In a published decision released last week, the BIA held that a state conspiracy conviction may be categorized as a conspiracy type of aggravated felony even if the state statute does not require an overt act for a conviction. Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (Pauley, Adkins-Blanch, and Guendelsberger). Board Member Pauley wrote the decision for the panel.This case involved an LPR who was convicted of conspiracy to commit robbery in violation of New Jersey Statutes Annotated § 2C:5-2, 15-1, and 12-1b4, and sentenced to a term of imprisonment of 7 years.

This was more than enough for the court to comfortably conclude that contemporary usage of “conspiracy” requires an overt act. Though the court had no trouble identifying the generic definition’s requirements, it did spend a bit of time explaining that its holding constitutes a rejection of the BIA’s position in Matter of Richardson, 25 I&N Dec. 226, 228 (BIA 2010), that “conspiracy” as used in INA § 101(a)(43)(U) refers to the term’s definition at common law which does not require an overt act. Id. at 15.