United States v. Garcia-Santana, No. 12-10471 (9th Cir. 2014)
Annotate this CaseThe government appealed the dismissal of defendant's indictment for unlawful reentry. Defendant had pleaded guilty to "conspiracy to commit the crime of burglary" in violation of Nev. Rev. Stat. 199.480.205.060(1) and was subsequently ordered removed as an undocumented alien convicted of an aggravated felony. Applying the methodology prescribed by the Supreme Court for defining generic offenses for categorical purposes, the generic federal definition of conspiracy, 8 U.S.C. 1101(a)(43)(U), conditioned conviction on performance of an overt act in pursuit of the conspiratorial objective. Because Nevada's conspiracy statute criminalized a broader range of conduct than the properly determined generic definition of conspiracy, defendant's conviction did not qualify as an aggravated felony. Accordingly, the court affirmed the district court's determination that defendant's prior removal order was constitutionally inadequate because she was denied her right to seek discretionary relief from removal.
Court Description: 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.
The court issued a subsequent related opinion or order on December 15, 2014.
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