FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P A T T I E P A GE WAL C O T T , AKA Pattie Clark, AKA Pattie W atson, Petitioner ,

v

.
M E R R I C K B. G AR

LA ND , Attorney General, Respondent. No. 18-70393 Agency No. A075-930-578

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

S u bm itted June 5, 2020 Subm ission Vacated January 6, 2021 Argued and Subm itted February 18, 2021 San Francisco, California

Filed Decem

ber 22, 2021

Before: A. W allace Tashim a, Marsha S. Berzon, and Daniel P. Collins, Circuit Judges.

O pinion by Judge Tashim a; Concurrence by Judge Berzon; Dissent by Judge CollinsWAL C O T T V

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SUMMARY *

Immigration Granting Pattie Page W a lc o t t ’s petition for review of a decision of the Board of Imm igration Appeals, the panel held that 1) Arizona Revised Statutes § 13-3405( A)(4), which prohibits certain conduct relating to m arijuana, is overbroad and divisible; 2 ) W alcott’s § 1 3-3505(A) convictions, which involved categori e s i n the statute involving the sm allest quantity o f m arijuana, w ere not crim es involving m oral turpitud e (“CIMT”); and 3 ) W alcott was therefore not
rem ovable.

After b ecom ing a lawful perm anent resident, W alcott was found rem ovable under 8 U. S. C. § 1227(a)(2)(A)(ii) for having been convicted o f two CIMTs: 1) s o l i c i t ation to possess for sale less than two pound s o f m arijuana under §§ 13-1002, 13-3405(A)(2), and (B)(4); and 2) o ffering to transport less than two pounds of m arijuana for sale under §§ 13-3405(A)(4) and (B)(10). Applying the cat eg o r i cal approach, the panel h eld that subsection 13-3405(A)(4) is overbroad with respect to the generic definition of a CIMT. The p an el explained that this court has held that d

rug trafficking crim es are g e n erally CIMTs and that “ mo r a l turpitude” refers to conduct that is inherently base, vile, or deprave d, and contrary to the accepted rules of m o rality and the duties owed between persons or to society in g e neral. The panel concluded that

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.WAL C O T T V

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su b sectio n 1 3 -3 4 0 5 (A )(4 ) is o v erb ro ad because it inclu d e s th e offenses o f im

port a tion and transfer, neither of which necessarily involves trafficking. A ddressing the least egregious conduct covered by the subsection and whether there was a re a listic probability that the state would apply it to conduct outside the definition o f a CIMT, the p anel pointed to case law where Arizona has applied the subsecti o ns involving less than two pounds of m arijuana to conduct involving very sm all am ounts.
The panel also concluded that subsection 13-3405(A)(4) is divisible because it defines m u ltiple, separate crim es. In so concluding, the panel looked to th e text of the statute, the Shepard docum ents in the record here, as well as state law.
Ap plying the m odified categorical approach, the panel
c o n c l u d e d t h a t Wa lc o tt ’ s s ub s e c ti o n 1 3

- 3 4 0 5 ( A ) ( 4 ) conviction was not a C IMT. The panel observed that in Barragan-Lopez v. Muk

a s e y , 508 F.3d 8 99 (9th Cir. 2007), this court held that an Arizona conviction fo r s o licitation to possess at least f

our p ounds o f m arijuana for sale constituted
a CIMT. However, the panel explained that Barragan-Lopez expressly left open the question presented here – whether an offense involving a v ery sm all quantity o f m arijuana f or sale is a CIMT.

The panel explained that early cases holdin g that drug trafficking offenses were C IMTs involved drugs that present serious risk of injury o r death (such as heroin and c o c a ine)
an d observed that the legislative h istory on which the BI A relied in concluding that d rug trafficking offenses are CIMTs
em phasized the harm s of narcotics. The panel concluded that the underlyin g r ationale o f the court’s case law

– that drug trafficking involves actual injury tantam ount to murder on aWAL C O T T V

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slower scale – does not apply to the sale of sm all am ounts o f
m arijuana. Be c ause W alcott’s offenses involved the categories in the statute involving the sm allest quantity o f
m arijuana, the panel concluded that h er convictions were not CIMTs. The panel also concluded that contem porary societal attitudes toward m arijuana and widespread legaliz a t i o n o f
m arijuana supported its conclusion.

Concurrin g , Ju dge Berzon wrote that she continues to bel i eve that the phrase “crim e involving m oral turpitude” is unconstitutionally vague. Judge Berzon concurred, h owever, because the opinion properly applied the existing case law. Dissenting, Judge C ollins concluded that the B IA correctly held that W alcott’s convictions were CIMTs. Judge Collins wrote that it was significant that her offenses involved “sale,” and wrote that the m ajority read too m uch into the court’s reservation of the question in Barragan-Lopez

. Judge Collins found persuasive the BIA’s conc l u s i on that the sharing of a sm all am ount of m arijuana w ould be considered
m orally turpitudinous i f i t involved sales, but not if it involv e d giving away a few cigarettes. Observing that this brigh t l i ne coheres both with Barragan-Lope z and
com parable judgm ents reflected elsewhere in federal law, Judge Collins concluded that the BIA’s decision was entitled to Skidmore deference. Judge Collins also wr o t e that the m ajority’s reliance on l e g i s l a t i v e h i s t o r y , c u r r e n t m o r a l s t a n d a r d s , a n d decrim inalization of m arijuana was f lawed. Finally, Ju d ge Collins concluded that W alcott p rovided no other persuasive basis for setting aside her rem oval order.WAL C O T T V

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C OUNSEL

Altin Nanaj (argued), Nanaj Law Firm PLLC, New York, New York, for Petitioner.

Daniel E. Goldm an ( argued), Senior Litigation Counsel; Lindsay Corliss, Trial Attorney; Office of Imm igration Litigation, Civil Division, United States Departm ent o f Justice, W ashington, D.C.; for Respo n dent.

OPINION TASHIMA, Circuit Judge:

Pattie Page W alcott, a citizen of Jam aica, becam e a lawful perm anent resident of the United S tates in March 1999. In 2 0 1 1 , the governm ent charged her with rem ovab ility p ursu ant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted o f two crim es involving m oral turpitude (“CIMT”), based on two Ariz o n a convictions for m arijuana-related offenses. Wa lc o tt’s first conviction was in October 2010, when sh e entered a guilty plea to one count of solicitation to p ossess for sale less than two pounds of m arijuana, in violation of Ariz. Rev. Stat. § § 1 3-1002 (solicitation), 13-3405(A)(2) (possession for sale), and (B)(4) (less than two p ounds). Shortly thereafter, she suffered h er second convic t io n, for offering to transport less than two pounds o f mar ijuana for sale, in violation of Ariz. R ev. Stat. § 13-3405(A)(4) (offer to transport) and (B)(10) (less than two pounds).

The Imm igration Judge (“IJ”) sustained th e charges, found W alcott rem ov able, and denied her application for cancellation of rem oval under 8 U.S.C. § 1229b(a ). TheWAL C O T T V

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Boar d of Imm igration Appeals (“BIA” or “Board”) agreed wi th the IJ that W alcott’s convictions were CIMTs and th at she was not entitled to cancellation o f r e moval; it thus dism issed her appeal. W e conclude th a t W alcott’s convictions are not CIMTs and that W alcott accordingly was not rem ovable under 8 U.S.C. § 1227(a)(2)(A)(ii).

JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). See Barrera -Lima v. Sessions , 901 F.3d 1108, 1114 (9th Cir. 2 018) (whether a crim e involves m oral turpitude is a legal question thi s c o urt has jurisdiction to review). “W e review de novo whether a particular conviction under state law is a rem ovable offense.” Arellano Hernandez v. Lynch , 831 F.3d 1127, 1130 (9th Cir. 2016).

DISCUSSION

I

“W e determ ine whether a conviction qualifies as a CIMT by applying the categorical approach and, if n ecessary, the
m odified categorical approach.” Vasquez-Valle v. Sessions , 899 F.3 d 8 34 , 8 3 9 (9th Cir. 2018). “Under the categorical approach, a conviction i s a crim e of m oral turpitude if ‘the full range of conduct encom passed by the statute,’ including the least egregious conduct prosecuted under the statute, is a crim e of m oral tur

p itude.” Barragan-Lopez v. Mukasey , 508 F.3d 8 99, 9 03 (9th C ir. 2007) (quoting Quintero-Salazar v. Keisler , 506 F.3d 688, 692 (9th Cir. 2007)).

