Argued and Submitted: September 11, 2013 San Francisco, California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Nevada. D.C. No. 3:12-cr-00023C-RCJ-VPC-1. Robert Clive Jones, Chief District Judge, Presiding.
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, Nevada, 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, Nevada, for Defendant-Appellee.
Before: Arthur L. Alarcón and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.[*] Opinion bye Judge Berzon.
BERZON, Circuit Judge:
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.
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.
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 ...