(C)  Other Jurisdictions.  Other jurisdictions may or may not follow the lead of the Ninth Circuit.  The Board of Immigration Appeals has held that solicitation of a controlled substances offense did fall within that ground of deportation.[200]  It does not follow the Ninth Circuit decisions regarding solicitation in cases arising outside the Ninth Circuit.  Even for people who live within the Ninth Circuit, a solicitation conviction can be dangerous if they leave the United States and return to a Port of Entry outside the Ninth Circuit or travel within the United States outside the Ninth Circuit.  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 Ninth Circuit, where the court of appeals would apply adverse BIA authority, instead of Ninth Circuit authority.  See § 15.37(B), supra.  Therefore, this solicitation safe haven should be used with care and only where a better result cannot be obtained.

 

                Other states, however, may not have a general solicitation statute.  For example, California law does not contain a general solicitation offense, so the Coronado-Durazo rule might not help immigrants with California solicitation convictions.  The California solicitation statute,[201] is limited to solicitation to commit various controlled substances offenses.[202]  Therefore, every single conviction under this statute arguably relates to a controlled substance, so the immigration or federal court may hold that this particular limited solicitation statute is an offense “relating to” drugs, and therefore a ground of deportability and inadmissibility.  It might also be held to be an aggravated felony drug trafficking offense.[203]

 

                It is true that the immigration authorities must follow circuit precedent in immigration cases arising within that circuit.[204]  A disposition that is immigration-safe within a particular circuit, however, may not be safe if the person travels outside that circuit.  For example, 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 the BIA decision in Beltran and regard the solicitation as a controlled substances or aggravated felony offense.

 

                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.[205]  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 Appendix G, infra.

 

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.[206]  The Seventh Circuit decision in Gattem is distinguishable from Ninth Circuit cases,[207] since Gattem in essence found that “solicitation” is inherent in the definition of “sexual abuse of a minor,” just as it is inherent in aggravated felony alien smuggling.[208]  The Fifth Circuit, however, did expressly disagree with the Ninth Circuit decision in Coronado-Durazo.[209]

 

                The Batista-Hernandez argument is good analogous authority, but Beltran is the controlling law outside the Ninth Circuit.[210]

 

                In United States v. Cornelio-Pena, the Tenth Circuit held an Arizona conviction of solicitation to commit burglary was a crime of violence under the sentencing guidelines.[211]  This decision does not contradict Ninth Circuit immigration cases,[212] in which the Ninth Circuit concluded that Arizona’s solicitation statute is not a law relating to a controlled substance or an aggravated felony, when the underlying offense solicited is a narcotics violation. “These cases are inapposite, however, because the statutory definition at issue did not contain expansive language similar to the term “include” used in the Guidelines.  Leyva-Licea, 187 F.3d at 1150 (“the Controlled Substances Act neither mentions solicitation nor contains any broad catch-all provision that could even arguably be read to cover solicitations.”[213]  Similarly inapposite are other decisions, from the Second, Sixth, and Ninth Circuits, holding solicitation to included in the aggravated felony definition for sentencing purposes, because of differences between the language of the guidelines and the immigration statutes.[214]  At least one court, however, has held that solicitation is not a controlled substances offense under the sentencing guidelines.[215]

 

[200] 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).

[201] California Penal Code § 653f(d).

[202] California Penal Code § 653f(d) penalizes solicitation of the California Health and Safety Code § § 11352 (sale of narcotics), 11379 (transportation and sale of controlled substances), 11379.5 (transportation and sale of PCP), 11379.6 (manufacturing), 11391 (transportation or sale of mushrooms); see also § 11154 (soliciting a practitioner to write a prescription to unlawfully furnish a controlled substance).

