GONZALEZ ROMO

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Matter of Eva Isabel GONZALEZ ROMO, Respondent
Decided May 19, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a
returning lawful permanent resident who has a felony conviction for solicitation to
possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that
section refers only to attempt and conspiracy to commit a crime involving moral
turpitude, and is therefore properly considered to be an arriving alien under section
101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N
Dec. 426 (BIA 2011), clarified.
FOR RESPONDENT: Benjamin H. Harville, Esquire, Florence, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan J. Goldstein, Assistant
Chief Counsel
BEFORE: 	Board Panel: 	PAULEY and GUENDELSBERGER, Board Members;
GELLER, Temporary Board Member.
PAULEY, Board Member:
In 	a 	decision 	dated 	September 	29, 	2015, 	an 	Immigration 	Judge
determined that the respondent is inadmissible and ineligible for relief from
removal and ordered her removed from the United States. 	The respondent
has appealed from that decision. 	The appeal will be dismissed. 	The
respondent’s 	fee 	waiver 	request 	is 	granted 	pursuant 	to 	8 	C.F.R.
§ 1003.8(a)(3) (2016).
The respondent is a native and citizen of Mexico who became a lawful
permanent resident of the United States on November 18, 1999. 	She was
convicted on March 12, 2010, of solicitation to possess marijuana for sale,
which is a class 4 felony under sections 13-1002 and 13-3405(A)(2) of the
Arizona Revised Statutes. 	The respondent was detained and paroled into
the United States when she attempted to reenter as a lawful permanent
resident on May 3, 2014.
The 	Department 	of 	Homeland 	Security 	(“DHS”) 	initiated 	removal
proceedings against the respondent, charging that she is an arriving alien
who is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and
Nationality 	Act, 	8 	U.S.C. 	§ 	1182(a)(2)(A)(i)(I) 	(2012), 	as 	an 	alien

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convicted 	of 	a 	crime 	involving 	moral 	turpitude, 	and 	under 	section
212(a)(2)(C)(i) of the Act, as an alien who the Attorney General knows or
has reason to believe is an illicit trafficker in a controlled substance. 	The
Immigration Judge found that the respondent’s conviction was for a crime
involving moral turpitude and that the conviction provided a reason to
believe that she was a controlled substance trafficker. 	Accordingly, the
Immigration 	Judge 	determined 	that 	the 	respondent 	is 	inadmissible 	as
charged. 	She further denied the respondent’s requests for relief from
removal.
On appeal, the respondent argues that she was not properly placed in
removal proceedings as an “arriving alien.” 	She contends that because she
is a returning lawful permanent resident, to charge her with inadmissibility
as an arriving alien under section 212(a) of the Act, the DHS must establish
that she is seeking admission. 	See Matter of Rivens, 25 I&N Dec. 623,
624−27 (BIA 2011). 	The respondent can only be regarded as seeking
admission if she falls within one of the exceptions in section 101(a)(13)(C)
of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012).1 See Matter of Pena, 26 I&N
Dec. 613, 615 (BIA 2015).
According to the respondent, the only possible exception that may be
applicable is section 101(a)(13)(C)(v), namely, that she “has committed an
offense identified in section 212(a)(2).” 	Although the DHS has charged
that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the
Act because she was convicted of a crime involving moral turpitude, she
asserts that the offense of solicitation to possess marijuana for sale is not
such a crime under the law of the United States Court of Appeals for the
1 Section 101(a)(13)(C) of the Act provides:
An alien lawfully admitted for permanent residence in the United States shall not
be regarded as seeking an admission into the United States for purposes of the
immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of
180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking
removal of the alien from the United States, including removal proceedings under
the Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such
offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by
immigration officers or has not been admitted to the United States after
inspection and authorization by an immigration officer.

