Safe Havens

(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)).