“The BIA has d efined the term ‘m oral turpitu de’ as referring to conduct that is ‘inherently base, vile, or depraved,WAL C O T T V

. G AR LA ND 7 and contrary to the accepted rules of m o rality and the duties owed between persons or to society in general.’” S ilv a v. Garland, 993 F .3d 705, 712 (9th C ir. 2021) (quoting Matter of Silva-Trevino , 26 I. & N

. Dec. 826, 8 33 (BIA 2016)). If the full range of conduct proscribed b y the statute d o e s not constitute a CIMT, “we apply the mo d ified categorical approach, which perm its us to look beyond the langu age o f the statute to d o cum ents tha t are part of the record o f conviction, but not to the particular fa c ts underlying the conviction.” Vasquez-Valle , 899 F.3d at 839.

II

W e focus our discussion on W alcott’s second conviction, noting that the m odified categorical analysis is substantially sim ilar for her first conviction, and conclude that nei th e r o f her conviction s is a CIMT. Her second conviction was for offering to transport less tha n two pounds of m arijuana for sale, in violation o f Ariz. Rev. Stat. § 13-3405(A)(4) and (B)(10). The BIA concluded that the conviction w as a CIMT, relying on the general p rinciple that drug trafficking offenses
are CIMTs and citing its decision in Matter of Khourn , 21 I. & N. Dec. 1041 (BIA 1997). Although we generally apply Chevron 1 d eference where the BIA relies on its o wn precedential d ecision, “[w]e have hesitated to d e fe r to the BIA’s general understanding of th e term ‘m oral turpitude’ because the BIA’s ‘general definition o f m oral turpitude fails to p articularize the term in any m eaningful way.’” Betansos
v. Barr , 928 F.3d 1133 , 1 139 (9th C ir. 2019) (quoting Marmolejo-Campos v. Holder , 55 8 F.3d 903, 910 (9th Cir. 2 009) (en b anc)). Khourn involved a conviction for

1 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 8 3 7 (1984).WAL C O T T V

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distribution of cocaine un der 21 U .S.C. § 841 and does not establish that W alcott’s state conviction for offering to transport less than two pounds of m arijuana is a CIMT. W e therefore d ecline to apply Chevron d eference t o the BIA’s reliance on Khourn in this case.

The Board also relied on our decision in Barragan-Lopez , where we held that the petitioner’s conviction for solicitation to possess at least four pounds of m arijuana for sale, i n vio l a tion of subsections 13-3405(A)(2) and (B)(6), constituted a CI M T fo r purposes of rem ovability under 8 U.S.C. § 1227(a)(2)(A)(i)). 2 Barragan-Lopez , 508 F.3d at 904. As pertinent here, the Barragan-Lopez court reasoned that “[d]rug trafficking offenses, including possession o f unlawful substances for sale, gener a lly involve m oral turpitude. The q

uantity inherent in Barragan[-]Lopez ’s convictio n – four pounds of m arijuana – was too great to j u s t i fy treating this crim e differently.” Id. at 903–04. We thus concluded that the petitioner’s conviction was a CIMT. Id. at 904; see also Ro mo v. Barr , 933 F.3d 1191, 1196–99 (9th C ir. 2019) ( r elying on Barragan-Lopez to hold that an Arizona conviction for solicitation to possess for sale at least four p ounds of m arijuana was a CIMT f or purpose s o f inadm issi b i l ity under 8 U.S.C. § 1182(a)(2)(A)(i)(I)). W e stated, h owever, that we did not “address the qu e s t i on that would be p resented if Barragan-Lopez had been convicted o f

2 The issue in Barragan-Lopez was whether the court should focus o n the solicitation offense rather t han the underlying crim e in determ ining whether the prior conviction wa s a CIMT. Reasoning that “ [w]e have previou s l y l ooked to underlying crim es in determ ining whether convictions for inchoate offenses constitute crim es involving m oral turpitude,” the court l o oked to the underlying possession o ffe n s e to determ ine i f the conviction w a s a CIMT. Barragan-Lopez , 508 F.3d at 903.WAL C O T T V

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solicitation to possess a very sm all q uantity o f m arijuana for sale, such as, f

or exam ple, a single m ar ijuana cigarette at a party with personal friends.” Ba rragan-Lopez , 508 F.3d at 904.
Barragan-Lopez does not control as to W alcott’s second conviction because it involved a different subsection of the statute, and “[w]e look at the specific subsections of a statute th a t the petitioner is convicted under to determ ine if it is a c r i me o f m oral turpitude.” Id. at 903. Barragan-Lopez’s conviction (and W alcott’s first conviction) was under
su b sectio n 1 3 -3 4 0 5 (A )(2), which prohibits o n ly p o ssession o f
m arijuana for sale. W alcott’s s econd conviction was under subsection 13-3405(A)(4), which provides that a person shall not knowing l y “[t]ransport for sale, im port into this state o r offe r t o tr ansport for sale or im port into this state, sell, transfer or offer to sell or transfer m arijuana.”

In contrast to subsection (A)(2), which prohibits only o ne offense, subsection (A) ( 4 ) includes two offenses that do not
n ecessarily involve traffick in g o f m a riju an a

– im

p o rtatio n an d transfer. Im

portation could be accom p lished by driving into the State of Arizona w ith a sm all am ount of m arijuana in the
car that is for p ersonal u se, not for sale. See State v. Farid , 471 P.3d 668, 669 (Ariz. C t. App. 2 0 2 0 ) (holding that a conviction under subsection 1 3-3 405(A)(4) for im portation “does not require proof a defendant who knowingly im ported
m arijuana d id so ‘for sale’”); State v. Chabolla-Hinojosa , 965 P.2d 94, 9 8 (Ariz. Ct. App. 1 998) (discussing subsection 13-3405(A)(4) and noting that “an im portation charge has no

‘ for sale’ elem ent”). Sim ilarly, transfer could be
accom p lished by som eone sharing m arijuana with a friend without b eing paid. See State v. Cota , 956 P.2d 5 0 7 , 507, 508–09 (Ariz. 1998) (en banc) (observing that “trans fe r” i nWAL C O T T V

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sub s ection 13-3405(A)(4) is defined “to m ean ‘furnish, deliver or give away ’”) (em phasis added). Sub section 13- 3405(A)(4) accordingly is overbroad because it “crim inalizes conduct that goes beyond the elem ents” of the CIMT of drug trafficking. A lmanza-Arenas v. Lynch , 815 F.3d 4 6 9 , 4 76 (9th C ir. 2016) (en banc) (quoting Lopez-Valencia v. Lynch , 798 F.3d 863, 867–68 (9th Cir. 2015)).

In addition, to determ ine overbre a th , we consider the “least egregious co ndu c t” covered by the statute. B araganLopez , 508 F.3d at 903. H ere that offense is transportation o r transfer, without sale, of a very sm all am o unt of m arijuana. “To show that the stated offense is b r o ad er than the g eneric definition of a CIMT and thus n o t a categorical m atch, the petitioner m

ust dem onstrate that ther e is ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that fa l l s o u t side the g eneric definition o f mo r al turpitude.’” Vasquez-Valle , 899 F.3d at 839 (quoting Turijan v. Holder , 744 F.3d 617, 620 (9th Cir. 201 4) ) ). In Cota , the defendant was charged under subsection 13-3405(A)(4) after he wa s seen purchasing “a
sm all am ount of m arijuan a, the equivalent of two to three cigarettes,” 9 56 P.2d at 5 08. Arizona therefore has ap p l i e d the subsections of the s t a tute involving “less than two pounds” o f m arijuana, under which W alcott was charged, to conduct involving very sm all am o unts. 3 For the reasons discussed in Part IV, infra , such conduct is not “inherently base, vile, or depraved, and contrary to th e a ccepted rule o f

3 The Arizona Suprem e Court r eversed Cota’s conviction because the prosecution’s theory was that Cot a was liable as an accom plice in transferring m arijuana to him self, but “a transferee cannot transfer to him self or herself.” Cota , 956 P.2d at 508.WAL C O T T V

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m orality and the duties owed between persons or to society in general.” Silva , 993 F.3d at 712.

