                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2013


EDDY ETIENNE,   a/k/a   Hailadingle,   Zellew    Tesfegna,   a/k/a
Eddy Etienn,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.

----------------------------------

CAPITAL   AREA   IMMIGRANTS’  RIGHTS   COALITION;         NATIONAL
IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD,

                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
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.




                               2
DUNCAN, Circuit Judge:

      After expedited proceedings authorized by the Immigration

and Nationality Act (“INA”), the Department of Homeland Security

(“DHS”)     ordered      petitioner       Eddy      Etienne’s       removal,    on    the

grounds     that    he   is   an   alien      who    has     been   convicted    of   an

“aggravated        felony.”        See    8       U.S.C.     §§   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

                                              3
to Haiti.           DHS granted not only Etienne’s initial application

for    TPS,    but     also       his    application            for    renewal       the   following

year.         When    Etienne        sought      another          renewal       of    his    TPS    in

February of 2014, however, DHS rejected his application.

       Shortly        thereafter,              DHS        initiated         expedited        removal

proceedings         against       Etienne       by       serving      him     with    a    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    informed       Etienne          that    he       would     be    removed      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    the     response         section    of

Form I-851 and returning it to DHS.                         He responded the same day.

        Etienne      checked       two    boxes          indicating         that     he    wished   to

contest       his    removal       and    that       he    was     “attaching        documents      in

support       of    [his]     rebuttal         and        request       for    further      review.”

A.R.1    at    2.          Etienne      did    not,       however,       actually         attach    any

documents to the Notice of Intent before returning it to DHS.

Of particular relevance here, Etienne did not indicate in any



                                                     4
manner that he believed his 1996 Maryland conspiracy conviction

did not constitute an “aggravated felony.”

       On        March   20,    2014,    after      concluding      that   Etienne    was

deportable         under    the   INA,   the       deciding   DHS   officer   issued    a

Final       Administrative        Removal     Order     for   Etienne’s     removal    to

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

and determined that Etienne did not qualify for withholding of

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

Etienne’s         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.


                                               5
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    we     have     jurisdiction       over

Etienne’s petition for review.               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        to    exhaust   his    administrative         remedies    as   to   that

claim.        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      thus     whether       we   have

                                             6
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.    §    1227(a)(2)(A)(iii).            Generally,     when   an    alien     is

charged    with       removability   for       having   been    convicted        of   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).


                                           7
or legal basis of his removability.                            See 8 U.S.C. §§ 1229,

1229a; 8 C.F.R. § 1240.10(c).                    But for aliens like Etienne who

have    not    been     lawfully      admitted          to     the     United        States     for

permanent      residence,       the   INA       authorizes        an    expedited          removal

process,      without      a    hearing         before       an   IJ.          See    8     U.S.C.

§ 1228(b).        Instead, a DHS officer, who need not be an attorney,

presides      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.”                                        See id.

§ 238.1(b)(1).         The contents of the Notice of Intent are spelled

out    in   the    regulations:            It    must     notify        the    alien       of   the

allegations       of    fact    and   conclusions            of   law       underlying        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.

                                                8
Etienne’s    completed    Form   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.       The first allows the alien to indicate that

he   or   she   “[w]ish[es]      to   [c]ontest      and/or     to       [r]equest

[w]ithholding   of     [r]emoval.”       Id.   The   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.

                                      9
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).”                  Id.       Indented beneath

that   checkbox      are    four   more   checkboxes,       only    three      of    which

logically    complete       the    statement.       Those    three       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   the     alien    responds      and    contests     removability,           the

deciding     DHS     officer       must    determine     whether         the    alien’s

deportability is nonetheless established by “clear, convincing,

and unequivocal evidence.”              8 C.F.R. § 238.1(d)(2)(i).                  If so,

the officer must issue a final Removal Order.                   Id.      If, however,

“the    deciding      Service       officer      finds   that      the     record       of

proceeding,       including       the   alien’s   timely     rebuttal,         raises    a

genuine     issue     of    material      fact    regarding        the    preliminary

findings,” the DHS officer may either (1) “obtain additional

evidence from any source, including the alien” or (2) initiate

                                          10
full        removal        proceedings           before        an         IJ.            Id.

§ 238.1(d)(2)(ii)(A).             If   the   additional         evidence        cures    any

“genuine issue of material fact,” and if the officer concludes

removability by “clear, convincing, and unequivocal evidence,”

the    officer      must   then    issue     a    final       Removal      Order.        Id.

§ 238.1(d)(2)(ii)(B).           But if the officer “finds that the alien

is    not   amenable”      to   expedited        removal,      the    officer       “shall

terminate     the     expedited    proceedings       .    .    .    and    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

                                           11
evidence,”    leaving   the    alien       “not    amenable”       to    expedited

removal,     but   potentially      amenable      to     removal    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).                      Considering

the   same   issue,   the   Fifth    Circuit      held    that   “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



                                      12
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    that       only   factual     challenges   to     an    alien’s

removability     may    be    raised   in    expedited   removal    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.                    8 C.F.R.

