Eddy Etienne v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A072-377-993. [999727190]. [14-2013]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2013

EDDY ETIENNE,
Eddy Etienn,

a/k/a

Hailadingle,

Zellew

Tesfegna,

a/k/a

Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
---------------------------------CAPITAL
AREA
IMMIGRANTS’
RIGHTS
COALITION;
IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,

NATIONAL

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

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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.

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DUNCAN, Circuit Judge:
After expedited proceedings authorized by the Immigration
and Nationality Act (“INA”), the Department of Homeland Security
(“DHS”)

ordered

petitioner

grounds

that

is

“aggravated

he

an

felony.”

Eddy

alien
See

who

8

Etienne’s
has

removal,

been

U.S.C.

§§

on

convicted

the

of

an

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
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to Haiti.
for

TPS,

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DHS granted not only Etienne’s initial application
but

year.

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also

When

his

Etienne

application

sought

for

another

renewal

renewal

the

of

following

his

TPS

in

February of 2014, however, DHS rejected his application.
Shortly
proceedings

thereafter,
against

DHS

Etienne

initiated

by

serving

expedited

him

with

a

removal
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

removed

informed

Etienne

that

he

would

be

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

Form I-851 and returning it to DHS.
Etienne
contest

his

support

of

A.R.1

at

2.

checked
removal
[his]

two
and

boxes
that

rebuttal

Etienne

did

the

response

and
not,

of

He responded the same day.

indicating
he

section

was

that

“attaching

request
however,

for

he

wished

to

documents

in

further

actually

review.”

attach

any

documents to the Notice of Intent before returning it to DHS.
Of particular relevance here, Etienne did not indicate in any

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manner that he believed his 1996 Maryland conspiracy conviction
did not constitute an “aggravated felony.”
On

March

deportable
Final

20,

under

2014,

the

Administrative

Haiti.

INA,

after
the

Removal

concluding
deciding

Order

for

that

DHS

Etienne

officer

Etienne’s

was

issued

removal

a
to

Upon Etienne’s request, an asylum officer held a hearing

and determined that Etienne did not qualify for withholding of
removal.
Etienne’s

An IJ affirmed the asylum officer’s determination, and
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.
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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

Etienne’s petition for review.

we

have

jurisdiction

over

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

claim.

to

exhaust

his

administrative

remedies

as

to

that

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
6

thus

whether

we

have

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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.
charged

§

1227(a)(2)(A)(iii).

with

removability

Generally,

for

having

been

when

an

alien

convicted

of

is
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).
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or legal basis of his removability.
1229a; 8 C.F.R. § 1240.10(c).
have

not

been

permanent

residence,

process,

without

§ 1228(b).
presides

lawfully
the

a

See 8 U.S.C. §§ 1229,

But for aliens like Etienne who

admitted
INA

to

the

United

authorizes
before

hearing

an
IJ.

an

States

expedited
See

for

removal

8

U.S.C.

Instead, a DHS officer, who need not be an attorney,

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.”
§ 238.1(b)(1).
out

in

the

allegations

See id.

The contents of the Notice of Intent are spelled

regulations:
of

fact

and

It

must

notify

conclusions

of

the

law

alien

of

underlying

the

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.
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Etienne’s

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completed

Form

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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.
he

or

she

[w]ithholding

The first allows the alien to indicate that

“[w]ish[es]
of

to

[c]ontest

[r]emoval.”

Id.

The

and/or

to

[r]equest

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.
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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).”
that

checkbox

logically

are

four

more

complete

the

statement.

Id.

checkboxes,

Indented beneath

only

Those

three

three

of

which

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
deciding

the

alien

DHS

responds

officer

must

and

contests

determine

removability,

whether

the

the

alien’s

deportability is nonetheless established by “clear, convincing,
and unequivocal evidence.”

8 C.F.R. § 238.1(d)(2)(i).

the officer must issue a final Removal Order.
“the

deciding

proceeding,
genuine

Service

including

issue

of

officer

the

finds

alien’s

material

fact

that

timely

Id.

If, however,

the

record

rebuttal,

regarding

the

If so,

raises

of
a

preliminary

findings,” the DHS officer may either (1) “obtain additional
evidence from any source, including the alien” or (2) initiate
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removal

full

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proceedings

before

§ 238.1(d)(2)(ii)(A).

If

the

an

additional

IJ.

evidence

Id.
cures

any

“genuine issue of material fact,” and if the officer concludes
removability by “clear, convincing, and unequivocal evidence,”
the

officer

must

then

§ 238.1(d)(2)(ii)(B).
is

not

amenable”

terminate

the

to

issue

a

final

Removal

Order.

Id.

But if the officer “finds that the alien
expedited

expedited

removal,

proceedings

.

.

the
.

officer

and

shall,

“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
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evidence,”
removal,

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leaving
but

the

alien

potentially

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“not

amenable

amenable”
to

to

removal

expedited

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).
the

same

issue,

the

Fifth

Circuit

held

that

Considering

“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

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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

removability

that
may

only

be

factual

raised

in

challenges

expedited

to

removal

an

alien’s

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.
§ 238.1(d)(2).