III

Because subsection 13-3405(A)(4) is overbroad, we m ust
m ove to the next step and determ ine whether it is divisible o r indivisible. Barbosa v

. Ba rr , 9 2 6 F.3d 1053, 1057 (9th Cir. 2019). If the statute is indivisible, “ ‘ o ur inquiry ends, because a conviction under an indivisible, overbroad statute
can never serve as a predicate offense.’” Id. (quoting Almanza-Arenas , 8 15 F.3d at 475). If it is divisible, we proceed to the m o d ified categor i c a l approach. Id. ; accord Ibanez-Beltran v. Lynch , 858 F.3d 294, 297 (5th Cir. 2 017) (per curiam ) (“Courts m ay only use the m odified appro a c h . . . when the statute of conviction is divisible.”).

In determ ining whether a statute is divisible, the question is whether the listed item s are alternative elem ents or if they are “various factual m eans o f comm itting a single elem ent.” Mathis v. United States , 1 36 S. Ct. 2243, 2249 (2016). If the elem ents “are alternativ e to each other – n ot the m ode o r m eans of proving an elem en t o f the crim e – the statute is divisible.” Almanza-Arenas , 815 F .3d at 477. W e conclude that subsection 13-3405(A)(4) is divisible.

The first step in determ ining divisibility is to exam ine the tex t of the statute. Id. Subsection (A)(4) provides that a person shall not knowingly “[t]ransport for sale, import into this state o r offer to transport for sale or im port into this state, sell, transfer o r offer to sell or transfer m arijuana.” Because the subsection “list[s] elem ents in the alte rnative,” the phrasing of the statute suggests that it “define[s] m u ltiple crim es” and thus is divisible. Mathis , 136 S. Ct. at 2249; seeWAL C O T T V

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Gome z Fe rnandez v. Barr , 969 F.3d 1077, 1089 (9th Cir. 2020) (explaining that disjunctive text “‘alone cannot end the di visibility inquiry,’” but it “suggests” the statute lists different crim es and thus is divisible (quoti n g Rendon v. Holder , 764 F.3d 1077, 1086 (9th Cir. 2014))).

W e also exam ine “ Shepard docum ents to see whether the statute displays alternative elem ents instead of alternative
m eans of comm itting the sam e crime .” Almanza-Arenas , 815 F.3d at 478; se e Mathis , 136 S. Ct. at 2249 (explaining that, under Shepard v. United States , 544 U.S. 1 3 (2005), the court m ay exam ine “a li mi t e d class of docum ents (for
exam p le, the indictm ent, jury instructions, or plea agreem ent
an d colloquy)”). W alcott pled guilty to count 2 o f a fi v e
count indictm ent, charging her with transportation o f
m arijuana for sale. 4 The plea agreem ent stated that Wa l c ott “unlawfully offered to transport m arijuana for sale, having a weight o f less th an two pounds.” The indictm ent and plea agreem ent’s use of “one alternati v e term to the exclusion o f
a l l others” in the statute “indicates that the term s within th e statute are individual elem ents.” Ibanez-Beltran , 858 F.3d at 298; see Mathis , 136 S. Ct. at 2257 (“[A]n indictm ent and jury i nstructions could indicate, b y referencing o ne alternative term to the exclusion o f all others, that the statute contains a list of elem ents, each one of which goes toward a separate crim e.”); Almanza-Arenas , 815 F.3d at 479 (“[A] prosecutor charging a violation of a divisible statute m ust gen e r a lly select the relevant elem ent from its list o f

4 The other four counts in the indictm ent were: count 1 , conspiracy to com m it transportation of m arijuana for sale and/or possession o f
m arijuana for sale; counts 3 and 4, possession of drug paraphernalia; and count 5, possession of less than two pounds of m arijuana.WAL C O T T V

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alternatives.” ( quoting Descamps v. United S tates , 570 U.S. 254, 272 (2013))).

W e also look to state law to determ ine whether the statute is divisible. Almanza-Arenas , 815 F.3d at 480. Arizona law
s ug gests that subsection 13-3405(A)(4) lists alternativ e offenses. For exam

ple, in Chabolla-Hinojosa , 965 P .2d 94, the defendant’s conviction o n one count each of transporting marijuana for sale and im porting m arijuana indicates th at those are separate offenses lis t e d i n subsection 13- 3405(A)(4). The charges in Farid , 471 P.3d 668 (im portation of m ari j uana), and State v. Fierro , 206 P.3d 786 (Ariz. Ct. App. 2 008) (transportation of m ar i j u ana for sale), sim ilarly suggest that the o ffenses listed in subsection 13-3405(A)(4)
are separa te offenses and that the statute accordingly is divisible.

Farid ’s holding fu rther supports the conclusion that the statute is divisible. The court there h eld th a t a conviction
un d er su b section 1 3 -3 4 0 5 (A ) (4 ) f

o r i m p o rtin g m ariju an a d o e s not require proof th e defendant im ported it for sale. Farid , 471 P.3d at 672. T his distinction indicates that the statute is divisible because “transport for sale” and “im port in t o th is state” have different elem ents and thus are different offenses.

W alcott relies o n State v. Brown , 177 P.3d 878 (Ariz. Ct. App. 2 008) to a rg u e that section 13-3405 is not divisible at all, but Brown does not support her position. The defendant i n Brown was convicted under Ariz. Rev. S tat. § 1 3

- 3408(A)(7) of three counts each of sale an d tr ansfer of aWAL C O T T V

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narcotic drug, b ased on three separate sales of crack cocaine. 5 The question was whether the “sell, transfer or offer to sell o r transfer” phrase in subsection 13-3408(A)(7) “represent[ed] different ways to comm it a single crim e or r a th er

. . . create[d] separate offenses when a single transac t ion is involved.” Id. at 881. Observing that the h e a d i n g o f the statute included sale of narcotic drugs, but not transfer o r offer to sell or tr ansfer, and assum ing that “the legislature intended to cr e a t e no m ore offenses than those listed in the heading of the statut e,” the court concluded that “the leg i slature intended the term s ‘sale’ and ‘transfer’ to represent diffe r e nt ways of comm itting the sam e o ffense when a single transaction is involved. Id. at 881–82. Although Brown c oncluded that sale and transfer represented different way s o f comm itting the sam e offense, the court noted that sale and transportation do not. Id. at 882 n.3. B rown thus acknowle d g ed that at least two of the offenses listed in subsection 13-3408(A)(7) are not the sam e offense. The case therefore does not establish that subsection 13-3405(A)(4) , whose language is nearly identical to subsection 13-3408(A)(7), is entirely indivisible.

The structure of the subsec t i o n , the indictm ent, and W alcott’s plea agreem ent all indi c ate that subsection (A)(4) is divisible with regard to the transportation offense with which W alcott wa s charged. The holding of Farid and the charges i n Chabolla-Hinojosa , Farid , and Fierro further support our conclusion that the statute is divisible in that regard. Accord Ibanez-Beltran , 858 F.3d at 298 (concluding

5 Subsection 13-3408(A)(7) p roscribes “[t]ransport fo r sale, i m port into this state, offer to transport for s a l e o r im p o rt i nto this state, sell, transfer or offer to sell or transfer a narcotic drug.”WAL C O T T V

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that “[t]he plea agreem ent, judgm ent, and instructions are enough, w ithout settled state law to the contrary, to hold that section 1 3-3405(A)(4) is divisible”). W e therefore turn to the
m odified categorical approach.

