United States v. Xochitl Garcia-Santana

OPINION

BERZON, Circuit Judge:

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 constitutionally 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…