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CA9 on Conspiracy; Nevada; Burglary; Aggravated Felony: U.S. v. Garcia-Santana

December 15, 2014 (1 min read)

"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. ... 

The Nevada statute of conviction, Nev. Rev. Stat. § 199.480, requires no proof of an overt act, Nev. Rev. Stat. § 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." - U.S. v. Garcia-Santana, Dec. 15, 2014.