Walcott v. Garland, No. 18-70393 (9th Cir. 2021)
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The Ninth Circuit granted the petition for review of the BIA's decision agreeing with the IJ that petitioner's convictions were crimes involving moral turpitude (CIMTs) and that she was not entitled to cancellation of removal. The panel concluded that petitioner's convictions are not CIMTs and therefore she was not removable under 8 U.S.C. 1227(a)(2)(A)(ii).
In 2010, petitioner was convicted of solicitation to possess for sale less than two pounds of marijuana, in violation of Ariz. Rev. Stat. 13-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two pounds). Shortly thereafter, petitioner was convicted of offering to transport less than two pounds of marijuana for sale, in violation of Ariz. Rev. Stat. 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds). The panel concluded that Arizona Revised Statutes 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; petitioner's section 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not CIMTs; and petitioner was therefore not removable.
Court Description: Immigration. Granting Pattie Page Walcott’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Arizona Revised Statutes § 13-3405(A)(4), which prohibits certain conduct relating to marijuana, is overbroad and divisible; 2) Walcott’s § 13-3505(A) convictions, which involved categories in the statute involving the smallest quantity of marijuana, were not crimes involving moral turpitude (“CIMT”); and 3) Walcott was therefore not removable. After becoming a lawful permanent resident, Walcott was found removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two CIMTs: 1) solicitation to possess for sale less than two pounds of marijuana under §§ 13-1002, 13-3405(A)(2), and (B)(4); and 2) offering to transport less than two pounds of marijuana for sale under §§ 13-3405(A)(4) and (B)(10). Applying the categorical approach, the panel held that subsection 13-3405(A)(4) is overbroad with respect to the generic definition of a CIMT. The panel explained that this court has held that drug trafficking crimes are generally CIMTs and that “moral turpitude” refers to conduct that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. The panel concluded that WALCOTT V. GARLAND 3 subsection 13-3405(A)(4) is overbroad because it includes the offenses of importation and transfer, neither of which necessarily involves trafficking. Addressing the least egregious conduct covered by the subsection and whether there was a realistic probability that the state would apply it to conduct outside the definition of a CIMT, the panel pointed to case law where Arizona has applied the subsections involving less than two pounds of marijuana to conduct involving very small amounts. The panel also concluded that subsection 13-3405(A)(4) is divisible because it defines multiple, separate crimes. In so concluding, the panel looked to the text of the statute, the Shepard documents in the record here, as well as state law. Applying the modified categorical approach, the panel concluded that Walcott’s subsection 13-3405(A)(4) conviction was not a CIMT. The panel observed that in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007), this court held that an Arizona conviction for solicitation to possess at least four pounds of marijuana for sale constituted a CIMT. However, the panel explained that Barragan-Lopez expressly left open the question presented here – whether an offense involving a very small quantity of marijuana for sale is a CIMT. The panel explained that early cases holding that drug trafficking offenses were CIMTs involved drugs that present serious risk of injury or death (such as heroin and cocaine) and observed that the legislative history on which the BIA relied in concluding that drug trafficking offenses are CIMTs emphasized the harms of narcotics. The panel concluded that the underlying rationale of the court’s case law – that drug trafficking involves actual injury tantamount to murder on a 4 WALCOTT V. GARLAND slower scale – does not apply to the sale of small amounts of marijuana. Because Walcott’s offenses involved the categories in the statute involving the smallest quantity of marijuana, the panel concluded that her convictions were not CIMTs. The panel also concluded that contemporary societal attitudes toward marijuana and widespread legalization of marijuana supported its conclusion. Concurring, Judge Berzon wrote that she continues to believe that the phrase “crime involving moral turpitude” is unconstitutionally vague. Judge Berzon concurred, however, because the opinion properly applied the existing case law. Dissenting, Judge Collins concluded that the BIA correctly held that Walcott’s convictions were CIMTs. Judge Collins wrote that it was significant that her offenses involved “sale,” and wrote that the majority read too much into the court’s reservation of the question in Barragan-Lopez. Judge Collins found persuasive the BIA’s conclusion that the sharing of a small amount of marijuana would be considered morally turpitudinous if it involved sales, but not if it involved giving away a few cigarettes. Observing that this bright line coheres both with Barragan-Lopez and comparable judgments reflected elsewhere in federal law, Judge Collins concluded that the BIA’s decision was entitled to Skidmore deference. Judge Collins also wrote that the majority’s reliance on legislative history, current moral standards, and decriminalization of marijuana was flawed. Finally, Judge Collins concluded that Walcott provided no other persuasive basis for setting aside her removal order. WALCOTT V. GARLAND 5
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