Pattie Walcott v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATTIE PAGE WALCOTT, AKA Pattie No. 18-70393
Clark, AKA Pattie Watson,
Petitioner, Agency No.
A075-930-578
v.
MERRICK B. GARLAND, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2020
Submission Vacated January 6, 2021
Argued and Submitted February 18, 2021
San Francisco, California
Filed December 22, 2021
Before: A. Wallace Tashima, Marsha S. Berzon, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Tashima;
Concurrence by Judge Berzon;
Dissent by Judge Collins
2 WALCOTT V. GARLAND
SUMMARY*
Immigration
Granting Pattie Page Walcott’s petition for review of a
decision of the Board of Immigration Appeals, the panel held
that 1) Arizona Revised Statutes § 13-3405(A)(4), which
prohibits certain conduct relating to marijuana, is overbroad
and divisible; 2) Walcott’s § 13-3505(A) convictions, which
involved categories in the statute involving the smallest
quantity of marijuana, were not crimes involving moral
turpitude (“CIMT”); and 3) Walcott was therefore not
removable.
After becoming a lawful permanent resident, Walcott was
found removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for
having been convicted of two CIMTs: 1) solicitation to
possess for sale less than two pounds of marijuana under
§§ 13-1002, 13-3405(A)(2), and (B)(4); and 2) offering to
transport less than two pounds of marijuana for sale under
§§ 13-3405(A)(4) and (B)(10).
Applying the categorical approach, the panel held that
subsection 13-3405(A)(4) is overbroad with respect to the
generic definition of a CIMT. The panel explained that this
court has held that drug trafficking crimes are generally
CIMTs and that “moral turpitude” refers to conduct that is
inherently base, vile, or depraved, and contrary to the
accepted rules of morality and the duties owed between
persons or to society in general. The panel concluded that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WALCOTT V. GARLAND 3
subsection 13-3405(A)(4) is overbroad because it includes the
offenses of importation and transfer, neither of which
necessarily involves trafficking. Addressing the least
egregious conduct covered by the subsection and whether
there was a realistic probability that the state would apply it
to conduct outside the definition of a CIMT, the panel pointed
to case law where Arizona has applied the subsections
involving less than two pounds of marijuana to conduct
involving very small amounts.
The panel also concluded that subsection 13-3405(A)(4)
is divisible because it defines multiple, separate crimes. In so
concluding, the panel looked to the text of the statute, the
Shepard documents in the record here, as well as state law.
Applying the modified categorical approach, the panel
concluded that Walcott’s subsection 13-3405(A)(4)
conviction was not a CIMT. The panel observed that in
Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007),
this court held that an Arizona conviction for solicitation to
possess at least four pounds of marijuana for sale constituted
a CIMT. However, the panel explained that Barragan-Lopez
expressly left open the question presented here – whether an
offense involving a very small quantity of marijuana for sale
is a CIMT.
The panel explained that early cases holding that drug
trafficking offenses were CIMTs involved drugs that present
serious risk of injury or death (such as heroin and cocaine)
and observed that the legislative history on which the BIA
relied in concluding that drug trafficking offenses are CIMTs
emphasized the harms of narcotics. The panel concluded that
the underlying rationale of the court’s case law – that drug
trafficking involves actual injury tantamount to murder on a
4 WALCOTT V. GARLAND
slower scale – does not apply to the sale of small amounts of
marijuana. Because Walcott’s offenses involved the
categories in the statute involving the smallest quantity of
marijuana, the panel concluded that her convictions were not
CIMTs. The panel also concluded that contemporary societal
attitudes toward marijuana and widespread legalization of
marijuana supported its conclusion.
Concurring, Judge Berzon wrote that she continues to
believe that the phrase “crime involving moral turpitude” is
unconstitutionally vague. Judge Berzon concurred, however,
because the opinion properly applied the existing case law.
Dissenting, Judge Collins concluded that the BIA
correctly held that Walcott’s convictions were CIMTs. Judge
Collins wrote that it was significant that her offenses involved
“sale,” and wrote that the majority read too much into the
court’s reservation of the question in Barragan-Lopez. Judge
Collins found persuasive the BIA’s conclusion that the
sharing of a small amount of marijuana would be considered
morally turpitudinous if it involved sales, but not if it
involved giving away a few cigarettes. Observing that this
bright line coheres both with Barragan-Lopez and
comparable judgments reflected elsewhere in federal law,
Judge Collins concluded that the BIA’s decision was entitled
to Skidmore deference.
Judge Collins also wrote that the majority’s reliance on
legislative history, current moral standards, and
decriminalization of marijuana was flawed. Finally, Judge
Collins concluded that Walcott provided no other persuasive
basis for setting aside her removal order.
WALCOTT V. GARLAND 5
COUNSEL
Altin Nanaj (argued), Nanaj Law Firm PLLC, New York,
New York, for Petitioner.
Daniel E. Goldman (argued), Senior Litigation Counsel;
Lindsay Corliss, Trial Attorney; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
TASHIMA, Circuit Judge:
Pattie Page Walcott, a citizen of Jamaica, became a lawful
permanent resident of the United States in March 1999. In
2011, the government charged her with removability pursuant
to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of
two crimes involving moral turpitude (“CIMT”), based on
two Arizona convictions for marijuana-related offenses.
Walcott’s first conviction was in October 2010, when she
entered a guilty plea to one count of solicitation to possess for
sale less than two pounds of marijuana, in violation of Ariz.
Rev. Stat. §§ 13-1002 (solicitation), 13-3405(A)(2)
(possession for sale), and (B)(4) (less than two pounds).
Shortly thereafter, she suffered her second conviction, for
offering to transport less than two pounds of marijuana for
sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) (offer to
transport) and (B)(10) (less than two pounds).
The Immigration Judge (“IJ”) sustained the charges,
found Walcott removable, and denied her application for
cancellation of removal under 8 U.S.C. § 1229b(a). The
6 WALCOTT V. GARLAND
Board of Immigration Appeals (“BIA” or “Board”) agreed
with the IJ that Walcott’s convictions were CIMTs and that
she was not entitled to cancellation of removal; it thus
dismissed her appeal. We conclude that Walcott’s
convictions are not CIMTs and that Walcott accordingly was
not removable under 8 U.S.C. § 1227(a)(2)(A)(ii).
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(D). See Barrera-Lima v. Sessions, 901 F.3d
1108, 1114 (9th Cir. 2018) (whether a crime involves moral
turpitude is a legal question this court has jurisdiction to
review). “We review de novo whether a particular conviction
under state law is a removable offense.” Arellano Hernandez
v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016).
DISCUSSION
I
“We determine whether a conviction qualifies as a CIMT
by applying the categorical approach and, if necessary, the
modified categorical approach.” Vasquez-Valle v. Sessions,
899 F.3d 834, 839 (9th Cir. 2018). “Under the categorical
approach, a conviction is a crime of moral turpitude if ‘the
full range of conduct encompassed by the statute,’ including
the least egregious conduct prosecuted under the statute, is a
crime of moral turpitude.” Barragan-Lopez v. Mukasey,
508 F.3d 899, 903 (9th Cir. 2007) (quoting Quintero-Salazar
v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007)).
