In re Romo

• Decision Date: 19 May 2016
• Docket Number: Interim Decision #3862
• Citation: 26 I&N Dec. 743
• Parties: Matter of Eva Isabel GONZALEZ ROMO, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 743

Matter of Eva Isabel GONZALEZ ROMO, Respondent

Interim Decision #3862

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

May 19, 2016

Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that section refers only to attempt and conspiracy to commit a crime involving moral turpitude, and is therefore properly considered to be an arriving alien under section 101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N Dec. 426 (BIA 2011), clarified.

FOR RESPONDENT: Benjamin H. Harville, Esquire, Florence, Arizona

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan J. Goldstein, Assistant Chief Counsel

BEFORE: Board Panel: PAULEY and GUENDELSBERGER, Board Members; GELLER, Temporary Board Member.

PAULEY, Board Member:

In a decision dated September 29, 2015, an Immigration Judge determined that the respondent is inadmissible and ineligible for relief from removal and ordered her removed from the United States. The respondent has appealed from that decision. The appeal will be dismissed. The respondent's fee waiver request is granted pursuant to 8 C.F.R. § 1003.8(a)(3) (2016).

The respondent is a native and citizen of Mexico who became a lawful permanent resident of the United States on November 18, 1999. She was convicted on March 12, 2010, of solicitation to possess marijuana for sale, which is a class 4 felony under sections 13-1002 and 13-3405(A)(2) of the Arizona Revised Statutes. The respondent was detained and paroled into the United States when she attempted to reenter as a lawful permanent resident on May 3, 2014.

The Department of Homeland Security ("DHS") initiated removal proceedings against the respondent, charging that she is an arriving alien who is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), as an alien convicted of a crime involving moral turpitude, and under section 212(a)(2)(C)(i) of the Act, as an alien who the Attorney General knows or has reason to believe is an illicit trafficker in a controlled substance. The Immigration Judge found that the respondent's conviction was for a crime involving moral turpitude and that the conviction provided a reason to believe that she was a controlled substance trafficker. Accordingly, the Immigration Judge determined that the respondent is inadmissible as charged. She further denied the respondent's requests for relief from removal.

On appeal, the respondent argues that she was not properly placed in removal proceedings as an "arriving alien." She contends that because she is a returning lawful permanent resident, to charge her with inadmissibility as an arriving alien under section 212(a) of the Act, the DHS must establish that she is seeking admission. See Matter of Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011). The respondent can only be regarded as seeking admission if she falls within one of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012).¹ See Matter of Pena, 26 I&N Dec. 613, 615 (BIA 2015).

According to the respondent, the only possible exception that may be applicable is section 101(a)(13)(C)(v), namely, that she "has committed an offense identified in section 212(a)(2)." Although the DHS has charged that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the Act because she was convicted of a crime involving moral turpitude, she asserts that the offense of solicitation to possess marijuana for sale is not such a crime under the law of the United States Court of Appeals for theNinth Circuit, in whose jurisdiction this case arises.² The principal issue before us, therefore, is whether a felony conviction for solicitation to possess marijuana for sale is a conviction for a crime involving moral turpitude under section 212(a)(2)(A)(i)(I) of the Act. We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).

In support of her conclusion that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime involving moral turpitude, the Immigration Judge relied on the Ninth Circuit's decision in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007). In that case, the court held that the petitioner's felony conviction for solicitation to possess at least 4 pounds of marijuana for sale in violation of sections 13-1002(A) and 13-3405(A)(2) of the Arizona Revised Statutes was a conviction for a crime involving moral turpitude for purposes of deportability under section 237(a)(2)(A)(i) of the Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006). Id. at 904.

