Valle v. Lynch

• Decision Date: 01 April 2016
• Docket Number: No. 13-73012,13-73012
• Parties: ARNOLDO MORALES-DEL VALLE, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

ARNOLDO MORALES-DEL VALLE, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent.

No. 13-73012

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: March 15, 2016
April 1, 2016

NOT FOR PUBLICATION

Agency No. A205-403-590

MEMORANDUM^*

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 15, 2016 San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

Arnoldo Morales-Del Valle, a citizen of Mexico, petitions for review of the Board of Immigration Appeals' (BIA) denial of his application for adjustment of status. We deny the petition.

Morales was convicted of solicitation to possess marijuana for sale in

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Arizona. See Ariz. Rev. Stat. §§ 13-1002, 13-3405(A)(2). Proceedings were then commenced to remove him as a person in this country illegally,¹ and he sought adjustment of status as the spouse of a citizen.² That was denied because Morales failed to show by a preponderance of the evidence³ that he was not inadmissible due to a conviction that gave the Attorney General "reason to believe"⁴ that he "is or has been . . . a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking [of marijuana] . . . , or endeavored to do so."⁵ He asserts that his conviction of the Arizona solicitation offense could not bring him within the inadmissability provisions. We disagree.

In making its decision, the BIA was entitled to rely upon the entire record of Morales' conviction, rather than on particular documents therein. Because the BIA's decision did, in effect, refer to the record as a whole, we, too, are entitled to rely upon the entire record. See Ramirez-Villalpando v. Holder, 645 F.3d 1035, 1039—40 (9th Cir. 2010); see also Lopez-Molina, 368 F.3d at 1211. Moreover, the

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underlying offense—possession of marijuana for sale⁶—was an illicit trafficking crime. See Lopez v. Gonzales, 549 U.S. 47, 53-54, 127 S. Ct. 625, 629-30, 166 L. Ed. 2d 462 (2006); Rendon v. Mukasey, 520 F.3d 967, 975-76 (9th Cir. 2008). To be guilty of solicitation of the commission of that crime, Morales had to (a) intend to promote or facilitate⁷ the crime of possession of over four pounds of marijuana for sale,⁸ and (b) command, encourage, request or solicit "another person to engage in specific conduct which would constitute"⁹ that crime.¹⁰ Of course, his guilty plea was probative of the fact that he did engage in that activity. See Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). That activity was sufficient to give a reasonable person—here the Attorney General—reason to believe that, within the expansive reach of the § 1182(a)(2)(C),¹¹ Morales was sufficiently involved in

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illicit drug trafficking to be inadmissible.¹²

That is, even if the activity was not sufficient to constitute a deportable offense,¹³ it was quite sufficient to render him inadmissible because a reasonable observer would have reason to believe that someone who behaved in that manner¹⁴ was involved in illicit drug trafficking—a much lower standard. Again, while his actions might not have resulted in a deportable offense, they were enough to cause one to believe that he was involved in illicit drug trafficking activity.¹⁵

Petition DENIED.

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FRIEDLAND, Circuit Judge, concurring in the judgment:

I concur in the judgment because I believe that Hamid v. INS, 538 F.2d 1389 (9th Cir. 1976) (per curiam), requires us to affirm the BIA's decision here. I write separately to express doubt about whether Hamid was correctly decided. In Hamid, we reasoned that even if the petitioner's conduct did not itself qualify as trafficking, it "provided a sound basis to believe that petitioner was a 'trafficker'" Id. at 1391. Ordinarily, however, evidence of the commission of one crime is not admissible to prove a separate later commission of the same offense, let alone a different offense. See Fed. R. Evid. 404(b). Nor does evidence of the commission of a prior offense negate the axiomatic presumption of innocence in favor of the accused. See Taylor v. Kentucky, 436 U.S. 478, 483 (1978). Although "reason to believe" is a generous standard, it must be supported by "reasonable, substantial, and probative evidence." Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). I question the fairness of holding that evidence that a petitioner committed a non-trafficking offense qualifies as substantial evidence that a petitioner committed a trafficking offense.

Even though solicitation is not among the inchoate and accessorial...