Safe Havens

(A)  Aggravated Felonies.

            The statute explicitly states that attempt and conspiracy to commit an aggravated felony constitutes an aggravated felony.[223]  Solicitation is not included in this list, and therefore is arguably not an aggravated felony.  See § 7.12, supra.[224]

Ninth  Circuit:

United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. April 18, 2001) (California conviction of sale, transportation, or offer (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).

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).

Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sep. 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, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994 Ed.); same argument can be made that this conviction does not constitute an aggravated felony); but cf. United States v. Meza-Corrales, 183 F.3d 1116 (9th Cir. 1999) (conviction under Arizona’s general purpose solicitation statute qualifies as a “felony drug offense” under 21 U.S.C. § 802(44)).

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

[224] See N. Tooby, Aggravated Felonies § 5.49 (2003).