United States v. Garcia-Santana

• Decision Date: 15 December 2014
• Docket Number: No. 12–10471.,12–10471.
• Citation: 774 F.3d 528
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Xochitl GARCIA–SANTANA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

774 F.3d 528

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.

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, NV, 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, NV, for Defendant–Appellee.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 3:12–cr–00023–RCJ–VPC–1.

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The opinion filed February 20, 2014, and published at 743 F.3d 666, is withdrawn.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 8 U.S.C. § 1326. The district court determined that Garcia's prior removal order was constitutionallyinadequate 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.

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 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, 107 S.Ct. 2148, 95 L.Ed.2d 772 (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), overruled on other grounds as recognized in United States v. Ballesteros–Ruiz, 319 F.3d 1101, 1105 (9th Cir.2003) ).

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 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. The government challenges the grant of collateral relief only on the ground that Garcia's conviction for burglary conspiracy qualifies as an aggravated felony, contrary to Garcia's contention and the district court's ruling.¹ “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.”

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, 110 S.Ct. 2143. “[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, 125 S.Ct. 1254, 161 L.Ed.2d 205 (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), abrogated on other grounds as recognized in United States v. Martinez, 771 F.3d 672, 677–78 (9th Cir.2014) ). 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 in its generic form.”Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).

“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 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 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, 110 S.Ct. 2143. 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 ...