“The BIA has defined the term ‘moral turpitude’ as
referring to conduct that is ‘inherently base, vile, or depraved,
WALCOTT V. GARLAND 7
and contrary to the accepted rules of morality and the duties
owed between persons or to society in general.’” Silva v.
Garland, 993 F.3d 705, 712 (9th Cir. 2021) (quoting Matter
of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016)). If
the full range of conduct proscribed by the statute does not
constitute a CIMT, “we apply the modified categorical
approach, which permits us to look beyond the language of
the statute to documents that are part of the record of
conviction, but not to the particular facts underlying the
conviction.” Vasquez-Valle, 899 F.3d at 839.
II
We focus our discussion on Walcott’s second conviction,
noting that the modified categorical analysis is substantially
similar for her first conviction, and conclude that neither of
her convictions is a CIMT. Her second conviction was for
offering to transport less than two pounds of marijuana for
sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) and
(B)(10). The BIA concluded that the conviction was a CIMT,
relying on the general principle that drug trafficking offenses
are CIMTs and citing its decision in Matter of Khourn, 21 I.
& N. Dec. 1041 (BIA 1997). Although we generally apply
Chevron1 deference where the BIA relies on its own
precedential decision, “[w]e have hesitated to defer to the
BIA’s general understanding of the term ‘moral turpitude’
because the BIA’s ‘general definition of moral turpitude fails
to particularize the term in any meaningful way.’” Betansos
v. Barr, 928 F.3d 1133, 1139 (9th Cir. 2019) (quoting
Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir.
2009) (en banc)). Khourn involved a conviction for
1
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837(1984).
8 WALCOTT V. GARLAND
distribution of cocaine under 21 U.S.C. § 841 and does not
establish that Walcott’s state conviction for offering to
transport less than two pounds of marijuana is a CIMT. We
therefore decline to apply Chevron deference to the BIA’s
reliance on Khourn in this case.
The Board also relied on our decision in Barragan-Lopez,
where we held that the petitioner’s conviction for solicitation
to possess at least four pounds of marijuana for sale, in
violation of subsections 13-3405(A)(2) and (B)(6),
constituted a CIMT for purposes of removability under
8 U.S.C. § 1227(a)(2)(A)(i)).2 Barragan-Lopez, 508 F.3d
at 904. As pertinent here, the Barragan-Lopez court reasoned
that “[d]rug trafficking offenses, including possession of
unlawful substances for sale, generally involve moral
turpitude. The quantity inherent in Barragan[-]Lopez’s
conviction – four pounds of marijuana – was too great to
justify treating this crime differently.” Id. at 903–04. We
thus concluded that the petitioner’s conviction was a CIMT.
Id. at 904; see also Romo v. Barr, 933 F.3d 1191, 1196–99
(9th Cir. 2019) (relying on Barragan-Lopez to hold that an
Arizona conviction for solicitation to possess for sale at least
four pounds of marijuana was a CIMT for purposes of
inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I)). We
stated, however, that we did not “address the question that
would be presented if Barragan-Lopez had been convicted of
2
The issue in Barragan-Lopez was whether the court should focus on
the solicitation offense rather than the underlying crime in determining
whether the prior conviction was a CIMT. Reasoning that “[w]e have
previously looked to underlying crimes in determining whether
convictions for inchoate offenses constitute crimes involving moral
turpitude,” the court looked to the underlying possession offense to
determine if the conviction was a CIMT. Barragan-Lopez, 508 F.3d
at 903.
WALCOTT V. GARLAND 9
solicitation to possess a very small quantity of marijuana for
sale, such as, for example, a single marijuana cigarette at a
party with personal friends.” Barragan-Lopez, 508 F.3d
at 904.
Barragan-Lopez does not control as to Walcott’s second
conviction because it involved a different subsection of the
statute, and “[w]e look at the specific subsections of a statute
that the petitioner is convicted under to determine if it is a
crime of moral turpitude.” Id. at 903. Barragan-Lopez’s
conviction (and Walcott’s first conviction) was under
subsection 13-3405(A)(2), which prohibits only possession of
marijuana for sale. Walcott’s second conviction was under
subsection 13-3405(A)(4), which provides that a person shall
not knowingly “[t]ransport for sale, import into this state or
offer to transport for sale or import into this state, sell,
transfer or offer to sell or transfer marijuana.”
In contrast to subsection (A)(2), which prohibits only one
offense, subsection (A)(4) includes two offenses that do not
necessarily involve trafficking of marijuana – importation and
transfer. Importation could be accomplished by driving into
the State of Arizona with a small amount of marijuana in the
car that is for personal use, not for sale. See State v. Farid,
471 P.3d 668, 669 (Ariz. Ct. App. 2020) (holding that a
conviction under subsection 13-3405(A)(4) for importation
“does not require proof a defendant who knowingly imported
marijuana did so ‘for sale’”); State v. Chabolla-Hinojosa,
965 P.2d 94, 98 (Ariz. Ct. App. 1998) (discussing subsection
13-3405(A)(4) and noting that “an importation charge has no
‘for sale’ element”). Similarly, transfer could be
accomplished by someone sharing marijuana with a friend
without being paid. See State v. Cota, 956 P.2d 507, 507,
508–09 (Ariz. 1998) (en banc) (observing that “transfer” in
10 WALCOTT V. GARLAND
subsection 13-3405(A)(4) is defined “to mean ‘furnish,
deliver or give away’”) (emphasis added). Subsection 13-
3405(A)(4) accordingly is overbroad because it “criminalizes
conduct that goes beyond the elements” of the CIMT of drug
trafficking. Almanza-Arenas v. Lynch, 815 F.3d 469, 476
(9th Cir. 2016) (en banc) (quoting Lopez-Valencia v. Lynch,
798 F.3d 863, 867–68 (9th Cir. 2015)).
In addition, to determine overbreath, we consider the
“least egregious conduct” covered by the statute. Baragan-
Lopez, 508 F.3d at 903. Here that offense is transportation or
transfer, without sale, of a very small amount of marijuana.
“To show that the stated offense is broader than the generic
definition of a CIMT and thus not a categorical match, the
petitioner must demonstrate that there is ‘a realistic
probability, not a theoretical possibility, that the State would
apply its statute to conduct that falls outside the generic
definition of moral turpitude.’” Vasquez-Valle, 899 F.3d
at 839 (quoting Turijan v. Holder, 744 F.3d 617, 620 (9th Cir.
2014))). In Cota, the defendant was charged under
subsection 13-3405(A)(4) after he was seen purchasing “a
small amount of marijuana, the equivalent of two to three
cigarettes,” 956 P.2d at 508. Arizona therefore has applied
the subsections of the statute involving “less than two
pounds” of marijuana, under which Walcott was charged, to
conduct involving very small amounts.3 For the reasons
discussed in Part IV, infra, such conduct is not “inherently
base, vile, or depraved, and contrary to the accepted rule of
3
The Arizona Supreme Court reversed Cota’s conviction because the
prosecution’s theory was that Cota was liable as an accomplice in
transferring marijuana to himself, but “a transferee cannot transfer to
himself or herself.” Cota, 956 P.2d at 508.
WALCOTT V. GARLAND 11
morality and the duties owed between persons or to society in
general.” Silva, 993 F.3d at 712.
