Barragan-Lopez v. Mukasey

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 20, 2007
• Docket: 05-73883
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RUBEN FERNANDO BARRAGAN-LOPEZ,  Petitioner, No. 05-73883 v.  Agency No. A78-683-478 MICHAEL B. MUKASEY,* Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 19, 2007—San Francisco, California

Filed November 21, 2007

Before: Procter Hug, Jr., William A. Fletcher, and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton

*Michael B. Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).

15103 BARRAGAN-LOPEZ v. MUKASEY 15105

COUNSEL

Tarik H. Sultan (argued), Wolf & Sultan P.C., Tucson, Ari- zona, for the petitioner.

Terri J. Scadron (argued) and Greg D. Mack, Department of Justice, Washington, D.C., for the respondent.

OPINION

CLIFTON, Circuit Judge:

Ruben Fernando Barragan-Lopez’s petition for review presents the question whether an Arizona conviction for solic- itation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. § 13-1002(A) and (B)(2), and § 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for the purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We hold that it does. Accordingly, we deny the petition for review.

I. Background

Barragan-Lopez is a native and citizen of Mexico. After entering the United States without inspection or admission in 2002, his status was adjusted and he became a lawful perma- nent resident of the United States on June 24, 2003. 15106 BARRAGAN-LOPEZ v. MUKASEY After being charged with violating various Arizona crimi- nal laws, Barragan-Lopez signed a plea agreement on July 13, 2004, in which he pled guilty to, inter alia, “SOLICITATION TO POSSESS MARIJUANA FOR SALE IN AN AMOUNT OVER THE STATUTORY THRESHOLD, A CLASS 4 FEL- ONY, in violation of A.R.S. §§ 13-1002, 13-3405(A)(2), 13- 3405(B)(6), 13-3401, 13-301, 13-302, 13-303, 13-304, 13- 701, 13-702, 13-702.01 and 13-801, committed on or about December 17, 2003.” Barragan-Lopez was convicted of that offense and sentenced to a term of imprisonment of one year.

Barragan-Lopez was served a Notice to Appear on Febru- ary 24, 2005, which alleged that he was “convicted in the Superior Court of Arizona, Maricopa County, for the offense [of] SOLICITATION TO POSSESS MARIJUANA FOR SALE IN AN AMOUNT OVER THE STATUTORY THRESHOLD, a class 4 felony.” Based on that conviction, the Notice charged Barragan-Lopez as “subject to removal from the United States pursuant to . . . [s]ection 237(a)(2)(A)(i) of the Immigration and Nationality Act, as amended, [because he had] been convicted of a crime involv- ing moral turpitude committed within five years after admis- sion for which a sentence of one year or longer may be imposed.”

Barragan-Lopez disputed the charge of removability, claiming that his conviction for solicitation to possess mari- juana for sale was not a conviction for a crime involving moral turpitude. Relying on Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. 1999), Barragan-Lopez argued that the “crime of solicitation is a separate and distinct offense from the underlying offense” of possession. He therefore argued that, because solicitation itself is not a crime involving moral turpi- tude, solicitation to possess marijuana for sale could not be such a crime either.

The immigration judge (“IJ”) disagreed with Barragan- Lopez, noting that, even though the preparatory solicitation BARRAGAN-LOPEZ v. MUKASEY 15107 offense may be “separate and distinct” from the underlying possession offense, “the Court is required to look at the underlying substantive offense.” The IJ then concluded that Barragan-Lopez was convicted of a crime involving moral turpitude because “solicitation requires intent on the part of the defendant . . . that the underlying crime be committed,” and because the underlying crime of possession of marijuana for sale is a crime involving moral turpitude. The IJ therefore ordered removal.

Barragan-Lopez appealed to the Board of Immigration Appeals. The Board dismissed the appeal, concluding that Barragan-Lopez’s conviction was for a crime involving moral turpitude. The Board reasoned that, because the underlying offense of possessing marijuana for sale constitutes “ ‘a crime involving moral turpitude’ under the immigration laws,” and because “the immigration law recognizes no distinction (with respect to the moral turpitudinous nature of the crime) between his inchoate offense and the completed crime,” Barragan-Lopez’s conviction for solicitation to possess mari- juana for sale was a crime involving moral turpitude.

Barragan-Lopez timely petitioned this court for review of the Board’s decision.

