JONATAN CORTES-MALDONADO, AKA Jonathan Cortes, AKA Jonatan Cortes Maldonado, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 18-70927
Agency No. A096-910-128
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed October 15, 2020
Before: M. Margaret McKeown and Richard A. Paez, Circuit Judges,
Argued and Submitted March 6, 2020 Portland, Oregon
* The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation.
SUMMARY**
Immigration
The panel granted Jonatan Cortes-Maldonado’s petition for review of a decision of the Board of Immigration Appeals, and remanded, holding that Oregon’s former marijuana delivery statute,
The panel held that
Next, the panel explained that controlled substance convictions qualify as “illicit trafficking,” under
Addressing the relevant precedent and statutory structure, the panel concluded that solicitation to commit a trafficking offense does not fall under the definition of illicit trafficking, and therefore, the conduct proscribed by
COUNSEL
Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.
Alison Marie Igoe (argued), Principal Litigation Counsel; Tim Ramnitz, Attorney; Shelley R. Goad, Assistаnt Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
PAEZ, Circuit Judge:
We address whether the conduct proscribed by Oregon’s former marijuana delivery statute,
I.
Jonatan Cortes-Maldonado is a native and citizen of Mexico. He entered the United States without admission or inspection in 1998. In 2006, he became a lawful permanent resident.
In 2012, Cortes-Maldonado pled guilty to one count of Delivery of Marijuana for Consideration in violation of
Cortes-Maldonado appeared with counsel before an immigration judge (IJ). He conceded removability and admitted the factual allegations in the NTA but stated that he intended to file for post-conviction relief in state court to challenge his conviction. He also stated that he had a generalized fear of returning to Mexico and was considering the possibility of filing for asylum.
In June 2013, Cortes-Maldonado filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In October 2016, at his merits hearing, Cortes-Maldonado withdrew his asylum and withholding of removal claims. The IJ deniеd Cortes-Maldonado’s application for CAT protection and ordered him removed, noting that Cortes-Maldonado conceded removability as an alien convicted of an aggravated drug trafficking crime. The IJ did not analyze whether Cortes-Maldonado’s conviction constituted an aggravated felony.
Cortes-Maldonado appealed the IJ’s decision to the Board of Immigration Appeals (BIA). He argued that our then-recent decision in Sandoval v. Yates (Sandoval I), 847 F.3d 697 (9th Cir. 2017), issued after the IJ’s decision, warrantеd remand because he was no longer removable as an aggravated felon. In Sandoval I, we held that Delivery of Heroin under
While Cortes-Maldonado’s appeal was pending before the BIA, we withdrew and amended our opinion in Sandoval I to delete any analysis regarding the “illicit trafficking” prong of
Cortes-Maldonado timely petitioned for review, raising similar arguments to those he raised before the BIA.2
II.
We review de novo the BIA’s legal conclusions, including its determination of the elements of a statute of conviction. Vasquez-Valle v. Sessions, 899 F.3d 834, 838 (9th Cir. 2018). We do “not defer to an agency’s interpretations of state law.” Sandoval II, 866 F.3d at 988.
III.
Before addressing whether Cortes-Maldonado’s conviction for marijuana delivery constitutes “illicit trafficking” under the INA, we briefly explain the categorical approach and the legal framework that guides our analysis.
A.
Under the INA, any noncitizen who is convicted of an aggravated felony suffers several consequences, such as becoming deportable,3 inadmissible,4 and ineligible for cancellation of removal.5 Congress defined the term “aggravated felony” to include, among other offenses, “illicit trafficking in a controlled substance.”
Under thе categorical approach, we ignore the actual facts of the particular prior conviction and instead compare the elements of the state statute of conviction to the federal “generic” crime “to determine whether the conduct proscribed by the state statute is broader than the generic federal definition.” Alvarez-Cerriteno v. Sessions, 899 F.3d 774, 778–79 (9th Cir. 2018) (quotation marks and brackets omitted). If the state statute criminalizes more conduct than the federal statute does, “then the conviсtion does not qualify as a predicate offense under the categorical approach.” Id. at 779 (quotation marks omitted).
“Thus, the BIA must construe both the state and federal statutes.” Id. In doing so, the BIA “must determine first the elements of the offense the petitioner
We thus “proceed in three steps.” Id. First, we determine the elements of “illicit trafficking of a controlled substance.” See id. Second, we analyze the state criminal statute—
The second step—that is, the elements of Oregon’s marijuana delivery statute—are not in dispute. At the time of Cortes-Maldonado’s conviction, it was “unlawful for any person to deliver marijuana.”
Cortes-Maldonado’s statute of conviction thus contained three basic elements: (1) marijuana, (2) delivery, (3) for consideration, see
We thus turn to whether the federal generic crime of “illicit trafficking of a controlled substance” includes the inchoate crime of solicitation to commit marijuana delivery for consideration.
B.
