Eva Gonzalez Romo v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVA ISABEL GONZALEZ ROMO, Eva No. 16-71559
AKA Eva Isabel Romo,
Petitioner, Agency No.
A047-334-955
v.
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 8, 2019
Portland, Oregon
Filed August 14, 2019
Before: Ferdinand F. Fernandez, Susan P. Graber,
and John B. Owens, Circuit Judges.
Opinion by Judge Fernandez;
Concurrence by Judge Owens;
Dissent by Judge Graber
2 GONZALEZ ROMO V. BARR
SUMMARY*
Immigration
Denying Eva Isabel Gonzalez Romo’s petition for review
of the Board of Immigration Appeals’ precedential decision
in Matter of Gonzalez Romo, 26 I. & N. Dec. 743 (BIA 2016),
the panel held that Gonzalez was inadmissible under 8 U.S.C.
§§ 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because her
conviction for solicitation to possess marijuana for sale, in
violation of Ariz. Rev. Stat. §§ 13-1002(A), 13-3405(A)(2),
was a crime involving moral turpitude.
The panel gave Chevron deference to the BIA’s
determination that a returning lawful permanent resident who
has a felony conviction for solicitation to possess marijuana
for sale is inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I),
even though that provision refers only to attempt and
conspiracy to commit a crime involving moral turpitude, and
not solicitation.
The panel noted that there was no doubt that Gonzalez
was convicted in Arizona of the crime of solicitation to
possess over four pounds of marijuana for sale, and that drug
trafficking crimes are generally crimes involving moral
turpitude. The panel further noted that this court held
in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.
2007), that “solicitation to possess at least four pounds of
marijuana for sale constitutes a crime involving moral
turpitude.” However, Barragan-Lopez involved 8 U.S.C.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GONZALEZ ROMO V. BARR 3
§ 1227(a)(2)(A)(i)(I), which applies to deportability
determinations, and does not include the “attempt or
conspiracy to commit such a crime” phrase that appears in
§ 1182(a)(2)(A)(i)(I), for inadmissibility purposes.
The panel rejected Gonzalez’s contention that,
by referencing only “attempt or conspiracy,”
§ 1182(a)(2)(A)(i)(I) excluded crimes of solicitation. The
panel stated that it saw no reason to deviate from the holding
in Barragan-Lopez that solicitation of a crime of the
magnitude of possession of at least four pounds of marijuana
for sale is as turpitudinous as commission of the crime itself.
The panel discussed the cases relied upon by Gonzalez,
Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999)
(addressing drug trafficking aggravated felonies, 8 U.S.C.
§ 1101(a)(43)(B)) and Coronado-Durazo v. I.N.S., 123 F.3d
1322 (9th Cir. 1997) (addressing controlled substance
offenses under 8 U.S.C. § 1227(a)(2)(B)(i)), in which this
court held that other statutes referencing only attempts and
conspiracies did not cover solicitation offenses. While
recognizing that reasoning which excludes solicitation as to
certain provisions could be said to apply whenever conspiracy
or attempt are specifically mentioned in a statute, the panel
stated that would be unlikely when it comes to crimes
involving moral turpitude, which are a separate concept with
a long history that has been used by Congress in the
immigration laws for over a century. The panel explained
that it was doubtful that Congress intended to give the phrase
different scope in different provisions, and this court’s cases
do not suggest that it did. The panel further explained that
the legislative history indicated that Congress’s inclusion of
the terms attempt and conspiracy were meant to be clarifying,
and that for inchoate crimes that are bad enough to be
considered crimes of moral turpitude, there was little reason
4 GONZALEZ ROMO V. BARR
to think that Congress eliminated some, such as solicitation,
from consideration, simply because it decided to make it clear
that others did fall into that category.
Because the panel concluded that Congress’s intent was
clear, it stopped at step one of the Chevron deference test.
However, to the extent there was some perceived uncertainty
regarding the meaning and reach of the statute, the panel
concluded that it was clear that the BIA’s resolution of the
uncertainty was permissible and reasonable.
Concurring, Judge Owens wrote that he did not believe
reliance on Chevron was necessary, but he concurred with the
majority opinion because it comports with Supreme Court
and Ninth Circuit law. Judge Owens continues to believe that
the current moral turpitude jurisprudence makes no sense, and
pointed out that he is not a lone wolf in so thinking.
Dissenting, Judge Graber wrote that the majority opinion
misapplies both Ninth Circuit and Supreme Court precedent,
and violates several canons of statutory construction. Judge
Graber wrote that following this court’s precedents, the text
of § 1182(a)(2)(A)(i)(I) unambiguously covers only the
generic crimes of “attempt or conspiracy,” and that
Barragan-Lopez, by its own terms, limited its holding to
§ 1227(a)(2)(A)(i)(I), which does not contain similar
wording.
GONZALEZ ROMO V. BARR 5
COUNSEL
Samuel L. Brenner (argued), Matthew L. McGinnis, and
Courtney M. Cox, Ropes & Gray LLP, Boston,
Massachusetts; Marta F. Belcher, Ropes & Gray LLP, East
Palo Alto, California; for Petitioner.
Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.
Hogan, Assistant Director; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
FERNANDEZ, Circuit Judge:
Eva Isabel Gonzalez Romo, a native and citizen of
Mexico and a lawful permanent resident of the United States,
petitions for review of the Board of Immigration Appeals’
(“BIA”) determination that she was inadmissible because she
had been convicted of a crime involving moral turpitude. See
8 U.S.C. § 1182(a)(2)(A)(i)(I); 1 see also id.
§ 1101(a)(13)(C)(v). The crime in question was solicitation
to possess marijuana for sale, which she committed in the
State of Arizona. See Ariz. Rev. Stat. §§ 13-1002(A), 13-
3405(A)(2). We deny the petition.
Gonzalez had been a lawful permanent resident of the
United States since November 18, 1999. On October 11,
2009, while driving with a suspended license, Gonzalez was
1
Hereafter all statutory references are to Title 8 of the United States
Code, unless otherwise indicated.
6 GONZALEZ ROMO V. BARR
pulled over in Arizona for failing to make a complete stop at
a red light. The police officer noticed two large cardboard
boxes in Gonzalez’s vehicle, and a strong odor of air
freshener emanated from that vehicle. Upon securing
Gonzalez’s consent to search the vehicle, officers discovered
150 pounds of marijuana, which Gonzalez admitted that she
had knowingly agreed to transport for $1,000. As a result, on
March 12, 2010, she was convicted of felony solicitation to
possess marijuana for sale under Arizona Revised Statutes
sections 13-1002, 13-3405(A)(2) and sentenced to one-and-a-
half years in prison.
After Gonzalez was released from prison, she traveled to
Mexico. Upon returning from her trip on May 3, 2014, she
was detained and paroled into the United States for removal
proceedings. As relevant here, the government charged
Gonzalez with inadmissibility due to her conviction of a
crime involving moral turpitude.2 See §§ 1101(a)(13)(C)(v),
1182(a)(2)(A)(i)(I). Gonzalez disputed that allegation. On
September 29, 2015, the immigration judge found Gonzalez
inadmissible as charged. In particular, the immigration judge
held that solicitation to possess marijuana for sale is a crime
involving moral turpitude. She appealed that determination
to the BIA.
In a precedential decision, the BIA dismissed Gonzalez’s
appeal. The BIA concluded that even though Gonzalez was
a lawful permanent resident, because she had been convicted
2
“[A] crime involving moral turpitude is generally a crime that (1) is
vile, base, or depraved and (2) violates accepted moral standards.” Latter-
Singh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (internal quotation
marks omitted); see also Quintero-Salazar v. Keisler, 506 F.3d 688, 692
(9th Cir. 2007).
GONZALEZ ROMO V. BARR 7
of an offense identified in § 1182(a)(2)(A)(i)(I), she was
seeking admission to the United States due to
§ 1101(a)(13)(C)(v). Matter of Gonzalez Romo, 26 I. & N.
Dec. 743, 748 (BIA 2016). That is, the BIA concluded that
Gonzalez’s conviction was a crime involving moral turpitude.
Id. It rejected Gonzalez’s contention that, by referencing
“attempt or conspiracy,” § 1182(a)(2)(A)(i)(I) excludes
crimes of solicitation even if they otherwise constitute crimes
involving moral turpitude. Id. at 747–48. In doing so, the
BIA receded from contrary language in a footnote in an
earlier case,3 which it now characterizes as dicta. Matter of
Gonzalez Romo, 26 I. & N. Dec. at 748. Even in that earlier
footnote, however, the BIA had not specifically said that it
agreed with the Ninth Circuit’s then-supposed position. This
petition for review followed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
“We review the BIA’s determination of purely legal questions
regarding the Immigration and Nationality Act de novo,” with
appropriate deference. Kankamalage v. I.N.S., 335 F.3d 858,
861 (9th Cir. 2003).
3
The footnote reads “In effect, the Ninth Circuit has indicated that
[§ 1227(a)(2)(A)] is broader in its coverage of crimes involving moral
turpitude than [§ 1182(a)(2)(A)(i)(I)], because it would include inchoate
offenses, such as solicitation and facilitation, that are not specifically
enumerated in [§ 1182(a)(2)(A)(i)(I)], which lists only attempts and
conspiracies.” Matter of Vo, 25 I. & N. Dec. 426, 429 n.4 (BIA 2011).
8 GONZALEZ ROMO V. BARR
Where, as here, the BIA’s decision is published, it may
well be entitled to Chevron4 deference. See Chen v. Mukasey,
524 F.3d 1028, 1031 (9th Cir. 2008); Kankamalage, 335 F.3d
at 862. Under Chevron’s framework, the first step is to
ascertain “whether Congress has directly spoken to the
precise question at issue.” Chevron, 467 U.S. at 842, 104 S.
Ct. at 2781. To so determine, the court employs “traditional
tools of statutory construction.” Id. at 843 n.9, 104 S. Ct. at
2782 n.9. If the statute’s meaning is clear, “that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Id. at 842–43, 104 S. Ct. at 2781. Otherwise, we proceed to
the second step, that is: “[I]f the statute is silent or ambiguous
with respect to the specific issue, the question for the court is
whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843, 104 S. Ct. at 2782. If
it is, “a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the . . . agency.” Id. at 844, 104 S. Ct. at 2782.
