Jonatan Cortes-Maldonado v. William Barr ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATAN CORTES-MALDONADO, No. 18-70927
AKA Jonathan Cortes, AKA Jonatan
Cortes Maldonado, Agency No.
Petitioner, A096-910-128
v.
OPINION
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2020
Portland, Oregon
Filed October 15, 2020
Before: M. Margaret McKeown and Richard A. Paez,
Circuit Judges, and Paul C. Huck, * District Judge.
Opinion by Judge Paez
*
The Honorable Paul C. Huck, United States District Judge for the
U.S. District Court for Southern Florida, sitting by designation.
2 CORTES-MALDONADO V. BARR
SUMMARY **
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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Brian Patrick Conry (argued), Portland, Oregon, for
Petitioner.
Alison Marie Igoe (argued), Principal Litigation Counsel;
Tim Ramnitz, Attorney; Shelley R. Goad, Assistant
Director; Joseph H. Hunt, Assistant Attorney General;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
4 CORTES-MALDONADO V. BARR
OPINION
PAEZ, Circuit Judge:
We address whether the conduct proscribed by Oregon’s
former marijuana delivery statute, Or. Rev. Stat. § 475.860(2011), 1 constitutes 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). We
conclude that it does not because the Oregon statute
criminalizes more conduct—namely, solicitation—than
does the federal generic crime. We thus grant the petition
for review and remand.
I.
Jonatan Cortes-Maldonado is a native and citizen of
Mexico. He entered the United States without admission or
inspection in 1998. In 2006, he became a lawful permanent
resident.
In 2012, Cortes-Maldonado pled guilty to one count of
Delivery of Marijuana for Consideration in violation of
Oregon Revised Statutes section 475.860 (2011) and was
sentenced to twenty-four months’ probation. He violated his
probation, however, when he was found in possession of a
small amount of marijuana and was sentenced to ten days in
1
In 2015, Oregon legalized non-medical marijuana delivery for
licensed individuals. 2015 Or. Laws Ch. 1, § 78 (Ballot Measure 91). In
2017, Oregon repealed section 475.860, 2017 Or. Laws Ch. 21, § 126,
and replaced it with Oregon Revised Statutes section 475B.346, 2017 Or.
Laws Ch. 21, §§ 5, 127. Currently, unlicensed marijuana delivery is a
“Class A” misdemeanor but may increase in severity and penalty
depending on the amount of marijuana delivered, the relative ages of the
persons involved, and other factors. See Or. Rev. Stat. § 475B.346(1)–
(3).
CORTES-MALDONADO V. BARR 5
the county jail. While in custody, Cortes-Maldonado was
interviewed by Immigration and Customs Enforcement
(ICE) agents. ICE issued a detainer on Cortes-Maldonado
and served him with a Notice to Appear (NTA). The NTA
alleged that Cortes-Maldonado’s conviction for Delivery of
a Controlled Substance, Marijuana, constituted an
aggravated drug trafficking offense under 8 U.S.C.
§ 1101(a)(43)(B).
Cortes-Maldonado appeared with counsel before an
immigration judge (IJ). He conceded removability and
admitted the factual allegations in the NTA but stated that he
intended to file for post-conviction relief in state court to
challenge his conviction. He also stated that he had a
generalized fear of returning to Mexico and was considering
the possibility of filing for asylum.
In June 2013, Cortes-Maldonado filed an application for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). In October 2016, at his
merits hearing, Cortes-Maldonado withdrew his asylum and
withholding of removal claims. The IJ denied Cortes-
Maldonado’s application for CAT protection and ordered
him removed, noting that Cortes-Maldonado conceded
removability as an alien convicted of an aggravated drug
trafficking crime. The IJ did not analyze whether Cortes-
Maldonado’s conviction constituted an aggravated felony.
