Matter of Orlando Gracia Richardson (BIA 2010)

In this case, the BIA decided that for purposes of removal pursuant to § 101(a)(43)(U) of the INA, 8 U.S.C. § 1101(a)(43)(U), the term “conspiracy” is not limited to conspiracies that require the co-conspirator to have committed an overt act in furtherance of the conspiracy.  The respondent, Richardson, was a citizen of Jamaica who had lawful permanent resident status.  In February 2004, he was convicted in New Jersey of conspiracy to commit robbery in violation of certain New Jersey criminal statutes.  Richardson was sentenced to seven years imprisonment for his crime.  Thereafter, the government placed him in removal proceedings.  The bases for his removal was that he had been convicted of an aggravated felony, a theft offense under § 101(a)(43)(G) of the INA, and conspiracy under § 101(a)(43)(U).

In his defense, Richardson argued that his conviction did not constitute an aggravated felony or a conspiracy.  Therefore, he was not subject to removal.  The BIA agreed with Richardson with regard to the theft offense.  It found that the underlying crime of theft was not necessarily included in the conviction for conspiracy to commit robbery.  He was not removable for a theft offense.  Regarding his conspiracy conviction, Richardson argued that there was no evidence that he did anything to advance the conspiracy, so his conviction thereof did not fall into the category of “conspiracy” as contemplated by § 101(a)(43)(U).   He contended that to be removable pursuant to this section of the INA, there must be evidence that he committed some type of overt act in furtherance of the conspiracy.  On that point, the BIA found against him.

Although § 101(a)(43)(U) makes the crime of conspiracy a removable offense, it does not actually define what constitutes a “conspiracy.”  The confusion arises because in some states, such as California, in order to be guilty of a conspiracy crime, the accused must have done something to advance the conspiracy.  For instance, a defendant charged with conspiracy to rob a bank cannot be guilty of the offense unless the government established he did something other than agree with his co-conspirators to rob a bank.   An overt act that makes him liable can be as simple as purchasing ski masks for himself and his fellow robbers.  The crime is completed only when an agreement is reached AND something is done to advance the agreement.   Some states, on the other hand, do not have such requirements.  All it takes for a conspiracy charge to stick is for two or more persons to agree to commit a crime.  Nothing else need be done in furtherance of that agreement.  The crime is completed when an agreement is reached.

The BIA discussed the common law understanding of conspiracy and came to the conclusion that it did not require that an overt act take place.  In situations where Congress did not define a term in a statute, the BIA presumes Congress intended to adopt the common law meaning of the term.  For these reasons, and others, the BIA found that Richardson was removable because the term conspiracy as contemplated by § 101(a)(43)(U) did not require him to commit an overt act in furtherance of the conspiracy.