[203] The two tests are different.  An offense is a basis for inadmissibility and deportability if it “relates to” controlled substances.  An offense is a controlled substance aggravated felony if it is directly analogous to named federal drug felony, or if it actually involves trafficking.  Solicitation is not an analogue to one of the designated federal drug statutes: the only federal solicitation statute relates to violent crimes.  See 18 U.S.C. § 373.  Solicitation to commit trafficking might be held to constitute trafficking as it is understood in the general sense.  However, all of the offenses specifically listed in Calif. Penal Code § 653f(d) relate to drug trafficking, except arguably the manufacturing offense penalized at Calif. Health & Safety Code § 11379.6, which can be conducted for personal use.  Therefore, a conviction under this solicitation statute is not necessarily a conviction for drug trafficking, and might not be an aggravated felony under the drug trafficking theory.  In the alternative, this statute might therefore be regarded as a divisible statute, and the record of conviction examined to determine whether the particular solicitation conviction was solicitation to commit a drug trafficking offense, in which case it would be considered an aggravated felony under this theory, or solicitation to manufacture drugs, in which case it would not be an aggravated felony under this theory.

[204] Singh v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995) (“A federal agency is obligated to follow circuit precedent in cases originating within that circuit.”).

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

[206] Gattem v. Gonzalez, 412 F.3d 758 (7th Cir. June 20, 2005) (applying definition of “sexual abuse” at 18 U.S.C. § 3509(a)(8), the court found that a conviction of solicitation of a sexual act constitutes “sexual abuse,” for immigration purposes, as that federal witness-protection statute defined that term as including “inducement, enticement, or coercion” which were equivalent to solicitation).

[207] Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sept. 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).

[208] INA § 274(a)(1)(A)(iv), 8 U.S.C. § 1324(a)(1)(A)(iv) (statute specifically punishes encouraging or inducing a noncitizen to enter the United States in violation of law).

[209] 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).

[210] Thanks to Dan Kesselbrenner for this analysis.

[211] United States v. Cornelio-Pena, 435 F.3d 1279 (10th Cir. Jan. 30, 2006)(Arizona conviction of solicitation to commit second-degree burglary of a dwelling, in violation of Ariz. Rev. Stat. § §   13-1002, 1507, is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003), justifying a 16-level sentence enhancement for illegal re-entry, even though the Guidelines do not expressly list solicitation where they “include” “aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G. § 2L1 .2 cmt. application n.5, because “include” is non-exhaustive and the examples expressly listed merely illustrative; since the mens rea and actus reus required for solicitation are similar to those required for aiding and abetting, conspiracy, and attempt, solicitation is sufficiently similar to the offenses listed in the application note to be encompassed by the note).

[212] Coronado-Durazo v. INS, 123 F.3d 1322, 1326 (9th Cir. 1997); Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999).

[213] United States v. Cornelio-Pena, 435 F.3d 1279, 1285 n.3 (10th Cir. Jan. 30, 2006).

[214] United States v. Shumate, 329 F.3d 1026, 1030-1031 (9th Cir. 2003) (since the omission of solicitation from the offenses listed in the application note as included in U.S.S.G. § 4B1.1 as predicate offenses was not legally significant because, under the Guidelines, the term “includes” is not exhaustive, conviction of solicitation of delivery of marijuana is a controlled substance offense for purposes of a career offender enhancement); United States v. Liranzo, 944 F.2d 73, 78-79 (2d Cir. 1991) (although facilitation is not included on the list in the application note to the career offender provision, and is not sufficiently similar to aiding and abetting, conspiracy, and attempt to be encompassed by the application note, the term “include,” the list of offenses in the application note is merely illustrative, it observed that the application note “may not be an exhaustive list” and proceeded to decide “whether ... criminal facilitation should be included in that list” and concluded that criminal facilitation of the sale of cocaine is a controlled substance offense); but see United States v. Dolt, 27 F.3d 235, 239-240 (6th Cir. 1994)(solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision in U.S.S.G. § 4B1.1, because “the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status.”).

[215] United States v. Aguilar-Ortiz, 450 F.3d 1271 (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. § 777.04(2) is not a “drug trafficking offense” for illegal re-entry sentencing purposes because the guidelines include aiding and abetting, attempt, and conspiracy, but not solicitation offenses).

