Romo v. Barr

• Decision Date: 14 August 2019
• Docket Number: No. 16-71559,16-71559
• Citation: 933 F.3d 1191
• Parties: Eva Isabel Gonzalez ROMO, Eva aka Eva Isabel Romo, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

933 F.3d 1191

Eva Isabel Gonzalez ROMO, Eva aka Eva Isabel Romo, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 16-71559

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 2019 Portland, Oregon

Filed August 14, 2019

FERNANDEZ, Circuit Judge:

Eva Isabel Gonzalez Romo, a native and citizen of Mexico and a lawful permanent resident of the United States, petitions for review of the Board of Immigration Appeals’ ("BIA") determination that she was inadmissible because she had been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I) ;¹ see also id. § 1101(a)(13)(C)(v). The crime in question was solicitation to possess marijuana for sale, which she committed in the State of Arizona. See Ariz. Rev. Stat. §§ 13-1002(A), 13-3405(A)(2). We deny the petition.

Gonzalez had been a lawful permanent resident of the United States since November 18, 1999. On October 11, 2009, while driving with a suspended license, Gonzalez was pulled over in Arizona for failing to make a complete stop at a red light. The police officer noticed two large cardboard boxes in Gonzalez’s vehicle, and a strong odor of air freshener emanated from that vehicle. Upon securing Gonzalez’s consent to search the vehicle, officers discovered 150 pounds of marijuana, which Gonzalez admitted that she had knowingly agreed to transport for $1,000. As a result, on March 12, 2010, she was convicted of felony solicitation to possess marijuana for sale under Arizona Revised Statutes sections 13-1002, 13-3405(A)(2) and sentenced to one-and-a-half years in prison.

After Gonzalez was released from prison, she traveled to Mexico. Upon returning from her trip on May 3, 2014, she was detained and paroled into the United States for removal proceedings. As relevant here, the government charged Gonzalez with inadmissibility due to her conviction of a crime involving moral turpitude.² See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I). Gonzalez disputed that allegation. On September 29, 2015, the immigration judge found Gonzalez inadmissible as charged. In particular, the immigration judge held that solicitation to possess marijuana for sale is a crime involving moral turpitude. She appealed that determination to the BIA.

In a precedential decision, the BIA dismissed Gonzalez’s appeal. The BIA concluded that even though Gonzalez was a lawful permanent resident, because she had been convicted of an offense identified in § 1182(a)(2)(A)(i)(I), she was seeking admission to the United States due to § 1101(a)(13)(C)(v). Matter of Gonzalez Romo , 26 I. & N. Dec. 743, 748 (BIA 2016). That is, the BIA concluded that Gonzalez’s conviction was a crime involving moral turpitude. Id. It rejected Gonzalez’s contention that, by referencing "attempt or conspiracy," § 1182(a)(2)(A)(i)(I) excludes crimes of solicitation even if they otherwise constitute crimes involving moral turpitude. Id. at 747–48. In doing so, the BIA receded from contrary language in a footnote in an earlier case,³ which it now characterizes as dicta. Matter of Gonzalez Romo , 26 I. & N. Dec. at 748. Even in that earlier footnote, however, the BIA had not specifically said that it agreed with the Ninth Circuit’s then-supposed position. This petition for review followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). "We review the BIA’s determination of purely legal questions regarding the Immigration and Nationality Act de novo," with appropriate deference. Kankamalage v. I.N.S. , 335 F.3d 858, 861 (9th Cir. 2003).

Where, as here, the BIA’s decision is published, it may well be entitled to Chevron⁴ deference. See Chen v. Mukasey , 524 F.3d 1028, 1031 (9th Cir. 2008) ; Kankamalage , 335 F.3d at 862. Under Chevron ’s framework, the first step is to ascertain "whether Congress has directly spoken to the precise question at issue." Chevron , 467 U.S. at 842, 104 S. Ct. at 2781. To so determine, the court employs "traditional tools of statutory construction." Id. at 843 n.9, 104 S. Ct. at 2782 n.9. If the statute’s meaning is clear, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842–43, 104 S. Ct. at 2781. Otherwise, we proceed to the second step, that is: "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute." Id. at 843, 104 S. Ct. at 2782. If it is, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the ... agency." Id. at 844, 104 S. Ct. at 2782.

DISCUSSION

The BIA determined that even though Gonzalez was a legal permanent resident, she was removable because she was inadmissible to the United States when she presented herself at the border. See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I) ; see also Matter of Gonzalez Romo , 26 I. & N. Dec. at 748. Gonzalez argues that the BIA erred because she was not subject to those provisions.⁵ We disagree. As relevant here, pursuant to § 1101(a)(13)(C)(v), an alien who is a legal permanent resident is treated as one seeking admission if the alien "has committed an offense identified in section 1182(a)(2)." And pursuant to § 1182(a)(2)(A)(i)(I), as relevant here, an "alien convicted of ... a crime involving moral turpitude ... or an attempt or conspiracy to commit such a crime ... is inadmissible."

