED STATES V. GARCIA-SANTANA 25

methodology controls regardless of whether the contemporary

definition of a given crime is broader or narrower than the

common-law understanding.

iii. The BIA’s contrary conclusion in Richardson, 25 I. &

N. Dec. 226, is due no deference under Chevron, USA, Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

The government has not urged us to defer to the BIA’s

interpretation of “conspiracy,” with good reason, as we now

explain.

Generally, “we have held that the [BIA’s] precedential

orders [interpreting the INA], which bind third parties,

qualify for . . . deference” under Chevron. Marmolejo-

Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en

banc). Such deference is due “regardless of whether the order

under review is the precedential decision itself or a

subsequent unpublished order that relies on it.” Id. at 911.

We have, on occasion, accorded such deference to the

definition of generic offenses listed in 8 U.S.C.

§ 1101(a)(43). See, e.g., Renteria-Morales v. Mukasey,

551 F.3d 1076, 1081 (9th Cir. 2008); Parilla v. Gonzales,

414 F.3d 1038, 1041 (9th Cir. 2005).

Historically, we implemented Chevron via a two-step

inquiry, asking first whether a statute was ambiguous and, if

so, whether the agency’s interpretation of it was reasonable.

See, e.g., Ariz. Health Care Cost Containment Sys. v.

McClellan, 508 F.3d 1243, 1249 (9th Cir. 2007). More

recently, however, the Supreme Court has authorized courts

to omit evaluation of statutory ambiguity on the ground that,

“if Congress has directly spoken to an issue then any agency

interpretation contradicting what Congress has said would be

unreasonable.” Entergy Corp. v. Riverkeeper, Inc., 556 U.S.

26 UNITED STATES V. GARCIA-SANTANA

208, 218 n.4 (2009); see also United States v. Home Concrete

& Supply, LLC, 132 S. Ct. 1836, 1846 n.1 (2012) (Scalia, J.,

concurring in part and concurring in the judgment) (“Whether

a particular statute is ambiguous makes no difference if the

interpretation adopted by the agency is clearly reasonable —

and it would be a waste of time to conduct that inquiry.”);

Matthew C. Stephenson & Adrian Vermeule, Chevron Has

Only One Step, 95 Va. L. Rev. 597, 599–600 (2009).

Here, the one-step approach makes much more sense.

Chevron instructs us to “employ[] traditional tools of

statutory construction.” Chevron, 467 U.S. at 843 n.9. In this

case, it might at first glance appear that traditional tools of

statutory construction point toward two different

interpretations of the term “conspiracy,” either one of which

is seemingly reasonable. As noted, application of the

methodology employed in Taylor indicates that the generic

definition of “conspiracy” requires an overt act. By contrast,

application of the presumption that undefined terms carry

their common-law meaning indicates that the statute’s bare

reference to “conspiracy” does not include any such overt-act

requirement. Whitfield, 543 U.S. at 213 (citing Shabani,

513 U.S. at 13–14).

We conclude, however, that the BIA’s interpretation of

the statute’s reference to conspiracy is impermissible, as that

interpretation entirely ignores the one methodology properly

applicable in this context — namely, the mode of analysis

derived from Taylor and its progeny, which we use to

determine generic crimes for the purposes of categorical

UNITED STATES V. GARCIA-SANTANA 27

analysis of prior convictions.13 As we have seen, the

Supreme Court specifically held inapplicable in the context

of defining generic federal crimes for purposes of Taylor

categorical analysis the principle on which Richardson rests

— “that, absent contrary indications, Congress intends to

adopt the common law definition of statutory terms.”

Shabani, 513 U.S. at 13–14. Where, as here, the Supreme

Court has prescribed the mode of determining congressional

intent and declared the alternative, relied on by Richardson,

and by the government in this case, “ill suited to [the]

purposes” of a statute establishing collateral consequences,

Taylor, 495 U.S. at 594, we cannot use it, and cannot defer to

an agency decision that does. Whether we characterize this

conclusion as (1) a rejection of the BIA’s interpretation at

Chevron step one because the only correct traditional tool of

statutory construction unambiguously yields a different result,

or (2) a rejection at Chevron step two on the ground that the

statute is ambiguous but the BIA’s interpretation

unreasonable in light of its improper methodology, makes no

difference.

We thus hold that “conspiracy,” under 8 U.S.C.

§ 1101(a)(43)(U), requires proof of an overt act, and reject

the BIA’s contrary conclusion.

13

Neither the BIA nor the government suggest that categorical analysis

does not apply. See Nijhawan v. Holder, 557 U.S. 29, 37–38 (2009)

(holding that 8 U.S.C. § 1101(a)(43) “contains some language that refers

to generic crimes and some language that almost certainly refers to the

specific circumstances in which a crime was committed,” for which the

categorical approach is inappropriate). Instead, the disagreement concerns

the generic definition to use under the categorical approach, a question

whose methodology is governed by Taylor and its progeny.

28 UNITED STATES V. GARCIA-SANTANA

V.

The Nevada statute of conviction, Nev. Rev. Stat.

§ 199.480, requires no proof of an overt act, Nev. Rev. Stat.

§ 199.490. The generic definition of conspiracy, codified at

8 U.S.C. § 1101(a)(43)(U), does. Garcia’s prior conviction,

for conspiracy to commit burglary, is therefore not an

aggravated felony under the INA.

AFFIRMED.