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Ninth Circuit, in whose jurisdiction this case arises.2 The principal issue
before us, therefore, is whether a felony conviction for solicitation to
possess marijuana for sale is a conviction for a crime involving moral
turpitude under section 212(a)(2)(A)(i)(I) of the Act. 	We review this
question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016).
In support of her conclusion that the respondent is inadmissible under
section 212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime
involving moral turpitude, the Immigration Judge relied on the Ninth
Circuit’s decision in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.
2007). In that case, the court held that the petitioner’s felony conviction for
solicitation to possess at least 4 pounds of marijuana for sale in violation of
sections 13-1002(A) and 13-3405(A)(2) of the Arizona Revised Statutes
was a conviction for a crime involving moral turpitude for purposes of
deportability 	under 	section 	237(a)(2)(A)(i) 	of 	the 	Act, 	8 	U.S.C.
§ 1227(a)(2)(A)(i) (2006). Id. at 904.
In Barragan-Lopez, the Ninth Circuit first rejected the petitioner’s
assertion that his solicitation offense should be viewed as separate from the
underlying drug possession crime, stating that he was not convicted of
solicitation of unspecified criminal conduct but, instead, of soliciting the
possession of a significant amount of marijuana. The court noted that it has
previously 	looked 	to 	the 	underlying 	offense 	in 	determining 	whether
inchoate crimes, such as solicitation, constitute crimes involving moral
turpitude. 	Id. at 903 (citing Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th
Cir. 1993), and McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)).
Stating that “[d]rug trafficking offenses, including possession of unlawful
substances 	for 	sale, 	generally 	involve 	moral 	turpitude,” 	the 	court
emphasized that by pleading guilty to solicitation to possess marijuana for
sale, the petitioner had admitted his specific intent to promote or facilitate
the commission of a crime involving moral turpitude under Arizona law.
Id. at 903−04 (citing Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th
Cir. 1987), and United States ex rel. DeLuca v. O’Rourke, 213 F.2d 759,
762 (8th Cir. 1954) (stating that “there can be nothing more depraved or
2 The respondent also argues that she cannot be considered to have “committed an
offense identified in section 212(a)(2)” of the Act on the basis of the section
212(a)(2)(C)(i) charge. 	Relying on a statement of the Supreme Court in Vartelas
v. Holder, 132 S. Ct. 1479, 1492 n.11 (2012), she asserts that a conviction or an
admission to an offense is required in order to be an arriving alien under section
101(a)(13)(C)(v). Although we acknowledge that no conviction is required to sustain a
charge under section 212(a)(2)(C)(i), in light of our disposition in this case, we need not
determine whether the Supreme Court’s Vartelas requirement is met where such a charge
is, in fact, supported by a conviction.

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morally 	indefensible 	than 	conscious 	participation 	in 	the 	illicit 	drug
traffic”)).
The court also rejected the petitioner’s reliance on Coronado-Durazo
v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d
1147 	(9th 	Cir. 	1999), 	finding 	that 	those 	cases 	were 	distinguishable.
Barragan-Lopez, 508 F.3d at 904−05. 	In Coronado-Durazo, the Ninth
Circuit found that a conviction under Arizona’s solicitation statute was not
a deportable offense under former section 241(a)(2)(B)(i) of the Act,
8 U.S.C. § 1251(a)(2)(B)(i) (1994), as a conviction for a crime “relating to
a controlled substance” because the deportation statute included conspiracy
and attempt, but not solicitation. 	Similarly, in Leyva-Licea, 187 F.3d at
1150, the court concluded that solicitation to possess marijuana for sale
under 	Arizona 	law 	was 	not 	an 	aggravated 	felony 	under 	section
101(a)(43)(B) of the Act because the “Controlled Substances Act does . . .
cover attempt and conspiracy,” but “it does not list solicitation.” 	In
addition to noting that the statutes at issue were different in those cases, the
court 	stated, 	“In 	neither 	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 [section 237(a)(2)(A)(i) of the Act].”
Barragan-Lopez, 508 F.3d at 904−05.
We have long held that evil intent is inherent in the illegal distribution
of 	drugs 	and 	that 	“participation 	in 	illicit 	drug 	trafficking 	is 	a 	crime
involving 	moral 	turpitude.” 	Matter 	of 	Khourn, 	21 	I&N 	Dec. 	1041,
1046−47 	(BIA 	1997). 	Furthermore, 	it 	is 	well 	established 	that 	for
immigration 	purposes, 	with 	respect 	to 	moral 	turpitude, 	there 	is 	no
meaningful distinction between an inchoate offense and the completed
crime. 	Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); see also Rohit
v. Holder, 670 F.3d 1085, 1089−90 (9th Cir. 2012) (holding that solicitation
of prostitution is a crime involving moral turpitude). 	It is therefore
appropriate to look at the substantive crimes to determine whether inchoate
offenses, 	such 	as 	attempt, 	conspiracy, 	accessory 	before 	the 	fact,
facilitation, or solicitation, constitute crimes involving moral turpitude.
Barragan-Lopez, 508 F.3d at 903; Matter of Vo, 25 I&N Dec. at 428
(collecting cases); cf. Matter of Beltran, 20 I&N Dec. 521, 526 (BIA 1992)
(stating that inchoate or preparatory offenses have been found to be crimes
“relating to” a controlled substance “when the underlying substantive crime
involves a drug offense”).
We agree with the Ninth Circuit’s conclusion in Barragan-Lopez that
solicitation 	to 	possess 	marijuana 	for 	sale 	is 	a 	crime 	involving 	moral
turpitude. 	See also Morrison v. Holder, 580 F. App’x 622 (9th Cir. 2014)
(holding that a conviction for solicitation to possess marijuana for sale
under sections 13-1002 and 13-3405 of the Arizona Revised Statutes