III
Because subsection 13-3405(A)(4) is overbroad, we must
move to the next step and determine whether it is divisible or
indivisible. Barbosa v. Barr, 926 F.3d 1053, 1057 (9th Cir.
2019). If the statute is indivisible, “‘our inquiry ends,
because a conviction under an indivisible, overbroad statute
can never serve as a predicate offense.’” Id. (quoting
Almanza-Arenas, 815 F.3d at 475). If it is divisible, we
proceed to the modified categorical approach. Id.; accord
Ibanez-Beltran v. Lynch, 858 F.3d 294, 297 (5th Cir. 2017)
(per curiam) (“Courts may only use the modified approach
. . . when the statute of conviction is divisible.”).
In determining whether a statute is divisible, the question
is whether the listed items are alternative elements or if they
are “various factual means of committing a single element.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If the
elements “are alternative to each other – not the mode or
means of proving an element of the crime – the statute is
divisible.” Almanza-Arenas, 815 F.3d at 477. We conclude
that subsection 13-3405(A)(4) is divisible.
The first step in determining divisibility is to examine the
text of the statute. Id. Subsection (A)(4) provides that a
person shall not knowingly “[t]ransport for sale, import into
this state or offer to transport for sale or import into this state,
sell, transfer or offer to sell or transfer marijuana.” Because
the subsection “list[s] elements in the alternative,” the
phrasing of the statute suggests that it “define[s] multiple
crimes” and thus is divisible. Mathis, 136 S. Ct. at 2249; see
12 WALCOTT V. GARLAND
Gomez Fernandez v. Barr, 969 F.3d 1077, 1089 (9th Cir.
2020) (explaining that disjunctive text “‘alone cannot end the
divisibility inquiry,’” but it “suggests” the statute lists
different crimes and thus is divisible (quoting Rendon v.
Holder, 764 F.3d 1077, 1086 (9th Cir. 2014))).
We also examine “Shepard documents to see whether the
statute displays alternative elements instead of alternative
means of committing the same crime.” Almanza-Arenas,
815 F.3d at 478; see Mathis, 136 S. Ct. at 2249 (explaining
that, under Shepard v. United States, 544 U.S. 13 (2005), the
court may examine “a limited class of documents (for
example, the indictment, jury instructions, or plea agreement
and colloquy)”). Walcott pled guilty to count 2 of a five-
count indictment, charging her with transportation of
marijuana for sale.4 The plea agreement stated that Walcott
“unlawfully offered to transport marijuana for sale, having a
weight of less than two pounds.” The indictment and plea
agreement’s use of “one alternative term to the exclusion of
all others” in the statute “indicates that the terms within the
statute are individual elements.” Ibanez-Beltran, 858 F.3d
at 298; see Mathis, 136 S. Ct. at 2257 (“[A]n indictment and
jury instructions could indicate, by referencing one
alternative term to the exclusion of all others, that the statute
contains a list of elements, each one of which goes toward a
separate crime.”); Almanza-Arenas, 815 F.3d at 479 (“[A]
prosecutor charging a violation of a divisible statute must
generally select the relevant element from its list of
4
The other four counts in the indictment were: count 1, conspiracy
to commit transportation of marijuana for sale and/or possession of
marijuana for sale; counts 3 and 4, possession of drug paraphernalia; and
count 5, possession of less than two pounds of marijuana.
WALCOTT V. GARLAND 13
alternatives.” (quoting Descamps v. United States, 570 U.S.
254, 272 (2013))).
We also look to state law to determine whether the statute
is divisible. Almanza-Arenas, 815 F.3d at 480. Arizona law
suggests that subsection 13-3405(A)(4) lists alternative
offenses. For example, in Chabolla-Hinojosa, 965 P.2d 94,
the defendant’s conviction on one count each of transporting
marijuana for sale and importing marijuana indicates that
those are separate offenses listed in subsection 13-
3405(A)(4). The charges in Farid, 471 P.3d 668 (importation
of marijuana), and State v. Fierro, 206 P.3d 786 (Ariz. Ct.
App. 2008) (transportation of marijuana for sale), similarly
suggest that the offenses listed in subsection 13-3405(A)(4)
are separate offenses and that the statute accordingly is
divisible.
Farid’s holding further supports the conclusion that the
statute is divisible. The court there held that a conviction
under subsection 13-3405(A)(4) for importing marijuana does
not require proof the defendant imported it for sale. Farid,
471 P.3d at 672. This distinction indicates that the statute is
divisible because “transport for sale” and “import into this
state” have different elements and thus are different offenses.
Walcott relies on State v. Brown, 177 P.3d 878 (Ariz. Ct.
App. 2008) to argue that section 13-3405 is not divisible at
all, but Brown does not support her position. The defendant
in Brown was convicted under Ariz. Rev. Stat. § 13-
3408(A)(7) of three counts each of sale and transfer of a
14 WALCOTT V. GARLAND
narcotic drug, based on three separate sales of crack cocaine.5
The question was whether the “sell, transfer or offer to sell or
transfer” phrase in subsection 13-3408(A)(7) “represent[ed]
different ways to commit a single crime or rather . . .
create[d] separate offenses when a single transaction is
involved.” Id. at 881. Observing that the heading of the
statute included sale of narcotic drugs, but not transfer or
offer to sell or transfer, and assuming that “the legislature
intended to create no more offenses than those listed in the
heading of the statute,” the court concluded that “the
legislature intended the terms ‘sale’ and ‘transfer’ to
represent different ways of committing the same offense
when a single transaction is involved. Id. at 881–82.
Although Brown concluded that sale and transfer
represented different ways of committing the same offense,
the court noted that sale and transportation do not. Id. at 882
n.3. Brown thus acknowledged that at least two of the
offenses listed in subsection 13-3408(A)(7) are not the same
offense. The case therefore does not establish that subsection
13-3405(A)(4), whose language is nearly identical to
subsection 13-3408(A)(7), is entirely indivisible.
The structure of the subsection, the indictment, and
Walcott’s plea agreement all indicate that subsection (A)(4)
is divisible with regard to the transportation offense with
which Walcott was charged. The holding of Farid and the
charges in Chabolla-Hinojosa, Farid, and Fierro further
support our conclusion that the statute is divisible in that
regard. Accord Ibanez-Beltran, 858 F.3d at 298 (concluding
5
Subsection 13-3408(A)(7) proscribes “[t]ransport for sale, import
into this state, offer to transport for sale or import into this state, sell,
transfer or offer to sell or transfer a narcotic drug.”
WALCOTT V. GARLAND 15
that “[t]he plea agreement, judgment, and instructions are
enough, without settled state law to the contrary, to hold that
section 13-3405(A)(4) is divisible”). We therefore turn to the
modified categorical approach.
