Matter of Gonzalez Romo: BIA Finds that Conviction for Solicitation to Commit a CIMT is a CIMT

 

Introduction: Matter of Gonzalez Romo

Matter of Gonzalez RomoOn May 19, 2016, the Board of Immigration Appeals (BIA) rendered a precedent decision in the Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016) [PDF version] addressing whether a conviction for solicitation to possess marijuana for sale is a crime involving moral turpitude (CIMT) as defined in section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). In the instant case, the alien had been a lawful permanent resident (LPR) and the question of whether the offense was a CIMT determined whether she would be treated as an “arriving alien” rather than an LPR. Ultimately, the Board held that within the Ninth Circuit (from under the jurisdiction of which this case arose), a felony conviction for solicitation to possess marijuana for sale is a CIMT. In so doing, the Board modified its precedent decision in the Matter of Vo, 25 I&N Dec. 426 (BIA 2011) [PDF version]. In this article, we will examine the facts and procedural history of the case, the Board's reasoning in reaching its decision, and the effect of its decision going forward.

Facts of the Case and Procedural History

The respondent is a native and citizen of Mexico who became an LPR in 1999. In March of 2012, “[s]he was convicted … of solicitation to possess marijuana for sale, which is a class 4 felony under sections 13-1002 and 13-3405(A)(2) of the Arizona Revised Statutes. In 2014, the respondent attempted to reenter the United States as an LPR, but was instead paroled into the United States.

The Department of Homeland Security (DHS) initiated removal proceedings against the respondent, charging her as an arriving alien who was inadmissible under section 212(a)(2)(A)(i)(I) of the INA for a CIMT [see section]. Additionally, DHS charged her as inadmissible under section 212(a)(2)(C)(i) [see article] as an alien who the Attorney General knows or has reason to believe is an illicit trafficker in a controlled substance. As we will discuss, this is significant because she was charged as inadmissible as an arriving alien rather than as deportable as an LPR. An Immigration Judge found that the respondent's conviction in Arizona was a CIMT and that the conviction rendered her inadmissible under section 212(a)(2)(C)(i) as well.

The respondent appealed the Immigration Judge's decision to the BIA.

Issues on Appeal and Relevant Statute

In general, an LPR seeking reentry in the United States will not be considered an “arriving alien” who is applying for admission. There are six exceptions to this principle found in section 101(a)(13)(C)(v) where an LPR will be considered an applicant for admission. The exception relevant to the instant case is found in section 101(a)(13)(C)(v)( which provides that an alien who has committed an offense found in section 212(a)(2) will be considered to be seeking admission unless the alien obtained a waiver of inadmissibility under section 212(h) [see section] or (i) [see section]. To learn more about when an LPR is considered an arriving alien, please read our full article [see article].

The respondent argued that since she had been an LPR, she should not have been placed into removal proceedings as an arriving alien. She argued that, consistent with BIA precedent in the Matter of Rivens, 25 I&N Dec. 623, 624-27 (BIA 2011) [PDF version], the burden was on DHS to establish she was seeking admission rather than reentry as an LPR. The respondent argued that DHS failed to meet its burden because the offense of solicitation to possess marijuana for sale is not a CIMT under the precedent of the Ninth Circuit (under the jurisdiction of which Arizona resides).

Accordingly, the Board had to determine whether the offense of solicitation to possess marijuana for sale renders an alien inadmissible under section 212(a)(2)(A)(i)(I). The statute provides that “any alien who is convicted of, or who admits to having committed, or who admits to committing acts which constitute the essential elements of” a CIMT “or an attempt or conspiracy to commit such a crime” is inadmissible.

BIA Analysis

The Board noted that in reaching a decision, the Immigration Judge relied upon the published Ninth Circuit decision in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007) [PDF version], which held that a “felony conviction for solicitation to possess at least 4 pounds of marijuana for sale in violation of sections 13-1002(A) and 13-3405(A)(2) of the Arizona Revised Statutes was a conviction for a [CIMT] for purposes of deportability under section 237(a)(2)(A)(i)” (description of Barragan-Lopez quoted from the decision in the Matter of Gonzalez Romo). The Immigration Judge rejected the petitioner's reliance on two published Ninth Circuit decisions titled Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) [PDF version] and Leyva-Licea v. INS, 187 F.3d 1137 (9th Cir. 1999) [PDF version] [see section for discussion of Leyva-Licea] because although they dealt with the same Arizona solicitation statutes, they dealt with different provisions of the INA than the inadmissibility ground for a CIMT.1

In beginning its own analysis, the noted that it has “long held that evil intent is inherent in the illegal distribution of drugs and that 'participating in illicit drug trafficking is a [CIMT].'” In that passage, the Board referred to its precedent decision in the Matter of Khourn, 21 I&N Dec. 1041, 1046-47 (BIA 1997) [PDF version]. Furthermore, the Board cited its precedent decision in the Matter of Vo which held that, with respect to a CIMT, “there is no meaningful distinction between an inchoate offense and the completed crime.” This means that the Board does not distinguish between an offense that is not completed and a completed offense for purpose determining whether an offense is a CIMT.