BIA

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION OF ASSAULT WITH A DEADLY WEAPON
Matter of Guerrero, 25 I&N Dec. 631 (BIA 2011) (Rhode Island conviction for violation of G.L.R.I. 11-1-9, solicitation to commit a felony, is a crime of violence under 18 U.S.C. 16(b), and triggers removal as an aggravated felony crime of violence with a sentence of one year imposed, where the charging document indicated that the noncitizen pleaded guilty to solicitation to commit assault with a deadly weapon), agreeing with United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006); Prakash v. Holder, 579 F.3d 1033, 1036-37 (9th Cir. 2009) (because there is a substantial risk that solicitation of rape and of assault will lead to violence, it is a crime of violence under 18 U.S.C. 16(b)).

First Circuit

AGGRAVATED FELONY " DRUG TRAFFICKING OFFENSES " SOLICITATION
James v. Holder, 698 F.3d 24, *27 (1st Cir. Oct. 19, 2012) (The more difficult issue is whether James' conviction under section 21a"277(b) was for an offense that would also comprise trafficking"which is true of some but not necessarily all of the subordinate offenses listed in the Connecticut statute. The INA (through a series of cross-references) defines illicit trafficking to include the manufacture, distribution and dispensing of a controlled substance, as well as possession with intent to do any of these; INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), cf.18 U.S.C. 924(c)(2); 21 U.S.C. 841(a); but this definition does not appear to encompass offers and gifts, which are criminalized under the Connecticut statute.); citing United States v. Savage, 542 F.3d 959, 965 (2d Cir.2008) (Conn.Gen.Stat. 21a"277(b) plainly criminalizes, inter alia, a mere offer to sell a controlled substance, which might be made absent possession); Mendieta"Robles v. Gonzales, 226 Fed. App'x 564, 568"69 (6th Cir.2007) (conviction under state statute that criminalizes gift of drugs is not necessarily an illicit trafficking offense under INA); see also Matter of Davis, 20 I. & N. Dec. 536, 541 (B.I.A. 1992) (business or merchant nature is [e]ssential to the term trafficking under INA).).

Second Circuit

AGGRAVATED FELONIES " DRUG TRAFFICKING -- SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 723 F.3d 156, ___ (2d Cir. July 9, 2013) (per curiam) (New York conviction for sale of a controlled substance, under New York Penal Law 220.39, is categorically an illicit trafficking in a controlled substance type of aggravated felony even though the conviction merely involved an attempt to sell: Unlike the Connecticut statute, NYPL 220.39 does not criminalize mere offers (or fraudulent offers) to sell narcotics. Under New York law, the offer must be bona fide, and a bona fide offer is one that is made with the intent and ability to follow through on the transaction.); distinguishing United States v. Savage, 542 F.3d 959, 965 (2d Cir. 2008) (fraudulent offers to sell are not offers for purposes of sentencing enhancements under the Sentencing Guidelines).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403,(2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

AGGRAVATED FELONY " SALE OF A CONTROLLED SUBSTANCE " SOLICITATION
Pascual v. Holder, 707 F.3d 403, ___ (2d Cir. Feb. 19, 2013) (New York conviction of third-degree criminal sale of a controlled substance, under N.Y. Penal Law 220.39(1), constitutes an aggravated felony, rejecting argument that this statute is not categorically an aggravated felony because statutes that punish offers to sell, see NYPL 220.00(1), are not drug trafficking crimes under the CSA. Davila v. Holder, 381 Fed.Appx. 413, 416 (5th Cir.2010). This Court, however, has held that distribution, within the meaning of 21 U.S.C. 841(a)(1) does not require a sale to take place: The word distribute means to deliver, [21 U.S.C.] 802(11); and deliver means the actual, constructive, or attempted transfer of a controlled substance, [21 U.S.C.] 802(8). United States v. Wallace, 532 F.3d 126, 129 (2d Cir. 2008) (emphasis added). Therefore, even if Pascual did no more than offer or attempt to sell cocaine, the state offense would be conduct punishable as a federal felony, thus rendering it an aggravated felony.).