IV
In applying the modified categorical approach, we
“‘review . . . record materials’ to determine which of the
offenses in a divisible statute the defendant was convicted of
committing.” Pereida v. Wilkinson, 141 S. Ct. 754, 764
(2021) (alteration in original) (quoting Mathis, 136 S. Ct. at
2256). We know that the record of conviction establishes that
Walcott was convicted of offering to transport less than two
pounds of marijuana for sale and that transport for sale
generally constitutes drug trafficking. However, as
Barragan-Lopez recognized, a drug trafficking offense
involving a small amount of marijuana might not involve
moral turpitude. The conviction in Barragan-Lopez involved
more than four pounds of marijuana, the category in the
statute for the largest quantity, and the court specifically
relied on the large quantity to conclude the offense was a
CIMT. Barragan-Lopez, 508 F.3d at 904; see § 13-
3405(B)(6).6 By contrast, Walcott’s conviction involved the
category in the statute addressing the smallest quantity of
marijuana, less than two pounds.7 See § 13-3405(B)(10). As
6
The statute categorizes offenses into different classes of felony
according to the weight of marijuana – less than two pounds, at least two
pounds but not more than four pounds, and more than four pounds. See
§ 13-3405(B). Within each category, there is no distinction as to the
amount of marijuana, so the categories are not internally divisible. See id.
7
Walcott’s first conviction similarly involved the category in the
statute addressing the smallest quantity of marijuana, § 13-3405(B)(4).
16 WALCOTT V. GARLAND
Cota indicates, the least culpable conduct prosecuted in that
category could involve an amount of marijuana equivalent to
only “two or three cigarettes.” Cota, 956 P.2d at 508. This
case thus presents the question left open in Barragan-Lopez
– whether an offense involving “a very small quantity of
marijuana for sale” is a CIMT. Id. We conclude that
Walcott’s convictions are not CIMTs.8
“‘Although the immigration statutes do not specifically
define offenses constituting crimes involving moral turpitude,
a crime involving moral turpitude is generally a crime that
(1) is vile, base, or depraved and (2) violates accepted moral
standards.’” Ceron v. Holder, 747 F.3d 773, 779 (9th Cir.
2014) (en banc) (quoting Latter-Singh v. Holder, 668 F.3d
1156, 1161 (9th Cir.2012)). We have described CIMTs as
offenses that “offend society’s most fundamental values, or
shock society’s conscience,” Barbosa, 926 F.3d at 1058
(quoting Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.
2010)), and have observed that “non-fraudulent [CIMTs]
‘almost always’ involve the intent to injure, actual injury, or
a protected class of victims.” Turijan, 744 F.3d at 619
(quoting Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir.
2010)).
We have also held that “drug trafficking crimes are
generally crimes involving moral turpitude.” Romo, 933 F.3d
at 1195. The history of that precept is informative here.
8
It is unclear what the dissent means by characterizing our resolution
of this open question as “read[ing] that comment as a negative pregnant.”
Dissent at 27. Contrary to the dissent’s assertion, Dissent at 27,
Barragan-Lopez’s explicit reliance on the large quantity at issue and its
reservation of the question when a small quantity is at issue are properly
characterized as suggesting that an offense involving a small quantity may
not be a CIMT.
WALCOTT V. GARLAND 17
Early cases holding that drug trafficking offenses were
CIMTs involved drugs such as heroin and cocaine – that is,
drugs that did present serious risk of injury or death. Atlantic
Richfield Co. v. Guerami, 820 F.2d 280 (9th Cir. 1987), for
example, held that possession of heroin for sale is a “crime of
moral turpitude,” id. at 282, citing United States ex el.
DeLuca v. O’Rourke, 213 F.2d 759 (8th Cir. 1954), which
explained that “there can be nothing more depraved or
morally indefensible than conscious participation in the illicit
drug traffic. The evils which result from unlawfully
importing or dealing with unlawfully imported narcotic drugs
are a matter of common knowledge,” id. at 762. “[N]arcotic
drugs” were defined under the then-applicable statute as
opium, coca leaves, cocaine, or any salt, derivative, or
preparation of opium, coca leaves, or cocaine.” 21 U.S.C.
§ 171(a) (1940).
In Khourn, the BIA similarly held in 1997 that a
conviction for distribution of cocaine under 21 U.S.C.
§ 841(a)(1) was a CIMT, relying in part on the legislative
history of the Narcotic Control Act of 1956. 21 I. & N. Dec.
at 1046, 1048–49. When Congress added a subsection to that
Act addressing the smuggling of marijuana, the House Report
noted that “[t]here are few criminal acts that are more
reprehensible than the act of abetting drug addiction by
engaging in the illicit narcotic and marihuana traffic.” H.R.
Rep. No. 84-2388 (1956), as reprinted in 1956 U.S.C.C.A.N.
3274, 3285. But the report as a whole emphasized the harms
of narcotics, explaining that “[t]he narcotic traffic has been
aptly described as ‘murder on the installment plan.’” Id.
at 3304. We have determined that trafficking of over four
pounds of marijuana is a CIMT, Barragan-Lopez, 508 F.3d
at 904, but the underlying rationale of our case law – that
drug trafficking involves actual injury tantamount to murder
18 WALCOTT V. GARLAND
on a slower scale – does not apply to the sale of small
amounts of marijuana. See Drug Enforcement
Administration, Drug Fact Sheet: Marijuana/Cannabis 3
(2020), https://www.dea.gov/sites/default/files/2020-06/Ma
rijuana-Cannabis-2020.pdf (noting that “‘[n]o deaths from
overdose of marijuana have been reported”).
Barragan-Lopez so acknowledged when it suggested that
possession of a small amount of marijuana for sale might not
be morally turpitudinous. Because Walcott’s offenses
involved the categories in the statute involving the smallest
quantity of marijuana, we conclude that her convictions are
not CIMTs. Contemporary societal attitudes toward
marijuana support the conclusion that offering to transport for
sale and solicitation to possess for sale very small amounts
of marijuana are not offenses that are so inherently base, vile,
or depraved that they offend society’s most fundamental
values or shock society’s conscience.
In November 2020, Arizona voters passed Proposition
207, which provides, in part, that it is lawful to possess or
purchase one ounce or less of marijuana, effective November
30, 2020.9 Ariz. Rev. Stat. § 36-2852(A)(1). In doing so,
Arizona joined fifteen other states and the District of
Columbia in legalizing the recreational use of marijuana. See
9
Arizona passed the Arizona Medical Marijuana Act in 2010,
permitting the use of medical marijuana, effective December 14, 2010.
See Ariz. Rev. Stat. § 36-2802; State v. Jones, 440 P.3d 1139, 1141 (Ariz.
2019). Thus, at the time of Walcott’s conviction, Arizona permitted those
who met the statutory conditions to use medical marijuana and regulated
medical marijuana dispensaries and third party laboratories who dispensed
the marijuana. See Ariz Rev. Stat. §§ 36-2801 to 36-2810. However,
“marijuana possession and use [were] otherwise illegal in Arizona.”
Reed-Kaliher v. Hoggatt, 347 P.3d 136, 139 (Ariz. 2015).
WALCOTT V. GARLAND 19
Michael Hartman, Nat’l Conf. of State Legislators, Cannabis
Overview (Apr. 8, 2021), https://www.ncsl.org/research/civ
il-and-criminal-justice/marijuana-overview.aspx (explaining
that, as of April 8, 2021, “[s]eventeen states, two territories,
and the District of Columbia have legalized the possession of
small amounts of cannabis (marijuana) for adult recreational
use”); see also Gary Michael Smith, Licensing, Zoning and
Recreational Cannabis’ Post-Election Obstacles, 57 Ariz.
