978 F.3d 643
9th Cir.2020Background
- Petitioner Jonatan Cortes-Maldonado, a Mexican native and lawful permanent resident, pled guilty in 2012 to Delivery of Marijuana for Consideration under Oregon Rev. Stat. § 475.860(2)(a).
- He received probation, later violated it, and ICE served a Notice to Appear charging his conviction as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) ("illicit trafficking in a controlled substance").
- The immigration judge ordered removal; the BIA affirmed, concluding the Oregon statute categorically constituted "illicit trafficking."
- Oregon’s statutory definition of "delivery" included "attempted transfer," and Oregon courts have construed "attempted transfer" to encompass solicitation. § 475.005(8); State v. Sargent.
- Cortes-Maldonado challenged the BIA’s decision to the Ninth Circuit, arguing the Oregon statute is categorically broader than the federal generic offense because it criminalizes solicitation, an inchoate offense not covered by the INA’s aggravated-felony definition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS § 475.860(2)(a) categorically constitutes an "illicit trafficking" aggravated felony under 8 U.S.C. § 1101(a)(43)(B). | Cortes-Maldonado: statute criminalizes solicitation (inchoate conduct) and thus is broader than the federal generic offense and not an aggravated felony. | Government: the "for consideration" element supplies the required commercial/trafficking element; BIA and Rendon support treating solicitation-for-consideration as illicit trafficking. | Court: Reversed BIA. The Oregon statute is categorically broader because it covers solicitation, which is not within the federal "illicit trafficking" definition. |
| Whether the federal generic term "illicit trafficking" includes solicitation to commit a drug delivery offense. | Solicitation is not listed among inchoate offenses in the aggravated-felony definition; Coronado-Durazo suggests solicitation is excluded. | Government/BIA relied on Rendon and BIA precedent to read a commercial element into solicitation-for-consideration. | Court: "Illicit trafficking" requires a trafficking/commercial element and does not encompass solicitation; solicitation is an inchoate crime Congress did not include in aggravated-felony definitions. |
| Whether Rendon controls to classify solicitation-for-consideration as illicit trafficking. | Cortes-Maldonado: Rendon concerned possession with intent to sell (non-inchoate) and does not support including solicitation. | Government: Rendon supports a broad commercial reading of "illicit trafficking." | Court: Rendon is distinguishable; it addressed possession-plus-intent, not solicitation, so it does not compel treating solicitation as trafficking. |
| Whether Oregon’s "delivery" element is divisible for categorical analysis and whether the modified categorical approach applies. | Cortes-Maldonado: (did not dispute) subdivision is divisible; conviction was for delivery "for consideration." | Government: (accepted divisibility and applied modified categorical approach). | Court: Agreed the statute is divisible and the modified categorical approach applies, but even applying it, the statutory "delivery" element includes solicitation, which falls outside the federal generic definition. |
Key Cases Cited
- Sandoval v. Yates, 847 F.3d 697 (9th Cir. 2017) (addressed Oregon delivery statute and solicitation in the context of drug-trafficking analysis)
- Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017) (withdrew earlier discussion of "illicit trafficking"; construed Oregon "delivery" to include solicitation)
- Descamps v. United States, 570 U.S. 254 (2013) (explaining the categorical approach and limits on using offense facts)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility principle: differing punishments indicate elements)
- Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008) (held possession with intent to sell contains a trafficking element)
- Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (solicitation is not included among listed inchoate controlled-substance offenses)
- Lopez v. Gonzales, 549 U.S. 47 (2006) ("illicit trafficking" understood to include commercial dealing)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (interpreting "trafficking" in immigration context)
- Alvarez-Cerriteno v. Sessions, 899 F.3d 774 (9th Cir. 2018) (describing stepwise categorical-analysis framework)
Result: Petition granted; BIA decision reversed and case remanded because Oregon’s former marijuana-delivery-for-consideration statute criminalized solicitation, which the court held is not encompassed by the INA’s generic "illicit trafficking" aggravated-felony definition.