(C)  Other Jurisdictions.  Other jurisdictions may or may not follow the lead of the Ninth Circuit.  The Board of Immigration Appeals, however, held that solicitation of a controlled substances offense did fall within that ground of deportation.[444]  It does not follow the Ninth Circuit decisions regarding solicitation in cases arising outside the Ninth Circuit.  Even for people who live within the Ninth Circuit, a solicitation conviction can be dangerous if they leave the United States and return to a Port of Entry outside the Ninth Circuit or travel within the United States outside the Ninth Circuit.  It is even possible for a noncitizen to be arrested in the Ninth Circuit, and then transported in immigration custody to a detention facility outside of the Ninth Circuit, where the court of appeals would apply adverse BIA authority, instead of Ninth Circuit authority.  Therefore, this solicitation safe haven should be used with care and only where a better result cannot be obtained.

            Other states, however, may not have a general solicitation statute.  For example, California law does not contain a general solicitation offense, so the Coronado-Durazo rule might not help immigrants with California solicitation convictions.  The California solicitation statute, California Penal Code § 653f(d), is limited to solicitation to commit various controlled substances offenses.[445]  Therefore, every single conviction under this statute arguably relates to a controlled substance, so the immigration or federal court may hold that this particular limited solicitation statute is an offense “relating to” drugs, and therefore a ground of deportability and inadmissibility.  It might also be held to be an aggravated felony drug trafficking offense.[446]

 

            It is true that the immigration authorities must follow circuit precedent in immigration cases arising within that circuit.[447]  A disposition that is immigration-safe within a particular circuit, however, may not be safe if the person travels outside that circuit.  For example, a person pleading guilty to a solicitation offense in the Ninth Circuit could:

 

            (1) move to another state;

 

            (2) travel outside the country and return at a port of entry outside the Ninth Circuit; or

 

            (3) continue to live within the Ninth Circuit, but get detained outside the Ninth Circuit.

 

If any of the above were to take place, the immigration authorities could follow Beltran and regard the solicitation as a controlled substances or aggravated felony offense.

 

            The Fifth Circuit held that a state conviction of felony solicitation to transport marijuana for sale is conviction “relating to” a controlled substance for deportation purposes, depriving the court of appeals of jurisdiction over a petition for review challenging the removal order.[448]  That court therefore rejected the “unlisted” argument in the context of an expansive definition of the controlled substances deportation ground, which includes not only controlled substances convictions, but also any convictions “related to” them.  The result is arguably different in the aggravated felony context, which does not have the expansive “related to” language in the definition of the ground of deportation.

 

            It is possible to argue in any jurisdiction that a conviction for solicitation is not an aggravated felony, using the “if it’s not listed, it’s not an aggravated felony argument.”  See § 3.48(B), supra.  See also Appendix F, infra, for examples of Congress’ express inclusion of other non-substantive offenses as part of various grounds of deportation and inadmissibility, whereas it did not so include this non-substantive offense, thus giving rise to the argument that it meant to exclude these convictions.

 

Unfortunately, until the BIA adopts Coronado-Durazo nationwide, a person with a solicitation conviction is deportable for cases that arise outside the

Ninth Circuit.  In fact, the government is deporting people with solicitation convictions outside the Ninth Circuit.[449]  The Seventh Circuit decision in Gattem is distinguishable from Ninth Circuit cases,[450] since Gattem in essence found that “solicitation” is inherent in the definition of “sexual abuse of a minor,” just as it is inherent in aggravated felony alien smuggling.[451]  The Fifth Circuit, however, did expressly disagree with the Ninth Circuit decision in Coronado-Durazo.[452]

 

            The Batista-Hernandez argument is good analogous authority, but Beltran is the controlling law outside the Ninth Circuit.[453]

 

            In United States v. Cornelio-Pena, the Tenth Circuit held an Arizona conviction of solicitation to commit burglary was a crime of violence under the sentencing guidelines.[454]  This decision does not contradict Ninth Circuit immigration cases,[455] in which the Ninth Circuit concluded that Arizona’s solicitation statute is not a law relating to a controlled substance or an aggravated felony, when the underlying offense solicited is a narcotics violation. “These cases are inapposite, however, because the statutory definition at issue did not contain expansive language similar to the term “include” used in the Guidelines.  Leyva-Licea, 187 F.3d at 1150 (“the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitations.”[456]  Similarly inapposite are other decisions, from the Second, Sixth, and Ninth Circuits, holding solicitation included for sentencing purposes, because of differences between the language of the guidelines and the immigration statutes.[457]

[444] Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (solicitation to commit a controlled substances offense falls within the deportation ground as a crime relating to a controlled substance).

