Eddy Etienne v. Loretta Lynch , 813 F.3d 135 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2013
EDDY ETIENNE, a/k/a Hailadingle, Zellew Tesfegna, a/k/a
Eddy Etienn,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
----------------------------------
CAPITAL AREA IMMIGRANTS’ RIGHTS COALITION; NATIONAL
IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 27, 2015 Decided: December 30, 2015
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Petition denied by published opinion. Judge Duncan wrote the
opinion, in which Chief Judge Traxler and Judge Wilkinson
joined.
ARGUED: Kwaku Affawua Akowuah, SIDLEY AUSTIN LLP, Washington,
D.C., for Petitioner. M. Jocelyn Lopez Wright, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Quin M. Sorenson, Frances E. Faircloth, Christopher A.
Eiswerth, SIDLEY AUSTIN LLP, Washington, D.C., for Petitioner.
Benjamin C. Mizer, Acting Assistant Attorney General, Civil
Division, Leslie McKay, Assistant Director, Melissa Lott, Trial
Attorney, Stefanie Notarino Hennes, Trial Attorney, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. Morgan Macdonald, Heidi
Altman, Claudia Cubas, CAPITAL AREA IMMIGRANTS’ RIGHTS
COALITION, Washington, D.C.; Sejal Zota, NATIONAL IMMIGRATION
PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts,
for Amici Curiae.
2
DUNCAN, Circuit Judge:
After expedited proceedings authorized by the Immigration
and Nationality Act (“INA”), the Department of Homeland Security
(“DHS”) ordered petitioner Eddy Etienne’s removal, on the
grounds that he is an alien who has been convicted of an
“aggravated felony.” See 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1228(b).
For the reasons that follow, we conclude that we have
jurisdiction to hear Etienne’s petition for review but that his
argument that his conviction does not constitute an “aggravated
felony” is without merit. Accordingly, we deny the petition for
review.
I.
Etienne entered the United States from his native country
of Haiti in 1984, initially residing here as an undocumented
immigrant. In 1996, Etienne pleaded guilty to the crime of
conspiracy “to violate the controlled dangerous substances law
of the State of Maryland.” See A.R.1 at 17. After his release
from state prison, Etienne continued to reside in the United
States without documentation.
Following an earthquake in Haiti in 2010, Etienne applied
for Temporary Protected Status (“TPS”), a lawful immigration
status, based on the potential risk of harm if he were to return
3
to Haiti. DHS granted not only Etienne’s initial application
for TPS, but also his application for renewal the following
year. When Etienne sought another renewal of his TPS in
February of 2014, however, DHS rejected his application.
Shortly thereafter, DHS initiated expedited removal
proceedings against Etienne by serving him with a Notice of
Intent to Issue a Final Administrative Removal Order (“Notice of
Intent”). The Notice of Intent, part of DHS Form I-851,
informed Etienne that he was charged with being deportable under
the INA for being an alien convicted of an “aggravated felony”--
his 1996 Maryland conspiracy conviction. The Notice of Intent
also informed Etienne that he would be removed pursuant to
expedited procedures, without the benefit of a hearing in front
of an immigration judge (“IJ”). Finally, the Notice of Intent
indicated that Etienne had ten calendar days to respond to the
charges against him by filling out the response section of
Form I-851 and returning it to DHS. He responded the same day.
Etienne checked two boxes indicating that he wished to
contest his removal and that he was “attaching documents in
support of [his] rebuttal and request for further review.”
A.R.1 at 2. Etienne did not, however, actually attach any
documents to the Notice of Intent before returning it to DHS.
Of particular relevance here, Etienne did not indicate in any
4
manner that he believed his 1996 Maryland conspiracy conviction
did not constitute an “aggravated felony.”
On March 20, 2014, after concluding that Etienne was
deportable under the INA, the deciding DHS officer issued a
Final Administrative Removal Order for Etienne’s removal to
Haiti. Upon Etienne’s request, an asylum officer held a hearing
and determined that Etienne did not qualify for withholding of
removal. An IJ affirmed the asylum officer’s determination, and
Etienne’s removal proceedings reached administrative closure.
Etienne then turned to this court, timely filing this petition
for review. 1
II.
In his petition for review, Etienne argues for the first
time that his 1996 conviction for conspiracy under Maryland law
does not constitute an “aggravated felony” under the INA, and
that DHS therefore erred in finding him removable. Before
addressing Etienne’s petition on the merits, however, we must
determine whether Etienne’s failure to raise this argument in
the DHS administrative proceedings deprives us of jurisdiction.