§ 238.1(d)(2).         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,”

                                        13
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.   81,    90    (2006)    (first

emphasis added) (citation omitted).                  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.                      Form I-851

contains     several   checkboxes        for    an   alien    to     lodge    factual

challenges to his or her removal.               But it offers no checkbox for

lodging    any   specific   legal    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

                                         14
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.       In light of the contents of Form I-851, we cannot say

that    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.         Such a change would provide clear notice to aliens

of    their    right    to    raise    legal       issues   in    a    manner    that    the

present       form    does    not.      The    opportunity        to     raise   a     legal

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

the    “steps        that    the     agency    holds    out”       and    therefore      an

administrative remedy that must be exhausted.                          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      have      jurisdiction      to

consider Etienne’s petition for review.

                                              15
                                          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         crime     qualifies          as     an

“aggravated felony” under the INA.                Their dispute instead turns

on    whether,     under      the       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,    his    conviction      does      not

qualify as an “aggravated felony.” 3              In arguing that the common-




      3Etienne does not challenge the classification of the
object of his conspiracy as “illicit trafficking in a controlled
(Continued)
                                          16
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.”              Moncrieffe v. Holder, 133 S. Ct.

1678, 1685 (2013).           “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     the      categorical    approach,      “we   consider   only   the

elements       of     the   statute     of    conviction      rather    than   the




substance,” as DHS found it was.                 See A.R.1 at 2; 8 U.S.C.
§ 1101(a)(43)(B).


                                         17
defendant’s conduct underlying the offense,” and compare them

with the elements of the “generic” crime.                       Omargharib v. Holder,

775 F.3d 192, 196 (4th Cir. 2014).                     If the comparison shows that

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

crime,    then       the       prior   conviction       constitutes         an    aggravated

felony.”        Id.        If,    however,      the    state    offense      “sweeps       more

broadly    .     .    .    ,    the    prior    conviction      cannot       count     as    an

aggravated felony.”              Id. (internal quotation marks and citation

omitted).         Courts        must    first      determine    the    meaning        of    the

offense    listed         in    the    INA   and      then   compare    that        “generic”

definition to the elements of the crime under state law.

                                               2.

       To determine the meaning of the term “conspiracy” in the

INA,     our    analysis         begins      with     the    “settled       principle       of

statutory        construction          that,        absent     contrary          indications,

Congress intends to adopt the common law definition of statutory

terms.”        United States v. Shabani, 513 U.S. 10, 13 (1994).                            At

common    law,       conspiracy        required       only   proof     of    “the     act    of

conspiring,” not of any overt act.                     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

                                               18
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       enhancement       of     the    Armed      Career       Criminal    Act,

18 U.S.C.    §    924(e),    even       though     the     state   law    omitted    some

elements of common-law burglary.                 495 U.S. at 579.           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 common-

      4Etienne 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.


                                           19
law definition would nullify the statute’s effect under many

states’ criminal codes.                 Id. at 593 (quoting LaFave & Scott,

Substantive        Criminal       Law    §     8.13(g),            p.476    (1986)).              Where

burglary is concerned, “[o]nly a few states retain the common-

law 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.”                                        Id.     For

example,     the      Court    noted     that      many        states      do     not    require      a

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

       It   is     significant       for     our     purposes         that      in    Taylor,       the

common-law       definition       was      more      restrictive           than       the    various

states’ alternatives.                Given that statutory overrides of the

common-law       served      to   “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      that,       “because      few        of     the       crimes        now      generally

recognized       as    burglaries          would        fall       within       the     common-law

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

[the   statute’s]         purposes.”           Id.       at    594.        Thus,        finding      no

                                               20
“specific    indication      that     Congress         meant        to   incorporate     the

common-law        meaning”   of     that         term,        the    Court      interpreted

“burglary” by its “contemporary meaning.”                      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 common-

law   conspiracy      have   added      a   single        element:        the    overt   act

requirement.        Given the comparatively modest modifications to

conspiracy    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.                                    See id.

at 594.      To    the   contrary,      imposing         an    overt     act    requirement

                                            21
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.         See id. at 593.

     Congress’s      desire   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   if    Congress      also     contemplated     an   overt     act

requirement.        This   reading    would   mean   that    Congress     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.       In short, we find no compelling reason that

rebuts   the   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   conviction.           Etienne’s       prior     conviction             was    for

conspiracy       “to     violate      the    controlled      substances           law    of    the

State of Maryland.”             A.R.1 at 17.           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,        under       the     categorical          approach,        a     state-law

conspiracy       need     not    require       proof    of     an     overt       act     to    be

classified as an “aggravated felony.”                        We therefore hold that

DHS properly classified Etienne’s conviction.

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                         III.

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

                                                     DENIED.




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