Walcott v. Garland

• Decision Date: 22 December 2021
• Docket Number: No. 18-70393,18-70393
• Citation: 21 F.4th 590
• Parties: Pattie Page WALCOTT, aka Pattie Clark, aka Pattie Watson, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 590

Pattie Page WALCOTT, aka Pattie Clark, aka Pattie Watson, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-70393

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 2020

Submission Vacated January 6, 2021

Argued and Submitted February 18, 2021 San Francisco, California

Filed December 22, 2021

Altin Nanaj (argued), Nanaj Law Firm PLLC, New York, New York, for Petitioner.

Daniel E. Goldman (argued), Senior Litigation Counsel; Lindsay Corliss, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: A. Wallace Tashima, Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.

Opinion by Judge Tashima ;

Concurrence by Judge Berzon ;

Dissent by Judge Collins

TASHIMA, Circuit Judge:

Pattie Page Walcott, a citizen of Jamaica, became a lawful permanent resident of the United States in March 1999. In 2011, the government charged her with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude ("CIMT"), based on two Arizona convictions for marijuana-related offenses. Walcott's first conviction was in October 2010, when she entered a guilty plea to one count of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. §§ 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, she suffered her second conviction, for offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds).

The Immigration Judge ("IJ") sustained the charges, found Walcott removable, and denied her application for cancellation of removal under 8 U.S.C. § 1229b(a). The Board of Immigration Appeals ("BIA" or "Board") agreed with the IJ that Walcott's convictions were CIMTs and that she was not entitled to cancellation of removal; it thus dismissed her appeal. We conclude that Walcott's convictions are not CIMTs and that Walcott accordingly was not removable under 8 U.S.C. § 1227(a)(2)(A)(ii).

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). See Barrera-Lima v. Sessions , 901 F.3d 1108, 1114 (9th Cir. 2018) (whether a crime involves moral turpitude is a legal question this court has jurisdiction to review). "We review de novo whether a particular conviction under state law is a removable offense." Arellano Hernandez v. Lynch , 831 F.3d 1127, 1130 (9th Cir. 2016).

DISCUSSION

I

"We determine whether a conviction qualifies as a CIMT by applying the categorical approach and, if necessary, the modified categorical approach." Vasquez-Valle v. Sessions , 899 F.3d 834, 839 (9th Cir. 2018). "Under the categorical approach, a conviction is a crime of moral turpitude if ‘the full range of conduct encompassed by the statute,’ including the least egregious conduct prosecuted under the statute, is a crime of moral turpitude." Barragan-Lopez v. Mukasey , 508 F.3d 899, 903 (9th Cir. 2007) (quoting Quintero-Salazar v. Keisler , 506 F.3d 688, 692 (9th Cir. 2007) ).

"The BIA has defined the term ‘moral turpitude’ as referring to conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ " Silva v. Garland , 993 F.3d 705, 712 (9th Cir. 2021) (quoting Matter of Silva-Trevino , 26 I. & N. Dec. 826, 833 (BIA 2016) ). If the full range of conduct proscribed by the statute does not constitute a CIMT, "we apply the modified categorical approach, which permits us to look beyond the language of the statute to documents that are part of the record of conviction, but not to the particular facts underlying the conviction." Vasquez-Valle , 899 F.3d at 839.

II

We focus our discussion on Walcott's second conviction, noting that the modified categorical analysis is substantially similar for her first conviction, and conclude that neither of her convictions is a CIMT. Her second conviction was for offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) and (B)(10). The BIA concluded that the conviction was a CIMT, relying on the general principle that drug trafficking offenses are CIMTs and citing its decision in Matter of Khourn , 21 I. & N. Dec. 1041 (BIA 1997). Although we generally apply Chevron¹ deference where the BIA relies on its own precedential decision, "[w]e have hesitated to defer to the BIA's general understanding of the term ‘moral turpitude’ because the BIA's ‘general definition of moral turpitude fails to particularize the term in any meaningful way.’ " Betansos v. Barr , 928 F.3d 1133, 1139 (9th Cir. 2019) (quoting Marmolejo-Campos v. Holder , 558 F.3d 903, 910 (9th Cir. 2009) (en banc)). Khourn involved a conviction for distribution of cocaine under 21 U.S.C. § 841 and does not establish that Walcott's state conviction for offering to transport less than two pounds of marijuana is a CIMT. We therefore decline to apply Chevron deference to the BIA's reliance on Khourn in this case.

