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Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 whether solicitation to possess a small amount of marijuana for sale would constitute a CMT. Although solicitation to possess for sale is still not removable as a controlled substance offense per Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999), discussed below, defense counsel should assume that Solicitation to Possess for Sale will be found to be a CMT. Immigration counsel may also be able to argue that Barragan-Lopez only applies to CMTs that render an immigrant deportable under 8 USC § 1227, not CMTs that render an immigrant inadmissible under 8 USC § 1182. The BIA recently stated that “the Ninth Circuit has indicated that section [1227(a)(2)(A)] is broader in its coverage of crimes involving moral turpitude than section [1182(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, which lists only attempts and conspiracies.” Matter of Vo, 25 I&N Dec. 426, 429 n. 4 (BIA 2011). Therefore, immigration counsel can argue that a conviction for Arizona solicitation to commit a CMT does not make a person inadmissible. Because this argument is not yet widely accepted, defense counsel should conservatively advise clients that most immigration judges and officials will find to the contrary. Because the potential sentence is less for solicitation than for the principal offense, a conviction may prevent the person from becoming deportable or inadmissible for a single CMT. Solicitation to commit a class 5 or 6 felony is a misdemeanor. See CMT discussion at 1. Attempt, supra and Note: CMT. Aggravated Felony: The Ninth Circuit held that solicitation under ARS § 13-1002 is not a drug trafficking aggravated felony, even if the principal offense is a drug trafficking offense. Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999) (Arizona conviction for solicitation to possess marijuana for sale is not an aggravated felony because the Controlled Substances Act does not specifically criminalize solicitation or contain any broad catch-all provision). Solicitation under ARS § 13-1002 should not be held to be an aggravated felony in non-drug cases as well, based on the fact that conspiracy and attempt are specifically included in the aggravated felony definition (see 8 USC § 1101(a)(43)(U)) while solicitation is not. For example, solicitation to commit a theft should be held not to constitute the aggravated felony “theft.” However, solicitation will still trigger an aggravated felony as a “crime of violence” since soliciting a violent act poses a substantial risk that physical force will be used against another even if the actual violence may occur after the solicitation itself. Prakash v. Holder, 579 F.3d 1033, 1036 (9th Cir. 2009); Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011). Therefore, counsel should assume that a plea to soliciting a “crime of violence” will itself be found a “crime of violence.” While the court in Prakash affirmed the holdings of Coronado-Durazo and Leyva-Licea that solicitation is not removable as a controlled substance offense or a drug trafficking aggravated felony, it is unclear whether the rationale in Prakash could be extended to other aggravated felonies. There is a strong argument that the inclusion of a “substantial risk” in the definition of a “crime of violence” found at 18 U.S.C. § 16(b) limits Prakash and Matter of Guerrero to crimes of violence. However, apart from drug crimes, defense counsel should be cautious when pleading to solicitation as a means to avoid an aggravated felony. Other grounds: Deportable and Inadmissible Drug Conviction. Regarding controlled substance convictions, the Ninth Circuit has held that solicitation under ARS § 13-1002 does not cause deportability under the controlled substance ground because (a) it is a generic offense unrelated to controlled substances and (b) attempt and conspiracy, but not solicitation, are included in the controlled Arizona Criminal Chart with Explanatory Endnote – August 2012 13
Immigrant Legal Resource Center, Florence Immigrant and Refugee Rights Project, Maricopa County Public Defender August 2012 substance grounds. Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997) (ARS § 13-1002 is not a deportable controlled substance offense even where the offense solicited related to controlled substances, disapproving Matter of Beltran, 20 I&N Dec. 521, 528 (BIA 1992)). Thus a plea to solicitation to possess a controlled substance avoids deportability altogether in a drug case. It also should not cause inadmissibility as a drug conviction. However, soliticitation to possess a controlled substance for sale is a CMT, and therefore might cause the person to become inadmissible or deportable under the CMT grounds. Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007). Even more damaging, if evidence shows that the solicitation related to trafficking in drugs, the conviction will cause the person to become inadmissible by giving the government “reason to believe” the person has engaged in drug trafficking. This penalty does not require a drug conviction. See 8 USC § 1182(a)(2)(C). Other Grounds: In General. A person is deportable under the firearms ground for “offering to sell” a firearm, but not for other solicitation offenses. Solicitation may prevent deportability under the domestic violence ground. Note: solicitation incorporated into substantive offenses, such as offering to commit a drug offense. The Ninth Circuit has held that offering to commit a drug trafficking offense is not an aggravated felony even when the offense is included in a drug statute instead of under a separate “generic” statute such as ARS § 13-1002. Rosas-Castaneda v. Holder, 655 F.3d 875, 885 (9th Cir. 2011); U.S. v Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) (California statute prohibiting offering to sell a drug is not an aggravated felony). This means that a plea to, e.g., offering to sell or offering to transport for sale under ARS §§13-3405(A)(4), 13-3407(A)(7), or 13-3408(A)(8) should avoid conviction of an aggravated felony.. In practice, however, immigration judges are not consistently applying this precedent to Arizona law and will often find the offense to be an aggravated felony. For this reason, Solicitation under § 13-1002 is a much better plea. If Solicitation is not available, the plea either should be explicitly to offering to commit the offense, or it should leave the “record of conviction” vague enough so that offering to sell or transport is an option. See “Note: Safer Pleas.” The Ninth Circuit has found that a conviction under a “specific” solicitation statute, such as offering to possess for sale, offering to transport for sale, or offering to sell, would render a noncitizen removable for an offense relating to a controlled substance. Rosas-Castaneda v. Holder, 655 F.3d 875, 881 (9th Cir. 2011); Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009). While counsel can argue that this holding conflicts with the Ninth Circuit’s en banc decision in U.S. v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001) (en banc) (Calif. Health & Safety § 11360), which makes no distinction between generic solicitation and specific solicitation statutes, a conviction for “offering” to possess for sale/transport for sale/sell will likely be found removable as a controlled substance offense. Whenever, possible, counsel should attempt to plead to the generic solicitation statute under ARS § 13-1002. 3. Conspiracy, A.R.S. § 13-1003. Summary: Conspiracy will likely incur the same immigration consequences as the underlying crime, with the possible exception of domestic violence; see “other grounds.” However, immigration counsel can argue that the Arizona definition of “conspiracy” is broader than the federal definition of “conspiracy” located at 18 U.S.C. § 371 for two reasons. First, the federal definition requires that the act be committed by one of the co-conspirators, while the Arizona definition allows the act in question to be committed by a person who is not one of the co-conspirators. Second, the federal definition limits conspiracy liability to the persons with whom the defendant directly conspired, while the Arizona definition permits a conviction for working with “the conspirator of one’s conspirator.” See ARS § 13- Arizona Criminal Chart with Explanatory Endnote – August 2012 14
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