IV

In applying the m odified categorical approach, we “‘review

. . . record m aterials’ to d eterm ine which of the offenses in a d ivisible statute the defendant was convicted o f
comm itting.” Pereida v. Wilkinson , 141 S. Ct. 754, 764 (20 2 1) (alteration in original) (quoting Mathis , 136 S. Ct. at 2256). W e know that the record of conviction establishes that W alcott was convicted of offering to transport less than two p ound s o f m arijuana for sale and that transport f or sa le generally constitutes drug trafficking. H owever, as Barragan-Lopez rec o g n ized, a drug trafficking o ffense involving a sm all a mo un t of m arijuana m ight not involve
m oral turpitude. The conviction in Barragan-Lopez involved
m ore than four pounds of m arijuana, th e c a t e gory in the statute for th e l argest quantity, and the court specifically relied on the l a r g e quantity to conclude the offense was a CIMT. Barragan-Lopez , 508 F.3d at 904; see § 13- 3405(B)(6). 6 By contrast, W alcott’s conviction involved the category in the statute addressing the sm allest qu antity o f
m arijuana, less than two pounds. 7 See § 1 3-3405(B)(10). A s

6 The statute categorizes o ffenses into different clas s e s o f felony according to the weight o f m arijuana

– less than two pounds, at least t wo pounds but not m ore than fo ur pounds, and m o re than four p ounds. See § 13-3405(B). W i thin each category, there is no distinction as to the
am ount of m arijuana, so the categories are not internally divisible. See id.

7 W alcott’s f

irst conviction sim ilarly involved the category in the statute addressing the sm allest quantity of m arijuana, § 13-3405(B)(4).WAL C O T T V

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Cota indicates, the least culpable conduct prosecuted in that category could involve an am ount of m arijuana equivalent to only “two or three cigaret te s .” Cota , 956 P.2d at 508. This case thus presents the question left open in Barragan-Lopez

– whether an offense involving “a very sm all quantity o f
m arijuana for sale” is a CIMT. I d. We conclude that W alcott’s convictions are not CIMTs. 8
“‘Although the imm igration statutes do not specifically d ef in e o f f e n s es constituting crim es inv o lv in g m o ral t urp i t u d e , a crim e invol v i n g m oral turpitude is generally a crim e that (1) is vile, base, or depraved and (2) v iolates accepted m oral standards.’” Ceron v. Holder , 747 F.3d 773, 779 (9th Cir. 2014) (e n banc) (quoting Latter-Singh v. Holder , 668 F.3d 1156, 1161 (9th Cir.2012)). W e have descri b e d CIMTs as offenses that “offend society’s m o st fundamental values, o r shock socie ty’s conscience,” Barbosa , 926 F.3d at 1058 (quoting Mendoza v

. Holder , 623 F.3d 1299, 1302 (9th Cir. 2010)), and h ave observed that “non-frau dulent [CIMTs] ‘alm ost always’ involve the intent to injure, actual injury, o r a protected class of victim s.” Tu r i jan , 744 F.3d at 619 (qu o ti n g Nunez v. H

older , 594 F.3d 1 124, 1 131 (9th Cir. 2010)).

We h ave also h eld that “drug trafficking crim es ar e generally crim es involving m oral turpitude.” Romo , 9 33 F.3d at 1 1 9 5

. The history of that p recept is inform ative here.

8 It is unclear what t

he dissent m eans by characterizing our r esolution of this open question as “read[ing] that comm ent as a negative pregnant.” Dissent at 27. Contra ry to the dissent’s assertion, Dissent at 27, Barragan-Lopez ’s explicit rel i ance on the large quantity at i ssue and its reservation of the question when a sm all quantity is at issue are properly characterized as suggesting that an o ffense involving a sm all quantity m ay not be a CIMT.WAL C O T T V

. G AR LA ND 17 Early cases holding that drug trafficking offenses were CIMTs involved drugs such as h eroin and cocaine – tha t i s, drugs that did present serious risk o f injury or death. Atlantic Richfield Co. v. Guerami , 820 F.2d 280 (9th Cir. 1987), for
exam p le, held that possession of heroin for sale is a “crim e o f
m oral turpitude,” id

. at 282, citing United State s e x e l. DeLuca v. O’Rourke , 2 1 3 F.2d 759 (8th Cir. 1954), which explained that “there can be nothing m o re depraved o r m orally indefensible than conscious participation in the illicit dru g traffic. The evils which result from unlawful l y im porting or dealing with unlawfully im ported narcotic drugs
are a m atter of comm on knowledge,” id. at 762. “[N]arcotic drugs” were d efined under the then-applic ab l e statute as opium , coca leaves, cocaine, or any salt, derivative, o r preparation o f opium , coca l eaves, or cocaine.” 21 U.S.C. § 171(a) (1940).

In Khourn , the BIA sim ilarly h eld in 1997 that a conviction for distribution o f cocaine un d e r 21 U.S.C. § 841(a)(1) was a CI M T, relying in part on the legislative history of the Narcotic Control Act of 1956. 21 I. & N. D ec. at 1046, 1 048–49. When C ongress added a subsection to that Act addressing the sm

uggling of m arijuana, the House Report noted that “[t]here are fe w cr im inal acts that are m ore r e p rehensible than the act of abetting drug addiction by engaging in the illicit narcotic and m arihuana traffic.” H.R. Rep. No. 84-2388 (1956), as reprinted in 1956 U.S.C.C.A.N. 3274, 3285. But the report as a whole em phasized the harm s of narc o tics, explaining that “[t]he narcotic traffic has been aptly d escribed as ‘m

urder on the instal l me n t plan.’” Id. at 3304. W e have determ ined that trafficking of over four pounds of m arijuana is a CIMT, Barragan-Lopez , 508 F.3d
a t 9 0 4 , but the underlying rationale of our case law – tha t drug trafficking involves actual injury tantam ount to m urderWAL C O T T V

. G AR LA ND 18

on a slower s c a le – does not apply to the sale o f sm all
a m o u n t s o f m a r i

j u a n a

. Se e D r u g E n f o r c e m e n t Adm inistration, D rug Fact S h eet : Marijuana/Cannabis 3 (2020), https://www.dea.gov/sites/default/files/2020-06/Ma rijuana-Cannabis-2020.pdf (noting that “‘[n]o d eaths from overdose of m arijuana have been reported”).
Barragan-Lopez so acknowledged when it suggested that possession of a sm all am ount of m arijuana for sale m ight not b e m orally turpitudinous. Because W alcott’s offens e s involved the categories in the statu t e i n v olving the sm allest quantit y of m arijuana, w e conclude that her convictions are not CIMTs. Contem

porary societal attitudes toward
m arijuana support the conclusion that o ffering to transport for sale and soli c i t a ti on to possess for sale very sm all am ounts of m arijuana are not offenses that are so inherently base, vile,
or depra v ed that they offend society’s m ost fundam ental values or shock society’s conscience.

In Novem

b er 2020, Ar i z o na voters passed Proposition 207, which p rovide s , in part, that it is lawful to possess o r purchase one ounce or less of m arijuana, effective Novem ber 30, 2 0 20. 9 Ariz. Rev. S tat. § 36-2852(A)(1). In d o i n g so, Arizona joined fifteen o th er states and the D istrict o f Colum bia in legalizing the recreational use of m arijuana. See

9 Arizona p assed t

he Arizona Medic al M a rijuana Act in 2010, p e rm itting the use of m edical m arijuana, effective Decem ber 14, 2 0 1 0

. See Ariz. Rev. S tat. § 36-2802; State v. Jones , 440 P.3d 1139, 1141 ( Ariz. 2019). Thus, at the tim e of W alcott’s conviction, Arizona p erm itted those who m et the statutory conditions t o use m edical m arijuana and regulated
m edical m arijuana dispensaries an d t h i r d p ar t y l ab o ratories who dispensed the m arijuana. See Ariz Rev. Stat. §§ 36-2801 to 36-2810. H owever, “m arijuana possession and u se [were] otherwise illegal in Arizona.” Reed-Kaliher v. Hoggatt , 347 P.3d 136, 139 (Ariz. 2015).WAL C O T T V