1
In early October of 2014, DHS officials began preparations
to remove Etienne to Haiti. In response, on October 14, 2014,
Etienne filed an emergency stay of removal. On October 20,
2014, this court granted the motion. Etienne remains in DHS
custody, where he has been since March 6, 2014, the day he was
served with the Notice of Intent.
5
The jurisdictional issue and the merits issue are questions of
law, which we consider de novo. See Omargharib v. Holder, 775
F.3d 192, 196 (4th Cir. 2014); Kporlor v. Holder, 597 F.3d 222,
225 (4th Cir. 2010).
A.
We first consider whether we have jurisdiction over
Etienne’s petition for review. A court may review a final order
of removal against an alien only if “the alien has exhausted all
administrative remedies available to the alien as of right.”
8 U.S.C. § 1252(d)(1). When an alien has an opportunity to
raise a claim in administrative proceedings but does not do so,
he fails to exhaust his administrative remedies as to that
claim. See Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir.
2008).
Here, Etienne argues that DHS’s expedited removal
procedures allow aliens to contest only the factual basis for
their removal, and not to raise legal arguments. Thus, Etienne
contends, he had no opportunity during administrative removal to
challenge the classification of his 1996 Maryland conspiracy
conviction as an “aggravated felony,” and therefore he has not
failed to exhaust his administrative remedies.
The question of whether DHS’s expedited removal procedures
provide an alien with the opportunity to challenge the legal
basis of his or her removal--and thus whether we have
6
jurisdiction to hear such a challenge when a petitioner fails to
raise it before DHS--is one that has split our sister circuits.
Compare Malu v. U.S. Atty. Gen., 764 F.3d 1282, 1288 (11th Cir.
2014) (no jurisdiction), with Valdiviez-Hernandez v. Holder, 739
F.3d 184, 187 (5th Cir. 2013) (per curiam) (jurisdiction lies). 2
As we explain below, we join the Fifth Circuit in holding that,
in expedited removal proceedings, an alien has no opportunity to
challenge the legal basis of his removal. The INA’s
administrative-exhaustion requirement therefore does not deprive
us of jurisdiction to consider such a challenge in the first
instance on appeal.
1.
The INA declares that “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.”
8 U.S.C. § 1227(a)(2)(A)(iii). Generally, when an alien is
charged with removability for having been convicted of an
“aggravated felony,” the INA requires that the alien be afforded
a hearing before an IJ, where the alien may contest the factual
2 Other circuits have also considered administrative
exhaustion in the context of expedited removal more generally.
See Aguilar-Aguilar v. Napolitano, 700 F.3d 1238, 1243 (10th
Cir. 2012) (jurisdiction lies); Escoto-Castillo v. Napolitano,
658 F.3d 864, 866 (8th Cir. 2011) (no jurisdiction). The
Seventh Circuit has arguably come out on both sides of the
issue. Compare Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008)
(jurisdiction lies), with Fonseca-Sanchez v. Gonzales, 484 F.3d
439 (7th Cir. 2007) (no jurisdiction).
7
or legal basis of his removability. See 8 U.S.C. §§ 1229,
1229a; 8 C.F.R. § 1240.10(c). But for aliens like Etienne who
have not been lawfully admitted to the United States for
permanent residence, the INA authorizes an expedited removal
process, without a hearing before an IJ. See 8 U.S.C.
§ 1228(b). Instead, a DHS officer, who need not be an attorney,
presides over this expedited removal process. See 8 C.F.R.
§ 238.1(a).
Under the relevant regulations, DHS initiates an expedited
removal by serving an alien with “Form I-851, Notice of Intent
to Issue a Final Administrative Deportation Order.” See id.
§ 238.1(b)(1). The contents of the Notice of Intent are spelled
out in the regulations: It must notify the alien of the
allegations of fact and conclusions of law underlying DHS’s
preliminary determination that the alien is removable, and it
must inform the alien of DHS’s intent to issue a Final
Administrative Removal Order without a hearing before an IJ.
Id. § 238.1(b)(2)(i). The Notice of Intent must also inform the
alien, among other things, that he or she “may rebut the charges
within 10 calendar days of service.” Id.
Once DHS has served an alien with the Notice of Intent,
using standardized Form I-851, the alien must choose whether to
file a response. Form I-851 itself guides the alien’s response
process through a series of checkboxes on the back of the form.
8
Etienne’s completed Form I-851 shows the range of possible
responses:
A.R.1 at 2.
