For this case, the respondent’s statute of conviction, 18 U.S.C. § 371, reads in pertinent part:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose . . . each shall be fined under this title or imprisoned not more than five years, or both.
As discussed in the recent case of Matter of Nemis, 28 I&N Dec. 250, 252–54 (BIA 2021), this statute is divisible. It can be violated either by conspiring to defraud the United States or one of its agencies (the “defraud clause”) or by conspiring to commit another federal offense (the “offense clause”).
In this case, the BIA sought to determine whether the “offense clause” is itself divisible based on the underlying crime that was the object of the conspiracy or whether, as the Immigration Judge concluded, the object of the conspiracy merely constitutes the means of unlawfully conspiring.