RICHARDSON
25 I. & N. Dec. 226 (2010)
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Rule of Law:
The term 'conspiracy' as an aggravated felony under INA § 101(a)(43)(U) is not limited to offenses requiring the commission of an overt act, adopting its common law meaning. However, an alien convicted solely of conspiracy to commit an aggravated felony cannot also be found removable for the underlying substantive offense, even if that offense was actually committed.
Facts:
- Orlando Gracia Richardson is a native and citizen of Jamaica.
- Richardson was admitted to the United States as a lawful permanent resident on October 1, 1988.
- On February 10, 2004, Richardson was convicted in the Superior Court, Middlesex County, New Jersey, of conspiracy to commit robbery.
- Richardson was sentenced to a term of imprisonment of 7 years for his conviction.
- Evidence in the record of conviction established an agreement between Richardson and his co-defendants to commit first degree armed robbery and that they fulfilled that agreement by carrying out the robbery.
Procedural Posture:
- An Immigration Judge (IJ) found Orlando Gracia Richardson removable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony under INA §§ 101(a)(43)(G) (theft offense) and (U) (conspiracy).
- Richardson admitted the allegations in the Notice to Appear but denied removability and filed a motion to terminate the proceedings, seeking no relief from removal.
- The Immigration Judge denied Richardson's motion to terminate and found him removable as charged.
- Richardson appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA), arguing that his New Jersey conspiracy conviction did not constitute an aggravated felony because it did not require an overt act, and he was not convicted of the underlying robbery.
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Issue:
1. Does the term 'conspiracy' in section 101(a)(43)(U) of the Immigration and Nationality Act require the commission of an overt act in furtherance of the conspiracy for an alien's conviction to be considered an aggravated felony? 2. Can an alien, who was convicted only of conspiracy to commit an aggravated felony, also be found removable for the underlying substantive offense if the record of conviction shows the substantive offense was actually committed?
Opinions:
Majority - Pauley, Board Member
1. No, the term 'conspiracy' in section 101(a)(43)(U) of the Act is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy. The BIA reversed the Immigration Judge's finding that Richardson was removable for the underlying theft offense under INA § 101(a)(43)(G) because he was only charged with and convicted of conspiracy, which is not a 'necessarily included' offense of the substantive crime, citing Pierre v. Holder. Regarding the overt act requirement for conspiracy under INA § 101(a)(43)(U), the BIA concluded it is not required. The BIA cited Whitfield v. United States and United States v. Shabani, noting that Congress, when omitting an overt act requirement in certain federal conspiracy statutes, signaled an intent not to mandate it. Since 'conspiracy' is not defined in the Act, Congress is presumed to adopt the common law meaning, which historically did not require an overt act. The Supreme Court has consistently held that the essence of conspiracy is 'an agreement to commit an unlawful act,' distinguishing it as a 'distinct evil' regardless of whether the substantive crime is committed. The BIA further observed that many state laws (like New Jersey's for serious felonies) and federal statutes (e.g., drug, money laundering, RICO conspiracies) do not require an overt act. Interpreting 'conspiracy' in INA § 101(a)(43)(U) to require an overt act would exclude numerous serious conspiracy convictions, which the BIA deemed an 'unlikely reflection of congressional design.' Therefore, Richardson's removability based on his conspiracy conviction under INA § 101(a)(43)(U) was established.
Analysis:
This case significantly clarifies the scope of 'conspiracy' as an aggravated felony under immigration law, particularly for state and federal statutes that do not require an overt act. It broadens the applicability of INA § 101(a)(43)(U) for removability by aligning its interpretation with the common law understanding of conspiracy, thereby impacting aliens convicted of such offenses. Crucially, the decision also reinforces the principle that removability for an underlying substantive offense cannot be predicated on a conspiracy conviction alone, even if the record demonstrates the substantive crime occurred, emphasizing the need for a separate conviction for the substantive offense.
