United States v. Xochitl Garcia-Santana
2014 U.S. App. LEXIS 23558
| 9th Cir. | 2014Background
- In 2002 Xochitl Garcia-Santana pleaded guilty in Nevada to conspiracy to commit burglary and was removed under summary removal procedures as an alien convicted of an "aggravated felony."
- The removal order stated she was ineligible for any discretionary relief (including voluntary departure) because of the aggravated-felony finding.
- Garcia later unlawfully reentered the U.S.; she was indicted under 8 U.S.C. § 1326 for illegal reentry and moved to dismiss, arguing the prior removal was fundamentally unfair because the underlying conviction did not qualify as an aggravated felony.
- The district court ultimately granted collateral relief, finding the removal proceeding constitutionally inadequate on the grounds Garcia argued; the government appealed.
- The central legal question: whether Nevada conspiracy (which requires no overt-act) qualifies as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(U), which incorporates "conspiracy to commit" offenses described elsewhere in § 1101(a)(43).
- The Ninth Circuit also addressed whether the generic federal definition of "conspiracy" requires proof of an overt act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the generic federal definition of "conspiracy" under 8 U.S.C. § 1101(a)(43)(U) includes an overt-act element | Garcia: generic conspiracy requires proof of an overt act, so Nevada conspiracy (no overt-act requirement) is broader and not an aggravated felony | Government: "conspiracy" should be read by common-law meaning (agreement only) as in Whitfield/Shabani line; BIA held no overt-act required | Held: "Conspiracy" for § 1101(a)(43)(U) requires an overt act; apply Taylor contemporary-sources methodology rather than common-law presumption |
| Whether Garcia's Nevada conviction is an aggravated felony making her ineligible for discretionary relief at removal | Garcia: Nevada statute covers conduct beyond the generic offense (no overt-act), so it is not an aggravated felony | Government: conviction qualifies as conspiracy to commit burglary (an aggravated felony) | Held: Nevada conspiracy statute is broader than the INA's generic conspiracy (no overt-act); thus Garcia's conviction is not an aggravated felony |
| Whether the BIA's contrary interpretation (In re Richardson) merits Chevron deference | Garcia: BIA used wrong methodology (relied on common-law presumption) and its interpretation is impermissible | Government: BIA precedent supports reading "conspiracy" without overt-act requirement | Held: BIA's Richardson interpretation is not entitled to deference because it ignores Taylor's prescribed contemporary-sources analysis |
| Whether Garcia suffered prejudice such that the removal was "fundamentally unfair" under § 1326(d) | Garcia: denial of opportunity to seek discretionary relief (voluntary departure) was prejudicial because she likely would have received it | Government: (did not contest district court's prejudice finding) | Held: Prejudice finding was not challenged on appeal and is thus accepted; combined with due-process defect, removal is fundamentally unfair |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (establishes categorical approach and reliance on contemporary state practice to define generic offenses)
- Duenas-Alvarez v. Gonzales, 549 U.S. 183 (2007) (use contemporary criminal-law practice rather than arcane common-law distinctions when construing generic offense terms)
- Whitfield v. United States, 543 U.S. 209 (2005) (addresses when an overt-act element is required for federal conspiracy statutes)
- Shabani v. United States, 513 U.S. 10 (1994) (presumption that statutory terms adopt common-law meaning unless contrary indication)
- Castleman v. Burwell, 134 S. Ct. 1405 (2014) (interpreting statutory element defined within statute; distinguished here as inapposite)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explains categorical approach and necessity that state statute necessarily match the generic federal definition)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach; confirms focus on the statutory elements rather than underlying facts)
- United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) (Section 1326(d) collateral-attack framework and due-process principles)