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. 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 February 20, 2014

Before: Arthur L. Alarcón and Marsha S. Berzon, Circuit
Judges, and Jack Zouhary, District Judge.*

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 affirmed the district court’s dismissal of an
8 U.S.C. § 1326 illegal reentry indictment, where 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; that the Nevada statute of
conviction, which requires no proof of an overt act,
criminalizes a broader range of conduct than the generic
definition; that the defendant’s prior conviction is therefore
not an aggravated felony under the Immigration and
Nationality Act; that the Deciding Service Officer’s
determination that the defendant was ineligible for
discretionary relief was therefore inaccurate; that the denial
of an opportunity to seek such relief renders her former
removal order constitutionally infirm; and that the removal
order thus cannot support the § 1326 prosecution.

**
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

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.

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.
4 UNITED STATES V. GARCIA-SANTANA

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
 UNITED STATES V. GARCIA-SANTANA 5

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
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)).

An immigration official’s failure to advise an alien of his
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
6 UNITED STATES V. GARCIA-SANTANA

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. This appeal turns on the
accuracy of that statement.1 The government so recognizes,
as it is challenging the grant of collateral relief only on the
ground that Garcia-Santana’s conviction for burglary
conspiracy qualifies as an aggravated felony.

“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.” If Garcia’s previous
conviction for conspiracy to commit burglary does not qualify
as an aggravated felony, then her prior removal order was
constitutionally invalid and cannot support charges under
§ 1326. If the conviction does qualify as an 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 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).
 UNITED STATES V. GARCIA-SANTANA 7

felony, then her prior removal order is proper and prosecution
may proceed.

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
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)). 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
8 UNITED STATES V. GARCIA-SANTANA

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 (1996), overruled on other
grounds by Kacsmarek v. State, 91 P.3d 16 (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.

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

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,
— F.3d —, No. 12-10331 (9th Cir. Feb. 20, 2014). Chandler does not
affect our analysis here. It concerned whether the conviction in that case
was a crime of violence under 18 U.S.C. § 924(e)(1), see, e.g., United
States v. Park, 649 F.3d 1175, 1177–78 (9th Cir. 2011), not, as here,
whether the crime of conviction is an aggravated felony because
consistent with the generic definition of an offense described in 8 U.S.C.
§ 1101(a)(43).
 UNITED STATES V. GARCIA-SANTANA 9

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).

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

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.
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);
10 UNITED STATES V. GARCIA-SANTANA

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-five, or even
thirty-three, jurisdictions qualifies as sufficient consensus to
establish the generic definition of a crime. See Estrada-
Espinoza v. Mukasey, 546 F.3d 1147, 1153 (9th Cir. 2008)
(en banc) (referring to the agreement of thirty-five states as
the “vast majority of states”), overruled on other grounds by
United States v. Aguila-Montes de Oca, 655 F.3d 915, 928
(9th Cir. 2011) (en banc); Esparza-Herrera, 557 F.3d at 1025
(per curiam). Here, the even more widespread agreement
among jurisdictions on an overt act requirement for the

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.
2001); Va. Code Ann. § 18.2-22; Gray v. Virginia, 537 S.E.2d 862, 865
(Va. 2000).
 UNITED STATES V. GARCIA-SANTANA 11

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); see also Estrada-Espinoza, 546 F.3d at 1152.

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 Penal Code
§ 5.03(5). Because the MPC defines burglary as a felony in
the third degree unless particular, narrow conditions are met,5

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:
12 UNITED STATES V. GARCIA-SANTANA

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,
“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[,]’”

(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
Last term, 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

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)).

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
14 UNITED STATES V. GARCIA-SANTANA

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 (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.

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.
 UNITED STATES V. GARCIA-SANTANA 15

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 (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,
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.
16 UNITED STATES V. GARCIA-SANTANA

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. The INA is quite
different than those statutes. 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
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).

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

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
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
18 UNITED STATES V. GARCIA-SANTANA

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
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 United States v. Corona-Sanchez,
291 F.3d 1201, 1205 (9th Cir. 2002) (en banc) (“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 . . . .”).
 UNITED STATES V. GARCIA-SANTANA 19

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
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.

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
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.
20 UNITED STATES V. GARCIA-SANTANA

ii. 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).
Indeed, 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.
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
 UNITED STATES V. GARCIA-SANTANA 21

interpretation adopted by the agency is clearly reasonable —
and it would be a waste of time to conduct that inquiry.”);
Tibble v. Edison Intern., 729 F.3d 1110, 1123 (9th Cir. 2013)
(noting that Chevron analysis “can be pursued in two steps,
or all at once”); 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
analysis of prior convictions.10 As we have seen, the

10
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
22 UNITED STATES V. GARCIA-SANTANA

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.

V.

The Nevada statute of conviction, Nev. Rev. Stat.
§ 199.480, requires no proof of an overt act, Nev. Rev. Stat.

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.
 UNITED STATES V. GARCIA-SANTANA 23

§ 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. Because the Nevada
statute criminalizes a broader range of conduct than the
generic definition, a conviction of conspiracy in Nevada is
not an aggravated felony within the meaning of INA. For this
reason, the Deciding Service Officer’s determination that
Garcia was ineligible for discretionary relief was inaccurate.
That denial of an opportunity to seek such relief renders her
former removal order constitutionally infirm. It thus cannot
support her prosecution under § 1326.

AFFIRMED.