Cortes-Maldonado appealed the IJ’s decision to the
Board of Immigration Appeals (BIA). He argued that our
then-recent decision in Sandoval v. Yates (Sandoval I),
847 F.3d 697 (9th Cir. 2017), issued after the IJ’s decision,
warranted remand because he was no longer removable as
an aggravated felon. In Sandoval I, we held that Delivery of
Heroin under Oregon Revised Statutes § 161.405(1)
constitutes neither a “drug trafficking” crime, because it
6 CORTES-MALDONADO V. BARR
includes solicitation, nor “illicit trafficking in a controlled
substance,” because it includes non-commercial delivery.
847 F.3d at 701–05. Cortes-Maldonado argued that because
Oregon’s marijuana delivery statute likewise included
solicitation offenses, he was not removable as an aggravated
felon. The government argued that even if Cortes-
Maldonado’s statute of conviction was categorically broader
than the federal definition of “drug trafficking,” his
conviction nonetheless constituted “illicit trafficking in a
controlled substance” under § 1101(a)(43)(B), and
suggested that Sandoval I was wrongly decided.
While Cortes-Maldonado’s appeal was pending before
the BIA, we withdrew and amended our opinion in Sandoval
I to delete any analysis regarding the “illicit trafficking”
prong of § 1101(a)(43)(B). Sandoval v. Sessions (Sandoval
II), 866 F.3d 986, 989 n.3 (9th Cir. 2017) (“The previously
published version of this opinion [Sandoval I] also
considered whether [Oregon Revised Statutes]
§ 475.992(1)(a) was an ‘illicit trafficking’ offense . . . .
Because the BIA did not consider this issue, we decline to
do so here.”). At the BIA’s direction, the parties filed
supplemental briefs in response to Sandoval II. The BIA
dismissed Cortes-Maldonado’s appeal and concluded that
his conviction under Oregon Revised Statutes
§ 475.860(2)(a) categorically constituted illicit trafficking in
a controlled substance.
Cortes-Maldonado timely petitioned for review, raising
similar arguments to those he raised before the BIA. 2
2
Cortes-Maldonado also contends for the first time that the IJ lacked
subject-matter jurisdiction because the NTA never specified the time and
place of his hearing, and thus jurisdiction never vested in the
CORTES-MALDONADO V. BARR 7
We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D);
Sandoval II, 866 F.3d at 988, and we grant Cortes-
Maldonado’s petition for review and remand. We hold that
because Oregon Revised Statutes § 475.860 covers
solicitation, it is categorically broader than the federal
generic definition of “illicit trafficking of a controlled
substance,” and Cortes-Maldonado is thus not removable as
an aggravated felon.
II.
We review de novo the BIA’s legal conclusions,
including its determination of the elements of a statute of
conviction. Vasquez-Valle v. Sessions, 899 F.3d 834, 838
(9th Cir. 2018). We do “not defer to an agency’s
interpretations of state law.” Sandoval II, 866 F.3d at 988.
III.
Before addressing whether Cortes-Maldonado’s
conviction for marijuana delivery constitutes “illicit
trafficking” under the INA, we briefly explain the
categorical approach and the legal framework that guides our
analysis.
immigration court. Our recent decision in Karingithi v. Whitaker,
913 F.3d 1158 (9th Cir. 2019), cert. denied 140 S. Ct. 1106 (Feb. 24,
2020), however, forecloses this claim. Further, Cortes-Maldonado
raised, also for the first time in his reply brief, that our decision in United
States v. Valencia, 912 F.3d 1215 (9th Cir. 2019), which we decided after
the parties filed their principal briefs, provides an alternative basis to
conclude that his conviction is not an aggravated felony. In light of our
disposition, we need not reach this issue. We thus deny the government’s
motion to remand as moot.
8 CORTES-MALDONADO V. BARR
A.
Under the INA, any noncitizen who is convicted of an
aggravated felony suffers several consequences, such as
becoming deportable, 3 inadmissible, 4 and ineligible for
cancellation of removal. 5 Congress defined the term
“aggravated felony” to include, among other offenses,
“illicit trafficking in a controlled substance.”
§ 1101(a)(43)(B). 6 To determine whether a state criminal
conviction constitutes “illicit trafficking in a controlled
substance,” we must apply the so-called “categorical
approach.” Descamps v. United States, 570 U.S. 254, 257
(2013).
