933 F.3d 1191
9th Cir.2019Background
- Petitioner Eva Gonzalez Romo, a Mexican national and U.S. lawful permanent resident, was convicted in Arizona (2009) of solicitation to possess >4 pounds of marijuana for sale; she admitted transporting 150 lbs and was sentenced to 1.5 years.
- After serving her sentence she traveled to Mexico and on return (2014) was detained and placed in removal proceedings; government charged inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime involving moral turpitude or attempt/conspiracy).
- The IJ found Gonzalez inadmissible because solicitation to possess marijuana for sale is a crime involving moral turpitude; the BIA (published) affirmed, rejecting Gonzalez’s argument that § 1182(a)(2)(A)(i)(I)’s reference to “attempt or conspiracy” excludes solicitation.
- Ninth Circuit precedent had held solicitation to possess ≥4 pounds of marijuana for sale is a crime involving moral turpitude for purposes of deportability statutes, but there is tension with earlier Ninth Circuit statutory-construction decisions (Coronado-Durazo, Leyva-Licea) addressing whether statutes that list attempt/conspiracy exclude solicitation.
- The Ninth Circuit majority applied Chevron step-one (and also step-two fallback), concluded Congress intended solicitation to be treated as a crime involving moral turpitude under § 1182(a)(2)(A)(i)(I), and denied the petition for review.
- Two separate opinions: Owens concurred (criticizing moral-turpitude doctrine); Graber dissented, arguing statutory text/canons and prior Ninth Circuit precedent require excluding solicitation from § 1182(a)(2)(A)(i)(I) and that the BIA’s reversal was inadequately justified.
Issues
| Issue | Plaintiff's Argument (Gonzalez) | Defendant's Argument (Government/BIA) | Held |
|---|---|---|---|
| Whether solicitation to possess marijuana for sale is a "crime involving moral turpitude" under § 1182(a)(2)(A)(i)(I) | Solicitation is an inchoate offense and § 1182’s explicit inclusion of "attempt or conspiracy" excludes solicitation from inadmissibility scope | Drug-trafficking solicitation (≥4 lbs) is turpitudinous; precedent and statutory scheme support including solicitation | Held: solicitation of ≥4 lbs marijuana for sale is a crime involving moral turpitude and renders petitioner inadmissible |
| Whether the phrase "or an attempt or conspiracy" in § 1182(a)(2)(A)(i)(I) unambiguously excludes other inchoate crimes like solicitation | Textual omission of "solicitation" means Congress excluded it (expressio unius) | Omission does not show intent to exclude; historical treatment and coherence of INA favor treating solicitation as covered when turpitudinous | Held: statute read to include solicitation where underlying offense is a crime involving moral turpitude; Chevron deference supports BIA if ambiguity remains |
| Whether BIA’s reversal of its prior position (Matter of Vo) merits reduced deference | BIA changed position without reasoned explanation; should get less deference | BIA’s interpretation is plausible and within its authority; change is explainable as interpreting precedent | Held: BIA’s interpretation is permissible; deference appropriate (majority) |
| Whether Ninth Circuit precedent interpreting deportation provisions controls interpretation of the inadmissibility provision | Precedents distinguishing statutes that list attempt/conspiracy require excluding solicitation for statutes that list only those inchoates | Prior Ninth Circuit rulings (e.g., Barragan-Lopez) support treating solicitation as morally turpitudinous for analogous provisions; statutory context differs but does not compel exclusion | Held: Barragan-Lopez and related cases support finding solicitation turpitudinous here; Coronado-Durazo/Leyva-Licea distinctions not dispositive for § 1182 |
Key Cases Cited
- Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) (held solicitation to possess ≥4 pounds of marijuana for sale is a crime involving moral turpitude under deportation statute)
- Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (statutory-construction holding that a statute listing only conspiracy and attempt does not generically include solicitation)
- Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999) (applies Coronado-Durazo canon: omission of certain generic offenses limits coverage)
- Chevron U.S.A. Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Jordan v. De George, 341 U.S. 223 (1951) (discusses historical concept of moral turpitude)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (administrative agencies must provide reasoned explanation for changes in position)