CONTROLLED SUBSTANCES - INADMISSIBILITY - SOLICITATION TO COMMIT A DRUG OFFENSE IS A CONVICTION RELATING TO A CONTROLLED SUBSTANCE
Mizrahi v. Gonzales, 492 F.3d 156 (2d Cir. Jun. 27, 2007) (New York conviction for fourth-degree solicitation to sell drugs in violation of the state's generic solicitation statute, N.Y. Penal Law 100.05(1), constituted a conviction relating to a controlled substance, and rendered him inadmissible to the United States pursuant to INA 212(a)(2)(A)(i)(II), 8 U.S.C. 1182(a)(2)(A)(i)(II)).

Fifth Circuit

AGGRAVATED FELONY " CRIME OF VIOLENCE " SOLICITATION TO COMMITT ASSAULT
United States v. Mendez-Casarez, 624 F.3d 233 (5th Cir. Oct. 15, 2010) (North Carolina conviction of solicitation to commit assault with a deadly weapon inflicting serious injury, in violation of the common-law definition of North Carolina law, see State v. Richardson, 100 N.C.App. 240, 395 S.E.2d 143, 147-48 (1990), constituted a crime of violence for illegal reentry sentencing purposes, because the list of predicate crimes of violence was not exhaustive; solicitation is sufficiently similar to conspiracy, which is one of the enumerated offenses in the list; the list was not subject to rule of lenity; the non-exhaustive interpretation did not render Guideline vague); United States v. Cornelio-Pena, 435 F.3d 1279, 1288 (10th Cir. 2006) (Arizona conviction for solicitation to commit burglary of a dwelling constituted a crime of violence for the purposes of U.S.S.G. 2L1.2(b)(1)(A)(ii)); United States v. Shumate, 329 F.3d 1026, 1031 (9th Cir.2003) (Oregon conviction for solicitation of delivery of cocaine constituted a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a), which includes aiding and abetting, conspiring, and attempting to commit such an offense, U.S.S.G. 4B1.2 cmt. n. 1); United States v. Dolt, 27 F.3d 235, 240 (6th Cir.1994) (Florida conviction for solicitation to traffic in cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)); see United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991) (New York conviction for criminal facilitation of the sale of cocaine did not constitute a controlled substance offense for the purposes of U.S.S.G. 4B1.1(a)).

AGGRAVATED FELONY - POSSESSION OF CONTROLLED SUBSTANCE WITH INTENT TO DELIVER
Vasquez-Martinez v. Holder, 564 F.3d 712 (5th Cir. Apr. 2, 2009) (Texas conviction of possession of cocaine with intent to deliver, under Health & Safety Code 481.112(a), is a drug-trafficking "aggravated felony" under INA 101(a)(43)(B), 8 U.S.C. 1101(a)(43)(B), which disqualifies the noncitizen from cancellation of removal for Lawful Permanent Residents under INA 240A(a)(3), 8 U.S.C. 1229b(a)(3), rejecting argument that because Texas law defines "delivery" as encapsulating "offering to sell," it is broader than the definition of "delivery" in the federal statute, which does not include offers to sell and because the Texas statute includes conduct that would not be considered a felony under the federal statute, a conviction under Health & Safety Code 481.112(a) cannot be considered an aggravated felony for the purposes of disqualifying him for cancellation of removal), following United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007) (Texas conviction for possession with intent to deliver a controlled substance, under Texas Health and Safety Code 481.112(a), constitutes a "controlled substance offense" for the purposes of a U.S.S.G. 2K2.1(a)(4)(A) sentence enhancement, because this offense is indistinguishable from "possession with intent to distribute," one of the offenses listed in the USSG definition of a "controlled substance offense").

AGGRAVATED FELONY - SOLICITATION
United States v. Price, 516 F.3d 285 (5th Cir. Feb. 1, 2008) (Texas conviction for violation of Texas Health and Safety Code 481.112 is not a controlled substances offense for purposes of sentencing for a felon in possession of a firearm, under U.S.S.G. 2K2.1(a)(2), because the statute is divisible and could include an "offer to sell" (solicitation) offense).