[445] California Penal Code § 653f(d) penalizes solicitation of the California Health and Safety Code § § 11352 (sale of narcotics), 11379 (transportation and sale of controlled substances), 11379.5 (transportation and sale of PCP), 11379.6 (manufacturing), 11391 (transportation or sale of mushrooms); see also § 11154 (soliciting a practitioner to write a prescription to unlawfully furnish a controlled substance).

[446] The two tests are different.  An offense is a basis for inadmissibility and deportability if it “relates to” controlled substances.  See ILRC § 3.1 (2004).  An offense is a controlled substance aggravated felony if it is directly analogous to named federal drug felony, or if it actually involves trafficking.  Solicitation is not an analogue to one of the designated federal drug statutes: the only federal solicitation statute relates to violent crimes.  See 18 U.S.C. § 373.  Solicitation to commit trafficking might be held to constitute trafficking as it is understood in the general sense.  However, all of the offenses specifically listed in Calif. Penal Code § 653f(d) relate to drug trafficking, except arguably the manufacturing offense penalized at Calif. Health & Safety Code § 11379.6, which can be conducted for personal use.  Therefore, a conviction under this solicitation statute is not necessarily a conviction for drug trafficking, and might not be an aggravated felony under the drug trafficking theory.  Or, this statute might therefore be regarded as a divisible statute, and the record of conviction examined to determine whether the particular solicitation conviction was solicitation to commit a drug trafficking offense, in which case it would be considered an aggravated felony under this theory, or solicitation to manufacture drugs, in which case it would not be an aggravated felony under this theory.

[447] Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995) (“A federal agency is obligated to follow circuit precedent in cases originating within that circuit.”).

[448] Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992).

[449] Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (applying definition of “sexual abuse” at 18 U.S.C. § 3509(a)(8), the court found that a conviction of solicitation of a sexual act constitutes “sexual abuse,” for immigration purposes, as that federal witness-protection statute defined that term as including “inducement, enticement, or coercion” which were equivalent to solicitation).

[450] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. § 13-1002, was not conviction for violation of law “relating to a controlled substance” within meaning of federal deportation statute).

[451] INA § 274(a)(1)(A)(iv), 8 U.S.C. § 1324(a)(1)(A)(iv) (statute specifically punishes encouraging or inducing a noncitizen to enter the United States in violation of law).

[452] Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Fifth Circuit rejected reasoning of Coronado-Durazo, holding a conviction of solicitation to transport marijuana for sale constituted a conviction of an offense relating to a controlled substance).

[453] Thanks to Dan Kesselbrenner for this analysis.

[454] United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006)(Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § §   13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation where they “include” “aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G. § 2L1 .2 cmt. application n.5, because “include” is non-exhaustive and the examples expressly listed merely illustrative; since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).

[455] Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997); Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999).

[456] United States v. Cornelio-Pena, 435 F.3d 1279, 1285 n.3 (10th Cir. Jan. 30, 2006).

[457] United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. 2003) (since the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term “includes” is not exhaustive, conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term “include,” the list of offenses in the application note is merely illustrative, it observed that the application note “may not be an exhaustive list” and proceeded to decide “whether ... criminal facilitation should be included in that list” and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense); but see United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. 1994)(solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because “the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.”).

Seventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF INDECENT SEX ACT
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because it involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), where the complaint stated that he "offered Evelyn M. Aguila[,] a person not his spouse[,] mother of [child's name,] a child under 13 yrs of age, $20.00 USC, to allow him to have sexual contact with same for the purpose of his sexual gratification or arousal."), following Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005) (solicitation of sexual contact with a minor in violation of 720 ILCS 5/11-14.1 constitutes a sexual abuse of a minor aggravated felony, since complaint to which plea was entered identifies the complainant as a minor and states his age). http://caselaw.lp.findlaw.com/data2/circs/7th/062661p.pdf

Eleventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Aguilar-Ortiz, __ F.3d __ (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. 777.04(2) is not a "drug trafficking offense" for illegal re-entry sentencing purposes because the guidelines include aiding and abetting attempt, and conspiracy, but not solicitation offenses).