Att’y 28 (Mar. 2021) (“Passage of Proposition 207 makes
Arizona the 13th state to enact an adult-use marijuana law.”).
As one article posited, “[i]n less than a decade, marijuana
legalization has gone from unthinkable to seemingly
unstoppable.” Douglas A. Berman & Alex Kreit, Ensuring
Marijuana Reform Is Effective Criminal Justice Reform,
52 Ariz. St. L.J. 741, 741 (2020). Berman and Kreit
explained that “[s]ixty-seven percent of Americans favor
legalizing marijuana according to a late-2019 Pew Research
Center survey – up from 32% in 2006.” Id. at 741–42
(footnote omitted); see also Daniel Tilleman, Canada Shows
the United States How to Do Marijuana at the Federal Level:
A Comparison and Suggestion for A Federal Medical
Marijuana Law, 38 Ariz. J. Int’l & Comp. L. 111, 113 (2021)
(“In 1990, some studies found that only 16.4% of Americans
supported the legalization of marijuana in the US. Recent
studies are now showing that the percentage has climbed to
over sixty percent.” (footnote omitted)).10
10
The dissent characterizes our reliance on these source materials as
“subjective moral intuitions derived from our reading of polling data and
law review commentary.” Dissent at 32. These data, however,
objectively show society’s changing moral standards regarding the
possession and use of marijuana and the dissent does not challenge their
accuracy.
20 WALCOTT V. GARLAND
The widespread legalization of marijuana makes it clear
that offering to transport for sale a very small amount of
marijuana does not involve conduct that violates accepted
moral standards.11 As we have explained, “‘[o]nly truly
unconscionable conduct surpasses the threshold of moral
turpitude.’” Turijan, 744 F.3d at 621 (alteration in original)
(quoting Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th
Cir.2012)).
The need to consider current moral standards in
determining whether an offense is morally turpitudinous is
illustrated by Chavez-Alvarez v. Attorney General U.S.,
850 F.3d 583 (3d Cir. 2017), in which the Third Circuit held
that a 2000 conviction for sodomy was not a CIMT in light of
the Supreme Court’s 2003 decision in Lawrence v. Texas,
539 U.S. 558 (2003). Nearly a decade after the petitioner in
Chavez-Alvarez was convicted of violating three sections of
the Uniform Code of Military Justice, including for sodomy,
he was charged with removability for having been convicted
of an aggravated felony and two or more CIMTs. The
petitioner challenged his removal, arguing that “he was only
convicted of sodomy, a constitutionally protected activity”
under Lawrence. Chavez-Alvarez, 850 F.3d at 585. The BIA
rejected his argument on the ground that his offense was
committed forcibly, making it subject to a sentence
enhancement that rendered it the “functional equivalent” of
a conviction for forcible sodomy, a CIMT. The Third Circuit
11
The same reasoning applies to Walcott’s first conviction, for
solicitation to possess for sale less than two pounds of marijuana.
Although this conviction came under the same subsection of the statute as
was addressed in Barragan-Lopez, her offense presents the question left
open there – whether a conviction under § 13-3405(A)(2) for a very small
quantity of marijuana is a CIMT. We conclude that it is not.
WALCOTT V. GARLAND 21
reversed the BIA and granted the petition, reasoning that the
sentence enhancement was not an element of the offense. Id.
at 587–90. As pertinent here, the court concluded that
sodomy was not a CIMT because, “[p]er Lawrence v. Texas,
the ‘crime’ in the Code affecting Chavez-Alvarez does not
withstand constitutional scrutiny.” Id. at 590.
Although Chavez-Alvarez did not address the question we
face, the determination whether sodomy was morally
turpitudinous was viewed through the lens of Lawrence v.
Texas, which was decided three years after the petitioner’s
conviction. As the Supreme Court has explained, the drafters
of the Constitution “knew times can blind us to certain truths
and later generations can see that laws once thought
necessary and proper in fact serve only to oppress.”
Lawrence, 539 U.S. at 579.
We acknowledge that, in the context of assessing an
aggravated felony, we have held that “when conducting a
categorical analysis for removability based upon a state
criminal conviction, it is proper to compare drug schedules at
the time of the petitioner’s underlying criminal offense, not
at the time of the petitioner’s removal.” Medina-Rodriguez
v. Barr, 979 F.3d 738, 742 (9th Cir. 2020). Similarly, we
have held that in determining whether a CIMT is “a crime for
which a sentence of one year or longer may be imposed,”
8 U.S.C. § 1227(a)(2)(A)(i), we consider the maximum
sentence at the time of conviction. Velasquez-Rios v.
Wilkinson, 988 F.3d 1081, 1084–89 (9th Cir. 2021).
The determination of whether an offense is morally
turpitudinous, however, is not based on a discrete, objective,
concrete factor, such as a drug schedule or the statutory
22 WALCOTT V. GARLAND
maximum prison time. Instead, as the BIA has
acknowledged,
Both the courts and this Board have referred
to moral turpitude as a nebulous concept with
ample room for differing definitions of the
term. Under this standard, the nature of a
crime is measured against contemporary
moral standards and may be susceptible to
change based on the prevailing views in
society.
Islas-Veloz v. Whitaker, 914 F.3d 1249, 1258 (9th Cir. 2019)
(W. Fletcher, J., concurring) (emphasis added) (cleaned up)
(quoting In re Lopez-Meza, 22 I. & N. Dec. 1188, 1191 (BIA
1999)), cert. denied, 140 S. Ct. 2704 (2020); cf. In re Barug,
76 F. Supp. 407, 409 (N.D. Cal. 1948) (explaining that “[t]he
term ‘good moral character’ in the Nationality Act is not a
term of technical legal connotation,” but instead “must be
viewed in the light of the standards of society,” and that “the
morals of the community” are not “static”); In the Matter of
G-, 1 I. & N. Dec. 59, 60 (BIA 1941) (in determining whether
an offense is a CIMT, the standard “is that prevailing in the
United States as a whole, regarding the common view of our
people concerning its moral character”). A determination that
an offense is base, vile, or depraved, or contrary to accepted
moral standards depends on the accepted moral standards or
prevailing views at the time. Thus, a removal order for
having committed a CIMT is fundamentally different from
basing removal on a drug schedule or maximum sentence in
force at the time of conviction and should not be based on an
offense previously, but no longer, thought to be turpitudinous
under societal standards.
WALCOTT V. GARLAND 23
For example, could a removal order be enforced on the
basis of a conviction under antimiscegenation laws obtained
prior to Loving v. Virginia, 388 U.S. 1 (1967)? As Judge
Norris observed, “the Virginia legislature may have adopted
this law in the sincere belief that miscegenation – the mixing
of racial blood lines – was evil.” Watkins v. U.S. Army,
875 F.2d 699, 730 (9th Cir. 1989) (en banc) (Norris, J.,
concurring in the judgment); cf. Barug, 76 F. Supp. at 409–10
(rejecting the government’s argument that the petitioner
lacked good moral character based on his marriage, which
was invalid because it violated miscegenation law). Because
society’s moral judgments change over time, the
determination whether an immigrant is removable for having
committed a CIMT should be viewed in light of
contemporary moral standards, as in Chavez-Alvarez.