DISCUSSION
The BIA determined that even though Gonzalez was a
legal permanent resident, she was removable because she was
inadmissible to the United States when she presented herself
at the border. See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I);
see also Matter of Gonzalez Romo, 26 I. & N. Dec. at 748.
Gonzalez argues that the BIA erred because she was not
4
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–44, 104 S. Ct. 2778, 2781–82, 81 L. Ed. 2d 694 (1984).
GONZALEZ ROMO V. BARR 9
subject to those provisions.5 We disagree. As relevant here,
pursuant to § 1101(a)(13)(C)(v), an alien who is a legal
permanent resident is treated as one seeking admission if the
alien “has committed an offense identified in section
1182(a)(2).” And pursuant to § 1182(a)(2)(A)(i)(I), as
relevant here, an “alien convicted of . . . a crime involving
moral turpitude . . . or an attempt or conspiracy to commit
such a crime . . . is inadmissible.”
There can be no doubt that Gonzalez was convicted in
Arizona of the crime of solicitation to possess over four
pounds of marijuana for sale. See Ariz. Rev. Stat. §§ 13-
1002(A), (B)(2), 13-3405(A)(2), B(6). Nor can there be any
doubt that drug trafficking crimes are generally crimes
involving moral turpitude. See Barragan-Lopez v. Mukasey,
508 F.3d 899, 903–04 (9th Cir. 2007) (so stating and
underscoring just how turpitudinous drug trafficking is); see
also Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014);
Rohit v. Holder, 670 F.3d 1085, 1088–89 (9th Cir. 2012).
Moreover, we have specifically held that “solicitation to
possess at least four pounds of marijuana for sale . . .
constitutes a crime involving moral turpitude.” Barragan-
Lopez, 508 F.3d at 904; see also Rohit, 670 F.3d at 1089; Atl.
Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir. 1987).
In fact, Barragan-Lopez, 508 F.3d at 901, dealt with a
conviction under Arizona statutory provisions which are the
same as those involved here. All of that would lead
inexorably to our denial of Gonzalez’s petition were it not for
5
We note that because her offense was committed in 2009, she is not
entitled to the benefit of the rules that applied to legal permanent residents
before the statutes were amended in 1996. Cf. Vartelas v. Holder, 566
U.S. 257, 261, 132 S. Ct. 1479, 1483–84, 182 L. Ed. 2d 473 (2012);
Centurion v. Sessions, 860 F.3d 69, 77 (2d Cir. 2017).
10 GONZALEZ ROMO V. BARR
the fact that Barragan-Lopez was construing
§ 1227(a)(2)(A)(i)(I) which states, in pertinent part, “[a]ny
alien who . . . is convicted of a crime involving moral
turpitude . . . is deportable.” As Gonzalez points out, the
language of § 1227(a)(2)(A)(i)(I), for deportation purposes,
does not include the “attempt or conspiracy to commit such
a crime” phrase that appears in § 1182(a)(2)(A)(i)(I), for
inadmissibility purposes, and that, she argues, makes all the
difference in the world. The argument has some purchase,6
but like the BIA,7 we are not convinced.
As Barragan-Lopez stated,8 in neither of the cases that
Gonzalez relies upon were we asked to consider the meaning
and scope of the phrase “crime involving moral turpitude,”
and we certainly did not reflect upon whether solicitation to
possess a large amount of marijuana for sale would be
turpitudinous enough to come within the reach of that
phrase.9 Rather, in Leyva-Licea,10 we asked whether a
conviction in Arizona of solicitation to possess at least two
pounds, but less than four pounds, of marijuana for sale was
an aggravated felony. We determined that it was not because
the definition of aggravated felony, as set forth in
§ 1101(a)(43)(B) (trafficking in controlled substances) in turn
referred to 18 U.S.C. § 924(c), which in turn ultimately relied
6
See Leyva-Licea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999);
Coronado-Durazo v. I.N.S., 123 F.3d 1322, 1325 (9th Cir. 1997).
7
Matter of Gonzalez Romo, 26 I. & N. Dec. at 746–47.
8
508 F.3d at 904–05.
9
Id.
10
187 F.3d at 1150.
GONZALEZ ROMO V. BARR 11
upon 21 U.S.C. § 846, which covered only attempts or
conspiracies.11 Nothing therein treated solicitation as the kind
of offense that would be an aggravated felony.12 Moreover,
in Coronado-Durazo,13 we asked whether a conviction in
Arizona of solicitation to possess cocaine was a controlled
substance offense within the meaning of § 1227(a)(2)(B)(i).14
We held it was not because that section covered only “‘a
violation [by an alien] of (or a conspiracy or attempt to
violate) any law or regulation . . . relating to a controlled
substance.’”15 It did not by its terms indicate that the scope
of the phrase “violation . . . relating to a controlled substance
offense” included solicitation, or that solicitation was
encompassed by an attempt or conspiracy. As we have since
noted, had solicitation been included within the meaning of
controlled substance offense, the result would have been the
opposite. See Mielewczyk v. Holder, 575 F.3d 992, 997–98
(9th Cir. 2009). Again, in Barragan-Lopez,16 we asked
whether the scope of “crime involving moral turpitude” did
include solicitation of that crime for amounts of marijuana
over four pounds and said that it did because solicitation of a
crime of that magnitude was as turpitudinous as commission
11
See id.