. G AR LA ND 19

Michael Hartm an, Nat’l Conf. of S tate Legislators, C annabis Overview (Apr. 8, 2021), https://www.ncsl.org/researc h/civ il-an d -crimin al-ju stice/m arijuana-overview.aspx (explaining that, as of April 8, 2021, “[s]eventeen states, two territories, and the District of C olum

bia h ave legalized the possession o f
sm all am ounts of cannabis (m arijuana) for adult recreational use”); see also Gary Michael S m ith, Licensing, Zoni n g and Recreationa l Cannabis’ Post-Election Obstacles , 57 Ariz. Att’y 28 (Mar. 2021) (“Passage of Prop osition 207 m akes Arizona the 13th state to enact an adult-use m arijuana law.”). As one articl e posited, “[i]n less than a decade, m arijuana legalization has g o ne from unthinkable to seem ingly unstoppable.” Douglas A. Berm an & Alex Kreit, Ensuring Marijuana Reform Is Effective Criminal Justice Reform , 52 Ariz. S t. L.J. 7 41, 741 (2020). Berm an and Kreit exp l ained that “[s]ixty-seven percent o f Am ericans favor legalizing m arijuana according to a late-2019 Pew Research Ce n t e r s urvey – up from 32% in 2 0 06.” Id. at 741–4 2 (footnote om itted); see also Daniel Tillem an, Canada Shows the United States How to Do Marijuana a t the Federal Level: A Comparison and Suggestio n for A F ederal Medical Marijuana L aw , 38 Ariz. J. Int’l & Com p

. L. 111, 113 (2021) (“In 1990, som e studies found that only 16.4% of Am ericans supported the l egalization of m arijuana in the US. Recent studies are now showing that the percentage has clim bed to over sixty percent.” (footnote om itted)). 1 0

10 The d issent characterizes our reliance on these source m aterials as “subjective m oral intuitions derived from our reading of p olling data and law r eview comm en t a ry

. ” Dissent at 32. These data, however, objectively show society’s changi n g m oral standards regarding the possession and use of m arijuana and the dissent does not challenge their accuracy.WAL C O T T V

. G AR LA ND 20

The widesprea d le g alization of m arijuana m akes it clear th a t o ffering to transport for sale a very sm all am oun t of
m arijuana does not involve conduct that vio l a t e s accepted
m oral standards. 1 1 As we have explained, “‘[o]n ly truly unconscionable conduct surpasses the threshold of m oral turpitude.’” Turijan , 744 F.3d at 621 (alteration in o riginal) (quoting Robles-Urr e a v

. Holder , 678 F.3d 702, 708 (9th Cir.2012)).

The n eed to consider current m oral standards in determ ining whether an o ffense is mo r a lly turpitudinous is illustrated b y Chavez-Alvarez v. Attorney General U.S. , 850 F.3d 5 83 (3d Cir. 2 017), in which the Third Circuit held that a 2 0 00 conviction for sodomy was n ot a CIMT in light o f the Suprem e Court’s 2003 decision in Lawren c e v

. Texas , 539 U.S. 5 58 (2003). Nearly a d ecade after the petitioner in Chavez-Alvarez w as convicted of violating three sections of the Uniform Code of Military Justice, including for sodomy, he was charged with rem ovability for having been convicted of an aggravated felony and two or m ore CIMTs. The petitioner challenged h is rem o val, arguing that “he was only convic t e d of sodomy, a constitutionally protected activity” under Lawrence

. Chavez-Alvarez , 8 50 F.3d at 585. The B IA rejected his argum ent o n the ground that his offens e was c o mm itted forcibly, m aking it subject to a sente n c e enhancem ent that rendered it the “functio n a l equivalent” o f
a conviction for forcible sodomy, a CIMT. The T hird Circuit

11 The sam e reasoning applies t o W a l c ott’s first conviction, f o r solicitation to posse s s for sale less than t wo pounds of m arijuana. Although this conviction cam e under the sam e subsection of the statute as was addressed in Barragan-Lopez , her offense presents the question l eft open there – whether a conviction under § 13-3405(A)(2) for a very sm all quantity of m arijuana is a CIMT. W e conclude that it is not.WAL C O T T V

. G AR LA ND 21

reversed the BIA and granted the petition, reasoning that the sentence enhancem ent was not an elem ent of the offense. Id. at 587–90. As pertinent here, th e court concluded that sodomy was not a C IMT b ecause, “[p]er Lawrence v. Texas , the ‘crim e’ in the Code affecting Chavez-Alvare z d oes not withstand constitutional scrutiny.” Id. at 590. Although Chavez-Alvarez did n o t address the question we face, the determ ination wh ether sodomy was m orally turpitudinous was viewe d th rough the lens of Lawrence v. Texas , which wa s d ecided three years after the p etitioner’s conviction. As the S uprem e Court has explained, the drafters of the Constitution “knew tim es can blind us to certain truths and later gener a t i o ns can see that laws once thought necessary and proper in f act serve on l y to oppress.” Lawrence , 539 U.S. at 579.

W e acknowledge that , in the context of assessing an aggravated felony, we have h e ld that “when conducting a categorical analysis for re mo v ability based upon a state crim inal conviction, it is proper to com p are drug schedules at the ti m e of the petitioner’s underlying crim inal offense, not
a t the tim e o f the petitioner’s rem o v al.” Medina-Rodriguez
v. Barr , 979 F.3d 738, 7 42 (9th Cir. 2020). Sim ilarly, we have held that in determ ining whether a CIMT is “a crim e for which a sentence of one year or longer m ay b e i m posed,” 8 U .S.C. § 1227(a)(2)(A)(i), we consider the m aximum sen tence at the tim e of conviction. Velasquez-Rios v. Wilkinson , 988 F.3d 1081, 1084–89 (9th Cir. 2021).

The d eterm ination of whether an o ffe n se is m orally turpitudinous, however, is not based on a discrete, objective, concrete factor, such as a drug schedule or th e s t a tutoryWAL C O T T V

. G AR LA ND 22

m ax i mum prison tim e. Instead, as the BIA has acknowledged,

Bo th the courts and this Board have referre d to m o ral turpitude as a nebulous concept with
am ple room fo r d iffering definitions of the term

. Under this standard, the nature of a crim e i s m easured against contemporary moral standards and m ay be suscepti b le to change based on the prevailing v iews in society.

Islas-Veloz v. Whitaker , 914 F.3d 1249, 1258 (9th C ir. 2 019) (W

. F letcher, J., concurring) (em phasis added) (cleane d up) (quoting In re Lopez-Meza , 22 I. & N. D ec. 1188, 1191 (BIA 1999)), cert. denied , 1 40 S. Ct. 2 704 (2020); cf. In re Barug , 76 F. Supp. 407, 409 (N.D. Cal. 1948) (explaining that “[t]he term ‘good m oral character’ in th e Na tionality Act is not a term of technical l eg al connotation,” but instead “m ust be viewed in the light of the standards of society,” and that “the
m orals of the comm

unity” are not “static”); In the Matter of G- , 1 I. & N. Dec. 5 9, 60 (BIA 1941) (in determ ining whether
an offense is a CIMT, the standard “is that prevail in g in the United States as a whole, regarding the comm on view of our people concerning its m o r al c h a racter”). A determ ination that
an offense is base, vile, or depraved, or contrary to accepted
m oral standards depends on the accepted m oral standards o r prevailing views at th e tim e. Thus, a rem oval order for having com

m itted a CI MT is f

undam entally d ifferent from basing rem oval on a d

rug schedule or m aximum sentence in force at the tim e of conviction and should not be based on an offense previously, but no longer, thought to b e turpitudinous under societal standards.WAL C O T T V

. G AR LA ND 23

For exam ple, could a rem oval order be enforced on the basis of a conviction under antim iscegenation laws o b tained prior to Loving v. Virginia , 388 U.S. 1 (19 6 7 )? As Judge Norris observed, “the Virginia legislature m ay have adopted this law in the sincere belief that m iscegenation – the m ixing
o f racial blood lines – was evil.” Watkins v. U. S

. Army , 875 F. 2 d 699, 7 30 (9th Cir. 1989) (en banc) (Norris, J., concurring in the judgm ent); cf. Barug , 76 F. Supp. at 409–10 (rejecting the governm ent’s argum ent that the petitioner lacked good m oral character b ased on his m arriage, which
was invalid because it violated m iscegenation law). Because society’s m oral judgm ents ch an g e ov er t i m e , the determ ination whether an imm igrant is rem ovable for having
comm itted a CIMT should b e v iewed in light o f contem porary m oral standards, as in Chavez-Alvarez

. W e conclu d e th at W alco tt’s m arijuana convictions are not CIMTs. She therefore is n o t rem ovable for having been
co nv icted of two CIMTs under 8 U.S.C. § 1227(a)(2)(A)(ii). 1 2
The petition for review is GRANTED.

