(E)

Solicitation.  A number of older cases hold that solicitation offenses, committed with intent to commit a CMT, are themselves CMTs.[234]  However, these decisions generally predate the more recent decisions recognizing that various non-substantive offenses do not fall within a ground of deportation when Congress specifically included others, such as attempt and conspiracy. 

                                         

[234] See, e.g., Babouris v. Esperdy, 269 F.2d 621 (2d Cir. 1959), cert. den., 362 U.S. 913 (1960) (conviction of solicitation of men to commit an offense against nature held CMT, even if offense was labeled disorderly conduct); Wyngaard v. Rogers, 187 F.Supp. 527 (D.D.C. 1960), aff’d, 295 F.2d 184 (D.C. Cir. 1961), cert. den., 368 U.S. 926 (1961) (conviction under New York Penal Law § 722, of frequenting or loitering about a public place and soliciting men for purpose of committing crime against nature or other lewdness, was a conviction for crime involving moral turpitude); Matter of K, 3 I. & N. Dec. 575 (BIA 1949) (conviction of solicitation to commit sodomy).

First Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Fifth Circuit

MORAL TURPITUDE - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

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 . . . ."