The Board agreed with the Ninth Circuit decision in Barragan-Lopez that solicitation to possess marijuana is a CIMT. The Board then moved to address the respondent's argument that Barragan-Lopez addressed section 237(a)(2)(A)(i) rather than 212(a)(2)(A)(i)(I). The respondent noted that the deportability provision in 237(a)(2)(A)(i) “expressly references attempt and conspiracy offenses.” However, the Board noted that it has “previously concluded that a statute's inclusion of some generic offenses, such as attempt or conspiracy, does not indicate Congress' intent to exclude other generic crimes like solicitation from the statute's reach.” The Board explicitly addressed the Ninth Circuit's decision in Coronado-Durazo, upon which the respondent relied, by noting that it disagreed with the aspect of the decision wherein the Ninth Circuit held that the exclusion of solicitation offenses in the old section 241(a)(2)(B)(i) meant that a conviction under the same Arizona solicitation statutes did not render an alien deportable. To this effect, the Board referenced its decisions in the Matter of Beltran, 20 I&N Dec. 521 (BIA 1992) [PDF version] and the Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009) [PDF version] (the Board noted that its position has been upheld by the Second and Fifth Circuits [see section on Mizrahi v. Gonzalez, 492 F.3d 156, 174 (2d. Cir. 2007) [PDF version]).

Accordingly, the Board rejected the respondent's position that it should follow Coronado-Durazo and Leyva-Licea because those decisions dealt with the Arizona solicitation statutes in the context of different provisions of the INA that did not concern CIMTs. Rather, the Board found Barragan-Lopez more persuasive as it addressed the applicability of the statute to CIMTs, albeit in the context of section 237(a)(2)(A)(i). The Board further noted that the Ninth Circuit has held in multiple unpublished decisions as well as Barragan-Lopez “that where an underlying offense is a [CIMT], so too are the crimes of solicitation or facilitation to commit that offense.”

Additionally, the Board noted that if solicitation to commit a CIMT is not an offense under section 212(a)(2)(A)(i)(I), “than many other clearly turpitudinous offense outside of the controlled substances context would not render aliens inadmissible.” The Board noted these offenses “could include solicitation to commit murder, rape, or arson, or to engage in terrorist activity or human trafficking.”

Decision

The Board agreed with the Immigration Judge that the respondent's Arizona conviction for solicitation to possess marijuana for sale rendered her inadmissible under section 212(a)(2)(A)(i)(I). Accordingly, because the respondent had committed an offense covered under section 212(a)(2), “she is properly considered an arriving alien under section 101(a)(13)(C)(v).”

The Board affirmed the Immigration Judge's findings and dismissed the respondent's appeal.

In an additional note, the Board withdrew from a footnote in the Matter of Vo where it suggested that the Ninth Circuit's position was that section 237(a)(2)(A) “is broader in coverage of [CIMTs] than section 212(a)(2)(A)(i)(I), because it would include inchoate offenses, such as solicitation and facilitation, that are not specifically enumerated in the inadmissibility statute…”

Conclusion: Matter of Gonzalez Romo

The Matter of Gonzalez Romo is a relatively significant decision regarding the inadmissibility ground for CIMTs. Although the Board decision addresses the law in the Ninth Circuit, the Board clearly indicated that it believes that section 212(a)(2)(A)(i)(I) includes solicitation to commit a CIMT in general. As the various Ninth Circuit cases cited by the Immigration Judge and the respondent indicate, it is not always clear whether a statute covers solicitation offenses if it does not explicitly say so. This Board decision establishes that a conviction for solicitation to commit a CIMT is a CIMT under section 212(a)(2)(A)(i)(I). Also of note, the Board expressed its agreement with the Ninth Circuit's holding the same with regard to the deportability ground for CIMTs found in section 237(a)(2)(A)(i).

While it will bear watching whether the various circuits accept the Board's reasoning in the Matter of Gonzalez Romo, it will be especially interesting to see whether the Ninth Circuit does considering both that Barragan-Lopez, upon which the Board relied, did not address section 212(a)(2)(A)(i)(I), and other disagreements between the Board and the Ninth Circuit that the Board discusses in its decision.

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  1. Coronado-Durazo held that a conviction under the solicitation statutes did not render an alien deportable under the former section 241(a)(2)(B)(i) of the INA because that statute did not include solicitation.

Leyva-Licea held that a conviction for solicitation to possess marijuana for sale under Arizona law did not constitute an aggravated felony under section 101(a)(43)(B) because that provision did not cover solicitation.