Under the categorical approach, we ignore the actual
facts of the particular prior conviction and instead compare
the elements of the state statute of conviction to the federal
“generic” crime “to determine whether the conduct
proscribed by the state statute is broader than the generic
federal definition.” Alvarez-Cerriteno v. Sessions, 899 F.3d
774, 778–79 (9th Cir. 2018) (quotation marks and brackets
omitted). If the state statute criminalizes more conduct than
the federal statute does, “then the conviction does not qualify
3
8 U.S.C. § 1227(a)(2)(A)(iii).
4
§ 1182(a)(9)(A)(i)–(ii).
5
§ 1229b(a)(3).
6
The provision reads: “The term ‘aggravated felony’ means— . . .
(B) illicit trafficking in a controlled substance (as defined in [21 U.S.C.
§ 802(6)]), including a drug trafficking crime (as defined in [18 U.S.C.
§ 924(c)]).” As discussed, both parties agree that the Oregon statute does
not constitute the narrower category of a “drug trafficking crime” under
Sandoval II, so we do not discuss it here.
CORTES-MALDONADO V. BARR 9
as a predicate offense under the categorical approach.” Id.
at 779 (quotation marks omitted).
“Thus, the BIA must construe both the state and federal
statutes.” Id. In doing so, the BIA “must determine first the
elements of the offense the petitioner has been convicted of
committing, and second whether the conviction falls within
the definition of a removable offense under the INA.”
Fregozo v. Holder, 576 F.3d 1030, 1034–45 (9th Cir. 2009).
Because the BIA has “no statutory expertise” in state law,
we “review[] de novo its determination of the elements of
the offense for which the petitioner was convicted.” Id. at
1034. But, “if in resolving the federal law issue, the BIA has
interpreted an ambiguous INA statutory term”—here, “illicit
trafficking in a controlled substance”—“and rendered its
interpretation in a precedential decision intended to carry the
force of law, [we] defer[] to the BIA’s interpretation under
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).” See Alvarez-Cerriteno, 899 F.3d
at 779 (quoting Fregozo, 576 F.3d at 1034–35) (brackets,
quotation marks, and parallel citations removed).
We thus “proceed in three steps.” Id. First, we
determine the elements of “illicit trafficking of a controlled
substance.” See id. Second, we analyze the state criminal
statute—section 475.860—to determine its elements. See
id. In analyzing the state statute, we determine whether the
statute is “divisible,” and, if it is, we apply the so-called
“modified categorical approach,” which allows us to
“consult a limited class of documents, such as indictments
and jury instructions, to determine which alternative formed
the basis of the [petitioner’s] prior conviction.” Descamps,
570 U.S. at 257. Finally, in the third step, we “compare the
federal generic crime and [section 475.860]” to determine
whether (1) the Oregon statute’s “elements encompass more
10 CORTES-MALDONADO V. BARR
conduct than do the federal generic crime’s elements”; and
whether (2) “there is a ‘realistic probability’ that [Oregon]
could prosecute conduct under its statute that falls outside
the scope of the federal generic crime, as required by
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007).” See
Alvarez-Cerriteno, 899 F.3d at 779 (parallel citations
removed).
The second step—that is, the elements of Oregon’s
marijuana delivery statute—are not in dispute. At the time
of Cortes-Maldonado’s conviction, it was “unlawful for any
person to deliver marijuana.” Or. Rev. Stat. § 475.860(1)
(2011). The statute listed different punishments depending
on whether the delivery was with or without “consideration.”
For example, a person who delivered marijuana “for
consideration” committed a “Class B felony,”
§ 475.860(2)(a); meanwhile, a person who delivered
marijuana without consideration committed a “Class C
felony,” § 475.860(2)(b). Because the statute listed different
punishments for different conduct, the BIA determined, and
the parties do not dispute, that section 475.860 is divisible.
See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)
(“If statutory alternatives carry different punishments, then
. . . they must be elements.”). The BIA thus applied the
modified categorical approach and concluded that reliable
records of conviction show that Cortes-Maldonado was
convicted of section 475.860(2)(a)—marijuana delivery for
consideration. Cortes-Maldonado does not challenge this
determination.
