Arnoldo Morales-Del Valle v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION APR 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARNOLDO MORALES-DEL ) No. 13-73012
VALLE, )
) Agency No. A205-403-590
Petitioner, )
) MEMORANDUM*
v. )
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 15, 2016
San Francisco, California
Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.
Arnoldo Morales-Del Valle, a citizen of Mexico, petitions for review of the
Board of Immigration Appeals’ (BIA) denial of his application for adjustment of
status. We deny the petition.
Morales was convicted of solicitation to possess marijuana for sale in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Arizona. See Ariz. Rev. Stat. §§ 13-1002, 13-3405(A)(2). Proceedings were then
commenced to remove him as a person in this country illegally,1 and he sought
adjustment of status as the spouse of a citizen.2 That was denied because Morales
failed to show by a preponderance of the evidence3 that he was not inadmissible
due to a conviction that gave the Attorney General “reason to believe”4 that he “is
or has been . . . a knowing aider, abettor, assister, conspirator, or colluder with
others in the illicit trafficking [of marijuana] . . . , or endeavored to do so.”5 He
asserts that his conviction of the Arizona solicitation offense could not bring him
within the inadmissability provisions. We disagree.
In making its decision, the BIA was entitled to rely upon the entire record of
Morales' conviction, rather than on particular documents therein. Because the
BIA's decision did, in effect, refer to the record as a whole, we, too, are entitled to
rely upon the entire record. See Ramirez-Villalpando v. Holder, 645 F.3d 1035,
1039–40 (9th Cir. 2010); see also Lopez-Molina, 368 F.3d at 1211. Moreover, the
1
See 8 U.S.C. § 1227(a)(1)(B).
2
See id. § 1151(b)(2)(A)(i), § 1255(a).
3
See 8 C.F.R. § 1240.8(d).
4
8 U.S.C. § 1182(a)(2)(C).
5
Id. § 1182(a)(2)(C)(i); see also Lopez-Molina v. Ashcroft, 368 F.3d 1206,
1208–09 (9th Cir. 2004).
2
underlying offense—possession of marijuana for sale6—was an illicit trafficking
crime. See Lopez v. Gonzales, 549 U.S. 47, 53–54, 127 S. Ct. 625, 629–30, 166 L.
Ed. 2d 462 (2006); Rendon v. Mukasey, 520 F.3d 967, 975–76 (9th Cir. 2008). To
be guilty of solicitation of the commission of that crime, Morales had to (a) intend
to promote or facilitate7 the crime of possession of over four pounds of marijuana
for sale,8 and (b) command, encourage, request or solicit “another person to engage
in specific conduct which would constitute”9 that crime.10 Of course, his guilty
plea was probative of the fact that he did engage in that activity. See Chavez-Reyes
v. Holder, 741 F.3d 1, 3 (9th Cir. 2014). That activity was sufficient to give a
reasonable person—here the Attorney General—reason to believe that, within the
expansive reach of the § 1182(a)(2)(C),11 Morales was sufficiently involved in
6
Ariz. Rev. Stat. § 13-3405(A)(2).
7
Ariz. Rev. Stat. § 13-1002(A).
8
Id.§ 13-3405(A)(2), (B)(6); id. § 13-1002(A), (B)(2). We note that over
four pounds is not a small amount. See 8 U.S.C. § 1227(a)(2)(B)(i); Medina v.
Ashcroft, 393 F.3d 1063, 1065–66 (9th Cir. 2005); cf. Moncrieffe v. Holder, __
U.S. __, __ & n.7, 133 S. Ct. 1678, 1685–86 & n.7, 185 L. Ed. 2d 727 (2013).
9
Ariz. Rev. Stat. § 13-1002(A).
10
See State v. Miller, 316 P.3d 1219, 1229–30 (Ariz. 2013).
11
See, e.g., Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003)
(engaging in negotiations to sell a large quantity of drugs gave “‘reason to
(continued...)