12 In light o f our holding that W alcott is not rem ovable, we need not address the num erous other contentions she raises.WAL C O T T V

. G AR LA ND 24 BERZON, Circuit Judge, concurring:

I continue to believe that the p h rase “crim e involving
m oral turpitude” (“CIMT”) is unconstitutionally vague. See Silva v

. Garland, 993 F .3d 705, 719–20 (9th Cir. 2 021) (Berzon, J., concurring) (as am ended); Jauregui-Cardenas v. Barr , 946 F.3d 1116, 1121 (9th C i r. 2020) (Berzon, J.,
c o ncurring); B arbosa v. Barr , 926 F.3d 1053, 1060–61 ( 9 th Cir. 2019) (Be r z o n , J., concurring); see also Islas-Veloz v. Whitaker , 914 F.3d 1249, 1251–6 1 ( 9th Cir. 2019) (W

. Fletcher, J., concurring); Marmolej o-Campos v. H older , 558 F.3 d 9 0 3 , 9 21–22 (9th Cir. 2 0 09) (en banc) (Berzon, J., dissenting). I concur in Judge Tashim a’s opinion, however,
as it properly applies the existing case law concernin g the CIMT concept to the crim e of conviction in this case.

COLLINS, Circuit Judge, dissenting:

In my view, the Board of Imm igration Appeal s ( “BIA”) correctly held that Petitioner Pattie W alcott’s two m arijuanatrafficking convictio n s w ere crim es inv o lv in g m o ral turpitude and th at sh e w as th erefore rem ovable under § 237(a)(2)(A)(ii) of the Imm igration and Nationality Act (“INA”). I therefore dissent from the m ajority’s contrary co n clu sio n

. An d b ecause W alcott has raised n o other persuasive basis for setting aside the BIA’s decision, I would deny her petition for review.

I

In October 2010, W alcott wa s s entenced by an Arizona state court to two years of probation after her plea of guilty to
a single count of “solicitation of possession o f m arijuana forWAL C O T T V

. G AR LA ND 25 sale, having a weight of less than two pounds” in violation o f Arizona Revised St a tutes §§ 1 3-1002 and 13-3405(A)(2), (B)(4) (2009 ed.). In April 2011 , Wa lcott was again sentenced by an Arizona state court, this tim e to three years in p rison after she pleaded guilty to a single charge o f “offer to transport m arijuana for sale” in violation o f Arizon a Revised Statutes § 13-3405(A)(4), (B)(10) (2011 ed.). The BIA conclud ed that these two convictions w ere for crim es inv o l v in g m o ral t

urp itu d e , wh i c h ren d ered W alco tt rem o v ab le
u n d e r I N A § 2 3 7 ( a ) ( 2 ) ( A ) ( i i )

. S e e 8 U

. S

. C

. § 1227(a)(2)(A)(ii) (stating that “[a]ny alien who at any tim e after adm ission is convicted of two or m ore crim es involving
m oral turpitude, not arising out of a single schem e of crim inal
m isconduct,” is rem o vable).

In reviewing this decision, I agree with the m ajority that
we m ust apply the c a t e go rical approach, under which a particular offense of conviction is a “crime i n v olving m oral turpitude” only if “‘the full range o f conduct encom passed by the statute,’ including the least egregious conduct p rosecuted under the statute, is a crim e of m oral turpitude.” BarraganLopez v. Mukasey , 508 F.3d 899, 903 (9th Cir. 2007) (citation
om itted); see also Opin. at 6

. I also agree th a t , a s to W alcott’s first offense of conviction, the fo c u s of analysis under the categorical approach is o n the underl y ing o ffense solicit e d—viz ., Arizona Revised S tatutes § 13-3405(A)(2) (crim inalizing “possess[ing] m arij uana for sale”)—and not th e generic offense o f solicitation. See Gonzalez Romo v. Barr , 933 F.3d 119 1 , 1196–97 (9th Cir. 2019); BarraganLopez , 508 F.3d a t 903; see also Opin. at 8 n.2. I further agree that Arizona Revised Statutes § 1 3-3405(A)(4)—the statute underlying W alcott’s second conviction—is a divisible statute, and that the offense of “offer to transport for sale

. . . m arijuan a ” that is described in one clause of thatWAL C O T T V

. G AR LA ND 26

subsection is a distinct offense fr o m th o se set forth in the other clauses con t a i n ed in that subsection. See Opin. at 11–15. Under the so-called “modified categorical approach,” our analysis of § 13-3405(A)(4) i s therefore properly lim ited o nly to that clause. 1 Accor d ingly, the question here is whether the offenses of (1 ) p o s sessing less than two pounds of m arijuana “for sale”; and (2) offering to transport less than two pounds of m arijua n a “ fo r sale” are both categorically crim es involving m oral turpitude.

In addressing that question, I note that the resulting offe n s e s at issue here are categorically lim ited to situations involving possession or transportation of m arijuana “for sale.” See A R

I Z

. REV

. S TA T

. § 13-3405(A)(2), (A)(4). That point is significant, because it is well estab l is h e d that “drug trafficking crim es are generally crim es involving m or al turpitude.” G onzal ez Romo , 933 F.3d at 1195 (em phasis added); Barragan-Lopez , 508 F.3d at 903–04 (“Drug trafficking offenses, including possess i o n of unlawful substances for sale , g e n erally involve m o ral turpitude.”) (em phasis add e d); see also , e.g. , Ferraz Mota v. Barr , 971 F.3d 96, 1 00 (2d Cir. 2020) (“[W ]e, as well as num erous other courts, have acknowl edged the reprehensible conduct inherent in drug trafficking offenses , and, as a result, courts

1 Because it i s so clear that this clause describes a separate offense, i t
seem s to m e p o i nt l ess to take any position on the broader question o f whether § 13-3405(A)(4) a s a whole is a categorical m atch to a crim e of
m oral turpitude. Cf

. Opin. at 9–11. I f t

he answer to that question is yes, then W alcott’s conviction is a crim e involving m oral turpitude. But if the
answer is no, then we would sim ply procee d t o e xam ine whether the separate clause at issue in this case is a categorical m atch. Beca u s e th at latter question is thus dispositive here, I express no view as to whether the
m ajority i s correct in concluding that the broader statute i s n ot a categorical m atch.WAL C O T T V

. G AR LA ND 27

have concluded that such offenses involve m oral turpitude.” (citation om it t ed)); United States ex rel. De Luca v. O’Rourke , 213 F.2d 759, 762 (8th Cir. 1954) (“[T]here can be nothing m ore depraved o r m orally indefensible than conscious participation in the illicit drug traffic.”). Indeed, prior to W alcott’s offenses, we had squarely held that possession of m ore than f our pounds o f m arijuana for sale in
v io lation of Arizo n a R ev ised S tatu tes § 1 3 -3 4 0 5 (A )(2 ), (B )(6 ) is categorically a crim e involving m oral turpitude. See Barragan-Lopez , 508 F .3 d a t 903–04. And, at the tim e o f W alcott’s convictions, the leading precedential BIA decision sim ilarly recognized that “both Fed e r al and S tate courts
concur th at participation in illicit d rug trafficking is a crim e involving m oral turpitude.” I n r e Kh ourn , 21 I. & N. D ec. 1041, 1046–47 (BIA 1997).

T h e B IA c o n c lu d e d t

h at W a l c o t

t ’ s m a r i j u an a-sales-related offenses fell within this general rule. Th e m ajority notes, however, that the court in Barragan-Lopez stated that, because the offense there involved m ore than four pounds o f
m arijuana, the court h ad no o ccasion to “address the question that would be presented if Barragan-Lopez had been convicted of solicitation to possess a very sm all quantity o f
m arijuana for sale, such as, for exam p le, a s i n g l e m arijuana cigarette at a part y wi th personal f riends.” 508 F .3d at 904;
see also Opin. at 8–9. Although Barragan-Lopez thus left that point as an open q

uestion, the m ajority instead reads that
comm ent as a n eg ative pregnant that affirm atively “suggested that possession of a sm all am ount of m arijuana for sale m ight not be m orally turpitudinous.” S ee O pin. at 18. But nothing in Ba rraga n -Lopez hinted at an answer to the reserved question, and the m ajority “reads too m uch into the [c]ourt’s reservation of a question that w as not before it. ” Ali v. Federal Bureau of Prisons , 552 U.S. 214, 218 n.3 (2008).WAL C O T T V

. G AR LA ND 28

The BIA recog nized that this case presents the question reserved in B arragan-Lopez , and the BIA therefore expressly addressed whether it m ade a d ifference that W alcott’s
m arijuana trafficking offenses involved less than two pounds rather than, as in Barragan-Lopez , m ore than fo ur p ounds. The B IA concluded that, “given the statute’s remuneration requirem ent,” the covered illicit trafficking of sm all am ounts of m arijuana for money still qualified as “turpitudinous” and distinguished it from a trafficking offense that involved only “casual sharing o f a marijuana cigarette am ong friends” for
no m oney. Thus, the BIA concluded that the sort of sharing
am ong friends posited in Barragan-Lopez would be considered m orally turpitudinous if it involves sales , but not if it involved giving away a few cigarettes for free.