If the alien chooses to respond, the first choice the alien
must make is between two mutually exclusive boxes centered on
the response form. The first allows the alien to indicate that
he or she “[w]ish[es] to [c]ontest and/or to [r]equest
[w]ithholding of [r]emoval.” Id. The second indicates the
opposite: that the alien “[d]o[es] [n]ot [w]ish to [c]ontest
and/or to [r]equest [w]ithholding of [r]emoval.” Id.
If the alien checks the first box, there are two additional
check-box options that clarify whether the alien wishes to
contest deportability, request withholding of removal, or both.
9
If the alien wishes to contest deportability, he or she must
check the box that states “I contest my deportability because:
(Attach any supporting documentation).” Id. Indented beneath
that checkbox are four more checkboxes, only three of which
logically complete the statement. Those three options each
present a specific factual challenge to the basis of expedited
removal: “I am a citizen or national of the United States”; “I
am a lawful permanent resident of the United States”; and “I was
not convicted of the criminal offense described . . . above.”
Id. The fourth checkbox, found directly below and aligned with
the three factual challenges, reads “I am attaching documents in
support of my rebuttal and request for further review.” Id.
The form does not offer a specific checkbox for an alien who
wishes to raise a legal challenge to his or her removal.
If the alien responds and contests removability, the
deciding DHS officer must determine whether the alien’s
deportability is nonetheless established by “clear, convincing,
and unequivocal evidence.” 8 C.F.R. § 238.1(d)(2)(i). If so,
the officer must issue a final Removal Order. Id. If, however,
“the deciding Service officer finds that the record of
proceeding, including the alien’s timely rebuttal, raises a
genuine issue of material fact regarding the preliminary
findings,” the DHS officer may either (1) “obtain additional
evidence from any source, including the alien” or (2) initiate
10
full removal proceedings before an IJ. Id.
§ 238.1(d)(2)(ii)(A). If the additional evidence cures any
“genuine issue of material fact,” and if the officer concludes
removability by “clear, convincing, and unequivocal evidence,”
the officer must then issue a final Removal Order. Id.
§ 238.1(d)(2)(ii)(B). But if the officer “finds that the alien
is not amenable” to expedited removal, the officer “shall
terminate the expedited proceedings . . . and shall, where
appropriate,” initiate full removal proceedings before an IJ.
Id. § 238.1(d)(2)(iii).
2.
The parties’ dispute here turns on their interpretation of
8 C.F.R. § 238.1(d)(2)(iii), which requires the deciding DHS
officer to terminate expedited proceedings if the alien is “not
amenable” to expedited removal and to refer the matter to an IJ
“where appropriate.” According to the government, this
provision authorizes a DHS officer presiding over an expedited
removal proceeding to consider an alien’s legal challenge to
removability, and therefore obligates the alien to raise any
such challenge before DHS or forfeit that claim for failing to
exhaust administrative remedies. Etienne, on the other hand,
contends that this provision refers only to the possibility that
the DHS officer may be unable to establish the factual basis for
an alien’s removability by “clear, convincing, and unequivocal
11
evidence,” leaving the alien “not amenable” to expedited
removal, but potentially amenable to removal under full
proceedings before an IJ, which require a lower factual burden
of proof.
Etienne’s approach finds support in Valdiviez-Hernandez v.
Holder, 739 F.3d 184 (5th Cir. 2013) (per curiam). Considering
the same issue, the Fifth Circuit held that “the relevant
statutes and corresponding regulations . . . did not provide
[the alien] with an avenue to challenge the legal conclusion
that he does not meet the definition of an alien subject to
expedited removal.” Id. at 187. Even though the Fifth Circuit
acknowledged that the Notice of Intent “included conclusions of
law,” the court reasoned that “the response process is geared
toward resolving only issues of fact.” Id.
The government instead points to Malu v. U.S. Atty. Gen.,
764 F.3d 1282 (11th Cir. 2014). In Malu, the Eleventh Circuit
recognized that the relevant regulations require the notice to
the alien “to include both ‘allegations of fact and conclusions
of law’ that the alien may rebut” and reasoned that it would be
“nonsensical to limit the alien’s rebuttal to allegations of
fact.” Id. at 1288 (quoting 8 C.F.R. § 238.1(b)(2)(i)). Thus,
the court held that “an alien must exhaust all administrative
remedies by rebutting the charges--including the conclusion of
12
law that she is an aggravated felon--before the Department.”
Id.