Cortes-Maldonado’s statute of conviction thus contained
three basic elements: (1) marijuana, (2) delivery, (3) for
consideration, see § 475.860(2)(a), but the crucial element
on which we focus is “delivery.” The parties agree—as we
held in Sandoval II—that Oregon’s definition of delivery
CORTES-MALDONADO V. BARR 11
encompasses solicitation. See 866 F.3d at 990–92.
Specifically, Oregon defines “delivery” as “the actual,
constructive or attempted transfer, other than by
administering or dispensing, from one person to another of a
controlled substance, whether or not there is an agency
relationship.” § 475.005(8) (emphasis added). Oregon
courts, in turn, have construed “attempted transfer” broadly
to encompass solicitation, reasoning that solicitation
constitutes a “substantial step toward committing the crime
of delivery, and, therefore, constitute[s] delivery . . . .” State
v. Sargent, 822 P.2d 726, 728 (Or. Ct. App. 1991) (citing
State v. Self, 706 P.2d 975, 981 (Or. Ct. App. 1985)).
Because “attempted transfer” has been judicially interpreted
to include solicitation, the divisibility analysis here is
“straightforward” because section 475.860(2)(a) “sets out a
single (or ‘indivisible’) set of elements to define a single
crime.” Sandoval II, 866 F.3d at 993–94 (quoting Mathis,
136 S. Ct. at 2248). The term “delivery” in § 475.860(2)(a)
“is therefore indivisible with respect to whether an ‘attempt’
is accomplished by solicitation.” See id. at 994. The
government does not dispute this determination. 7
7
To be clear, although we reviewed the record of conviction for the
limited purpose of determining that Cortes-Maldonado was convicted of
marijuana delivery for consideration, § 475.860(2)(a), we cannot now
use that record to identify the facts underlying textually indivisible
portions of that subdivision—here, the phrase “delivery.” See
Descamps, 570 U.S. at 260 (explaining modified approach serves the
“limited” function of determining “which element played a part in the
defendant’s conviction) (emphasis added); Johnson v. United States,
559 U.S. 133, 144 (2010) (explaining the modified approach “permits a
court to determine which statutory phrase was the basis for the
conviction”) (emphasis added); see also Syed v. Barr, 969 F.3d 1012,
1017 (9th Cir. 2020) (“If a statute is not divisible or if there is no match
under the modified approach, the conviction will not serve as a basis for
removal.”). Once we have identified which alternative element the state
12 CORTES-MALDONADO V. BARR
We thus turn to whether the federal generic crime of
“illicit trafficking of a controlled substance” includes the
inchoate crime of solicitation to commit marijuana delivery
for consideration.
B.
The INA does not define the phrase “illicit trafficking.”
The BIA, however, has understood that the term
“essential[ly]” involves a “business or merchant nature” or
“the trading or dealing of goods.” Matter of Davis, 20 I. &
N. Dec. 536, 540–41 (B.I.A. 1992). Later BIA decisions
have likewise held that “illicit trafficking” means “a
commercial transaction, or passing of goods from one person
to another for money or other consideration.” Matter of L-
G-H, 26 I. & N. Dec. 365, 371 n.9 (B.I.A. 2014).
The BIA’s interpretation matches closely with how
federal courts have interpreted the term. Applying the
“everyday understanding” of the term, the Supreme Court
has defined “illicit trafficking” to include “some sort of
commercial dealing.” Lopez v. Gonzales, 549 U.S. 47, 53
(2006); see also Carachuri-Rosendo v. Holder, 560 U.S.
563, 574 (2010). We have stated, though somewhat
obliquely, that an offense constitutes illicit trafficking “if it
contains a trafficking element”—without further defining
the term. Salviejo-Fernandez v. Gonzales, 455 F.3d 1063,
1066 (9th Cir. 2006) (citing Cazarez-Guttierez v. Ashcroft,
charged, our need for and use of the modified approach ends. In other
words, we look to the text of the statute and not Cortes-Maldonado’s
underlying conduct. See Altayar v. Barr, 947 F.3d 544, 550 (9th Cir.