That reasoning seem s to m e to be sound, and the bri ght line it draws notably does not contradict any of the analogous (and in som e cases, s tr i c ter) lines drawn elsewhere by the INA and by the Controlled Sub s ta n c e s Act. See 8 U.S.C. § 1182(h) (stating that the inadm issibility of an alien for having comm itted a crim e of m o ral turpitude m ay be waived if “it relate s to a s ingle offense of simple p ossession o f 30 gram s or less of m arijuana”) (em phasis added); id

. § 1227(a) ( 2 )(B)(i) (separate rule rendering deportable any alien convicted of an offense “relating to a controlled substan c e ” do es not apply to “a single offense involving p os s e ssion for one’s o wn u se of 30 gram s or less of
m arijuana”); 21 U.S.C. § 8 4 1 (b )(4 ) (p ro v id in g that trafficking i n m arijuana shall be “treated” as sim ple possession unde r 21 U.S.C. § 844 i f the offense consisted of “distributing a sm all am ount of m arihuana for n o remuneration ” (em phasis added ) )

. While the BIA’s d ecision here is entitled only to Skidmore deferenc e and n ot to Chevron deference, see Barrera-Lima v. Sessions , 9 01 F.3d 1108, 1114–15 (9th Cir.WAL C O T T V

. G AR LA ND 29 2018), it seem s to m e persuasive. I therefore agree wi th the BIA that W alcott’s two offenses were crim es involving m oral turpitude, and she was p roperly found to be rem ovable under INA § 237(a)(2)(A)(ii).

II

The m ajority nonetheless hol d s that illicit sm all-scale ret a il s a les of m arijuana are not m o rally turpitudinous. See Op i n. at 16–22. The m ajority’s reasons for reaching this conclusion are all flawed.

A

The m ajority first invokes an irrelevant sn i p pet of 60- year-old legislative history to substantially narrow the rationale for treating drug trafficking as a crim e in volving
m oral turpitude. See Opin. at 17. Specifically, the m ajority notes that, in a 1997 p r e c ed ential decision concluding that cocaine trafficking was a crim e involving m oral tu rpitude, the BIA at one point cited a 1956 House comm ittee re p ort in which the comm ittee m em b er s opined that “‘[t]here are few crim inal acts that are m o r e reprehensible than the act o f abetting drug addiction by engaging in the illicit narcotic and
m ar i hu an a traffic.’” Khourn , 21 I. & N

. Dec. at 1047 (quotin g H.R. RE P

. N O

. 84-2388 (1956), reprinted in 1956 U.S.C.C.A.N. 3 274, 3285). That BIA decision also noted that the sam e report stated that “[n]arcotics trafficking was also described as ‘m

urder on the installm ent plan.’” Id

. (quoting 195 6 U.S.C.C.A.N. at 3304 (further quotation m arks
om itted)). Seizing on this second quotation, the m aj o r ity declares that the “underlying rationale” for treati n g drug trafficking as a crim e of m oral turpitude in our caselaw is that “drug trafficking involves actual injury tantam ount to m urderWAL C O T T V

. G AR LA ND 30

on a slower scale.” See Opin. at 17–18. That rationale “does not apply to the sale of sm all am ounts of m arijuana,” the
m ajority concludes, b ecause stati s tics from the Drug Enforcem ent Adm inistration (“DEA”) show that “[ n]o deaths from overdose of m arijuana have been reported.” Id

. (quoting DEA Drug Fa c t S heet: Marijuana/Cannabis at 3, available at https://www.dea.gov/sites/default/files/2020- 06/Marijuana-Cannabis-2020_0.pdf).

The obvious problem with this reasoning is that it proves too m uch: under this rationale, Barragan-Lopez was wrongly decided. If the m ajority is right that overdose deaths are the linchpin o f m oral turpitude, then a ny traffic ki n g in
m arijuana—whether m ore than four pounds or less than two pounds—cannot be deem ed m orally turpitudino u s. The
m ajority’s narrow reconceptualization of what m akes drug traffick i n g m o rally turpitudinous thus cannot provide a coherent basis for d

rawing a line be tween sm all-scale retailers on the one hand and large-scale retailers and wholesalers on the o th e r

. B ecause the m ajority’s view is logically irrec o nc i lable w ith Barragan-Lopez , it cannot be correct.

B

The m ajority alternativ e ly concludes that the m oral turpitude of an o ffense m ust be evaluated under “ current
m oral standards” and that, based on the m ajo rity’s assessm ent of “[c]ontem

porary societal attitudes,” sm all-scale retail sales of m arijuana are not m orally turpitudinous. See Opin. at 17–18, 20 (em

phasis added). This alternative theory is also wrong.WAL C O T T V

. G AR LA ND 31

The BIA h as stated that, in assessing whether an o ffense i s a crim e involving m oral turpitude, “the nature of [th e ] crim e is m easured against contem porary m oral standards and
m ay be susceptible to change b ased on the prevail i n g v iews in society.” Matter of Lopez-Meza , 22 I. & N. Dec. 1188, 1192 (1999). Even a s s umi n g arguendo that this view is correct, 2 it does not support the ma j or i ty’s conclusion h ere.

2 W e do not ap p ear to h ave ever explicitly adopted that view until today’s decision. O n the contrary, in applying the categorical approach under the various provisions of the INA, we have generally m ade t im e-ofconviction com

parisons, rather than t i m e-of-rem oval com parisons. See , e

. g. , Medina-Rodriguez v. Barr , 979 F.3d 738, 749 (9th Cir. 2020 ) (holding that the determ ination whether a p articular drug o ffense i s an aggravated felony m

u st be based on “the tim e-of-conviction federal drug schedule” and that a subsequent federal am endm ent decrim inalizing hem p therefore did not destroy the categorical m atch under prior law); Dominguez v. B arr , 975 F.3d 7 25, 7 35 n.3 (9th Cir. 2020) ( h olding that, in exam ining whether a particular offense is a n a g g ravated felony, “we consider the law that the petitioner was convicted of violating as it applied at the tim e of conviction”); see also Velasquez-Rios v. Wilkinson , 988 F.3d 1081, 1089 (9th Ci r. 2021) (holding that f ederal im

m igration consequences of state convictions “cannot be altered or contradicted retroactively by state law actions”). As w e have recognized, u sing a tim eof-rem oval standard would m ake it im possible to discern the im m igration consequences of an offense at th e tim e of conviction. See MedinaRodrigu e z , 979 F.3d at 748; see also Velasquez-Rios , 988 F.3d at 1087 (noting that a tim e-of-conviction approach avoids the “absurd result[]” that “an alien’s rem ovability would depend upon the tim i ng of the im m igration proceeding”) (sim plified). This latter criticism would seem to apply equally to a determ ination of m o ral turp i tude: an alien cannot know, at the tim e he o r she is convicted of an o ffense, whether the m oral turpitude of that offense w ill be v iewed m ore harshly or less h arshly under future standards applied m any y ears later. (Separately, I would also note that the m ajority’s reliance upon caselaw holding certain crim inal statutes unconstitutional i s wholly i napposite: of course, the applicable current constitutional lim its m

ust always be obeyed, but that rule has n o application here giv e n that sm all-scale m arijuana sales are not constitutionally protected. See U nited States v. Christie , 825 F.3d 1048,WAL C O T T V

. G AR LA ND 32

In m aking con t e m

porary judgm ents about m oral turpitude,
our analysis m

u st be guided by m ore objective considerations rooted in the relevant body of law than b y our own subjective
m oral intuitions d erived from our reading of polling d ata and law review comm entary. Cf

. Opin. at 18–19. Inde e d, the latter approach would greatly exacerbate the potential vagueness objections to the entire enterprise of de fi n i n g “crim es of m oral turpitude.” Cf

. Islas-Ve l o z v. Whitaker , 914 F .3d 1249, 12 5 1–61 (9th Cir. 2019) (W

. Fletcher, J., concurring). Here, the available objective legal indicia do not support the m ajority’s conclusion that illicit sm all-scale retail sales of m arijuana are not m orally turpitudinous.

