A Jamaican man was convicted of conspiracy to commit a robbery, and on this basis was found to be removable as an aggravated felon. Respondent filed a motion to terminate, but this was denied by the Immigration Judge, so he appealed, asserting that his conspiracy conviction did not require a finding of commission of an overt act, and thus is not an aggravated felony under 101(a)(43).
The BIA agreed with the Respondent, finding that the Immigration Judge went too far in considering evidence that showed that the conspirators actually did carry out the alleged robbery, saying that only the offense that is actually charged can be considered. Thus, a conviction for conspiracy to commit a theft cannot be considered a theft offense under 101(a)(43)(G), even if there is evidence that the theft was completed. On the issue of the conspiracy conviction, for the purposes of 101(a)(43)(U), the court held that the conspiracy does not require the commission of an overt act. This conclusion was based on the Supreme Court decisions in Whitfield v. US, 543 U.S. 209 and United v. Shabani, 513 U.S. 10, which found that Congress had intentionally removed language from the statute negating the need to show an overt act to sustain a finding of conspiracy under the Act. They also looked at the common law meaning of the term conspiracy, which met the same conclusion. Thus, the court held that conspiracy under 101(a)(43)(U) does not require a finding of the commission of an overt act in furtherance of the conspiracy by one of the conspirators, and the Respondent was thus still removable.
Matter of Richardson, 25 I&N Dec. 226 (BIA 2010).