12
Id.
13
123 F.3d at 1324.
14
This is the current section containing the provisions which at that
time were contained in § 1251(a)(2)(B)(i).
15
Coronado-Durazo, 123 F.3d at 1324; see also id. at 1325–26.
16
508 F.3d at 903.
12 GONZALEZ ROMO V. BARR
of the crime itself.17 We did not opine on whether the result
would be the same for “a very small quantity”18 of the
substance. We agree with that analysis and see no
compelling reason to deviate therefrom. On the contrary, we
see strong reasons not to do so.
First, we recognize that reasoning which excludes
solicitation as to certain provisions could be said to apply
whenever conspiracy or attempt are specifically mentioned in
a statute. However, that would be unlikely when it comes to
crimes involving moral turpitude. That is a separate concept
with a long history19 which has been used by Congress in the
immigration laws for over a century.20 It is doubtful that
Congress intended to give the phrase different scope in
different provisions,21 and our cases do not suggest that it
did.22
17
See id. at 904.
18
Id.
19
The concept is deeply rooted in our law. See Jordan v. De George,
341 U.S. 223, 227, 71 S. Ct. 703, 705–06, 95 L. Ed. 886 (1951).
20
See id. at 229–30, 71 S. Ct. at 707.
21
See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S.
71, 85–86, 126 S. Ct. 1503, 1513, 164 L. Ed. 2d 179 (2006); cf. Powerex
Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411,
2417, 168 L. Ed. 2d 112 (2007).
22
See, e.g., Islas-Veloz v. Whitaker, 914 F.3d 1249, 1250–51 (9th Cir.
2019); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1269 (9th Cir.
2013); Morales v. Gonzales, 478 F.3d 972, 978 (9th Cir. 2007), abrogated
on other grounds by Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th
Cir. 2010).
GONZALEZ ROMO V. BARR 13
Second, we recognize that solicitation is a type of
inchoate crime because it would not be a crime involving
moral turpitude if the underlying offense (here possession for
sale of over four pounds of marijuana) was not a crime
involving moral turpitude. See Barragan-Lopez, 508 F.3d at
903. No doubt attempt and conspiracy are also inchoate
crimes in that sense. Why then would Congress mention
them specifically and not mention other inchoate crimes (like
solicitation) when referring to crimes involving moral
turpitude? Of course, we cannot say for sure, and the
legislative history, such as it is, does not make the answer
perspicuous. It just indicates that the addition of those words
was clarifying. See 139 Cong. Rec. 15,275 (1993) (indicating
that the language was intended to “make clear” that those
concepts were covered); see also Immigration and Nationality
Technical Corrections Act of 1994, Pub. L. 103–416, § 203,
108 Stat. 4305, 4311 (indicating that the language constitutes
a clarification). However, when it comes to inchoate crimes
that are bad enough to be considered crimes of moral
turpitude, we see little reason to think that Congress took this
somewhat indirect approach to eliminating some of them
from consideration simply because it decided to make it clear
that others did fall into that category. See Ali v. Fed. Bureau
of Prisons, 552 U.S. 214, 226–27, 128 S. Ct. 831, 840, 169 L.
Ed. 2d 680 (2008). It is more likely that Congress was
focused on the two that it mentioned and had no intention of
excluding all others. See Marx v. Gen. Revenue Corp.,
568 U.S. 371, 385, 133 S. Ct. 1166, 1177, 185 L. Ed. 2d 242
(2013). And, while redundancy and surplusage are not
always desirable, they are not anoetic. See Conn. Nat’l Bank
v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149, 117 L.