2020).
CORTES-MALDONADO V. BARR 13
382 F.3d 905, 912 (9th Cir. 2004)). 8 Here, the BIA relied
upon these established interpretations and did not elaborate
beyond them.
Under these definitions, controlled substance
convictions qualify as “illicit trafficking” if they require the
transfer or exchange of money or other consideration. See
e.g., Carachuri-Rosendo, 560 U.S. at 574; United States v.
Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (holding
that a California conviction of simple transportation of
marijuana for personal use does not qualify as a trafficking
offense). We have extended this definition also to include
possession with intent to sell. Rendon, 520 F.3d at 974. We
reasoned that, possession with intent to sell, which was a
separate offense from mere possession, “necessarily means
that [the defendant] possessed the marijuana with the intent
to engage in ‘some sort of commercial dealing.’” Id. at 975–
76 (quoting Lopez, 549 U.S. at 53). Broadly interpreted,
Rendon stands for the proposition that although the conduct
may not involve actual trading or dealing of goods, an intent
to traffic coupled with possession can satisfy the commercial
aspect of “illicit trafficking.” See id. at 974–76.
Here, the BIA relied on Rendon to conclude that a
solicitation offense for delivery of marijuana has a
“commercial element” if the solicitation is “with . . .
consideration.” The BIA’s reasoning is terse and relies
8
The Third and the Sixth Circuits have recognized a “more concrete
definition”—also followed by the BIA—which requires that “to contain
a trafficking element, a state felony must involve ‘the unlawful trading
or dealing of a controlled substance.’” Rendon v. Mukasey, 520 F.3d
967, 975 (9th Cir. 2008) (quoting Jeune v. Att’y Gen., 476 F.3d 199, 202
(3d Cir. 2007)); see also Garcia-Echaverria v. United States, 376 F.3d
507, 513 (6th Cir. 2004). We have not had occasion to adopt these
definitions, nor conclude we necessarily need to do so here.
14 CORTES-MALDONADO V. BARR
exclusively on Rendon. The BIA did not, however, engage
with our decision in Coronado-Durazo v. INS, 123 F.3d
1322 (9th Cir. 1997), which provides further guidance on
whether solicitation to commit an illicit trafficking offense
is an aggravated felony. Nor did the BIA examine the
overall statutory scheme of the INA to determine whether
solicitation is covered.
In Coronado-Durazo, we considered whether an
individual’s conviction for solicitation to possess cocaine
under Arizona’s solicitation statute could form the basis for
deportation under the “controlled substances ground” of the
INA (as distinct from the aggravated felony ground).
123 F.3d at 1325–26. In deciding that it could not, we noted
that 8 U.S.C. § 1227(a)(2)(B)(i) specified convictions for
conspiracies and attempts relating to a controlled substance
but did not include solicitations. Coronado-Durazo,
123 F.3d at 1325 (“[S]olicitation is not on the list.”). 9
Solicitation is also not on the list here: the definition of
aggravated felony includes “an attempt or conspiracy to
commit an offense,” but does not include solicitation. See
8 U.S.C. § 1101(a)(43)(U). We already have considered and
rejected whatever discomfort this technical distinction may
9
We further reasoned that because solicitation requires a different
mental state and different acts under Arizona law, it was a generic
offense separate from controlled substance violations. Coronado-
Durazo, 123 F.3d at 1325; but see Peters v. Ashcroft, 383 F.3d 302, 306–
07 (5th Cir. 2004) (declining to adopt Ninth Circuit approach and
holding that an Arizona conviction for solicitation of marijuana for sale
“related to” a controlled substance offense, in part because of the
statute’s broad language). Whether the Fifth Circuit would reach the
same conclusion in the aggravated felony context is unclear given that it
heavily relied on the expansive “relating to” language under the
controlled substance ground—language that is not present here. See id.CORTES-MALDONADO V. BARR 15
produce. See Coronado-Durazo, 123 F.3d at 1326 (“[W]e
do not find it absurd, or inconsistent, that despite
congressional zeal to eliminate illicit drug trafficking,
Congress limited deportation for generic crimes to
conspiracy and attempt.”); see also United States v. Aguilar-
Ortiz, 450 F.3d 1271, 1275–76 (11th Cir. 2006) (holding that
a Florida conviction for solicitation of delivery of drugs is
not a “drug trafficking offense” for illegal re-entry
sentencing purposes because the sentencing guidelines
include aiding and abetting, attempt, and conspiracy, but not
solicitation offenses). And, at least with respect to the
controlled substance ground, Congress has been methodical
in adding inchoate crimes: it added “conspiracy” to the
statute in the Narcotic Control Act of 1956, 10 and later added
“attempt” in the Immigration Act of 1990. 11 Yet, it has never
added “solicitation,” which is also a well-established (and
distinct) type of inchoate crime at the federal level, see, e.g.,
18 U.S.C. § 373 (limiting general solicitation statute to
soliciting crimes of violence), and in most states, see
generally Wayne R. LaFave, 2 Subst. Crim. L. § 11.1(f) (3d
ed.); Charles E. Torcia, 4 Wharton's Criminal Law § 672
(15th ed.).