II. Jurisdiction and Standard of Review

“While we do not normally have jurisdiction to review ‘any final order of removal against an alien who is removable by reason of having committed certain criminal offenses,’ includ- ing crimes involving moral turpitude, we are not barred from hearing the constitutional claims or questions of law raised in a petition.” Navarro-Lopez v. Gonzales, ___ F.3d ___, No. 04-70345, 2007 WL 2713211, at *2 (9th Cir. Sept. 19, 2007) (citing 8 U.S.C. §§ 1252(a)(2)(C) and (D)) (brackets and footnote omitted). Whether Barragan-Lopez’s prior con- viction was for a crime involving moral turpitude is a question of law, which we have jurisdiction to reach. See id. 15108 BARRAGAN-LOPEZ v. MUKASEY “We review de novo ‘whether a state statutory crime con- stitutes a crime involving moral turpitude.’ ” Id. (citing Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005)).

III. Discussion

Barragan-Lopez contends that the Board erred in conclud- ing that the Arizona offense of solicitation to possess more than four pounds of marijuana for sale is a crime involving moral turpitude. We disagree.

The Immigration and Nationality Act “defines classes of removable aliens and makes removable an alien who is ‘con- victed of a crime involving moral turpitude within five years . . . after the date of admission’ and ‘is convicted of a crime for which a sentence of one year or longer may be imposed.’ ” Notash v. Gonzales, 427 F.3d 693, 696 (9th Cir. 2005) (quot- ing 8 U.S.C. § 1227(a)(2)(A)(i)) (ellipses points in original). “In determining whether a conviction constitutes a removable offense, we apply the categorical approach, looking only to the statutory definition of the offense.” Id. at 696-97 (citing Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir. 2004)).

[1] Under the categorical approach, a conviction is a crime of moral turpitude if “the full range of conduct encompassed by the statute,” including the least egregious conduct prose- cuted under the statute, is a crime of moral turpitude. See Quintero-Salazar v. Keisler, No. 04-73128, 2007 WL 2916162, at *2 (9th Cir. Oct. 9, 2007). We look at the specific subsections of a statute that the petitioner is convicted under to determine if it is a crime of moral turpitude. See id. at *6.

In this case, Barragan-Lopez was convicted under two sec- tions: (1) Ariz. Rev. Stat. § 13-1002(A) (solicitation), and (2) Ariz. Rev. Stat. § 13-3405(A)(2) (possession of marijuana for sale). Section 13-1002(A) defines the offense of solicita- tion as follows: BARRAGAN-LOPEZ v. MUKASEY 15109 A person . . . commits solicitation if, with the intent to promote or facilitate the commission of a felony or misdemeanor, such person commands, encour- ages, requests or solicits another person to engage in specific conduct which would constitute the felony or misdemeanor or which would establish the other’s complicity in its commission.

Ariz. Rev. Stat. § 13-3405(A)(2) defines the offense of pos- session of marijuana for sale: “A person shall not knowingly . . . [p]ossess marijuana for sale.” Because Barragan-Lopez was convicted of soliciting possession of more than four pounds of marijuana, he was convicted of a class 4 felony. See Ariz. Rev. Stat. § 13-1002(B)(2) (“Solicitation is a . . . [c]lass 4 felony if the offense solicited is a class 2 felony.”), § 13-3405(B)(6) (“A person who [possesses for sale] an amount of marijuana having a weight of more than four pounds is guilty of a class 2 felony.”)

[2] Barragan-Lopez argues that, because the solicitation offense is separate and distinct from the underlying posses- sion offense, this court should not consider the underlying crime in determining whether his prior conviction was for a crime involving moral turpitude. But Barragan-Lopez was not convicted for “solicitation” of unspecified criminal conduct. He was convicted for soliciting possession of over four pounds of marijuana for sale. We have previously looked to underlying crimes in determining whether convictions for inchoate offenses constitute crimes involving moral turpitude. See, e.g., Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th Cir. 1993) (“a conspiracy to commit an offense involves moral turpitude only when the underlying substantive offense is a crime involving moral turpitude”); McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980) (“Where the underlying, sub- stantive offense is a crime involving moral turpitude . . . , con- spiracy to commit such an offense is also a crime involving moral turpitude.”) (citations omitted). We therefore consider the underlying possession offense in determining whether 15110 BARRAGAN-LOPEZ v. MUKASEY Barragan-Lopez pleaded guilty to a crime involving moral turpitude.