Ed. 2d 391 (1992). In fact, it is not unusual to see
redundancy occur in clarifying enactments, which do run the
risk of introducing other problems while focusing on the task
14 GONZALEZ ROMO V. BARR
of making sure that a particular problem does not arise. See
id. As the Court has said: “In any event, our hesitancy to
construe statutes to render language superfluous does not
require us to avoid surplusage at all costs. It is appropriate to
tolerate a degree of surplusage rather than adopt a textually
dubious construction that threatens to render the entire
provision a nullity.” United States v. Atl. Research Corp.,
551 U.S. 128, 137, 127 S. Ct. 2331, 2337, 168 L. Ed. 2d 28
(2007). In the case at hand, the cost would be particularly
high because it would create an anomaly in application of the
statutory scheme, which we doubt Congress intended when it
adopted its clarifying amendments.23 The anomaly can be
seen if we start with the rather uncontroversial reflection that
“[o]ur immigration law has generally treated aliens who are
already on our soil (and who are therefore deportable) more
favorably than aliens who are merely seeking admittance (and
who are therefore excludable).” Servin-Espinoza v. Ashcroft,
309 F.3d 1193, 1198 (9th Cir. 2002). But removing
solicitation of possession of over four pounds of marijuana
from the definition of a crime involving moral turpitude in
§ 1182(a)(2)(A)(i)(I), although solicitation is part of the
definition in § 1227(a)(2)(A)(i)(I), would turn that concept on
its head. That is because we already know that even a legal
permanent resident can be removed pursuant to
§ 1227(a)(2)(A)(i)(I) for soliciting a crime involving moral
turpitude. See Barragan-Lopez, 508 F.3d at 905. However,
if solicitation is removed from the definition of crime
involving moral turpitude in § 1182(a)(2)(A)(i)(I), no alien
(legal permanent resident or not) can be excluded for
soliciting a crime involving moral turpitude, regardless of
23
In general, we do attempt to avoid anomalies and try to view the
scheme at hand as “symmetrical and coherent.” Perez-Guzman v. Lynch,
835 F.3d 1066, 1074 (9th Cir. 2016) (internal quotation marks omitted).
GONZALEZ ROMO V. BARR 15
how turpitudinous that crime may be. Again, we doubt that
Congress intended any such thing. In fact, in the context of
this statutory scheme regarding who can enter and who can be
removed, ascribing that intent to Congress would lead to a
result so dubious that it would be nothing short of an internal
inconsistency amounting to an absurdity. See United States
v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L.
Ed. 2d 246 (1981) (“[A]bsurd results are to be avoided and
internal inconsistencies in the statute must be dealt with.”);
see also McNeill v. United States, 563 U.S. 816, 822, 131 S.
Ct. 2218, 2223, 180 L. Ed. 2d 35 (2011).
The discussion above indicates that we can stop at step
one of the Chevron process24 because Congress’ true intent is
clear to us. However, to the extent that there is some
perceived uncertainty25 regarding the meaning and reach of
the statute, that ambiguity26 would direct us to step two.27 At
that step, it is clear that the BIA’s resolution of the
24
467 U.S. at 842–43, 104 S. Ct. at 2781.
25
See, e.g., Mielewczyk, 575 F.3d at 996–98; Barragan-Lopez,
508 F.3d at 902–05; Coronado-Durazo, 123 F.3d at 1324–26; see also
Mizrahi v. Gonzales, 492 F.3d 156, 164–67 (2d Cir. 2007); Peters v.
Ashcroft, 383 F.3d 302, 305–09 (5th Cir. 2004).
26
We note that some ambiguity in statutory language does not
preclude resolution of that ambiguity by the BIA. See Chevron, 467 U.S.
at 843, 104 S. Ct. at 2782; Perez-Guzman, 835 F.3d at 1076 n.5.
27
Chevron, 467 U.S. at 843–44, 104 S. Ct. at 2781–82.
16 GONZALEZ ROMO V. BARR
uncertainty is permissible and reasonable. Indeed, it appears
to us that it is the best resolution.28
Thus, we deny the petition.
CONCLUSION
We hold that a conviction in Arizona for solicitation to
possess at least four pounds of marijuana for sale constitutes
a crime involving moral turpitude for purposes of
§ 1182(a)(2)(A)(i)(I), and, therefore, Gonzalez was
inadmissible. See § 1101(a)(13)(C)(v).
Petition DENIED.
28
We have not overlooked Gonzalez’s argument that the BIA should
be accorded less deference because it changed its position about what it
thought our case law required. See Matter of Vo, 25 I. & N. Dec. at 429
n.4. However, as we see it, an agency’s reflections on what it thought we
have said, or might say, is quite different from a determination of what the
law is. In any event: “In the circumstances of this case, where the
agency’s interpretation of a statute is at least as plausible as competing
ones, there is little, if any, reason not to defer to its construction.” Good
Samaritan Hosp. v. Shalala, 508 U.S. 402, 417, 113 S. Ct. 2151, 2161,
124 L. Ed. 2d 368 (1993).
GONZALEZ ROMO V. BARR 17
OWENS, Circuit Judge, concurring:
Because the majority opinion comports with Supreme
Court and Ninth Circuit law, I concur (and I do not think
reliance on Chevron is necessary). But I continue to believe
that the current moral turpitude jurisprudence makes no
sense, and I am not a lone wolf in so thinking. See Jordan v.
De George, 341 U.S. 223, 232–45 (1951) (Jackson, J.,
dissenting); Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th
Cir. 2019) (Berzon, J., concurring); Islas-Veloz v. Whitaker,
914 F.3d 1249, 1251–61 (9th Cir. 2019) (Fletcher, J.,
concurring); Menendez v. Whitaker, 908 F.3d 467, 475 (9th
Cir. 2018) (Callahan, J., concurring); Ortega-Lopez v. Lynch,
834 F.3d 1015, 1018–19 (9th Cir. 2016) (Bea, J., concurring);
Arias v. Lynch, 834 F.3d 823, 830–36 (7th Cir. 2016) (Posner,
J., concurring); Ceron v. Holder, 747 F.3d 773, 785–89 (9th
Cir. 2014) (en banc) (Bea, J., dissenting); Navarro-Lopez v.