The INA does not define the phrase “illicit trafficking.” The BIA, however, has understood that the term “essential[ly]” involves a “business or merchant nature” or “the trading or dealing of goods.” Matter of Davis, 20 I. & N. Dec. 536, 540–41 (B.I.A. 1992). Later BIA decisions have likewise held that “illicit trafficking” means “a commercial transaction, or passing of goods from one person to another for money or other consideration.” Matter of L-G-H, 26 I. & N. Dec. 365, 371 n.9 (B.I.A. 2014).
The BIA’s interpretation matches closely with how federal courts have interpreted the term. Applying the “еveryday understanding” of the term, the Supreme Court has defined “illicit trafficking” to include “some sort of commercial dealing.” Lopez v. Gonzales, 549 U.S. 47, 53 (2006); see also Carachuri-Rosendo v. Holder, 560 U.S. 563, 574 (2010). We have stated, though somewhat obliquely, that an offense constitutes illicit trafficking “if it contains a trafficking element“—without further defining the term. Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir. 2006) (citing Cazarez-Guttierez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004)).8 Here, the BIA relied upon these established interpretations and did not elaborate beyond them.
Here, the BIA relied on Rendon to conclude that a solicitation offense for delivery of marijuana has a “commercial element” if the solicitation is “with . . . consideration.” The BIA’s reasoning is terse and relies exclusively on Rendon. The BIA did not, however, engage with our decision in Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), which provides further guidance on whether solicitation to commit an illicit trafficking offense is an aggravated felony. Nor did the BIA examine the overall statutory scheme of the INA to determine whether solicitation is covered.
In Coronado-Durazo, we considered whether an individual’s conviction for solicitation to possess cocaine under Arizona’s solicitation statute could form the basis for deportation under the “controlled substances ground” of the INA (as distinct from the aggravated felony ground). 123 F.3d at 1325–26. In deciding that it could not, we noted that
Solicitation is also not on the list here: the definition of aggravated felony includes “an attempt or conspiracy to commit an offense,” but does not include solicitation. See
produce. See Coronado-Durazo, 123 F.3d at 1326 (“[W]e do not find it absurd, or inconsistent, that despite congressional zeal to eliminate illicit drug trafficking, Congress limited deportation for generic
Additionally, even though we decided Coronado-Durazo over twenty years ago, Congress has not amended either the controlled substance ground or the aggravated felony ground to include solicitation. See United States v. Hunter, 101 F.3d 82, 85 (9th Cir. 1996) (“[A]s a matter of
statutory construction, we ‘presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.’“) (quoting Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988)). Thus, it is unlikely that “illicit trafficking” would include an inchoate crime that was specifically left out of the definition of aggravated felony.
The overall structure of the INA also strongly suggests that solicitation to commit a trafficking offense does not fall under the definition of “illicit trafficking.” Congress expressly listed solicitation (and conduct that would traditionally qualify as solicitation) as part of numerous other grounds of inadmissibility and deportability yet did not include solicitation within “illicit trafficking.” For example, solicitation, or conduct like it, serves as a ground of inadmissibility or deportation for terrorist conduct,12 genocide,13 alien smuggling,14 firearms trafficking,15 and
sustaining multiple convictions.16 Yet Congress did not
Finally, we have uncovered no federal crime of “illicit trafficking” that defines trafficking to include solicitation. See Gattem v. Gonzales, 412 F.3d 758, 762–65 (7th Cir. 2005) (deferring to BIA’s interpretation of “sexual abuse of a minor,” an aggravated felony, to include solicitation, in part, because the BIA relied on a federal criminal provision that defined sexual abuse to include “inducement” of a child to engage in a sexual act).
Given our precedent and the overall structure of the relevant INA provisions, we conclude that the conduct proscribed by Oregon’s marijuana delivery statute does not constitute “illicit trafficking” of a controlled substance.
Our decision in Rendon does not persuade us to hold otherwise. First, and most obviously, we did not address there whether solicitation was included within the definition of “illicit trafficking.” We instead addressed the narrow question of whether a Kansas conviction for possession of marijuana with intent to sell—a non-inchoate crime, and a distinct crime from possession alone—“contains a trafficking element.” 520 F.3d at 975. Relying on the
Supreme Court’s definition of “illicit trafficking” to include “some sort of commercial dealing,” we held that it did. Id. at 975–76 (citing Lopez, 549 U.S. at 53). We reasoned: “‘Possession of marijuana with intent to sell’ necessarily means that [the petitioner] possessed marijuana with the intent to engage in ‘some sort of commercial dealing.’” Id. But, as explained earlier, Rendon simply held that a combined possession of and intent to sell marijuana involved commercial dealing. See id.
Solicitation to deliver a controlled substance in Oregon, on the other hand, is not the same as the crime of possession with intent to deliver a controlled substance. For one, the former Oregon marijuana delivery statute did not require actual possession or distribution, but rather that the defendant only make some statement that might have led another person to aid in the endeavor. Sargent, 822 P.2d at 728; see also Self, 706 P.2d at 981;
We conclude that “illicit trafficking” does not include solicitation offenses and thus Oregon’s former crime of marijuana delivery for consideration,
Petition GRANTED and REMANDED.