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Matter of Orlando Gracia RICHARDSON, Respondent

File A041 456 941 - Newark, New Jersey

Decided April 22, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act,

8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the

commission of an overt act in furtherance of the conspiracy by one of the conspirators. 

(2) An alien who was only convicted of conspiracy to commit an aggravated felony and

is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may

not also be found removable for the underlying substantive offense, even though the record

of conviction shows that the conspirators actually committed the substantive offense.

FOR RESPONDENT: Douglas Grannan, Esquire, Philadelphia, Pennsylvania

BEFORE: Board Panel: PAULEY, ADKINS-BLANCH, and GUENDELSBERGER, Board

Members.

PAULEY, Board Member:

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. 

I. FACTUAL AND PROCEDURAL HISTORY

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.
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1 As the Immigration Judge noted, the respondent somewhat confusingly couches his

argument in terms of the New Jersey conspiracy statute being “divisible.” However, his real

contention appears to be that his conspiracy conviction does not constitute a “conspiracy”

within the meaning of section 101(a)(43)(U) of the Act because the indictment did not

allege, and the respondent was not convicted of, the commission of any overt act

in furtherance of the conspiracy. 

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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

II. ANALYSIS

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) (holding

that conspiracy is not an included offense of a substantive aggravated felony

and must therefore be separately alleged).

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
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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) (finding that, unlike California, Nevada does not

require an overt act and that the crime of conspiracy is therefore completed

when the unlawful agreement is reached); 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
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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) (quoting

Iannelli v. United States, 420 U.S. 770, 777 (1975), and citing United States

v. Shabani, 513 U.S. at 16). 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) (“The

government is not required to prove an overt act for either a drug conspiracy

under 21 U.S.C. § 846 or a RICO conspiracy under 18 U.S.C. § 1962(d).”);

United States v. Bolden, 325 F.3d 471, 491 (4th Cir. 2003) (finding that a

conviction for a money laundering conspiracy pursuant to 18 U.S.C. § 1956(h)

does not require an overt act to be either alleged or proven); United States

v. Brock, 782 F.2d 1442, 1444 (7th Cir. 1986) (finding it unnecessary to allege

an overt act in furtherance of a conspiracy to import and to possess with intent

to distribute cocaine in violation of 21 U.S.C. §§ 846 and 963); United States

v. Coia, 719 F.2d 1120, 1123-24 (11th Cir. 1983) (finding that no overt act

is necessary for a RICO conspiracy under 18 U.S.C. § 1962(d)).

Thus, were we to hold that the term “conspiracy” refers only to laws that

require proof of an overt act, convictions under conspiracy statutes such

as New Jersey’s and under Federal laws prohibiting conspiracies involving

money laundering and controlled substances would be excluded from the
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2 Section 101(a)(43) expressly extends to “an offense described in this paragraph whether

in violation of Federal or State law.”

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aggravated felony definition.2 We find such an interpretation of section

101(a)(43)(U) to be an unlikely reflection of congressional design. We

therefore consider it proper to follow “the settled principle of statutory

construction that, absent contrary indications, Congress intends to adopt the

common law definition of statutory terms,” and the rulings of the Supreme

Court, which has “consistently held that the common law understanding

of conspiracy ‘does not make the doing of any act other than the act

of conspiring a condition of liability.’” United States v. Shabani, 513 U.S.

at 13-14 (quoting Nash v. United States, 229 U.S. 373, 378 (1913)); see also

United States v. Sassi, 966 F.2d at 284 (finding that “[w]henever the Supreme

Court has encountered a statute that, like [21 U.S.C.] § 846, makes

‘conspiracy’ a crime but does not refer to an act in furtherance, it has held that

proof of an overt act is unnecessary” and citing Singer v. United States, 323

U.S. 338 (1945) (military draft law), and Nash v. United States, 229 U.S. 373

(antitrust law)). 

III. CONCLUSION

Upon our de novo review of the legal issue before us, we 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 therefore agree with the

Immigration Judge that the respondent’s removability from the United States

has been established based on his conspiracy conviction. See section

240(c)(3)(A) of the Act, 8 U.S.C. § 1229a(c)(3)(A) (2006). Accordingly, the

appeal will be dismissed.

ORDER: The appeal is dismissed.