Cortes-Maldonado v. Barr, No. 18-70927 (9th Cir. 2020)
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The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).
The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings.
Court Description: 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, Or. Rev. Stat. § 475.860 (2011), is not an “illicit trafficking of a controlled substance” offense, and thus, Cortes-Maldonado’s conviction for that offense did not make him removable as an aggravated felon. The panel held that section 475.860 is not an “illicit trafficking of a controlled substance” aggravated felony because it criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel first set out the elements of the statute of conviction: (1) marijuana, (2) delivery, (3) for consideration, and observed that, under Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), Oregon’s definition of “delivery” encompasses solicitation and is indivisible. Next, the panel explained that controlled substance convictions qualify as “illicit trafficking,” under 8 U.S.C. § 1101(a)(43)(B), if they require the transfer or exchange of money or other consideration, and that this court extended that definition, in Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), to include possession with intent to sell. The panel also explained that the definition of aggravated felony CORTES-MALDONADO V. BARR 3 includes “an attempt or conspiracy to commit an offense,” but does not include solicitation. 8 U.S.C. § 1101(a)(43)(U). 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 section 475.860 is not “illicit trafficking.” The panel also concluded that Rendon did not persuade it to hold otherwise, explaining that solicitation to deliver a controlled substance in Oregon is not the same as possession with intent to deliver a controlled substance.
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