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Morales-Martinez, ___ F.3d ___, 2007 WL 2255292 (5th Cir. Aug. 8, 2007) (Texas conviction for delivery of controlled substance, in violation of Texas Health and Safety Code 481.112, was not a "drug trafficking offense" within meaning of USSG 16-level enhancement for illegal reentry after deportation, under USSG 2L1.2(b)(1)(A)(i), as neither the statutory language nor the charging document necessitated a finding that defendant committed a drug trafficking offense; Tex. Health & Safety Code 481.002(8) defines "deliver" as "transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia," which is broader than the sentencing definition, which does not include solicitation).

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF A CHILD
United States v. Ramos-Sanchez, 483 F.3d 400 (5th Cir. Apr. 2, 2007) (Kansas conviction for violation of K.S.A. 21-3510(a)(1), solicitation of a child to perform an illegal sex act is "sexual abuse of a minor" and thus a "crime of violence" for illegal re-entry sentencing purposes, on the basis that the act "is abusive because of the psychological harm it can cause, even if any resulting sex is consensual").

AGGRAVATED FELONY - DRUG TRAFFICKING - DELIVERY OF A CONTROLLED SUBSTANCE
United States v. Gonzales, 484 F.3d 712 (5th Cir. 2007) (Texas conviction for delivery of a controlled substance, in violation of V.T.C.A., Health & Safety Code 481.112, was not a drug-trafficking offense for illegal re-entry sentence enhancement purposes, since the definition of "deliver" includes solicitation, and solicitation is not included as a non-substantive offense that can trigger a sentence enhancement under the 2004 version of U.S.S.G. 2L1.2).

Seventh Circuit

AGGRAVATED FELONY - SEXUAL ABUSE OF A MINOR - SOLICITATION OF INDECENT SEX ACT
Sharashidze v. Gonzales, ___ F.3d ___, 2007 WL 777666 (7th Cir. March 16, 2007) (Illinois conviction of misdemeanor indecent solicitation of a sex act, under 720 ILCS 5/11-14.1 ["offers a person not his or her spouse any money, property, token, object, or article or anything of value to perform any act of sexual penetration as defined in Section 12-12 of this Code, or any touching, or fondling of the sex organs of one person by another person for the purpose of sexual arousal or gratification]," constituted sexual abuse of a minor aggravated felony under INA 101(a)(43)(A), 8 U.S.C. 1101(a)(43)(A), because it involved a minor, thus rendering Sharashidze deportable under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), where the complaint stated that he "offered Evelyn M. Aguila[,] a person not his spouse[,] mother of [child's name,] a child under 13 yrs of age, $20.00 USC, to allow him to have sexual contact with same for the purpose of his sexual gratification or arousal."), following Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005) (solicitation of sexual contact with a minor in violation of 720 ILCS 5/11-14.1 constitutes a sexual abuse of a minor aggravated felony, since complaint to which plea was entered identifies the complainant as a minor and states his age). http://caselaw.lp.findlaw.com/data2/circs/7th/062661p.pdf

Eighth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SALE - CALIFORNIA SALE STATUTE IS OVERINCLUSIVE, INCLUDING BOTH OFFENSES THAT WOULD, AND OTHERS THAT WOULD NOT, TRIGGER THE GUIDELINES SENTENCE ENHANCEMENT
United States v. Garcia-Medina, ___ F.3d ___, 2007 WL 2317381 (8th Cir. Aug. 15, 2007) (California conviction of sale or transportation of a controlled substance, in violation of Health & Safety Code 11352(a), is overinclusive and includes both drug trafficking offenses that properly trigger 16-level sentence enhancement for illegal reentry after deportation under USSG 2L1.2(b)(1)(A)(i) (Nov. 2005), and other offenses that do not).