There can be no doubt that Gonzalez was convicted in Arizona of the crime of solicitation to possess over four pounds of marijuana for sale. See Ariz. Rev. Stat. §§ 13-1002(A), (B)(2), 13-3405(A)(2), B(6). Nor can there be any doubt that drug trafficking crimes are generally crimes involving moral turpitude. See Barragan-Lopez v. Mukasey , 508 F.3d 899, 903–04 (9th Cir. 2007) (so stating and underscoring just how turpitudinous drug trafficking is); see also Turijan v. Holder , 744 F.3d 617, 621 (9th Cir. 2014) ; Rohit v. Holder , 670 F.3d 1085, 1088–89 (9th Cir. 2012). Moreover, we have specifically held that "solicitation to possess at least four pounds of marijuana for sale ... constitutes a crime involving moral turpitude." Barragan-Lopez , 508 F.3d at 904 ; see also Rohit , 670 F.3d at 1089 ; Atl. Richfield Co. v. Guerami , 820 F.2d 280, 282 (9th Cir. 1987). In fact, Barragan-Lopez , 508 F.3d at 901, dealt with a conviction under Arizona statutory provisions which are the same as those involved here. All of that would lead inexorably to our denial of Gonzalez’s petition were it not for the fact that Barragan-Lopez was construing § 1227(a)(2)(A)(i)(I) which states, in pertinent part, "[a]ny alien who ... is convicted of a crime involving moral turpitude ... is deportable." As Gonzalez points out, the language of § 1227(a)(2)(A)(i)(I), for deportation purposes, does not include the "attempt or conspiracy to commit such a crime" phrase that appears in § 1182(a)(2)(A)(i)(I), for inadmissibility purposes, and that, she argues, makes all the difference in the world. The argument has some purchase,⁶ but like the BIA,⁷ we are not convinced.

As Barragan-Lopez stated,⁸ in neither of the cases that Gonzalez relies upon were we asked to consider the meaning and scope of the phrase "crime involving moral turpitude," and we certainly did not reflect upon whether solicitation to possess a large amount of marijuana for sale would be turpitudinous enough to come within the reach of that phrase.⁹ Rather, in Leyva-Licea ,¹⁰ we asked whether a conviction in Arizona of solicitation to possess at least two pounds, but less than four pounds, of marijuana for sale was an aggravated felony. We determined that it was not because the definition of aggravated felony, as set forth in § 1101(a)(43)(B) (trafficking in controlled substances) in turn referred to 18 U.S.C. § 924(c), which in turn ultimately relied upon 21 U.S.C. § 846, which covered only attempts or conspiracies.¹¹ Nothing therein treated solicitation as the kind of offense that would be an aggravated felony.¹² Moreover, in Coronado-Durazo ,¹³ we asked whether a conviction in Arizona of solicitation to possess cocaine was a controlled substance offense within the meaning of § 1227(a)(2)(B)(i).¹⁴ We held it was not because that section covered only " ‘a violation [by an alien] of (or a conspiracy or attempt to violate) any law or regulation ... relating to a controlled substance.’ "¹⁵ It did not by its terms indicate that the scope of the phrase "violation ... relating to a controlled substance offense" included solicitation, or that solicitation was encompassed by an attempt or conspiracy. As we have since noted, had solicitation been included within the meaning of controlled substance offense, the result would have been the opposite. See Mielewczyk v. Holder , 575 F.3d 992, 997–98 (9th Cir. 2009). Again, in Barragan-Lopez ,¹⁶ we asked whether the scope of "crime involving moral turpitude" did include solicitation of that crime for amounts of marijuana over four pounds and said that it did because solicitation of a crime of that magnitude was as turpitudinous as commission of the crime itself.¹⁷ We did not opine on whether the result would be the same for "a very small quantity"¹⁸ of the substance. We agree with that analysis and see no compelling reason to deviate therefrom. On the contrary, we see strong reasons not to do so.

First, we recognize that reasoning which excludes solicitation as to certain provisions could be said to apply whenever conspiracy or attempt are specifically mentioned in a statute. However, that would be unlikely when it comes to crimes involving moral turpitude. That is a separate concept with a long history¹⁹ which has been used by Congress in the immigration laws for over a century.²⁰ It is doubtful that Congress intended to give the phrase different scope in different provisions,²¹ and our cases do not suggest that it...