[3] Drug trafficking offenses, including possession of unlawful substances for sale, generally involve moral turpi- tude. See Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir. 1987) (noting that possession of heroin for sale is a “crime of moral turpitude”) (citing United States ex rel. DeLuca v. O’Rourke, 213 F.2d 759, 762 (8th Cir. 1954) (“[T]here can be nothing more depraved or morally indefensi- ble than conscious participation in the illicit drug traffic.”)). The quantity inherent in Barragan Lopez’s conviction — four pounds of marijuana — was too great to justify treating this crime differently. By pleading guilty to solicitation to possess at least four pounds of marijuana for sale, Barragan-Lopez necessarily admitted that he had the specific “intent to pro- mote or facilitate the commission of a [crime involving moral turpitude].” See Ariz. Rev. Stat. §§ 13-1002(A); see also Atl. Richfield Co., 820 F.2d at 282. Accordingly, we hold that Barragan-Lopez’s conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. § 13-1002(A) and (B)(2) and § 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for pur- poses of 8 U.S.C. § 1227(a)(2)(A)(i). We do not address the question that would be presented if Barragan-Lopez had been convicted of solicitation to possess a very small quantity of marijuana for sale, such as, for example, a single marijuana cigarette at a party with personal friends.

Barragan-Lopez points us to two cases that we conclude are distinguishable from the present case. In Coronado-Durazo, we were asked to determine “whether petitioner’s conviction for solicitation to possess cocaine is a deportable offense within the meaning of section 241(a)(2)(B)(i) of the Immigra- tion and Nationality Act,” which provides that “any alien who is convicted of ‘a violation of (or a conspiracy or attempt to violate) any law or regulation . . . relating to a controlled sub- stance’ may be deported.” 123 F.3d at 1323-24. After noting BARRAGAN-LOPEZ v. MUKASEY 15111 that “solicitation is a generic offense under Arizona law” and that the “plain language of § 241(a)(2)(B)(i) limits convic- tions for generic crimes that may result in deportation to con- spiracy and attempt,” we held that “solicitation is not a deportable offense under § 241(a)(2)(B)(i).” Id. at 1325-26.

Barragan-Lopez also directs us to Leyva-Licea, 187 F.3d at 1150, in which we decided whether a violation of Arizona’s solicitation statute constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), which required that the violation “(1) be punishable under the Controlled Substances Act, and (2) qualify as a felony.” In that case, we concluded that solici- tation to possess marijuana for sale is not an aggravated fel- ony under 8 U.S.C. § 1101(a)(43)(B) because the Controlled Substances Act “does cover attempt and conspiracy,” but not solicitation. Id.

Unlike the statutory provisions at issue in Coronado- Durazo and Leyva-Licea, section 1227(a)(2)(A)(i) does not list certain generic offenses (e.g., conspiracy or attempt) to the exclusion of others (e.g., solicitation). Thus, the reasoning applied in both cases — i.e., that, “where a statute listed some generic offenses but omitted others, the statute covered only the generic offenses expressly listed” — is inapplicable here. See Leyva-Licea, 187 F.3d at 1150 (citing Coronado-Durazo, 123 F.3d at 1325-26). Additionally, in Coronado-Durazo and Levya-Licea, we decided whether Arizona’s solicitation offense constituted a crime “relating to a controlled sub- stance” under 8 U.S.C. § 1251(a)(2)(B)(i), or an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B), respectively. In nei- ther case were we asked to determine whether solicitation to possess more than four pounds of marijuana for sale is a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). Coronado-Durazo and Leyva-Licea are therefore distinguishable.

Barragan-Lopez also argues that “the government’s posi- tion still fails under the Rule of Lenity,” which requires courts 15112 BARRAGAN-LOPEZ v. MUKASEY to construe ambiguities in deportation statutes in favor of the alien. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir. 2002). Because Barragan-Lopez fails to establish that any deportation statute at issue is ambiguous, we reject this assertion. See Lisbey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005).

Finally, Barragan-Lopez contends that the government’s “burden of demonstrating deportability by ‘clear, convincing, and unequivocal evidence’ has not been met.” But at the March 14, 2005, hearing before the IJ, Barragan-Lopez admit- ted each factual allegation considered by the IJ and the Board for removal. Barragan-Lopez’s own admissions constitute clear, convincing, and unequivocal evidence, and therefore we conclude that the government met its evidentiary burden of demonstrating removability.

IV. Conclusion

We hold that a conviction for solicitation to possess at least four pounds of marijuana for sale constitutes a crime involv- ing moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i). We therefore uphold the Board’s decision and deny the present petition for review.

PETITION DENIED.