We conclude that Walcott’s marijuana convictions are not
CIMTs. She therefore is not removable for having been
convicted of two CIMTs under 8 U.S.C. § 1227(a)(2)(A)(ii).12
The petition for review is GRANTED.
12
In light of our holding that Walcott is not removable, we need not
address the numerous other contentions she raises.
24 WALCOTT V. GARLAND
BERZON, Circuit Judge, concurring:
I continue to believe that the phrase “crime involving
moral turpitude” (“CIMT”) is unconstitutionally vague. See
Silva v. Garland, 993 F.3d 705, 719–20 (9th Cir. 2021)
(Berzon, J., concurring) (as amended); Jauregui-Cardenas v.
Barr, 946 F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J.,
concurring); Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th
Cir. 2019) (Berzon, J., concurring); see also Islas-Veloz v.
Whitaker, 914 F.3d 1249, 1251–61 (9th Cir. 2019) (W.
Fletcher, J., concurring); Marmolejo-Campos v. Holder,
558 F.3d 903, 921–22 (9th Cir. 2009) (en banc) (Berzon, J.,
dissenting). I concur in Judge Tashima’s opinion, however,
as it properly applies the existing case law concerning the
CIMT concept to the crime of conviction in this case.
COLLINS, Circuit Judge, dissenting:
In my view, the Board of Immigration Appeals (“BIA”)
correctly held that Petitioner Pattie Walcott’s two marijuana-
trafficking convictions were crimes involving moral turpitude
and that she was therefore removable under § 237(a)(2)(A)(ii)
of the Immigration and Nationality Act (“INA”). I therefore
dissent from the majority’s contrary conclusion. And because
Walcott has raised no other persuasive basis for setting aside
the BIA’s decision, I would deny her petition for review.
I
In October 2010, Walcott was sentenced by an Arizona
state court to two years of probation after her plea of guilty to
a single count of “solicitation of possession of marijuana for
WALCOTT V. GARLAND 25
sale, having a weight of less than two pounds” in violation of
Arizona Revised Statutes §§ 13-1002 and 13-3405(A)(2),
(B)(4) (2009 ed.). In April 2011, Walcott was again
sentenced by an Arizona state court, this time to three years
in prison after she pleaded guilty to a single charge of “offer
to transport marijuana for sale” in violation of Arizona
Revised Statutes § 13-3405(A)(4), (B)(10) (2011 ed.). The
BIA concluded that these two convictions were for crimes
involving moral turpitude, which rendered Walcott removable
under INA § 237(a)(2)(A)(ii). See 8 U.S.C.
§ 1227(a)(2)(A)(ii) (stating that “[a]ny alien who at any time
after admission is convicted of two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct,” is removable).
In reviewing this decision, I agree with the majority that
we must apply the categorical approach, under which a
particular offense of conviction is a “crime involving moral
turpitude” only if “‘the full range of conduct encompassed by
the statute,’ including the least egregious conduct prosecuted
under the statute, is a crime of moral turpitude.” Barragan-
Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (citation
omitted); see also Opin. at 6. I also agree that, as to
Walcott’s first offense of conviction, the focus of analysis
under the categorical approach is on the underlying offense
solicited—viz., Arizona Revised Statutes § 13-3405(A)(2)
(criminalizing “possess[ing] marijuana for sale”)—and not
the generic offense of solicitation. See Gonzalez Romo v.
Barr, 933 F.3d 1191, 1196–97 (9th Cir. 2019); Barragan-
Lopez, 508 F.3d at 903; see also Opin. at 8 n.2. I further
agree that Arizona Revised Statutes § 13-3405(A)(4)—the
statute underlying Walcott’s second conviction—is a
divisible statute, and that the offense of “offer to transport for
sale . . . marijuana” that is described in one clause of that
26 WALCOTT V. GARLAND
subsection is a distinct offense from those set forth in the
other clauses contained in that subsection. See Opin.
at 11–15. Under the so-called “modified categorical
approach,” our analysis of § 13-3405(A)(4) is therefore
properly limited only to that clause.1 Accordingly, the
question here is whether the offenses of (1) possessing less
than two pounds of marijuana “for sale”; and (2) offering to
transport less than two pounds of marijuana “for sale” are
both categorically crimes involving moral turpitude.
In addressing that question, I note that the resulting
offenses at issue here are categorically limited to situations
involving possession or transportation of marijuana “for
sale.” See ARIZ. REV. STAT. § 13-3405(A)(2), (A)(4). That
point is significant, because it is well established that “drug
trafficking crimes are generally crimes involving moral
turpitude.” Gonzalez Romo, 933 F.3d at 1195 (emphasis
added); Barragan-Lopez, 508 F.3d at 903–04 (“Drug
trafficking offenses, including possession of unlawful
substances for sale, generally involve moral turpitude.”)
(emphasis added); see also, e.g., Ferraz Mota v. Barr,
971 F.3d 96, 100 (2d Cir. 2020) (“[W]e, as well as numerous
other courts, have acknowledged the reprehensible conduct
inherent in drug trafficking offenses, and, as a result, courts
1
Because it is so clear that this clause describes a separate offense, it
seems to me pointless to take any position on the broader question of
whether § 13-3405(A)(4) as a whole is a categorical match to a crime of
moral turpitude. Cf. Opin. at 9–11. If the answer to that question is yes,
then Walcott’s conviction is a crime involving moral turpitude. But if the
answer is no, then we would simply proceed to examine whether the
separate clause at issue in this case is a categorical match. Because that
latter question is thus dispositive here, I express no view as to whether the
majority is correct in concluding that the broader statute is not a
categorical match.
WALCOTT V. GARLAND 27
have concluded that such offenses involve moral turpitude.”
(citation omitted)); United States ex rel. De Luca v.
O’Rourke, 213 F.2d 759, 762 (8th Cir. 1954) (“[T]here can be
nothing more depraved or morally indefensible than
conscious participation in the illicit drug traffic.”). Indeed,
prior to Walcott’s offenses, we had squarely held that
possession of more than four pounds of marijuana for sale in
violation of Arizona Revised Statutes § 13-3405(A)(2), (B)(6)
is categorically a crime involving moral turpitude. See
Barragan-Lopez, 508 F.3d at 903–04. And, at the time of
Walcott’s convictions, the leading precedential BIA decision
similarly recognized that “both Federal and State courts
concur that participation in illicit drug trafficking is a crime
involving moral turpitude.” In re Khourn, 21 I. & N. Dec.
1041, 1046–47 (BIA 1997).
The BIA concluded that Walcott’s marijuana-sales-related
offenses fell within this general rule. The majority notes,
however, that the court in Barragan-Lopez stated that,
because the offense there involved more than four pounds of
marijuana, the court had no occasion to “address the question
that would be presented if Barragan-Lopez had been
convicted of solicitation to possess a very small quantity of
marijuana for sale, such as, for example, a single marijuana
cigarette at a party with personal friends.” 508 F.3d at 904;
see also Opin. at 8–9. Although Barragan-Lopez thus left
that point as an open question, the majority instead reads that
comment as a negative pregnant that affirmatively “suggested
that possession of a small amount of marijuana for sale might
not be morally turpitudinous.” See Opin. at 18. But nothing
in Barragan-Lopez hinted at an answer to the reserved
question, and the majority “reads too much into the [c]ourt’s
reservation of a question that was not before it.” Ali v.
