26 I. & N. Dec. 743
BIA2016Background
- Respondent Eva Gonzalez Romo, a Mexican national, became a U.S. lawful permanent resident in 1999 and was convicted in Arizona (March 12, 2010) of felony solicitation to possess marijuana for sale (Ariz. Rev. Stat. §§ 13‑1002, 13‑3405(A)(2)).
- She was detained and paroled when she returned to the U.S. as an LPR on May 3, 2014; DHS commenced removal proceedings charging inadmissibility under INA § 212(a)(2)(A)(i)(I) (crime involving moral turpitude) and § 212(a)(2)(C)(i) (controlled‑substance trafficker).
- The Immigration Judge found the solicitation conviction involved moral turpitude and supported a reason to believe she was a drug trafficker, denied relief, and ordered removal.
- On appeal the respondent argued she was not properly charged as an "arriving alien" because solicitation is not covered by INA § 212(a)(2)(A)(i)(I) in the Ninth Circuit and thus she is not an alien "who has committed an offense identified in section 212(a)(2)" for INA § 101(a)(13)(C)(v).
- The Board reviewed Ninth Circuit precedent (notably Barragan‑Lopez) and its own precedent (Matter of Vo, Beltran, Khourn), and concluded solicitation to possess marijuana for sale is a crime involving moral turpitude and thus renders the respondent inadmissible and properly an arriving alien under INA § 101(a)(13)(C)(v).
- The Board dismissed the appeal and affirmed the IJ’s denial of relief; respondent’s fee waiver was granted.
Issues
| Issue | Plaintiff's Argument (Respondent) | Defendant's Argument (DHS/Board) | Held |
|---|---|---|---|
| Whether felony solicitation to possess marijuana for sale is a "crime involving moral turpitude" under INA § 212(a)(2)(A)(i)(I) | Solicitation is not listed in § 212(a)(2)(A)(i)(I) (which references attempt/conspiracy), and Ninth Circuit precedent limiting inadmissibility to listed inchoate crimes should exclude solicitation | Inchoate offenses may be treated like the underlying substantive crime; solicitation to facilitate a drug offense involves the requisite moral turpitude | Solicitation to possess marijuana for sale is a crime involving moral turpitude; conviction renders respondent inadmissible |
| Whether a returning LPR with that conviction is an "arriving alien" under INA § 101(a)(13)(C)(v) | Respondent: not an arriving alien unless she falls into § 101(a)(13)(C) exceptions; solicitation not covered so she isn’t seeking admission | DHS: conviction is an offense identified in § 212(a)(2), so she falls within § 101(a)(13)(C)(v) and is an arriving alien | Because conviction is under § 212(a)(2), respondent is an arriving alien under § 101(a)(13)(C)(v) |
| Whether the Board should follow Ninth Circuit decisions (Coronado‑Durazo, Leyva‑Licea) that distinguished solicitation from listed inchoate offenses | Reliance on those Ninth Circuit cases means solicitation is excluded from § 212(a)(2)(A)(i)(I) coverage | Barragan‑Lopez and subsequent Ninth Circuit decisions treat solicitation/facilitation of drug offenses as moral turpitude; Board’s earlier dicta in Matter of Vo withdrawing contrary implication | Board declines to follow Coronado‑Durazo/Leyva‑Licea distinctions here and aligns with Barragan‑Lopez and related Ninth Circuit rulings |
| Whether the IJ erred in denying relief from removal | General challenge to denial of relief without specifying errors | IJ’s factual and legal findings were not meaningfully challenged | Board affirms IJ’s denial of relief and dismisses appeal |
Key Cases Cited
- Barragan‑Lopez v. Mukasey, 508 F.3d 899 (9th Cir.) (solicitation to possess marijuana for sale is a crime involving moral turpitude)
- Goldeshtein v. INS, 8 F.3d 645 (9th Cir.) (look to underlying offense for inchoate crimes)
- McNaughton v. INS, 612 F.2d 457 (9th Cir.) (treatment of inchoate offenses in moral turpitude analysis)
- Matter of Vo, 25 I&N Dec. 426 (BIA) (inchoate offenses and moral turpitude analysis; Board discussion withdrawn in part here)
- Matter of Khourn, 21 I&N Dec. 1041 (BIA) (participation in illicit drug trafficking is moral turpitude)
- Rohit v. Holder, 670 F.3d 1085 (9th Cir.) (solicitation of prostitution is a crime involving moral turpitude)
- Morrison v. Holder, [citation="580 F. App'x 622"] (9th Cir.) (conviction for solicitation to possess marijuana for sale constitutes moral turpitude)
- Landero‑Guzman v. Holder, [citation="344 F. App'x 454"] (9th Cir.) (solicitation of a drug trafficking offense requires intent and is moral turpitude)
- Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir.) (endorsing Matter of Beltran’s approach to inchoate offenses)
- Peters v. Ashcroft, 383 F.3d 302 (5th Cir.) (approving Beltran’s view that listing of certain inchoate offenses is not exclusive)