The Board also relied on our decision in Barragan-Lopez , where we held that the petitioner's conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of subsections 13-3405(A)(2) and (B)(6), constituted a CIMT for purposes of removability under 8 U.S.C. § 1227(a)(2)(A)(i) ).² Barragan-Lopez , 508 F.3d at 904. As pertinent here, the Barragan-Lopez court reasoned that "[d]rug trafficking offenses, including possession of unlawful substances for sale, generally involve moral turpitude. The quantity inherent in Barragan[-]Lopez's conviction – four pounds of marijuana – was too great to justify treating this crime differently." Id. at 903–04. We thus concluded that the petitioner's conviction was a CIMT. Id. at 904 ; see also Romo v. Barr , 933 F.3d 1191, 1196–99 (9th Cir. 2019) (relying on Barragan-Lopez to hold that an Arizona conviction for solicitation to possess for sale at least four pounds of marijuana was a CIMT for purposes of inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) ). We stated, however, that we did not "address the question that would be presented if Barragan-Lopez had been convicted of solicitation to possess a very small quantity of marijuana for sale, such as, for example, a single marijuana cigarette at a party with personal friends." Barragan-Lopez , 508 F.3d at 904.

Barragan-Lopez does not control as to Walcott's second conviction because it involved a different subsection of the statute, and "[w]e look at the specific subsections of a statute that the petitioner is convicted under to determine if it is a crime of moral turpitude." Id. at 903. Barragan-Lopez's conviction (and Walcott's first conviction) was under subsection 13-3405(A)(2), which prohibits only possession of marijuana for sale. Walcott's second conviction was under subsection 13-3405(A)(4), which provides that a person shall not knowingly "[t]ransport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana."

In contrast to subsection (A)(2), which prohibits only one offense, subsection (A)(4) includes two offenses that do not necessarily involve trafficking of marijuana – importation and transfer. Importation could be accomplished by driving into the State of Arizona with a small amount of marijuana in the car that is for personal use, not for sale. See State v. Farid , 249 Ariz. 457, 471 P.3d 668, 669 (Ariz. Ct. App. 2020) (holding that a conviction under subsection 13-3405(A)(4) for importation "does not require proof a defendant who knowingly imported marijuana did so ‘for sale’ "); State v. Chabolla-Hinojosa , 192 Ariz. 360, 965 P.2d 94, 98 (Ariz. Ct. App. 1998) (discussing subsection 13-3405(A)(4) and noting that "an importation charge has no ‘for sale’ element"). Similarly, transfer could be accomplished by someone sharing marijuana with a friend without being paid. See State v. Cota , 191 Ariz. 380, 956 P.2d 507, 507, 508–09 (1998) (en banc) (observing that "transfer" in subsection 13-3405(A)(4) is defined "to mean ‘furnish, deliver or give away ’ ") (emphasis added). Subsection 13-3405(A)(4) accordingly is overbroad because it "criminalizes conduct that goes beyond the elements" of the CIMT of drug trafficking. Almanza-Arenas v. Lynch , 815 F.3d 469, 476 (9th Cir. 2016) (en banc) (quoting Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015) ).

In addition, to determine overbreath, we consider the "least egregious conduct" covered by the statute. Barragan-Lopez , 508 F.3d at 903. Here that offense is transportation or transfer, without sale, of a very small amount of marijuana. "To show that the stated offense is broader than the generic definition of a CIMT and thus not a categorical match, the petitioner must demonstrate that there is ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of moral turpitude.’ " Vasquez-Valle , 899 F.3d at 839 (quoting Turijan v. Holder , 744 F.3d 617, 620 (9th Cir. 2014) )). In Cota , the defendant was charged under subsection 13-3405(A)(4) after he was seen purchasing "a small amount of marijuana, the equivalent of two to three cigarettes," 956 P.2d at 508. Arizona therefore has applied the subsections of the statute involving "less than two pounds" of marijuana, under which Walcott was charged, to conduct involving very small amounts.³ For the reasons discussed in Part IV, infra , such conduct is not "inherently base, vile, or depraved, and contrary to the accepted rule of morality and the duties owed between persons or to society in general." Silva , 993 F.3d at 712.

III

Because subsection 13-3405(A)(4) is overbroad, we must move to...