Additionally, even though we decided Coronado-
Durazo over twenty years ago, Congress has not amended
either the controlled substance ground or the aggravated
felony ground to include solicitation. See United States v.
Hunter, 101 F.3d 82, 85 (9th Cir. 1996) (“[A]s a matter of
10
Pub. L. No. 84-728, § 301(b), 70 Stat. 567, 575 (current version
at 8 U.S.C. § 1227(a)(2)(B)(i)).
11
Pub. L. No. 101-649, § 508(a), 104 Stat. 4978, 5051 (current
version at 8 U.S.C. § 1227(a)(2)(B)(i)) (“Section 241(a)(11) (8 U.S.C.
1251(a)(11)) is amended by inserting ‘or attempt’ after ‘conspiracy’.”).
16 CORTES-MALDONADO V. BARR
statutory construction, we ‘presume that Congress is
knowledgeable about existing law pertinent to the legislation
it enacts.’”) (quoting Goodyear Atomic Corp. v. Miller,
486 U.S. 174, 184–85 (1988)). Thus, it is unlikely that
“illicit trafficking” would include an inchoate crime that was
specifically left out of the definition of aggravated felony.
The overall structure of the INA also strongly suggests
that solicitation to commit a trafficking offense does not fall
under the definition of “illicit trafficking.” Congress
expressly listed solicitation (and conduct that would
traditionally qualify as solicitation) as part of numerous
other grounds of inadmissibility and deportability yet did not
include solicitation within “illicit trafficking.” For example,
solicitation, or conduct like it, serves as a ground of
inadmissibility or deportation for terrorist conduct, 12
genocide, 13 alien smuggling, 14 firearms trafficking, 15 and
12
8 U.S.C. § 1182(a)(3)(B)(iv)(V)(aa) (“to solicit any individual –
(aa) to engage in conduct otherwise described in this clause”) (emphasis
added); § 1227(a)(4)(B) (deportation ground referring to § 1182(a)(3)).
13
8 U.S.C. § 1182(a)(3)(E)(ii) (“ordered, incited, assisted, or
otherwise participated in genocide”) (emphasis added); § 1227(a)(4)(D)
(deportation ground referring to § 1182(a)(3)(E)).
14
8 U.S.C. § 1182(a)(6)(E)(i) (“knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter or to try to
enter the United States. . . .”) (emphasis added); § 1227(a)(1)(E)
(deportation ground including identical language).
15
8 U.S.C. § 1227(a)(2)(C) (“Any alien who at any time after
admission is convicted under any law of . . . offering for sale . . . , or of
attempting or conspiring to . . . offer for sale . . . any weapon . . . in
violation of any law is deportable.”) (emphases added); see also Rivera-
Sanchez, 247 F.3d at 908 (holding offers to sell include solicitations).
CORTES-MALDONADO V. BARR 17
sustaining multiple convictions. 16 Yet Congress did not
define § 1101(a)(43)(B) to include solicitation. Further,
Congress did not include solicitation within the catch-all
inchoate provision, which defines “aggravated felony” to
mean “an attempt or conspiracy to commit an offense
described in this paragraph.” § 1101(a)(43)(U) (emphasis
added).