8 C.F.R.

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,”
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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.

emphasis added) (citation omitted).

81,

90

(2006)

(first

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.
contains

several

checkboxes

for

challenges to his or her removal.
lodging

any

specific

legal

an

alien

to

Form I-851

lodge

factual

But it offers no checkbox for

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
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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.
that

In light of the contents of Form I-851, we cannot say

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.
of

their

present

Such a change would provide clear notice to aliens

right
form

to

does

raise
not.

legal
The

issues

in

a

opportunity

manner

to

raise

that
a

the

legal

challenge would then become, as we have earlier noted, one of
the

“steps

that

the

agency

holds

out”

and

administrative remedy that must be exhausted.

therefore

an

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

consider Etienne’s petition for review.
15

have

jurisdiction

to

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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

“aggravated felony” under the INA.
on

whether,

under

the

crime

qualifies

as

an

Their dispute instead turns

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,

qualify as an “aggravated felony.” 3

3

his

conviction

does

not

In arguing that the common-

Etienne does not challenge the classification of the
object of his conspiracy as “illicit trafficking in a controlled
(Continued)
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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.”
1678, 1685 (2013).

Moncrieffe v. Holder, 133 S. Ct.

“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
elements

the
of

categorical
the

statute

approach,
of

conviction

substance,” as DHS found it was.
§ 1101(a)(43)(B).
17

“we

consider

only

the

rather

than

the

See A.R.1 at 2; 8 U.S.C.

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defendant’s conduct underlying the offense,” and compare them
with the elements of the “generic” crime.
775 F.3d 192, 196 (4th Cir. 2014).

Omargharib v. Holder,

If the comparison shows that

the state offense “has the same elements as the generic INA
crime,

then

felony.”
broadly

the

Id.
.

.

prior
If,

.

,

aggravated felony.”
omitted).
offense

Courts

listed

in

conviction

however,

the

the

constitutes

an

offense

conviction

prior

state

cannot

aggravated

“sweeps
count

more

as

an

Id. (internal quotation marks and citation
must
the

first
INA

determine

and

then

the

meaning

compare

that

of

the

“generic”

definition to the elements of the crime under state law.
2.
To determine the meaning of the term “conspiracy” in the
INA,

our

statutory

analysis

begins

construction

with

that,

the

absent

“settled
contrary

principle

of

indications,

Congress intends to adopt the common law definition of statutory
terms.”
common

United States v. Shabani, 513 U.S. 10, 13 (1994).
law,

conspiracy

required

conspiring,” not of any overt act.

only

proof

of

“the

act

At
of

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
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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
18 U.S.C.

enhancement
§

924(e),

of

the
though

even

Armed
the

elements of common-law burglary.

Career
state

Criminal

law

omitted

495 U.S. at 579.

Act,
some

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 common4

Etienne 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.
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law definition would nullify the statute’s effect under many
states’ criminal codes.
Substantive

Criminal

Id. at 593 (quoting LaFave & Scott,

Law

§

8.13(g),

p.476

(1986)).

Where

burglary is concerned, “[o]nly a few states retain the commonlaw 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.”
example,

the

Court

noted

that

many

states

do

Id.

not

For

require

“breaking,” or have broadened the concept of that term.

a

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.”
It

is

common-law

significant
definition

states’ alternatives.
common-law

Id.

served

to

for
was

our

purposes

more

that

restrictive

in

than

Taylor,
the

the

various

Given that statutory overrides of the
“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

the

generally

recognized

that,

“because

as

burglaries

few

of

would

fall

crimes
within

now
the

common-law

definition,” that definition was “so obviously ill suited to
[the

statute’s]

purposes.”

Id.
20

at

594.

Thus,

finding

no

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“specific

Filed: 12/30/2015

indication

common-law

meaning”

that
of

Pg: 21 of 24

Congress
that

meant

term,

to

the

“burglary” by its “contemporary meaning.”

incorporate

Court

the

interpreted

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 commonlaw

conspiracy

requirement.
conspiracy

have

added

a

single

element:

the

overt

act

Given the comparatively modest modifications to

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.
at 594.

To

the

contrary,

imposing
21

an

overt

act

See id.

requirement

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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.
Congress’s

desire

See id. at 593.

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

requirement.

if

Congress
This

also

reading

contemplated

would

mean

an

that

overt

Congress

act
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.
rebuts

the

In short, we find no compelling reason that

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.
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3.
Having determined that the INA incorporates the common-law
definition of “conspiracy,” we must compare it to the state-law
crime

of

conspiracy

conviction.
“to

Etienne’s

violate

State of Maryland.”

the

prior

controlled

A.R.1 at 17.

conviction

substances

was

for

of

the

law

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,
conspiracy

under
need

not

the

categorical

require

proof

classified as an “aggravated felony.”

approach,
of

an

state-law
act

to

be

We therefore hold that

DHS properly classified Etienne’s conviction.
23

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III.
For the foregoing reasons, Etienne’s petition for review is
DENIED.

24