Gonzales, 503 F.3d 1063, 1084–86 (9th Cir. 2007) (en banc)
(Bea, J., dissenting), overruled on other grounds by United
States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011)
(en banc).
Until Congress or the Supreme Court intervenes, the
present regime will continue to be a black hole for judicial
resources. And the experience of our court leaves no doubt
about the arbitrariness of the results. For example, we have
held that knowing possession of child pornography is
categorically a crime involving moral turpitude. United
States v. Santacruz, 563 F.3d 894, 896–97 (9th Cir. 2009)
(per curiam). But some conduct directly between the
defendant and victim is not—such as committing a lewd or
lascivious act on a child aged 14 or 15 (with a defendant at
least ten years older than the child) with the intent of
arousing, appealing to, or gratifying the lust, passions, or
18 GONZALEZ ROMO V. BARR
sexual desires of the defendant or the child, Menendez,
908 F.3d at 472–74, or annoying or molesting a child under
the age of 18, motivated by unnatural or abnormal sexual
interest, Nicanor-Romero v. Mukasey, 523 F.3d 992,
997–1007 (9th Cir. 2008), overruled in part on other grounds
by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.
2009) (en banc).
We have also been quick to conclude, under the current
framework, that fraud crimes categorically involve moral
turpitude, such as making false statements to obtain credit
cards, Tijani v. Holder, 628 F.3d 1071, 1075–79 (9th Cir.
2010), but relatively more serious non-fraudulent crimes do
not, such as simple kidnapping, Castrijon-Garcia v. Holder,
704 F.3d 1205, 1212–18 (9th Cir. 2013). In addition, we
have determined that beating up your wife is morally
turpitudinous, Grageda v. INS, 12 F.3d 919, 922 (9th Cir.
1993), superseded by statute on other grounds as stated in
Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011), but
beating up your live-in girlfriend does not categorically
involve moral turpitude, Morales-Garcia v. Holder, 567 F.3d
1058, 1067 (9th Cir. 2009).
Rather than play the role of a Rorschach psychologist, we
should focus on a more objective standard, such as the length
of the underlying criminal sentence, before removing
someone from the United States. See Almanza-Arenas v.
Lynch, 815 F.3d 469, 482–83 (9th Cir. 2015) (en banc)
(Owens, J., concurring) (“A better mousetrap is long overdue.
Rather than compete with Rube Goldberg, we instead should
look to a more objective standard, such as the length of the
underlying sentence . . . .”); cf. United States v. Brown,
879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J., concurring)
(“A regime based on the length of previous sentences, rather
GONZALEZ ROMO V. BARR 19
than on the vagaries of state law, is the way to go.”). While
not perfect, this approach would be far more evenhanded and
predictable than what we have now.
GRABER, Circuit Judge, dissenting:
I respectfully dissent. In my view, the majority opinion
misapplies our own precedent and misapplies Supreme Court
precedent as well. I would grant the petition.
Title 8 U.S.C. § 1182(a)(2)(A)(i)(I) renders inadmissible
any alien convicted of “a crime involving moral turpitude . . .
or an attempt or conspiracy to commit such a crime.” Here,
Arizona’s crime of possessing marijuana for sale is one that
involves moral turpitude. The only question is whether
“solicitation” to commit that crime also involves moral
turpitude.
In Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th
Cir. 1997), we considered a similar question: whether
8 U.S.C. § 1227(a)(2)(B)(i), rendering removable any alien
convicted of “a violation of (or a conspiracy or attempt to
violate)” a law relating to controlled substances, covers
“solicitation” to possess cocaine under Arizona law. We
held: (1) solicitation is a generic offense under Arizona law,
and (2) the plain text of § 1227(a)(2)(B)(i) does not cover
solicitation because Congress chose to list only the generic
crimes of conspiracy and attempt, but omitted the generic
crime of solicitation. Id. at 1324–25.
In Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.
1999), we properly described our earlier holding in broad
20 GONZALEZ ROMO V. BARR
terms about statutory construction: “In Coronado-Durazo,
we held that where a statute listed some generic offenses but
omitted others, the statute covered only the generic offenses
expressly listed.” Of course, that is a straightforward
application of the common canon expressio unius est exclusio
alterius. See Barnhart v. Peabody Coal Co., 537 U.S. 149,
168 (2003) (explaining that the canon applies “when the
items expressed are members of an ‘associated group or
series,’ justifying the inference that items not mentioned were
excluded by deliberate choice, not inadvertence.” (quoting
United States v. Vonn, 535 U.S. 55. 65 (2002)).
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.
2007), does not detract from the forceful and plain statutory
construction demanded by Coronado-Durazo. As a three-
judge panel, the Barragan-Lopez court could not overrule
earlier precedent, and it carefully avoided doing so.
