- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 02-20-2014
- Case #: 12-10471
- Judge(s)/Court Below: Circuit Court Judge Berzon for the Court; Circuit Judge Alarcon and District Judge Zouhary
- Full Text Opinion
Defendant was removed from the United States after conviction of conspiracy to commit burglary pursuant to 8 U.S.C. § 1228(b). It had been decided that defendant was subject to a final conviction of an aggravated felony and was therefore ineligible for discretionary relief from removal. Defendant was indicted for being a previously removed alien found unlawfully in the United States. Defendant moved to dismiss the indictment because the prior conviction was constitutionally inadequate because she had been denied her right to seek discretionary relief from removal. The district court granted defendant’s motion. The Ninth Circuit held that the state statute criminalized a broader range of conduct than the generic federal definition, therefore it was not an aggravated felony. The government advocated for a common law interpretation. The panel rejected this argument, applying the current state criminal law standards rather than the historic common law concepts. In addition, the panel rejected the BIA’s reading of 8 U.S.C. § 1101 because it did not use the correct method of analysis. The panel held that because the statute, which the defendant was convicted under, does not require an overt act, while the definition of aggravated felony under the INA does; it was incorrect to determine that the defendant was not eligible for discretionary relief. Therefore the removal order that led to the conviction in this appeal was determined unconstitutional. AFFIRMED.