UNITED STATES of America, Plaintiff-Appellant, v. Xochitl GARCIA-SANTANA, Defendant-Appellee.
No. 12-10471.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 11, 2013. Filed Dec. 15, 2014.
531
Lauren Gorman (argued), Assistant Federal Defender; Rene Valladares, Federal Defender; and Dan C. Maloney, Research & Writing Attorney, Office of the Federal Public Defender, Reno, NV, for Defendant-Appellee.
Before: ARTHUR L. ALARCÓN, and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.*
BERZON, Circuit Judge:
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The opinion filed February 20, 2014, and published at 743 F.3d 666, is withdrawn.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).
OPINION
The government appeals the dismissal of Xochitl Garcia-Santana‘s indictment for unlawful reentry in violation of
I.
In 2002, Garcia pleaded guilty to “conspiracy to commit the crime of burglary” in violation of
Just over two weeks later, a Deciding Service Officer of the Immigration and Naturalization Service, proceeding under the summary removal procedures codified at
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 remоved 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
The district court denied Garcia‘s motion, ruling that conspiracy to commit the crime of burglаry 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,
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-Velasquez, 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
* The Honorable Jack Zouhary, District Judge for the U.S. District Court for the Northern District of Ohio, sitting by designation.
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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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 felony.” Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 (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
“Nevada law defines a conspiracy as ‘an agreement between two or more persons for an unlawful purpose.‘” Bolden v. State, 121 Nev. 908, 124 P.3d 191, 194 (2005) (quoting Doyle v. State, 112 Nev. 879, 921 P.2d 901, 911 (1996), overruled on other grounds by Kaczmarek v. State, 120 Nev. 314, 91 P.3d 16 (2005)); see also
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
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).
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,
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.
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 conspired,” unless the conspiracy concerns the commission of a first or second degree felony. Model Penаl Code § 5.03(5). Because the MPC defines burglary as a felony in the third degree unless particular, narrow conditions are
The oft-cited treatise, Substantive Criminal Law, also supports an overt act requirement.7 As that treatise observes, “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 оffense [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, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). Instead, agreement was seen as the “essence” of conspiracy, Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 43 L.Ed.2d 616 (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, 71 S.Ct. 857, 95 L.Ed. 1137 (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, 364 U.S. 587, 593, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961)).
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
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 tоward 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
The government‘s reliance on these decisions tracks the BIA‘s reasoning in a precedential opinion, which relied on the same
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 сonspiracy 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.
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
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,
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
We must apply the same approach hеre, 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 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 convictiоns, emanating from that minority of jurisdictions that retain the common-law definition of conspiracy, will not trigger adverse immigration consequences.9 Even
ii. In its petition for rehearing, the government contends that United States v. Castleman, — U.S. —, 134 S.Ct. 1405, 188 L.Ed.2d 426 (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.”
Castleman is inapposite. As discussed above, in Taylor the Court interpreted the term “burglary,” which was used but not defined in
By contrast, in Castleman there was no call to look to contemporary sources for a definition of “misdemeanor crime of domestic violence,”
Consistent with that difference, none of the opinions in Castleman addressed the contemporary-sources methodology. The majority adopted a commоn-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. 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 question in this case is how to interpret an undefined offense, “conspiracy,” when it refers to convictions rendered 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.
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 gеneric “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 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, 104 S.Ct. 2778, 81 L.Ed.2d 694 (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 thе [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
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. 208, 218 n. 4, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009); see also United States v. Home Concrete & Supply, LLC, — U.S. —, 132 S.Ct. 1836, 1846 n. 1, 182 L.Ed.2d 746 (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
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, 104 S.Ct. 2778. 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 generiс 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, 125 S.Ct. 687 (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 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 stеp 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
V.
The Nevada statute of conviction,
AFFIRMED.
Notes
(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 сourse 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).