On May 19, 2016, the Board of Immigration Appeal’s (BIA or Board) dismissed the appeal of a respondent who was convicted of solicitation to possess marijuana for sale, an Arizona class 4 felony, and subsequently paroled into the U.S. when she attempted to reenter as a lawful permanent resident (LPR). Among other grounds, in removal proceedings she was charged as an arriving alien under INA §212(a)(2)(A)(i)(I) as one convicted of a crime involving moral turpitude (CIMT) and later found inadmissible, by the Immigration Judge, as charged.
On appeal, the principal issue for the Board was whether such a conviction is a CIMT per INA §212(a)(20(A)(i)(I). Like the IJ, the BIA cited to Barrangan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007), which held that an Arizona conviction for solicitation to possess marijuana for sale was a CIMT for purposes of deportability under INA §237(a)(2)(A)(i), to find the respondent’s solicitation conviction a crime involving moral turpitude. Initially, the Board noted that both the Ninth Circuit and BIA have previously looked to the underlying offense to determine whether an inchoate crime such as solicitation is a CIMT; the Board found that by pleading guilty, respondent had, in effect, admitted her “specific intent to promote or facilitate the commission of a crime involving moral turpitude under Arizona law.”
The BIA also dismissed respondent’s claim that under Ninth Circuit law, she is not inadmissible per INA §212(a)(2)(A)(i)(I) because that section specifically references attempt and conspiracy offenses, contending that under other Ninth Circuit cases, solicitation offenses are necessarily excluded from the statute’s ambit. The Board restated its prior conclusion that the inclusion of some generic offenses does not indicate Congress’ intent to exclude others from a statute’s reach and pointed out that the Ninth Circuit has made clear that where an underlying offense is a CIMT, so too are the crimes of solicitation or facilitation to commit that crime. Thus, the Board noted that a footnote in Matter of Vo, 25 I&N Dec. 426 (BIA 2011) at 429, n.4 stated that the Ninth Circuit had indicated that INA §237(a)(2)(A) covers a broader range of CIMT’s that 212(a)(2)(A)(i)(I); this, the decision states, was dicta and no longer reflects the Board’s “understanding of the Ninth Circuits approach, and we now withdraw from it.” Matter of Gonzalez Romo, 26 I&N Dec. 743 (BIA 2016).
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