Finally, we have uncovered no federal crime of “illicit
trafficking” that defines trafficking to include solicitation.
See Gattem v. Gonzales, 412 F.3d 758, 762–65 (7th Cir.
2005) (deferring to BIA’s interpretation of “sexual abuse of
a minor,” an aggravated felony, to include solicitation, in
part, because the BIA relied on a federal criminal provision
that defined sexual abuse to include “inducement” of a child
to engage in a sexual act).
Given our precedent and the overall structure of the
relevant INA provisions, we conclude that the conduct
proscribed by Oregon’s marijuana delivery statute does not
constitute “illicit trafficking” of a controlled substance.
Our decision in Rendon does not persuade us to hold
otherwise. First, and most obviously, we did not address
there whether solicitation was included within the definition
of “illicit trafficking.” We instead addressed the narrow
question of whether a Kansas conviction for possession of
marijuana with intent to sell—a non-inchoate crime, and a
distinct crime from possession alone—“contains a
trafficking element.” 520 F.3d at 975. Relying on the
16
8 U.S.C. § 1182 (inadmissible if “convicted of 2 or more
offenses,” without limiting the type of offense) (emphasis added);
§ 1227(a)(2)(A)(ii) (deportable if convicted of “two or more crimes of
moral turpitude”) (emphasis added).
18 CORTES-MALDONADO V. BARR
Supreme Court’s definition of “illicit trafficking” to include
“some sort of commercial dealing,” we held that it did. Id.
at 975–76 (citing Lopez, 549 U.S. at 53). We reasoned:
“‘Possession of marijuana with intent to sell’ necessarily
means that [the petitioner] possessed marijuana with the
intent to engage in ‘some sort of commercial dealing.’” Id.But, as explained earlier, Rendon simply held that a
combined possession of and intent to sell marijuana involved
commercial dealing. See id.Solicitation to deliver a controlled substance in Oregon,
on the other hand, is not the same as the crime of possession
with intent to deliver a controlled substance. For one, the
former Oregon marijuana delivery statute did not require
actual possession or distribution, but rather that the
defendant only make some statement that might have led
another person to aid in the endeavor. Sargent, 822 P.2d
at 728; see also Self, 706 P.2d at 981; Or. Rev. Stat.
§ 161.435(1) (explaining that solicitation exists when a
person “commands or solicits” another person to “engage”
or “attempt to engage” in “specific conduct constituting a
crime punishable as a felony . . . ,” “with the intent of
causing” that person to engage in such conduct). Second, a
defendant need not aid in the endeavor for a conviction to
stand. Words and desire alone suffice. See Sargent,
822 P.2d at 728; see also Self, 706 P.2d at 981. As a result,
Oregon courts have held that delivery is a distinct crime that
does not legally merge with the crime of possession of a
controlled substance. Sargent, 822 P.2d at 728. Thus,
although possession with intent to sell has a much closer and
more direct relationship with commercial activity—that is,
the person possesses the drugs and intends to sell them once
the opportunity arises—the minimum conduct needed for
CORTES-MALDONADO V. BARR 19
solicitation—words and desire—do not relate to commercial
activity. 17
Thus, the BIA erred in relying on Rendon, especially
given our earlier precedent establishing that solicitation
offenses do not fall under the controlled substance ground
for deportation under § 1227(a)(2)(B)(i).
We conclude 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 § 1101(a)(43)(B). We therefore grant the petition for
review and remand for further proceedings consistent with
this opinion.
Petition GRANTED and REMANDED.
17
Oregon courts have gone even further to hold that a person
commits the crime of solicitation when the person asks an intermediary
to ask a third party to commit a crime, even if the intermediary never
communicated with or ultimately procured the third party. See State v.
Everett, 274 P.3d 297, 301 (Or. Ct. App. 2012); see also Self, 706 P.2d
at 977 (defendant committed solicitation when he asked an individual to
help bail out a third party from jail and said that the third party would
provide him with cocaine in exchange).