Federal Bureau of Prisons, 552 U.S. 214, 218 n.3 (2008).
28 WALCOTT V. GARLAND
The BIA recognized that this case presents the question
reserved in Barragan-Lopez, and the BIA therefore expressly
addressed whether it made a difference that Walcott’s
marijuana trafficking offenses involved less than two pounds
rather than, as in Barragan-Lopez, more than four pounds.
The BIA concluded that, “given the statute’s remuneration
requirement,” the covered illicit trafficking of small amounts
of marijuana for money still qualified as “turpitudinous” and
distinguished it from a trafficking offense that involved only
“casual sharing of a marijuana cigarette among friends” for
no money. Thus, the BIA concluded that the sort of sharing
among friends posited in Barragan-Lopez would be
considered morally turpitudinous if it involves sales, but not
if it involved giving away a few cigarettes for free.
That reasoning seems to me to be sound, and the bright
line it draws notably does not contradict any of the analogous
(and in some cases, stricter) lines drawn elsewhere by the
INA and by the Controlled Substances Act. See 8 U.S.C.
§ 1182(h) (stating that the inadmissibility of an alien for
having committed a crime of moral turpitude may be waived
if “it relates to a single offense of simple possession of
30 grams or less of marijuana”) (emphasis added); id.§ 1227(a)(2)(B)(i) (separate rule rendering deportable any
alien convicted of an offense “relating to a controlled
substance” does not apply to “a single offense involving
possession for one’s own use of 30 grams or less of
marijuana”); 21 U.S.C. § 841(b)(4) (providing that trafficking
in marijuana shall be “treated” as simple possession under
21 U.S.C. § 844 if the offense consisted of “distributing a
small amount of marihuana for no remuneration” (emphasis
added)). While the BIA’s decision here is entitled only to
Skidmore deference and not to Chevron deference, see
Barrera-Lima v. Sessions, 901 F.3d 1108, 1114–15 (9th Cir.
WALCOTT V. GARLAND 29
2018), it seems to me persuasive. I therefore agree with the
BIA that Walcott’s two offenses were crimes involving moral
turpitude, and she was properly found to be removable under
INA § 237(a)(2)(A)(ii).
II
The majority nonetheless holds that illicit small-scale
retail sales of marijuana are not morally turpitudinous. See
Opin. at 16–22. The majority’s reasons for reaching this
conclusion are all flawed.
A
The majority first invokes an irrelevant snippet of 60-
year-old legislative history to substantially narrow the
rationale for treating drug trafficking as a crime involving
moral turpitude. See Opin. at 17. Specifically, the majority
notes that, in a 1997 precedential decision concluding that
cocaine trafficking was a crime involving moral turpitude, the
BIA at one point cited a 1956 House committee report in
which the committee members opined that “‘[t]here are few
criminal acts that are more reprehensible than the act of
abetting drug addiction by engaging in the illicit narcotic and
marihuana traffic.’” Khourn, 21 I. & N. Dec. at 1047
(quoting H.R. REP. NO. 84-2388 (1956), reprinted in 1956
U.S.C.C.A.N. 3274, 3285). That BIA decision also noted that
the same report stated that “[n]arcotics trafficking was also
described as ‘murder on the installment plan.’” Id. (quoting
1956 U.S.C.C.A.N. at 3304 (further quotation marks
omitted)). Seizing on this second quotation, the majority
declares that the “underlying rationale” for treating drug
trafficking as a crime of moral turpitude in our caselaw is that
“drug trafficking involves actual injury tantamount to murder
30 WALCOTT V. GARLAND
on a slower scale.” See Opin. at 17–18. That rationale “does
not apply to the sale of small amounts of marijuana,” the
majority concludes, because statistics from the Drug
Enforcement Administration (“DEA”) show that “[n]o deaths
from overdose of marijuana have been reported.” Id.
(quoting DEA Drug Fact Sheet: Marijuana/Cannabis at 3,
available at https://www.dea.gov/sites/default/files/2020-
06/Marijuana-Cannabis-2020_0.pdf).
The obvious problem with this reasoning is that it proves
too much: under this rationale, Barragan-Lopez was wrongly
decided. If the majority is right that overdose deaths are the
linchpin of moral turpitude, then any trafficking in
marijuana—whether more than four pounds or less than two
pounds—cannot be deemed morally turpitudinous. The
majority’s narrow reconceptualization of what makes drug
trafficking morally turpitudinous thus cannot provide a
coherent basis for drawing a line between small-scale
retailers on the one hand and large-scale retailers and
wholesalers on the other. Because the majority’s view is
logically irreconcilable with Barragan-Lopez, it cannot be
correct.
B
The majority alternatively concludes that the moral
turpitude of an offense must be evaluated under “current
moral standards” and that, based on the majority’s assessment
of “[c]ontemporary societal attitudes,” small-scale retail sales
of marijuana are not morally turpitudinous. See Opin.
at 17–18, 20 (emphasis added). This alternative theory is also
wrong.
WALCOTT V. GARLAND 31
The BIA has stated that, in assessing whether an offense
is a crime involving moral turpitude, “the nature of [the]
crime is measured against contemporary moral standards and
may be susceptible to change based on the prevailing views
in society.” Matter of Lopez-Meza, 22 I. & N. Dec. 1188,
1192 (1999). Even assuming arguendo that this view is
correct,2 it does not support the majority’s conclusion here.
2
We do not appear to have ever explicitly adopted that view until
today’s decision. On the contrary, in applying the categorical approach
under the various provisions of the INA, we have generally made time-of-
conviction comparisons, rather than time-of-removal comparisons. See,
e.g., Medina-Rodriguez v. Barr, 979 F.3d 738, 749 (9th Cir. 2020)
(holding that the determination whether a particular drug offense is an
aggravated felony must be based on “the time-of-conviction federal drug
schedule” and that a subsequent federal amendment decriminalizing hemp
therefore did not destroy the categorical match under prior law);
Dominguez v. Barr, 975 F.3d 725, 735 n.3 (9th Cir. 2020) (holding that,
in examining whether a particular offense is an aggravated felony, “we
consider the law that the petitioner was convicted of violating as it applied
at the time of conviction”); see also Velasquez-Rios v. Wilkinson, 988 F.3d
1081, 1089 (9th Cir. 2021) (holding that federal immigration
consequences of state convictions “cannot be altered or contradicted
retroactively by state law actions”). As we have recognized, using a time-
of-removal standard would make it impossible to discern the immigration
consequences of an offense at the time of conviction. See Medina-
Rodriguez, 979 F.3d at 748; see also Velasquez-Rios, 988 F.3d at 1087
(noting that a time-of-conviction approach avoids the “absurd result[]”
that “an alien’s removability would depend upon the timing of the
immigration proceeding”) (simplified). This latter criticism would seem
to apply equally to a determination of moral turpitude: an alien cannot
know, at the time he or she is convicted of an offense, whether the moral
turpitude of that offense will be viewed more harshly or less harshly under
future standards applied many years later. (Separately, I would also note
that the majority’s reliance upon caselaw holding certain criminal statutes
unconstitutional is wholly inapposite: of course, the applicable current
constitutional limits must always be obeyed, but that rule has no
application here given that small-scale marijuana sales are not
constitutionally protected. See United States v. Christie, 825 F.3d 1048,
32 WALCOTT V. GARLAND
In making contemporary judgments about moral turpitude,
our analysis must be guided by more objective considerations
rooted in the relevant body of law than by our own subjective
moral intuitions derived from our reading of polling data and
law review commentary. Cf. Opin. at 18–19. Indeed, the
latter approach would greatly exacerbate the potential
vagueness objections to the entire enterprise of defining
“crimes of moral turpitude.” Cf. Islas-Veloz v. Whitaker,
914 F.3d 1249, 1251–61 (9th Cir. 2019) (W. Fletcher, J.,
concurring). Here, the available objective legal indicia do not
support the majority’s conclusion that illicit small-scale retail
sales of marijuana are not morally turpitudinous.
