Safe Havens

(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.[116]  It does not follow the Ninth Circuit decisions regarding solicitation outside the Ninth Circuit.  Even for someone who lives within the Ninth Circuit, a solicitation conviction can be dangerous if they leave the United States and return into a Port of Entry outside the Ninth Circuit or travel outside the Ninth Circuit within the United States.  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 United States, 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.

            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.[117]  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 § 7.7(B), supra.  See also Appendix H, 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.

            Moreover, if an immigrant leaves the Ninth Circuit, s/he may lose the protection of this favorable climate.  In Matter of Beltran,[118] the BIA held that a conviction for solicitation to commit a crime relating to a controlled substance renders a noncitizen deportable as one convicted of a violation of a law relating to a controlled substance.  Beltran is controlling law outside the Ninth Circuit.  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.  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.  The Batista-Hernandez argument is good analogous authority, but Beltran is the controlling law outside the Ninth Circuit.[119]

[116] 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).

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

[118] Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992).

[119] Thanks to Dan Kesselbrenner for this analysis.