Gonzalez Romo v. Barr, No. 16-71559 (9th Cir. 2019)
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The Ninth Circuit denied a petition for review of the BIA's determination, in a precedential decision, that even though petitioner was a lawful permanent resident, she was inadmissible under 8 U.S.C. 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because she had been convicted of a crime involving moral turpitude. In this case, the crime was Arizona solicitation to possess marijuana for sale. The BIA rejected petitioner's contention that, by referencing "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excludes crimes of solicitation even if they otherwise constitute crimes involving moral turpitude.
Applying Chevron deference, the panel affirmed the BIA's determination that even though petitioner was a legal permanent resident, she was removable because she was inadmissible to the United States when she presented herself at the border. Furthermore, a conviction in Arizona for solicitation to possess at least four pounds of marijuana for sale constitutes a crime involving moral turpitude for purposes of section 1182(a)(2)(A)(i)(I), and thus petitioner was inadmissible. The panel rejected petitioner's contention that, by referencing only "attempt or conspiracy," section 1182(a)(2)(A)(i)(I) excluded crimes of solicitation, and the panel saw no reason to deviate from Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007).
Court Description: Immigration. Denying Eva Isabel Gonzalez Romo’s petition for review of the Board of Immigration Appeals’ precedential decision in Matter of Gonzalez Romo, 26 I. & N. Dec. 743 (BIA 2016), the panel held that Gonzalez was inadmissible under 8 U.S.C. §§ 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because her conviction for solicitation to possess marijuana for sale, in violation of Ariz. Rev. Stat. §§ 13-1002(A), 13-3405(A)(2), was a crime involving moral turpitude. The panel gave Chevron deference to the BIA’s determination that a returning lawful permanent resident who has a felony conviction for solicitation to possess marijuana for sale is inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), even though that provision refers only to attempt and conspiracy to commit a crime involving moral turpitude, and not solicitation. The panel noted that there was no doubt that Gonzalez was convicted in Arizona of the crime of solicitation to possess over four pounds of marijuana for sale, and that drug trafficking crimes are generally crimes involving moral turpitude. The panel further noted that this court held in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007), that “solicitation to possess at least four pounds of marijuana for sale constitutes a crime involving moral turpitude.” However, Barragan-Lopez involved 8 U.S.C. GONZALEZ ROMO V. BARR 3 § 1227(a)(2)(A)(i)(I), which applies to deportability determinations, and does not include the “attempt or conspiracy to commit such a crime” phrase that appears in § 1182(a)(2)(A)(i)(I), for inadmissibility purposes. The panel rejected Gonzalez’s contention that, by referencing only “attempt or conspiracy,” § 1182(a)(2)(A)(i)(I) excluded crimes of solicitation. The panel stated that it saw no reason to deviate from the holding in Barragan-Lopez that solicitation of a crime of the magnitude of possession of at least four pounds of marijuana for sale is as turpitudinous as commission of the crime itself. The panel discussed the cases relied upon by Gonzalez, Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999) (addressing drug trafficking aggravated felonies, 8 U.S.C. § 1101(a)(43)(B)) and Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir. 1997) (addressing controlled substance offenses under 8 U.S.C. § 1227(a)(2)(B)(i)), in which this court held that other statutes referencing only attempts and conspiracies did not cover solicitation offenses. While recognizing that reasoning which excludes solicitation as to certain provisions could be said to apply whenever conspiracy or attempt are specifically mentioned in a statute, the panel stated that would be unlikely when it comes to crimes involving moral turpitude, which are a separate concept with a long history that has been used by Congress in the immigration laws for over a century. The panel explained that it was doubtful that Congress intended to give the phrase different scope in different provisions, and this court’s cases do not suggest that it did. The panel further explained that the legislative history indicated that Congress’s inclusion of the terms attempt and conspiracy were meant to be clarifying, and that for inchoate crimes that are bad enough to be considered crimes of moral turpitude, there was little reason 4 GONZALEZ ROMO V. BARR to think that Congress eliminated some, such as solicitation, from consideration, simply because it decided to make it clear that others did fall into that category. Because the panel concluded that Congress’s intent was clear, it stopped at step one of the Chevron deference test. However, to the extent there was some perceived uncertainty regarding the meaning and reach of the statute, the panel concluded that it was clear that the BIA’s resolution of the uncertainty was permissible and reasonable. Concurring, Judge Owens wrote that he did not believe reliance on Chevron was necessary, but he concurred with the majority opinion because it comports with Supreme Court and Ninth Circuit law. Judge Owens continues to believe that the current moral turpitude jurisprudence makes no sense, and pointed out that he is not a lone wolf in so thinking. Dissenting, Judge Graber wrote that the majority opinion misapplies both Ninth Circuit and Supreme Court precedent, and violates several canons of statutory construction. Judge Graber wrote that following this court’s precedents, the text of § 1182(a)(2)(A)(i)(I) unambiguously covers only the generic crimes of “attempt or conspiracy,” and that Barragan-Lopez, by its own terms, limited its holding to § 1227(a)(2)(A)(i)(I), which does not contain similar wording. GONZALEZ ROMO V. BARR 5
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