The m ajority notes that, long aft e r W alcott’s offenses, Arizona v oters in 2020 adopted Prop o s i t ion 207, which decrim inalizes possession of “one o unc e or less o f
m ariju ana.” See A R

I Z

. REV

. S TA T S

. § 36-2852(A)(1); s ee a lso Opin. at 18–19. Bu t nothing in that law decrim inalizes W alcott’s conduct. On the contrary, Proposition 207 authorizes sales only by licensed and h e a vi ly regulated
m arijuana establishm en ts and their agents, see A R I Z

. REV

. S TAT S

. § 36-2858(A)(1)(c), and it decrim inalizes transfer of
m arijuana am ong individuals only “if the transfer is without remuneration and is not advertised o r prom o ted to the public. ” Id

. § 36-2852(A)(3) (em p hasis added). Likewise, the fact that m any other S tates and the D istrict of Colum bia h ave also legalized som e form of recreational m arijua n a usage since W alcott’s offenses, see Op in. at 18, does not

1065–66 (9th Cir. 2016); Gonzalez v. Raich , 500 F.3d 850, 865 (9th Cir. 20 0 7 ). ) U l tim ately, however, I need not take a position as to whether
m oral turpitude should be assessed under tim e-of-rem oval standards o r tim e-of-c o n v iction standards—and I do not do so—because I conclude that the m ajority’s theory fails in any event.WAL C O T T V

. G AR LA ND 33

establish that illicit sm all-scale reta i l s ales are not m orally turpitudinous. Moreover, the phrase at issue h ere—“crim e o f
m oral turpitude”—is contained in a federal statute, and as noted earlier, the relevant objective indicia in f ederal law do not support the particular line that the m ajority ha s drawn between sm all-scale retail sales and larger retail or wholesale sales. S ee supra at 28–29. R ather, the line that em erges from these m aterials is inst e a d e x a c tly the o n e that the BIA drew here—nam ely, a distinction between sm all-scaling sharing o f
m arijuana for free and all other unlawful trafficking in
m arijuana (including illicit sales of m arijuana in any quantity).

More broadly, the m ajor i ty’s alternative argum ent once again proves too m

uch and is diffic u l t to square with Barragan-Lopez

. The m ajority’s reliance on polling data suggesting that 6 7% of Am ericans favor m arijuana legalization, as well as the m ajorit y’s survey of the legalization m ovem ent in the States, see Opin. at 18–19, would seem to suggest that m arijuana trafficking should be altogether excluded fr o m the category of crim es involving
m oral tur p i tude. Barragan-Lopez requires us to reject that position, because it squarely holds that the offense o f selling
mo r e th an four pounds of m arijuana is a crim e of m oral turp i tude. The m ajority’s b road-based argum ents that
m arijuana is suppos e d l y not that harm ful 3 and that contem porary m o r al views concerning its use have shifted, do not logi c a l ly support drawing a line, in term s of m oral

3 But cf

. U.S. DEA, Denial of Petition to Initiate Proceedings to Reschedule Marijuana , 81 Fed. Reg. 53688, 53691 (2016) (detailing the Fo o d and Drug Adm inistration’s conclusion that som e individuals u se m arijuana “in am ounts sufficient to create a hazard to their health and to the safety of other individuals and the com m unity”).WAL C O T T V

. G AR LA ND 34 turpitude, between illicit m arijuana retailers and wholesalers. By contrast, the BIA’s line—which distinguishes between
sm all-scale sharing f

or f ree and all other trafficking—is b ased
on a rationale that logically coheres b o th wi th BarraganLopez and with the co mp ar able judgm ents reflected elsewhere in federal law. Accordingly, I wo uld uphold the BIA’s conclusion that W alcott’s 2 010 and 2011 Arizona convictions were for crim es of m oral turpitude and that she is therefore rem ovable under INA § 237(a)(2)(A)(ii).

III

W alcott provides no other persuasive b a s is for setting
a s i d e h er rem oval order, and I therefore would deny h e r petition for review.

A

W alcott contends that, because her initial notice to appear di d n o t include the date and tim e of the hearing, the imm igration c o urt did not acquire jurisdiction over her
rem oval proceedings. But we have held that such defects do not preclude jurisdiction from vesting in a particular imm igration court when the notice to appear was filed in that court, especially where (as h ere) the c orr ect hearing inform ation was supplied in a subsequent notice served on the
a l ien p rior to the scheduled hearing. See Aguilar Fe rmi n v. Barr , 958 F.3d 887, 894–95 (9th Cir. 202 0 ) ; Karingithi v. Whitaker , 913 F.3d 1158, 1160 (9th Cir. 2019).WAL C O T T V

. G AR LA ND 35

B

W alcott also challenges the agency’s denial o f her request for cancellation of rem oval under INA § 240A. However, we lack jurisdictio n t o rev i ew th e ag en cy’s u ltim ate discretionary determ ination that W alcott does not m erit cancellation o f
rem oval. Vilchez v. Holder , 682 F.3d 1195, 1 2 0 1 (9 th Cir. 2012). A lthough we retai n j urisdiction to review
c o nstitutional claim s and q uestions of law concerning th e d enial of cancellation of rem oval, see 8 U. S. C. § 1252(a)(2)(D), W alcott has raised no m eritorious legal o r constitutional issues.

The imm igration judge did not comm it any legal error in connection w ith her finding that W a lcott—who adm itted
comm itting perjury at an earlier hearing in her rem ov al proceedings—wa s ultim ately not a credible witness. Although W alcott blame s h er then-counsel for that perjury,
an ineffective assist an c e of counsel claim based o n that theory fails because W alcott did not com ply wi th the procedural requirem ents of Matter of Lozada , 19 I. & N. D ec. 637 (BIA 1988), and because she did not p roperly exhaust any such clai m before the agency. Al Ramahi v. H older , 725 F.3d 1133, 1139 (9th Cir. 2013); Hernandez Barr o n v. Ashcroft , 358 F.3d 674, 678 (9th Cir. 2004).

W alcott also contends that the imm ig ration judge violated h er due p rocess rights by referencing the judge’s personal experiences practicing crim inal law during the hearin g

. Far from b eing a due process violat i o n, the judge’s comm ents properly flagged significant potential cre d i b ility issues
conce rn i n g W alcott’s testim ony. As to o ne such point, relating to W alcott’s testim ony about having s e rv ed as an undercover inform ant, the judge urged her couns el to fullyWAL C O T T V

. G AR LA ND 36 explore the m atter and stated tha t th e c o urt would issue any necessary subpoenas for testim o ny that W alcott m ight need. As to another point, the judge pr o p e rly explained the credibility issue that had been raised by the Governm ent and expressly prov i d e d W alcott an opportunity “to comm ent and/or explain.” Cf

. Chen v. Ashcroft , 362 F.3d 611, 618 (9th Cir. 2004) (em

phasizing the im

portance of affording aliens a reasonable opportunity to expla in perceived inconsistencies in testim ony)

. Wa l c o tt has not established that there was a due p rocess violation. See Vargas-Hernandez v. Gonzales , 497 F .3d 919, 926–27 (9th C ir

. 2007) (“Wh ere an alien is given a full and f

air opportunity to be represented by counsel, to prepare an application for

. . . relief, and to present testim ony and other evidence in support of the application, he or she has been provided with due process.”).

IV

For these reasons, I would deny W alcott ’ s petition for review. T o the extent that the m ajority concludes otherwise, I respectfully dissent.