We conclude that the Fifth Circuit’s approach, advanced by
Etienne, is more consistent with the language and structure of
the expedited removal regulations. Crucially, such a reading is
more consistent with Form I-851, the form DHS must provide to
aliens in expedited proceedings for aliens to respond to the
charge of removability.
First, the language of the expedited removal regulations,
read in context with the INA and associated regulations, seems
to indicate that only factual challenges to an alien’s
removability may be raised in expedited removal proceedings.
The procedures that are explicitly available to the deciding DHS
officer after an alien responds to the Notice of Intent
contemplate a “genuine issue of material fact” that the officer
may attempt to cure by gathering additional evidence. 8 C.F.R.
§ 238.1(d)(2). If the additional evidence enables the officer
to conclude deportability by “clear, convincing, and unequivocal
evidence,” he must then issue a final Removal Order. See id.
Of course, all of these potential challenges are to be raised to
the presiding DHS officer, who, significantly, is not required
to be an attorney or have any specialized legal training.
It is true that 8 C.F.R. § 238.1(d)(2)(iii) requires an
officer to transfer proceedings to an IJ “where appropriate,”
13
but this provision might merely refer to a scenario where a
“genuine issue of material fact” cannot be cured by the DHS
officer’s fact-finding. The deciding DHS officer could not then
unequivocally find that the alien is removable. An IJ, however,
might still be able to conclude the alien is removable, under a
lower standard of proof, after holding a hearing to resolve the
factual dispute. When an IJ orders removal after holding a
hearing, the evidence must still be “clear and convincing,” but
it need not be “unequivocal.” Compare id. § 238.1(d)(2), with
8 U.S.C. § 1229a(c)(3)(A).
Second, Form I-851 offers no obvious opportunity to raise a
legal challenge. “[E]xhaustion of administrative remedies . . .
means using all steps that the agency holds out, and doing so
properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (first
emphasis added) (citation omitted). Here, Form I-851 “holds
out” the steps individuals in expedited removal proceedings may
follow to respond to DHS’s allegations, and those steps do not
include an option to contest legal determinations. Form I-851
contains several checkboxes for an alien to lodge factual
challenges to his or her removal. But it offers no checkbox for
lodging any specific legal challenges, a legal challenge in
general, or other unenumerated challenges.
The fact that Form I-851 has a checkbox that reads “I am
attaching documents in support of my rebuttal and request for
14
further review” does not, as the government argues, create a
procedure for aliens to raise any other challenges, including
legal challenges. In fact, “my rebuttal” appears to directly
refer to the three factual challenges listed directly above that
checkbox. In light of the contents of Form I-851, we cannot say
that DHS’s expedited removal procedures offer an alien the
opportunity to challenge the legal basis of his or her removal.
The above discussion should likewise make plain the limits
of our holding. Nothing in our opinion prevents DHS from
changing the Form I-851 to make it clear that DHS wishes to
require aliens to raise legal arguments in expedited removal
proceedings. Such a change would provide clear notice to aliens
of their right to raise legal issues in a manner that the
present form does not. The opportunity to raise a legal
challenge would then become, as we have earlier noted, one of
the “steps that the agency holds out” and therefore an
administrative remedy that must be exhausted. Woodford v. Ngo,
548 U.S. 81, 90 (2006).
Because the Notice of Intent, Form I-851, expressly prompts
aliens to raise only factual challenges to removal, we hold that
Etienne was not required to raise his legal challenge to removal
in order to meet the exhaustion requirement of INA § 242(d)(1),
8 U.S.C. § 1252(d)(1). We therefore have jurisdiction to
consider Etienne’s petition for review.
15
B.
Having determined that we have jurisdiction to consider
Etienne’s petition for review, we now turn to the merits of his
legal challenge. DHS found Etienne deportable under the INA for
being an alien who has been convicted of an “aggravated felony,”
a 1996 drug conspiracy under Maryland law. The INA’s definition
of “aggravated felony” includes many types of crimes, including
“illicit trafficking in a controlled substance,” 8 U.S.C.
§ 1101(a)(43)(B), and “conspiracy to commit” another aggravated
felony, “whether in violation of Federal or State law,” id.
§ 1101(a)(43)(U).