Barragan-Lopez couched its holding in narrow terms: an
Arizona conviction for solicitation to possess marijuana for
sale “constitutes a crime involving moral turpitude for
purposes of 8 U.S.C. § 1227(a)(2)(A)(i).” 508 F.3d at 905
(emphasis added); see also id. at 904–05 (noting that
Coronado-Durazo and Leyva-Licea did not address the
specific question whether the crime involves moral turpitude
“under 8 U.S.C. § 1227(a)(2)(A)(i)”). Section
1227(a)(2)(A)(i) provides, simply, that an alien who “is
convicted of a crime involving moral turpitude committed
within” a certain period of time after admission “is
deportable” if a sentence of one year or longer could be
imposed for that crime. Unlike the statutes in Coronado-
Durazo, Leyva-Licea, and here, § 1227(a)(2)(A)(i) does not
refer to any generic crimes, and thus does not list attempt and
conspiracy to the exclusion of solicitation; we distinguished
GONZALEZ ROMO V. BARR 21
it from the earlier decisions on that ground. Barragan-Lopez,
508 F.3d at 904–05.
We have continued to recognize that Coronado-Durazo
remains good law concerning basic statutory construction.
For example, in Mielewczyk v. Holder, 575 F.3d 992, 997
(9th Cir. 2009), we noted that in Coronado-Durazo “the
statute of conviction was a generic solicitation statute, and
8 U.S.C. § 1227(a)(2)(B)(i) limits convictions for generic
crimes that may result in [removal] to conspiracy and
attempt.” (internal quotation marks omitted).
In short, following our precedents, the text of
§ 1182(a)(2)(A)(i)(I) unambiguously covers only the generic
crimes of “attempt or conspiracy.” Like the statute that we
interpreted in Coronado-Durazo, this statute omits the term
“solicitation.” And we also held there that, in Arizona,
solicitation is a generic offense. Barragan-Lopez, by its own
terms, limited its holding to a different statute that did not
contain similar wording. The majority opinion’s
interpretation sidesteps the holdings of Coronado-Durazo and
Leyva-Licea.
In addition, the majority opinion violates several canons
of statutory construction. (1) As the opinion acknowledges,
its reading renders the phrase “or an attempt or conspiracy to
commit such a crime” surplusage. Maj. op. at 13–14. Such
a result is disfavored. See Ctr. for Biological Diversity v.
Salazar, 695 F.3d 893, 903 (9th Cir. 2012) (“It is ‘a cardinal
principle of statutory construction’ that a statute should be
construed, if possible, so that ‘no clause, sentence, or word
shall be superfluous, void, or insignificant.’” (quoting TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001))). (2) Alternatively,
the majority opinion adds “solicitation” to the statutory list,
22 GONZALEZ ROMO V. BARR
again in violation of the venerable principle that we may not
add words that Congress has omitted. Lamie v. U.S. Tr.,
540 U.S. 526, 538 (2004). Congress obviously knew that
solicitation is the third inchoate crime, because other
provisions of the immigration statutes include it. See, e.g.,
8 U.S.C. § 1101(a)(15)(U)(iii) (excluding from a definition
certain victims of “criminal activity,” which is defined to
mean certain substantive crimes or an “attempt, conspiracy,
or solicitation to commit” such a crime). (3) As noted above,
Coronado-Durazo and Leyva-Licea applied the canon
expressio unius est exclusio alterius, another principle
abandoned by the majority opinion. (4) Finally, the majority
opinion ignores the use of “or” in § 1182(a)(2)(A)(i)(I): by
providing that an alien is inadmissible if she is convicted of
“a crime involving moral turpitude . . . or an attempt or
conspiracy to commit such a crime, Congress clearly signaled
that it viewed those categories as alternatives. (Emphasis
added.) The opinion, instead, transmogrifies alternatives into
illustrations, as if the statute read “including an attempt or
conspiracy.” In Garcia v. United States, 469 U.S. 70, 73
(1984), the Supreme Court observed that “[c]anons of
construction indicate that terms connected in the disjunctive
in this manner [separated by “or”] be given separate
meanings.” Cf. Fed. Land Bank of St. Paul v. Bismarck
Lumber Co., 314 U.S. 95, 99–100 (1941) (pointing out that
the use of the term “including” means that a statutory
provision’s application is not “limited to the specific
illustrations mentioned in the participial phrase introduced by
‘including’”).
Next, the majority incorrectly posits that the result of
following the statutory construction principles of Coronado-
Durazo and Leyva-Licea would be absurd because doing so
would make the same crime a cause for removal but not
GONZALEZ ROMO V. BARR 23
inadmissibility. Maj. op. at 14–15. That notion has surface
appeal, but this result is actually common and not at all
absurd.
Beginning with the big picture of the Immigration and
Nationality Act, “removal” covers all matters that render an
alien “inadmissible,” but also an additional, longer list.
Under 8 U.S.C. § 1227(a)(1)(A), “[a]ny alien who at the time
of entry or adjustment of status was within one or more of the
classes of aliens inadmissible by the law existing at such time
is [removable].” The statute continues, though, by making
many other acts a cause for removal, including such disparate
activities as alien-smuggling before, during, or after
admission to the United States; failure to notify the Attorney
General of a change of address; and violation of a protection
order. That is, removal is designed to cover more situations
than inadmissibility.
