In re Richardson, 25 I&N Dec. 226 (I & N 4/22/2010)
| Decision Date | 22 April 2010 |
| Docket Number | No. 3678.,File A041 456 941-Newark.,3678. |
| Citation | 25 I&N Dec. 226 |
| Parties | Matter of Orlando Gracia RICHARDSON, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 27, 2009, an Immigration Judge found the respondent removable on his own admissions under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2006), as an alien convicted of an aggravated felony under sections 101(a)(43)(G) and (U) of the Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (2006). The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of Jamaica who was admitted to the United States as a lawful permanent resident on October 1, 1988. The record reflects that he was convicted on February 10, 2004, in the Superior Court, Middlesex County, New Jersey, of conspiracy to commit robbery in violation of sections 2C:5-2, 15-1, and 12-1b4 of the New Jersey Statutes Annotated. The respondent was sentenced to a term of imprisonment of 7 years for his conviction.
In proceedings before the Immigration Judge, the respondent admitted the allegations in the Notice to Appear, but he denied removability and filed a motion to terminate the proceedings. The respondent sought no relief from removal. The Immigration Judge found the respondent removable as charged and denied his motion to terminate.
On appeal, the respondent argues that the Immigration Judge erred in failing to grant his motion to terminate. Specifically, the respondent asserts that because he was not convicted of the underlying crime of robbery and the New Jersey conspiracy statute does not require the commission of an overt act, the Immigration Judge erred in finding that he had been convicted of an aggravated felony, namely, a theft offense under section 101(a)(43)(G) of the Act and conspiracy under section 101(a)(43)(U).1
The record before us includes a decision of the Superior Court of New Jersey, Appellate Division, dated January 19, 2006, dismissing the respondent's appeal from his 2004 New Jersey conviction for conspiracy to commit robbery. The decision specifically found that evidence in the record of conviction "establish[ed] the existence of an agreement between [the respondent and his co-defendants] to commit first degree armed robbery, and the fulfilment of that agreement." While the evidence clearly showed that the conspirators did more than merely agree to commit a robbery and, in fact, carried out the agreed-upon robbery, the respondent was only charged with, and actually convicted of, the conspiracy. Accordingly, we find that the Immigration Judge erred in sustaining the charge that the respondent was convicted of a theft offense under section 101(a)(43)(G) of the Act, because such an underlying substantive offense is not necessarily included in a conspiracy. See Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009) ().
The remaining issue before us is whether the Immigration Judge properly sustained the charge under section 101(a)(43)(U) of the Act, even though the conspiracy indictment failed to allege any overt act. We observe that no overt act need be established to convict a defendant of conspiracy to commit a crime of the first or second degree, such as robbery, under section 2C:5-2(d) of the New Jersey Statutes Annotated. The same is true regarding conspiracies involving crimes under certain Federal statutes. See Whitfield v. United States, 543 U.S. 209 (2005) (money laundering); United States v. Shabani, 513 U.S. 10 (1994) (controlled substances). The question here, which appears to be one of first impression, is whether the reference in section 101(a)(43)(U) to a "conspiracy to commit an offense described in this paragraph" is limited to conspiracies that require a member of the conspiracy to perform an overt act in furtherance of the conspiracy.
We recognized this issue in Matter of S-I-K, 24 I&N Dec. 324, 327-28 n.3 (BIA 2007), but declined to decide it because the alien in that case had been convicted under the general Federal conspiracy statute, 18 U.S.C. § 371 (2000), which contains an overt act requirement. For the following reasons, we now conclude that 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 by one of the conspirators.
We find the reasoning of the Supreme Court in Whitfield v. United States, 543 U.S. 209, and United v. Shabani, 513 U.S. 10, to be persuasive. The Supreme Court observed in those decisions that at the time Congress enacted the conspiracy provisions at issue, it was presumably aware that the much older general Federal conspiracy statute, 18 U.S.C. § 371, explicitly stated that a conspirator must "do any act to effect the object of the conspiracy." The Court found that by having chosen a formulation that dispensed with an overt act requirement, Congress clearly signaled an intent not to mandate it for the particular offenses covered by those statutes. United v. Shabani, 513 U.S. at 14; see also United States v. Sassi, 966 F.2d 283, 284 (9th Cir. 1992). The same is true here.
Moreover, since the term "conspiracy" is not defined in the Act, it is presumed that Congress intended to adopt the common law meaning of that term. United States v. Shabani, 513 U.S. at 13 (citing Molzof v. United States, 502 U.S. 301, 307-08 (1992)). That common law meaning, furthermore, did not require the commission of an overt act. Id.; see also United States v. White, 571 F.3d 365, 368 (4th Cir. 2009) (finding that the commission of an overt act is not an essential element of a North Carolina criminal conspiracy and stating that "`[a]s soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is completed'" (quoting State v. Gibbs, 436 S.E.2d 321, 347 (N.C. 1993)); Moore v. State, 27 P.3d 447 (Nev. 2001) (); State v. Padilla, 879 P.2d 1208, 1212 (N.M. Ct. App. 1994) (finding that in New Mexico, an agreement is the gist of the crime of conspiracy and stating that "`an overt act is not required [and] the crime is complete when the felonious agreement is reached'" (quoting State v. Leyba, 600 P.2d 312, 313 (N.M. Ct. App. 1979)). In that regard, the Supreme Court has repeatedly held that "the essence of a conspiracy is `an agreement to commit an unlawful act.'" E.g., United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (). It is that agreement, which has been entered into by at least two and often more individuals, that renders a conspiracy a "`distinct evil'" that may be punished regardless of whether the substantive crime is committed. Id. (quoting Salinas v. United States, 522 U.S. 52, 65 (1997)). A conspiracy "poses a `threat to the public' over and above the threat of the commission of the relevant substantive crime" that is its object, both because "the `[c]ombination in crime makes more likely the commission of [other] crimes,' and because it `decreases the probability that the individuals involved will depart from their path of criminality.'" Id. at 275 (quoting Callanan v. United States, 364 U.S. 587, 593-94 (1961)).
Further, we note that the Model Penal Code § 5.03(5) (2008) contains no overt act requirement for a felony of the first or second degree. States like New Jersey have emulated the Federal law in not requiring an overt act in their conspiracy laws, especially with respect to conspiracies to commit certain more serious offenses. Moreover, although Federal drug and money laundering offenses are aggravated felonies under section 101(a)(43) of the Act, conspiracies involving those substantive crimes would not be included as aggravated felonies if proof of an overt act were required. See, e.g., United States v. Harriston, 329 F.3d 779, 783 (11th Cir. 2003) (); United States v. Bolden, 325 F.3d 471, 491 (4th Cir. 20...
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