Argued and Submitted, San Francisco, California:
September 11, 2013.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:12-cr-00023-RCJ-VPC-1. Robert Clive Jones, Chief District Judge, Presiding.
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.
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.
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.
Before: Arthur L. Alarcón, and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.[*] Opinion by Judge Berzon.
ORDER AND OPINION
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).
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.
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.
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.
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 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, 107 S.Ct. 2148, 95 L.Ed.2d 772 (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. § ...