United States v. Xochitl Garcia-Santana

ORDER

The opinion filed February 20, 2014, and published at 743 F.3d 666 , is withdrawn. The superseding opinion shall be filed concurrently with this order.

Further petitions for rehearing or petitions for rehearing en banc shall be allowed in the above-captioned matter. See G.O. 5.3(a).

OPINION

The government appeals the dismissal of Xóchitl 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 eon- stitutionally 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.

I.

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…