The parties agree that the categorical approach applies to
determining whether a state-law crime qualifies as an
“aggravated felony” under the INA. Their dispute instead turns
on whether, under the categorical approach, the term
“conspiracy” in 8 U.S.C. § 1101(a)(43)(U) is defined as it was
at common law or by the prevailing contemporary meaning of the
term, which requires proof of an overt act. Etienne argues
that, because the crime of conspiracy under Maryland law does
not require proof of an overt act, his conviction does not
qualify as an “aggravated felony.” 3 In arguing that the common-
3Etienne does not challenge the classification of the
object of his conspiracy as “illicit trafficking in a controlled
(Continued)
16
law definition of conspiracy does not apply, Etienne chiefly
relies on Taylor v. United States, in which the Supreme Court
declined to adopt the common-law definition of “burglary” for
purposes of the categorical approach. 495 U.S. 575 (1990).
As we explain below, we find nothing in this context to
rebut the presumption that Congress intended to incorporate the
common-law meaning of conspiracy when it included that term in
the INA. We therefore hold that a state-law conspiracy
conviction need not require an overt act as an element for the
conviction to qualify as an “aggravated felony.”
1.
Although the categorical approach was first introduced in
the context of criminal law, it “has a long pedigree in our
Nation’s immigration law.” Moncrieffe v. Holder, 133 S. Ct.
1678, 1685 (2013). “When the Government alleges that a state
conviction qualifies as an ‘aggravated felony’ under the INA, we
generally employ a ‘categorical approach’ to determine whether
the state offense is comparable to an offense listed in the
INA.” Id. at 1684.
Under the categorical approach, “we consider only the
elements of the statute of conviction rather than the
substance,” as DHS found it was. See A.R.1 at 2; 8 U.S.C.
§ 1101(a)(43)(B).
17
defendant’s conduct underlying the offense,” and compare them
with the elements of the “generic” crime. Omargharib v. Holder,
775 F.3d 192, 196 (4th Cir. 2014). If the comparison shows that
the state offense “has the same elements as the generic INA
crime, then the prior conviction constitutes an aggravated
felony.” Id. If, however, the state offense “sweeps more
broadly . . . , the prior conviction cannot count as an
aggravated felony.” Id. (internal quotation marks and citation
omitted). Courts must first determine the meaning of the
offense listed in the INA and then compare that “generic”
definition to the elements of the crime under state law.
2.
To determine the meaning of the term “conspiracy” in the
INA, our analysis begins with the “settled principle of
statutory construction that, absent contrary indications,
Congress intends to adopt the common law definition of statutory
terms.” United States v. Shabani, 513 U.S. 10, 13 (1994). At
common law, conspiracy required only proof of “the act of
conspiring,” not of any overt act. See id. at 14 (quoting Nash
v. United States, 299 U.S. 373, 378 (1913)). Following the
common-law presumption, the Supreme Court has declined to read
additional elements into federal law where the federal law uses
the term “conspiracy” but is silent on an overt act requirement.
See id. at 14. We follow the common-law presumption here, where
18
there is no contrary indication of Congressional intent that
rebuts that presumption. 4
In Taylor, the Supreme Court considered whether a state-law
conviction qualified as a predicate “burglary” offense for the
sentencing enhancement of the Armed Career Criminal Act,
18 U.S.C. § 924(e), even though the state law omitted some
elements of common-law burglary. 495 U.S. at 579. Noting that
the common-law presumption need not apply when the common-law
meaning of a term “is obsolete or inconsistent with the
statute’s purpose,” the Court found compelling reasons to rebut
the common-law presumption. Id. at 592, 594-95. Namely, the
Court considered the number of states whose crimes would fall
outside of the ambit of the common-law definition of “burglary”
and the practical implications of following the common-law
presumption, given the purposes of the statute at issue.
First, the Court noted that the various statutory changes
to state-law definitions of burglary had “resulted in a modern
crime which has little in common with its common-law ancestor
except for the title of burglary,” and that adopting the common-
4Etienne urges this court to adopt the holding of the Ninth
Circuit in United States v. Garcia-Santana. 774 F.3d 528 (9th
Cir. 2014). In that case, the Ninth Circuit distinguished
“specific penal statutes,” to which courts apply the common-law
presumption, from statutes that “assign[] various immigration
consequences to prior convictions,” where courts do not presume
the common law to apply. Id. at 538. We respectfully disagree
that this distinction is relevant to the common-law presumption.
