(B)  Solicitation to Commit a CMT.  The crime of moral turpitude ground of deportability,[102] unlike the CMT ground of inadmissibility,[103] does not expressly include either “attempt” or “conspiracy” to commit a CMT.  Neither ground includes “solicitation” to commit a CMT.  Although there are some older BIA cases that state that solicitation to commit a CMT is itself a CMT,[104] there has not been a recent published decision that addresses the issue of whether solicitation to commit a CMT falls within the inadmissibility ground, since it is not expressly listed.  Looking to the CMT ground of deportability, the fact that “attempt” and “conspiracy” are not listed could be taken to mean that either all inchoate offenses related to CMTs are included under that ground, or none of them are.

 

            Until this issue is decided, a solicitation safe haven should be one where the substantive offense is not itself a crime of moral turpitude.  Solicitation to possess a controlled substance, or solicitation to transport it for personal use, for example, should be safe from the aggravated felony, controlled substance, and CMT grounds of deportation since the substantive offenses are not CMTs, so the solicitation offense should not be a CMT.  Simple possession of a controlled substance is not a CMT.  See § 8.3, supra.

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

[103] INA § 212(a)(2)(A)(i), 8 U.S.C. § 1182(a)(2)(A)(i).

[104] See N. Tooby, J. Rollin & J. Foster, Crimes of Moral Turpitude § 9.84 (2005).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal. Health & Safety Code 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under USSG 2L1.2(b)(1)(A)(i) (2003), for illegal reentry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

CONTROLLED SUBSTANCES - SOLICITATION CONSTITUTES A CONVICTION RELATING TO A CONTROLLED SUBSTANCE
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)

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - CALIFORNIA DRUG TRAFFICKING STATUTE IS DIVISIBLE
United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).