In Barragan-Lopez, the Ninth Circuit first rejected the petitioner's assertion that his solicitation offense should be viewed as separate from the underlying drug possession crime, stating that he was not convicted of solicitation of unspecified criminal conduct but, instead, of soliciting the possession of a significant amount of marijuana. The court noted that it has previously looked to the underlying offense in determining whether inchoate crimes, such as solicitation, constitute crimes involving moral turpitude. Id. at 903 (citing Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir. 1993), and McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)). Stating that "[d]rug trafficking offenses, including possession of unlawful substances for sale, generally involve moral turpitude," the court emphasized that by pleading guilty to solicitation to possess marijuana for sale, the petitioner had admitted his specific intent to promote or facilitate the commission of a crime involving moral turpitude under Arizona law. Id. at 903-04 (citing Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir. 1987), and United States ex rel. DeLuca v. O'Rourke, 213 F.2d 759, 762 (8th Cir. 1954) (stating that "there can be nothing more depraved ormorally indefensible than conscious participation in the illicit drug traffic")).

The court also rejected the petitioner's reliance on Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999), finding that those cases were distinguishable. Barragan-Lopez, 508 F.3d at 904-05. In Coronado-Durazo, the Ninth Circuit found that a conviction under Arizona's solicitation statute was not a deportable offense under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994), as a conviction for a crime "relating to a controlled substance" because the deportation statute included conspiracy and attempt, but not solicitation. Similarly, in Leyva-Licea, 187 F.3d at 1150, the court concluded that solicitation to possess marijuana for sale under Arizona law was not an aggravated felony under section 101(a)(43)(B) of the Act because the "Controlled Substances Act does . . . cover attempt and conspiracy," but "it does not list solicitation." In addition to noting that the statutes at issue were different in those cases, the court stated, "In neither case were we asked to determine whether solicitation to possess more than four pounds of marijuana for sale is a crime involving moral turpitude under [section 237(a)(2)(A)(i) of the Act]." Barragan-Lopez, 508 F.3d at 904-05.

We have long held that evil intent is inherent in the illegal distribution of drugs and that "participation in illicit drug trafficking is a crime involving moral turpitude." Matter of Khourn, 21 I&N Dec. 1041, 1046-47 (BIA 1997). Furthermore, it is well established that for immigration purposes, with respect to moral turpitude, there is no meaningful distinction between an inchoate offense and the completed crime. Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); see also Rohit v. Holder, 670 F.3d 1085, 1089-90 (9th Cir. 2012) (holding that solicitation of prostitution is a crime involving moral turpitude). It is therefore appropriate to look at the substantive crimes to determine whether inchoate offenses, such as attempt, conspiracy, accessory before the fact, facilitation, or solicitation, constitute crimes involving moral turpitude. Barragan-Lopez, 508 F.3d at 903; Matter of Vo, 25 I&N Dec. at 428 (collecting cases); cf. Matter of Beltran, 20 I&N Dec. 521, 526 (BIA 1992) (stating that inchoate or preparatory offenses have been found to be crimes "relating to" a controlled substance "when the underlying substantive crime involves a drug offense").

We agree with the Ninth Circuit's conclusion in Barragan-Lopez that solicitation to possess marijuana for sale is a crime involving moral turpitude. See also Morrison v. Holder, 580 F. App'x 622 (9th Cir. 2014) (holding that a conviction for solicitation to possess marijuana for sale under sections 13-1002 and 13-3405 of the Arizona Revised Statutescategorically constitutes a conviction for a crime involving moral turpitude); Landero-Guzman v. Holder, 344 F. App'x 454, 456 (9th Cir. 2009) ("Because solicitation of an offense requires the intent that the substantive offense be committed, solicitation of a drug trafficking offense is also a [crime involving moral turpitude]."); cf. Sanchez-Resendez v. Lynch, 608 F. App'x 537 (9th Cir. 2015) (holding that facilitation of the unlawful transportation of marijuana for sale is a crime involving moral turpitude).

However, the respondent argues that under Ninth Circuit law, she is not inadmissible under section 212(a)(2)(A)(i)(I) of the Act because, unlike the deportability ground at section 237(a)(2)(A)(i) that the court addressed in Barragan-Lopez, the inadmissibility ground expressly references attempt and conspiracy offenses. She therefore asserts that under the reasoning in Coronado-Durazo and Leyva-Licea, solicitation offenses are...