3
illicit drug trafficking to be inadmissible.12
That is, even if the activity was not sufficient to constitute a deportable
offense,13 it was quite sufficient to render him inadmissible because a reasonable
observer would have reason to believe that someone who behaved in that manner14
was involved in illicit drug trafficking—a much lower standard. Again, while his
actions might not have resulted in a deportable offense, they were enough to cause
one to believe that he was involved in illicit drug trafficking activity.15
Petition DENIED.
11
(...continued)
believe’” that trafficking was afoot); see also Hamid v. INS, 538 F.2d 1389, 1391
(9th Cir. 1976) (asking a person to bring a large quantity of drugs into this country
gave “‘reason to believe’” that trafficking was afoot); see also Chavez-Reyes, 741
F.3d at 2 (conviction set aside, but reason to believe remained); cf. United States v.
Aguilar, 515 U.S. 593, 601–02, 115 S. Ct. 2357, 2363, 132 L. Ed. 2d 520 (1995)
(interpreting “endeavor”).
12
The evidence did not compel a contrary conclusion. See Gomez-Granillo
v. Holder, 654 F.3d 826, 831 (9th Cir. 2011); see also INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1, 112 S. Ct. 812, 815 & n.1, 117 L. Ed. 2d 38 (1992); Alarcon-
Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000).
13
See Leyva-Licea v. INS, 187 F.3d 1147, 1149–50 (9th Cir. 1999);
Coronado-Durazo v. INS, 123 F.3d 1322, 1324–26 (9th Cir. 1997).
14
That behavior is far more than mere presence on the scene. Cf. Altamirano
v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2004).
15
The Arizona Grand Jury that indicted him surely found probable cause to
believe that he had, indeed, engaged in trafficking. See Ariz. Rev. Stat. § 21-413.
4
FILED
Morales-Del Valle v. Lynch, 13-73012
APR 1 2016
FRIEDLAND, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the judgment because I believe that Hamid v. INS, 538 F.2d 1389
(9th Cir. 1976) (per curiam), requires us to affirm the BIA’s decision here. I write
separately to express doubt about whether Hamid was correctly decided. In
Hamid, we reasoned that even if the petitioner’s conduct did not itself qualify as
trafficking, it “provided a sound basis to believe that petitioner was a ‘trafficker’”
Id. at 1391. Ordinarily, however, evidence of the commission of one crime is not
admissible to prove a separate later commission of the same offense, let alone a
different offense. See Fed. R. Evid. 404(b). Nor does evidence of the commission
of a prior offense negate the axiomatic presumption of innocence in favor of the
accused. See Taylor v. Kentucky, 436 U.S. 478, 483 (1978). Although “reason to
believe” is a generous standard, it must be supported by “reasonable, substantial,
and probative evidence.” Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir.
2000). I question the fairness of holding that evidence that a petitioner committed
a non-trafficking offense qualifies as substantial evidence that a petitioner
committed a trafficking offense.
Even though solicitation is not among the inchoate and accessorial crimes
enumerated in the illicit drug trafficking statute, 8 U.S.C. § 1182(a)(2)(C)(i), the
BIA reasoned that Morales’s guilty plea to that crime was itself sufficient to give
the Attorney General reason to believe that Morales had committed a covered
offense.1 This decision was consistent with Hamid, but it leads me to believe
Hamid should be revisited.
1
As I read the BIA’s decision, the guilty plea to solicitation was the only evidence
the BIA relied on in reaching its “reason to believe” determination, which
distinguishes this case from the other cases cited in footnote 11 of the majority
disposition. In both Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003),
and Chavez-Reyes v. Holder, 741 F.3d 1, 2-3 (9th Cir. 2014), the agency relied on
substantial evidence of conduct that itself constituted drug trafficking activity.
Because the BIA neither referenced nor relied on the unproven indictment charging
Morales with a trafficking offense, I would not consider in the first instance on
appeal whether the indictment could constitute sufficient evidence. See Navas v.
INS, 217 F.3d 646, 658 n.16 (9th Cir. 2000) (“[T]his court cannot affirm the BIA
on a ground on which it did not rely.”).