(C)  Solicitation of a Controlled substances Offense.  In the area of deportable controlled substances offenses, it has sometimes been held that a conviction of solicitation constitutes a deportable drug conviction,[1094] and sometimes not.  The Ninth Circuit has held that solicitation of the commission of a drug trafficking offense does not constitute a drug offense, or a “drug trafficking” aggravated felony.[1095]  Part of this argument, however, is based on the fact that the statute defining the controlled substances deportation ground,[1096] and the aggravated felony deportation ground,[1097] specifically state that “attempt” and “conspiracy” convictions are included, but is silent on the question of solicitation.[1098] 

 

            In the Ninth Circuit, solicitation to possess cocaine is not a deportable controlled substances offense, since the plain language of the former (and current) deportation ground, refers to “conspiracy” and “attempt”[1099] but does not list “solicitation.”[1100]

            The Fifth Circuit, however, has held that solicitation to transport marijuana is a conviction of an offense “relating to” a controlled substance.[1101]  See § § 7.12, 7.100, supra, concerning solicitation as an aggravated felony.

[1094] Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992) (conviction of solicitation of possession of a controlled substance under Ariz.Rev.Stat.Ann. § 13-1002 (1989) constitutes a conviction relating to a controlled substance).

[1095] United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (citing Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (Arizona conviction for solicitation to commit a drug offense did not constitute a drug-related conviction)).

[1096] INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).

[1097] INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).

[1098] For example, it was formerly held that when Congress provided a certain conviction would trigger deportability, but was silent on the question of a conviction for conspiracy to commit the same offense, a conspiracy conviction would not trigger deportation since it was not listed as a deportable conviction.  Matter of Gayo, 11 I. & N. Dec. 46 (BIA 1965).

[1099] INA § 101(a)(43)(U), 8 U.S.C. § 1101(a)(43)(U).

[1100] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997) (court granted rehearing and vacated earlier contrary holding reported at 108 F.3d 210).  This new holding should apply to the aggravated felony deportation ground as well, since INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) has the same language including conspiracy and attempt, but not solicitation.  See also Leyva-Licea v. INS, 187 F.3d 1147 (9th Cir. Aug. 19, 1999) (Arizona conviction for solicitation to possess marijuana for sale in violation of Ariz. Rev. Stat. § § 13-1002(A) & 13-3405(A)(2)(B)(5), did not constitute an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), or trigger deportation, since the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitation); United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. April 18, 2001) (California conviction of sale, transportation, or solicitation of sale, under California Health & Safety Code § 11360(a), is under a divisible statute for purposes of deciding whether it a conviction is an aggravated felony for purposes of enhancing a sentence for illegal re-entry, since the statute penalizes offer to sell which is equivalent to solicitation, which has been held not to constitute an aggravated felony or controlled substances offense).

[1101] Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Arizona solicitation to transport for sale conviction found “related to” a controlled substance offense, rendering noncitizen deportable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(I)).

Seventh Circuit

Desai v. Mukasey, ___ F.3d ___, 2008 WL 818946 (7th Cir. Mar. 28, 2008) (Illinois conviction of Unlawful Delivery of a Look-Alike Substance, in violation of 720 ILCS 570/404(b), constitutes a conviction of an offense "relating to" a controlled substance, under INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II): "This state law is focused on punishing those who distribute substances that would lead a reasonable person to believe it to be a controlled substance. Psilocybin is a controlled substance under the federal CSA. Thus, this is a state law that is related to a federal controlled substance, in the sense that violating it in the way that Desai did by distributing something that would lead one to believe it contained Psilocybin brings it into association with a federal controlled substance.").

Ninth Circuit

CONTROLLED SUBSTANCES - SOLICITATION
Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. Aug. 5, 2009) (California conviction of offering to transport heroin, in violation of Health and Safety Code 11352(a), constituted a "violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21)," rendering him removable under INA 237(a)(2)(B)(i), 8 U.S.C. 1227(a)(2)(B)(i), because the statute of conviction by its own terms is a state law "relating to a controlled substance," and Mielewczyks conviction involved heroin, a controlled substance as defined in 21 U.S.C. 802(6)).

NOTE: The court completely failed to recognize or address the fact that INA 237(a)(2)(B)(i) specifically includes "attempt or conspiracy," but does not include solicitation. In addition, the court erroneously considered facts contained only in dismissal courts as part of the record of conviction.