19
law definition would nullify the statute’s effect under many
states’ criminal codes. Id. at 593 (quoting LaFave & Scott,
Substantive Criminal Law § 8.13(g), p.476 (1986)). Where
burglary is concerned, “[o]nly a few states retain the common-
law definition, or something closely resembling it,” while most
states have done away with one or more of the “arcane
distinctions embedded in the common-law definition.” Id. For
example, the Court noted that many states do not require a
“breaking,” or have broadened the concept of that term. Others
have done away with the requirement that the structure be a
“dwelling.” Id. In addition, most states no longer require
that the act occur at night. Id. The Court further noted that
those discarded elements “have little relevance to modern law
enforcement concerns.” Id.
It is significant for our purposes that in Taylor, the
common-law definition was more restrictive than the various
states’ alternatives. Given that statutory overrides of the
common-law served to “expand[]” burglary liability, following
the common-law presumption would have “come close to nullifying
that term’s effect in the statute.” Id. at 593, 594. The Court
reasoned that, “because few of the crimes now generally
recognized as burglaries would fall within the common-law
definition,” that definition was “so obviously ill suited to
[the statute’s] purposes.” Id. at 594. Thus, finding no
20
“specific indication that Congress meant to incorporate the
common-law meaning” of that term, the Court interpreted
“burglary” by its “contemporary meaning.” Id. at 594, 596.
The common-law definition of conspiracy, unlike burglary in
Taylor, is neither “obsolete [n]or inconsistent with the [INA’s]
purpose.” See id. at 594. On the other hand, conspiracy under
the various states’ laws is little different from that crime at
common law. There are only two prevalent definitions of
conspiracy, unlike the myriad of formulations of “burglary” in
state codes. One-third of the states retain the common-law
definition outright, and the states that have modified common-
law conspiracy have added a single element: the overt act
requirement. Given the comparatively modest modifications to
conspiracy liability, it is not the case that the states’
statutory overrides have “little in common” with conspiracy’s
common-law counterpart aside from the name of the crime. See
id. at 593.
Further, those states that have added the overt act
requirement have narrowed the definition of conspiracy, quite
unlike the states that expanded burglary liability by removing
elements. Because of this, applying the common-law definition
to conspiracy would not “come close to nullifying that term’s
effect,” as it would have for burglary in Taylor. See id.
at 594. To the contrary, imposing an overt act requirement
21
would render the term “conspiracy” null and void in all of the
states that have retained the common-law definition. Moreover,
applying the prevailing contemporary definition would mean that
the term does not contemplate “at least the ‘classic’ common-law
definition” of conspiracy, contrary to a basic assumption of
Congress’s intent in Taylor. See id. at 593.
Congress’s desire to have the INA apply broadly is
confirmed by the text of 8 U.S.C. § 1101(a)(43), which defines
which offenses are “aggravated” and declares that the definition
“applies to an offense . . . whether in violation of Federal or
State law.” It would be anomalous for Congress to have included
“conspiracy” and specifically noted that the terms applied to
state law if Congress also contemplated an overt act
requirement. This reading would mean that Congress never
intended the law to apply to conspiracy convictions in one-third
of states but did not choose to indicate or otherwise explain
this limitation. In short, we find no compelling reason that
rebuts the common-law presumption in this case and cannot
presume that Congress would have intended the term “conspiracy”
to be a nullity in any state that follows the common law. 5
5 It would also run contrary to federal supremacy to allow a
straw-poll of the states determine the meaning of federal law,
or to change the meaning of federal law as the states change
their approach to conspiracy liability.
22
3.
Having determined that the INA incorporates the common-law
definition of “conspiracy,” we must compare it to the state-law
crime of conviction. Etienne’s prior conviction was for
conspiracy “to violate the controlled substances law of the
State of Maryland.” A.R.1 at 17. A conspiracy under Maryland
law is a “combination of two or more persons to accomplish some
unlawful purpose, or to accomplish a lawful purpose by unlawful
means.” Townes v. State, 548 A.2d 832, 834 (Md. Ct. App. 1988).
It is of no moment that this “crime is complete when the
unlawful agreement is reached, and no overt act in furtherance
of the agreement need be shown.” See id. Because the INA
incorporates the common-law definition of conspiracy, the term
does not require proof of an overt act. Any state-law
conspiracy to commit one of the substantive offenses listed in
the INA therefore qualifies as an “aggravated felony” under the
categorical approach.
4.
In sum, we conclude that nothing rebuts the common-law
presumption when interpreting the term “conspiracy” in the INA.
Accordingly, under the categorical approach, a state-law
conspiracy need not require proof of an overt act to be
classified as an “aggravated felony.” We therefore hold that
DHS properly classified Etienne’s conviction.
23
III.
For the foregoing reasons, Etienne’s petition for review is
DENIED.
24