The majority notes that, long after Walcott’s offenses,
Arizona voters in 2020 adopted Proposition 207, which
decriminalizes possession of “one ounce or less of
marijuana.” See ARIZ. REV. STATS. § 36-2852(A)(1); see also
Opin. at 18–19. But nothing in that law decriminalizes
Walcott’s conduct. On the contrary, Proposition 207
authorizes sales only by licensed and heavily regulated
marijuana establishments and their agents, see ARIZ. REV.
STATS. § 36-2858(A)(1)(c), and it decriminalizes transfer of
marijuana among individuals only “if the transfer is without
remuneration and is not advertised or promoted to the
public.” Id. § 36-2852(A)(3) (emphasis added). Likewise,
the fact that many other States and the District of Columbia
have also legalized some form of recreational marijuana
usage since Walcott’s offenses, see Opin. at 18, does not
1065–66 (9th Cir. 2016); Gonzalez v. Raich, 500 F.3d 850, 865 (9th Cir.
2007).) Ultimately, however, I need not take a position as to whether
moral turpitude should be assessed under time-of-removal standards or
time-of-conviction standards—and I do not do so—because I conclude
that the majority’s theory fails in any event.
WALCOTT V. GARLAND 33
establish that illicit small-scale retail sales are not morally
turpitudinous. Moreover, the phrase at issue here—“crime of
moral turpitude”—is contained in a federal statute, and as
noted earlier, the relevant objective indicia in federal law do
not support the particular line that the majority has drawn
between small-scale retail sales and larger retail or wholesale
sales. See supra at 28–29. Rather, the line that emerges from
these materials is instead exactly the one that the BIA drew
here—namely, a distinction between small-scaling sharing of
marijuana for free and all other unlawful trafficking in
marijuana (including illicit sales of marijuana in any
quantity).
More broadly, the majority’s alternative argument once
again proves too much and is difficult to square with
Barragan-Lopez. The majority’s reliance on polling data
suggesting that 67% of Americans favor marijuana
legalization, as well as the majority’s survey of the
legalization movement in the States, see Opin. at 18–19,
would seem to suggest that marijuana trafficking should be
altogether excluded from the category of crimes involving
moral turpitude. Barragan-Lopez requires us to reject that
position, because it squarely holds that the offense of selling
more than four pounds of marijuana is a crime of moral
turpitude. The majority’s broad-based arguments that
marijuana is supposedly not that harmful3 and that
contemporary moral views concerning its use have shifted, do
not logically support drawing a line, in terms of moral
3
But cf. U.S. DEA, Denial of Petition to Initiate Proceedings to
Reschedule Marijuana, 81 Fed. Reg. 53688, 53691 (2016) (detailing the
Food and Drug Administration’s conclusion that some individuals use
marijuana “in amounts sufficient to create a hazard to their health and to
the safety of other individuals and the community”).
34 WALCOTT V. GARLAND
turpitude, between illicit marijuana retailers and wholesalers.
By contrast, the BIA’s line—which distinguishes between
small-scale sharing for free and all other trafficking—is based
on a rationale that logically coheres both with Barragan-
Lopez and with the comparable judgments reflected
elsewhere in federal law.
Accordingly, I would uphold the BIA’s conclusion that
Walcott’s 2010 and 2011 Arizona convictions were for
crimes of moral turpitude and that she is therefore removable
under INA § 237(a)(2)(A)(ii).
III
Walcott provides no other persuasive basis for setting
aside her removal order, and I therefore would deny her
petition for review.
A
Walcott contends that, because her initial notice to appear
did not include the date and time of the hearing, the
immigration court did not acquire jurisdiction over her
removal proceedings. But we have held that such defects do
not preclude jurisdiction from vesting in a particular
immigration court when the notice to appear was filed in that
court, especially where (as here) the correct hearing
information was supplied in a subsequent notice served on the
alien prior to the scheduled hearing. See Aguilar Fermin v.
Barr, 958 F.3d 887, 894–95 (9th Cir. 2020); Karingithi v.
Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).
WALCOTT V. GARLAND 35
B
Walcott also challenges the agency’s denial of her request
for cancellation of removal under INA § 240A. However, we
lack jurisdiction to review the agency’s ultimate discretionary
determination that Walcott does not merit cancellation of
removal. Vilchez v. Holder, 682 F.3d 1195, 1201 (9th Cir.
2012). Although we retain jurisdiction to review
constitutional claims and questions of law concerning the
denial of cancellation of removal, see 8 U.S.C.
§ 1252(a)(2)(D), Walcott has raised no meritorious legal or
constitutional issues.
The immigration judge did not commit any legal error in
connection with her finding that Walcott—who admitted
committing perjury at an earlier hearing in her removal
proceedings—was ultimately not a credible witness.
Although Walcott blames her then-counsel for that perjury,
an ineffective assistance of counsel claim based on that
theory fails because Walcott did not comply with the
procedural requirements of Matter of Lozada, 19 I. & N. Dec.
637 (BIA 1988), and because she did not properly exhaust
any such claim before the agency. Al Ramahi v. Holder,
725 F.3d 1133, 1139 (9th Cir. 2013); Hernandez Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Walcott also contends that the immigration judge violated
her due process rights by referencing the judge’s personal
experiences practicing criminal law during the hearing. Far
from being a due process violation, the judge’s comments
properly flagged significant potential credibility issues
concerning Walcott’s testimony. As to one such point,
relating to Walcott’s testimony about having served as an
undercover informant, the judge urged her counsel to fully
36 WALCOTT V. GARLAND
explore the matter and stated that the court would issue any
necessary subpoenas for testimony that Walcott might need.
As to another point, the judge properly explained the
credibility issue that had been raised by the Government and
expressly provided Walcott an opportunity “to comment
and/or explain.” Cf. Chen v. Ashcroft, 362 F.3d 611, 618 (9th
Cir. 2004) (emphasizing the importance of affording aliens a
reasonable opportunity to explain perceived inconsistencies
in testimony). Walcott has not established that there was a
due process violation. See Vargas-Hernandez v. Gonzales,
497 F.3d 919, 926–27 (9th Cir. 2007) (“Where an alien is
given a full and fair opportunity to be represented by counsel,
to prepare an application for . . . relief, and to present
testimony and other evidence in support of the application, he
or she has been provided with due process.”).
IV
For these reasons, I would deny Walcott’s petition for
review. To the extent that the majority concludes otherwise,
I respectfully dissent.