Ninth Circuit

PRACTICE ADVISORY " CONTROLLED SUBSTANCES " SAFE HAVEN PLEA AGGRAVATED FELONY " DRUG TRAFFICKING " SAFE HAVEN PLEA
In cases charging sales and possession for sale of a controlled substance, defense counsel should consider pleading to a single count of Health & Safety Code 11352(a), under People v. Palmer, 58 Cal.4th 110 (2013), without identifying any particular factual basis. The specific offense for the plea should be that the defendant "offered to sell" an unidentified controlled substance in violation of 11352(a), striking any reference to a specific substance in the charge, making sure that the charge contains all the statutory alternatives. A sentence of less than 180 days is desirable. This plea should prevent an aggravated felony finding under 8 U.S.C. 1101(a)(43)(B) (drug trafficking offense). See United States v. Garza"Lopez, 410 F.3d 268, 274 (5th Cir. 2005) (the federal term drug trafficking offense does not include transportation of a controlled substance for personal use and offers to transport, sell, furnish, administer, or give away a controlled substance) (emphasis supplied); accord U.S. v. Ramirez-Macias, 2013 WL 4723453, at *2 (E.D.Wash. 2013). Note that in 2002, Health & Safety Code 11352 criminalized transport for personal use (which it no longer does). See also Young v. Holder, 697 F.3d 976, 983 (9th Circ.2012) ("Section 11352(a), however, criminalizes the mere solicitation of, or offer to sell, a controlled substance, which is not an aggravated felony, Leyva"Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.1999), as well as the sale of cocaine, which is one"), overruled on other grounds Almanza-Arenas v. Holder, 771 F.3d 1184, 1194 (9th Circ.2014), decision vacated pending en banc review, Almanza-Arenas v. Lynch, 785 F.3d 366, 367 (9th Cir. 2015). This conviction should not be an inadmissible controlled substance conviction, or crime of moral turpitude, since the minimum conduct analysis of Moncrieffe applies in the context of inadmissibility. The underlying conduct may establish a reason to believe ground of inadmissibility under INA 212(a)(2)(C)(i).

AGGRAVATED FELONY - CRIME OF VIOLENCE - SOLICITATION TO COMMIT RAPE
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force).

AGGRAVATED FELONY - SOLICITATION
Prakash v. Holder, 579 F.3d 1033 (9th Cir. Aug. 26, 2009) (California conviction for violation of Penal Code 653f(c), solicitation to commit rape by force, and Penal Code 653f(a), solicitation to commit assault by force likely to produce great bodily injury, are aggravated felony crimes of violence for immigration purposes, since solicitation of rape by force creates a substantial risk of the use of force). NOTE: The court rejected the argument that solicitation of rape cannot be an aggravated felony because INA 101(a)(43)(U) lists attempt and conspiracy, but not solicitation:

There is no reason to conclude that the existence of subsection (U) forces courts to analyze inchoate offenses only under that provision. Each subsection of 1101(a)(43) provides an independent basis for determining what qualifies as an aggravated felony. See, e.g., Leyva-Licea, 187 F.3d at 1150 (examining whether solicitation to possess marijuana for sale is an aggravated felony under 1101(a)(43)(B)); Ramsey v. INS, 55 F.3d 580, 583 n. 5 (11th Cir. 1995) (holding that although 1101(a)(43)(U) was not added to the statute until after petitioner's conviction, his conviction for attempted lewd assault still was an aggravated felony because it was a "crime of violence" under 1101(a)(43)(F)). As in Ramsey, Prakash's crimes each qualify as a "crime of violence" under subsection 43(F). That they are not covered within subsection 43(U) does not matter, just as it does not matter that they are not covered within subsection 43(A) (murder, rape, or sexual abuse of a minor), subsection 43(B) (illicit trafficking in a controlled substance), or any other subsection of that statute. One is enough.

Id. at 1038-1039.

Other

SOLICITATION - "U" VISA STATUTE SPECIFICALLY INCLUDES SOLICITATION, ALONG WITH ATTEMPT AND CONSPIRACY, SO CONGRESS KNEW HOW TO INCLUDE IT WHEN IT WANTED TO
INA 101(a)(15)(iii), 8 U.S.C. 1101(a)(15)(iii) reads in relevant part: "the criminal activity referred to in this clause is that involving or more of the following or any similar activity in violation of Federal, State or local criminal law . . . or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes . . . ."