Matter of Beltran
| Citation | 20 I&N Dec. 521 |
| Decision Date | 28 May 1992 |
| Docket Number | Interim Decision Number 3179,A-28719740 |
| Parties | MATTER OF BELTRAN In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated November 27, 1989, the immigration judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988),1 as an alien convicted of a crime relating to a controlled substance, and ordered him deported from the United States.2 The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a 25-year-old native and citizen of Mexico who last entered the United States without inspection on April 15, 1985. The record reflects that he was convicted on May 12, 1989, in the Superior Court of Arizona, Maricopa County, of solicitation to possess narcotic drugs.3
At his deportation hearing, the respondent denied that he was deportable under section 241(a)(11) of the Act and submitted a motion to dismiss to the immigration judge. In the motion to dismiss, the respondent argued that under Arizona law, the crime of solicitation is a separate and distinct offense from the narcotics laws and therefore is not a violation of a law relating to a controlled substance. He relied primarily on the decision in Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977), in which it was held that a conviction for misprision of a felony, in that case conspiracy to possess heroin, was not a conviction for a violation of a law relating to the illicit possession of narcotic drugs. In its opinion, the court noted that the crime of misprision of a felony has historically been a criminal offense separate and distinct from the particular felony concealed. The court further stated that the language of the statute defining misprision of a felony did not indicate that it was contemplated to be a narcotic law, and that the statute was not included by reference in any part of the federal code pertaining to drugs. The respondent asserted that the Arizona solicitation statute was similar in that it contains no reference to narcotics laws and does not otherwise indicate that it was contemplated as a controlled substance law.
The respondent also sought to distinguish the Arizona solicitation statute from the crime of aiding and abetting. He noted that in Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983), aiding and abetting the distribution of cocaine was found to be a crime relating to narcotic drugs, in part because a person convicted under the aiding and abetting statute is subject to the same penalties as one convicted under the statute defining the substantive offense. The respondent contended that the penalties prescribed by the Arizona solicitation statute, on the other hand, are separate and distinct from those imposed for the underlying offense of possession of a narcotic drug. Another difference claimed by the respondent was that, unlike aiding and abetting, which according to United States v. Gonzalez, 582 F.2d 1162, 1166 (7th Cir. 1978), creates no crime apart from the substantive offense charged, solicitation is separate from the underlying crime.
Finally, citing Matter of Bronsztejn, 15 I&N Dec. 281 (BIA 1974), aff'd, 526 F.2d 1290 (2d Cir. 1975), the respondent argued that solicitation is also unlike the crime of attempt because it does not take its character or quality from the underlying offense. He stated that solicitation is a substantive crime in itself, not an abortive effort to commit the crime solicited, and that its elements are distinct from the crime of attempt.
The immigration judge rejected the arguments presented by the respondent. She acknowledged that the solicitation statute does not refer to narcotic drugs, but noted that, in addition to being charged with solicitation, the respondent was charged with violating section 13-3408 of the Arizona Revised Statutes, which prohibits the possession of narcotic drugs. Therefore, she found that he had been convicted of a crime relating to a controlled substance. On appeal the respondent has reiterated the arguments presented to the immigration judge.
In order to determine whether the crime of solicitation to possess narcotic drugs under Arizona law is a crime relating to a controlled substance under the immigration laws, we must first examine the nature and history of the offense. According to the statute, a person is guilty of solicitation if he "commands, encourages, requests or solicits" another person to engage in criminal activity with the intent to promote or facilitate the commission of the crime. Ariz. Rev. Stat. Ann. § 13-1002.4 Under Arizona law, the crime of solicitation is classified as a preparatory offense, along with attempt, conspiracy, and facilitation. Such crimes are also commonly known as inchoate crimes, which is the term used by the Model Penal Code (1985).
According to the introduction to Article 5 of the Model Penal Code which deals with inchoate crimes, these offenses always presuppose a purpose to commit another substantive offense, which "has failed ... or has not yet achieved its culmination because there is something that the actor or another still must do." Model Penal Code art. 5 introduction at 293 (1985). It has been stated that the crime of solicitation can be thought of as an "attempt to conspire." Id. § 5.02 commentary at 366.5 There is no requirement that a solicitation result in any action by the person solicited. Id. at 370.6 However, given the fact that the solicitation "may give rise to the special hazard of cooperation among criminals,"7 it is thought that "the fortuity that the person solicited does not agree to commit or attempt to commit the incited crime plainly should not relieve the solicitor of liability,"8 when "otherwise he would be a conspirator or an accomplice." Id. at 365-66.9 The essential difference, therefore, between the crime of solicitation and the act of being an accomplice is that no crime need be committed for the offense of solicitation to be complete. See generally Cherry v. State, 306 A.2d 634 (Md. 1973).
We note in this regard that an accomplice is defined in pertinent part under Arizona law as a person who, with the intent to promote or facilitate the commission of an offense, "[s]olicits or commands another person to commit the offense." Ariz. Rev. Stat. Ann. § 13-301 (1991) (emphasis added); see also Model Penal Code § 2.06 (1985).10 Under modern federal law, one who commands, encourages, or requests a crime is considered to be an accomplice, who is guilty of the substantive offense as if he committed it directly. See 18 U.S.C. § 2(a) (1988); Scales v. United States, 367 U.S. 203, 226 n. 17 (1961) (quoting American Law Institute, Model Penal Code § 2.04 (3), tentative draft No. 1 (1953)); Nye & Nissen v. United States, 336 U.S. 613 (1949); Clinton Cotton Mills v. United States, 164 F.2d 173 (4th Cir. 1947). As under federal law, a person is criminally accountable for the conduct of another in Arizona if he is an accomplice of such other person in the commission of an offense. Ariz. Rev. Stat. § 13-303(A)(3) (1991).11
Section 241(a)(11) of the Act provides for the deportability of aliens who have been "convicted of a violation of, or a conspiracy to violate any law relating to a controlled substance." The phrase "relating to" in this context has long been construed to have broad coverage. See Matter of Bronsztejn, supra, at 283; Matter of N----, 6 I&N Dec. 557, 561 (BIA, A.G. 1955); see also Matter of Del Risco, 20 I&N Dec. 109 (BIA 1989); Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). This interpretation, that Congress intended to give inclusive meaning in the immigration laws to the phrase "relating to," has led to the conclusion that Congress meant for section 241(a)(11) of the Act to encompass the other inchoate or preparatory crimes of attempt, conspiracy, and facilitation when the underlying substantive crime involves a drug offense. See Matter of Del Risco, supra (facilitation); Matter of Bronsztejn, supra (attempt); Matter of N----, supra (conspiracy); Matter of G----, 6 I&N Dec. 353 (BIA 1954) (attempt). In fact, the crime of conspiracy was long ago included in the statutory provision for deportability of aliens convicted of drug offenses. See Act of Feb. 18, 1931, Pub. L. No. 71-683, 46 Stat. 1171; Narcotic Control Act of 1956, Pub. L. No. 84-728, § 301(b), 1956 U.S.C.C.A.N. (70 Stat.) 651, 661-62. Furthermore, Congress has also recently added the crime of attempt to the statute.12 See section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. II 1990) ().
As noted above, solicitation is closely related to attempt and conspiracy, being considered by some to be an attempt to conspire to commit a substantive offense, and, in some jurisdictions, even constituting an attempt, either alone or in conjunction with other overt acts. See Model Penal Code § 5.02 commentary at 365-66, 368-69; see also People v. Coleman, 86 N.W.2d 281 (Mich. 1957) (...
To continue reading
Request your trial
-
Shaw v. Sessions, 17-1213
...recognizes that inchoate crimes are unique because they "presuppose[ ] a purpose to commit another crime." See Matter of Beltran , 20 I. & N. Dec. 521, 526–27 (B.I.A. 1992). That distinction, in turn, makes the underlying criminal purpose—the statute the alien conspired to violate, for exam......