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categorically 	constitutes 	a 	conviction 	for 	a 	crime 	involving 	moral
turpitude); Landero-Guzman v. Holder, 344 F. App’x 454, 456 (9th Cir.
2009) (“Because solicitation of an offense requires the intent that the
substantive offense be committed, solicitation of a drug trafficking offense
is 	also 	a 	[crime 	involving 	moral 	turpitude].”); 	cf. 	Sanchez-Resendez
v. Lynch, 608 F. App’x 537 (9th Cir. 2015) (holding that facilitation of the
unlawful transportation of marijuana for sale is a crime involving moral
turpitude).
However, the respondent argues that under Ninth Circuit law, she is not
inadmissible under section 212(a)(2)(A)(i)(I) of the Act because, unlike the
deportability ground at section 237(a)(2)(A)(i) that the court addressed in
Barragan-Lopez, the inadmissibility ground expressly references attempt
and conspiracy offenses. 	She therefore asserts that under the reasoning in
Coronado-Durazo and Leyva-Licea, solicitation offenses are necessarily
excluded from section 212(a)(2)(A)(i)(I).
We have previously concluded that a statute’s inclusion of some generic
offenses, such as attempt or conspiracy, does not indicate Congress’ intent
to exclude other generic crimes like solicitation from the statute’s reach.
See Matter of Vo, 25 I&N Dec. at 429−30 (stating that that we could not
“reasonably conclude that Congress’ express inclusion of attempt offenses
in other sections of the Act was actually an intentional exclusion of them
from section 237(a)(2)(A)”); Matter of Beltran, 20 I&N Dec. at 526 n.12
(noting that “efforts to draw an implication regarding the absence of a
specific crime in the statute from Congress’ inclusion of another have been
rejected”). 	In Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009), we
disagreed with the Ninth Circuit’s contrary position in Coronado-Durazo
and reaffirmed our decision in Matter of Beltran, which had been upheld by
the Second and Fifth Circuits. Mizrahi v. Gonzales, 492 F.3d 156, 174 (2d
Cir. 2007) (stating that “Beltran reasonably concluded that Congress’s
explicit reference to certain inchoate offenses as grounds for deportation
did not indicate its intent to exclude others not so referenced”); Peters
v. Ashcroft, 383 F.3d 302, 308 (5th Cir. 2004) (finding that the Board was
“eminently reasonable” in Beltran in holding that “the statutory references
to conspiracy and attempt are illustrative without being exclusive”).
We are not persuaded by the respondent’s arguments that we should
now 	follow 	the 	Ninth 	Circuit’s 	decisions 	in 	Coronado-Durazo 	and
Leyva-Licea. 	As the court stated in Barragan-Lopez, those cases are
distinguishable 	because 	they 	did 	not 	address 	the 	question 	whether
solicitation 	to 	possess 	marijuana 	for 	sale 	is 	a 	crime 	involving 	moral
turpitude. 	Barragan-Lopez, 508 F.3d at 904−05. 	Furthermore, the court
has never held that an inchoate offense other than attempt or conspiracy
cannot 	qualify 	as 	a 	crime 	involving 	moral 	turpitude 	under 	section

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212(a)(2)(A)(i)(I) of the Act. 	Moreover, the Ninth Circuit has made clear
in Barragan-Lopez and subsequent cases that where an underlying offense
is a crime involving moral turpitude, so too are the crimes of solicitation or
facilitation to commit that offense. 	See Sanchez-Resendez, 608 F. App’x
537; Morrison, 580 F. App’x 622; Landero-Guzman, 344 F. App’x 454.
In this regard, we note that we included a footnote in Matter of Vo,
25 I&N Dec. at 429 n.4, stating the following: “In effect, the Ninth Circuit
has indicated that section 237(a)(2)(A) is broader in its coverage of crimes
involving moral turpitude than section 212(a)(2)(A)(i)(I), because it would
include inchoate offenses, such as solicitation and facilitation, that are not
specifically enumerated in the inadmissibility statute, which lists only
attempts 	and 	conspiracies.” 	This 	statement 	was 	dicta 	reflecting 	our
expectation of a position the Ninth Circuit might take in the context of
section 212(a)(2)(A)(i)(I) of the Act. 	However, this statement does not
reflect our current understanding of the Ninth Circuit’s approach, and we
now withdraw from it.
Finally, we point out that if solicitation to commit a crime involving
moral turpitude is not covered by section 212(a)(2)(A)(i)(I), then many
other 	clearly 	turpitudinous 	offenses 	outside 	the 	controlled 	substances
context would not render aliens inadmissible. 	Such offenses, many of
which arguably involve even greater moral depravity than the respondent’s
crime, could include solicitation to commit murder, rape, or arson or to
engage in terrorist activity or human trafficking. 	We do not find it
reasonable that Congress would have intended such a result.
We therefore agree with the Immigration Judge that the respondent’s
Arizona conviction for solicitation to possess marijuana for sale is a
conviction 	for 	a 	crime 	involving 	moral 	turpitude 	that 	establishes 	her
inadmissibility under section 212(a)(2)(A)(i)(I) of the Act. 	Consequently,
because the respondent “has committed an offense identified in section
212(a)(2),” she is properly considered an arriving alien under section
101(a)(13)(C)(v).
In her notice of appeal, the respondent presented a general challenge to
the Immigration Judge’s denial of her requests for relief from removal.
However, she has not meaningfully identified, in any manner, what aspects
of the Immigration Judge’s decision are factually or legally erroneous. We
therefore 	affirm 	the 	Immigration 	Judge’s 	findings. 	Accordingly, 	the
respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.