The relevant statutes contain specific examples of this
phenomenon. For instance, “certain firearm offenses,” such
as unlawfully possessing or selling a firearm, render an alien
“removable” under § 1227(a)(2)(C) but not “inadmissible.”
An alien who stands convicted of such an offense may, if
otherwise eligible, seek adjustment of status, which
“effectively converts the alien’s [removal] proceedings into
admissibility proceedings, where the firearms offenses (which
do not bar admissibility) become irrelevant.” Pascua v.
Holder, 641 F.3d 316, 322 (9th Cir. 2011); see also Malilia
v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) (“Even an alien
who is removable for a firearms conviction is eligible for
adjustment of status if the alien presents an approved I-
130.”). Someone, like Petitioner here, who is a lawful
permanent resident is entitled to apply for adjustment of
status. Pascua, 641 F.3d at 322 n.4. Indeed, the very
24 GONZALEZ ROMO V. BARR
existence of adjustment of status shows that Congress intends
more stringent rules to apply to removability than to
admissibility. See, e.g., Drax v. Reno, 338 F.3d 98, 107, 113
(2d Cir. 2003) (discussing adjustment of status and “the
inherent differences between [removal] and exclusion”).
In an analogous context, we have held that Congress can
have a rational reason to apply different rules to the same
conduct for purposes of removability and inadmissibility. In
Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc)
(per curiam), we overruled Tapia-Acuna v. INS, 640 F.2d 223
(9th Cir. 1981). Tapia-Acuna held that no rational basis
existed “for granting additional immigration relief [under
former INA § 212(c)] to aliens who temporarily leave the
United States and try to reenter (i.e., aliens facing
inadmissibility), and not to aliens who remain in the United
States (i.e., aliens facing [removal]).” Abebe, 554 F.3d at
1205 (citing Tapia-Acuna, 640 F.2d at 225). That is
essentially the position that the majority opinion takes. But
Abebe held that “Congress could have limited section 212(c)
relief to aliens seeking to enter the country from abroad in
order to create an incentive for [removable] aliens to leave
the country,” thus saving resources that the government
“would otherwise devote to arresting and [removing] these
aliens.” Id. at 1206 (internal quotation marks omitted).
Abebe’s reasoning applies with equal force here. In
addition, Congress rationally could conclude that
“solicitation” is a less serious crime than “attempt” or
“conspiracy” because it is further removed from the actual
commission of the underlying crime involving moral
turpitude. For example: If a person asks a friend if he’s
interested in producing child pornography, that conversation
can constitute solicitation. If the friend agrees and one of
GONZALEZ ROMO V. BARR 25
them commits an overt act (such as buying a camera) that
makes the production of child pornography more likely, the
person is guilty of conspiracy. And if the person already has
a camera and lures a child into his home, or arranges to meet
an undercover officer who poses as a child, the person
attempts to produce child pornography. It is rational to
consider solicitation the least serious of the inchoate offenses.
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 [removal]
for generic crimes to conspiracy and attempt.”).
Finally, the majority opinion purports to follow Chevron
USA Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), maj. op. at 15–16, but Chevron counsels
the opposite result. As the majority opinion correctly notes,
at step one of the analysis, if the statute is clear, we stop
because we must give effect to unambiguously expressed
congressional intent. Id. at 842–43. But in applying step one,
the majority opinion overlooks the requirement that we first
must employ “traditional tools of statutory construction”
when ascertaining congressional intent. Socop-Gonzalez v.
INS, 272 F.3d 1176, 1187 (9th Cir. 2001) (en banc) (quoting
Chevron, 467 U.S. at 843 n.9). When we apply those
traditional tools, as we did in Coronado-Durazo and Leyva-
Licea, we must conclude that the relevant statute plainly
excludes “solicitation.”
Even if the statute were ambiguous, we would not owe
the deference that the majority opinion affords, for two
reasons. First, the BIA misread Ninth Circuit precedent.
Like the majority opinion, the BIA cited cases, including
Barragan-Lopez and Rohit v. Holder, 670 F.3d 1085 (9th Cir.
2012), which interpreted a different statute that does not
26 GONZALEZ ROMO V. BARR
separate out inchoate offenses. Second, the BIA in a previous
case, In re Khanh Hoang Vo, 25 I. & N. Dec. 426, 429 & n.4
(B.I.A. 2011), recognized that 8 U.S.C. § 1182(a)(2)(A)(i)(I)
excludes solicitation. By 2011, all the Ninth Circuit cases
relevant to this question had been decided. But in 2016 the
BIA simply “withdr[e]w from” its holding in Khanh Hoang
Vo because “this statement does not reflect our current
understanding of the Ninth Circuit’s approach.” The BIA’s
cursory discussion is insufficient to meet the requirement that
an agency “provide a reasoned explanation for the change” in
position. Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2125 (2016). The BIA’s terse about-face is particularly
suspect because it mischaracterizes a holding in Khanh
Hoang Vo as dictum. When circumstances have not changed,
the agency must specify why it disregards the circumstances
that led to its earlier position. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009). The BIA has failed
to meet its obligation to justify a change in position. Were
we to reach step two of the Chevron analysis, we still would
not owe deference to the BIA.
For all the foregoing reasons, I dissent.