Interim Decision #3I79 

MATTER OF BELTRAN 

In Deportation Proceedings 

A-287 1 9740 

Decided by Board May 28, 1992 

A conviction for solicitation to commit a crime relating to a controlled substance 

renders an alien deportable under section 241(aX11) of the Immigration and Nationality 

Act, 8 U.S.C. § 1251(a)(11) (1988), as an alien convicted of a violation of a law relating 

to a controlled substance. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)J—Entered without inspection 

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(101—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT. 

Jose A. Bracamonte, Esquire 

Fajardo, Garcia Gallegos & Bracamonte 

1100 East Washington Street, Suite 125 

Phoenix, Arizona 85034 

ON BEHALF OF SERVICE: 

Dorothea P. Kraeger 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated November 27, 1989, the immigration judge 

found the respondent deportable under section 241(a)(11) of the 

Immigration and Nationality Act, 8 U.S.C. § 1251(aX11) (1988), 1as 

an alien convicted of a crime relating to a controlled substance, and 

ordered him deported from the United States. 2The respondent has 

appealed from that decision. The appeal will be dismissed. 

'This section of the Act has been revised and redesignated as section 241(a)(2)(13)(i) of 

the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. II 1990), by section 602(a) of the 

Immigration Act of 1990, Pub. L No. 101-649, 104 Stet. 4978, 5080, but that 

amendment does not apply to deportation proceedings for which notice has been 

provided to the alien before March 1, 1991. See section 602(d) of the Immigration Act of 

1990, 104 Stat. at 5082. 

2.nic respondent was also charged with &portability under section 24 l(a)(2) of the 

Act, as an alien who entered the United States without inspection. However, the record 

reflects that he had been granted temporary residence, so the immigration judge did not 

find him deportable on that ground. 

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Interim Decision #3179 

The respondent is a 25-year-old native and citizen of Mexico who 

last entered the United States without inspection on April 15, 1985. 

The record reflects that he was convicted on May 12, 1989, in the 

Superior Court of Arizona, Maricopa County, of solicitation to possess 

narcotic drugs.3 

At his deportation hearing, the respondent denied that he was 

deportable under section 241(a)(11) of the Act and submitted a motion 

to dismiss to the immigration judge. In the motion to dismiss, the 

respondent argued that under Arizona law, the crime of solicitation is 

a separate and distinct offense from the narcotics laws and therefore is 

not a violation of a law relating to a controlled substance. He relied 

primarily on the decision in Castaneda de Esper v. INS, 557 F.2d 79 

(6th Cir. 1977), in which it was held that a conviction for misprision of 

a felony, in that case conspiracy to possess heroin, was not a 

conviction for a violation of a law relating to the illicit possession of 

narcotic drugs. In its opinion, the court noted that the crime of 

misprision of a felony has historically been a criminal offense separate 

and distinct from the particular felony concealed. The court further 

stated that the language of the statute defining misprision of a felony 

did not indicate that it was contemplated to be a narcotic law, and that 

the statute was not included by reference in any part of the federal 

code pertaining to drugs. The respondent asserted that the Arizona 

solicitation statute was similar in that it contains no reference to 

narcotics laws and does not otherwise indicate that it was contemplated as a controlled substance law. 

The respondent also sought to distinguish the Arizona solicitation 

statute from the crime of aiding and abetting. He noted that in 

Londona-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983), aiding and 

abetting the distribution of cocaine was found to be a crime relating to 

3The Arizona statute defining the crime of solicitation provides in pertinent part as 

follows: 

A. A person, other than a peace officer acting in his official capacity within the scope 

of his authority and in the line of duty, commits solicitation if, with the intent to 

promote or facilitate the commission of a felony or misdemeanor, such person 

commands, encourages, requests or solicits another person to engage in specific 

conduct which would constitute the felony or misdemeanor or which would establish 

the other's complicity in its commission. 

B. Solicitation is a: 

I. Class 3 felony if the offense solicited is a class I felony. 

2. Class 4 felony if the offense solicited is a class 2 felony. 

7. Class 3 misdemeanor if the offense solicited is a misdemeanor. 

Ariz. Rev. Stat. Ann. § 13-1002 (1989). In this case, the crime of solicitation, considered 

a preparatory offense under Arizona law, was charged in conjunction with the 

underlying substantive offense of possession of narcotic drugs. 

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Interim Decision #3179 

narcotic drugs, in part because a person convicted under the aiding 

and abetting statute is subject to the same penalties as one convicted 

under the statute defining the substantive offense. The respondent 

contended that the penalties prescribed by the Arizona solicitation 

statute, on the other hand, are separate and distinct from those 

imposed for the underlying offense of possession of a narcotic drug. 

Another difference claimed by the respondent was that, unlike aiding 

and abetting, which according to United States v. Gonzalez, 582 F.2d 

1162, 1166 (7th Cir. 1978), creates no crime apart from the substantive offense charged, solicitation is separate from the underlying crime. 

Finally, citing Matter of Bronsztejn, 15 I&N Dec. 281 (BIA 1974), 

affd, 526 F.2d 1290 (2d Cir. 1975), the respondent argued that 

solicitation is also unlike the crime of attempt because it does not take 

its character or quality from the underlying offense. He stated that 

solicitation is a substantive crime in itself, not an abortive effort to 

commit the crime solicited, and that its elements are distinct from the 

crime of attempt. 

The immigration judge rejected the arguments presented by the 

respondent. She acknowledged that the solicitation statute does not 

refer to narcotic drugs, but noted that, in addition to being charged 

with solicitation, the respondent was charged with violating section 

13-3408 of the Arizona Revised Statutes, which prohibits the possession of narcotic drugs. Therefore, she found that he had been 

convicted of a crime relating to a controlled substance. On appeal the 

respondent has reiterated the arguments presented to the immigration 

judge. 

In order to determine whether the crime of solicitation to possess 

narcotic drugs under Arizona law is a crime relating to a controlled 

substance under the immigration laws, we must first examine the 

nature and history of the offense. According to the statute, a person is 

guilty of solicitation if he "commands, encourages, requests or 

solicits" another person to engage in criminal activity with the intent 

to promote or facilitate the commission of the crime. Ariz. Rev. Stat. 

Ann. § 13-1002.4Under Arizona law, the crime of solicitation is 

classified as a preparatory offense, along with attempt, conspiracy, and 

facilitation. Such crimes are also commonly known as inchoate crimes, 

which is the term used by the Model Penal Code (1985). 

According to the introduction to Article 5 of the Model Penal Code, 

4 In regard to the nature of the crime of solicitation, it has been stated: "The gist of this 

offense is incitement. In brief, the zravamen of this common-law misdemeanor lay in 

counselling, enticing, or inducing another to commit a crime .... " Clark and Marshall, 

Law of Crimes 219-23 (7th ed. 1967), quoted in Cherry v. State, 306 A.2d 634, 637-38 

(Md. 1973). 

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Interim Decision #3179 

which deals with inchoate crimes, these offenses always presuppose a 

purpose to commit another substantive offense, which "has failed ... 

or has not yet achieved its culmination because there is something that 

the actor or another still must do." Model Penal Code art. 5 

introduction at 293 (1985). It has been stated that the crime of 

solicitation can be thought of as an "attempt to conspire." Id. § 5.02 

commentary at 366. 5There is no requirement that a solicitation result 

in any action by the person solicited. Id. at 370. 6However, given the 

fact that the solicitation "may give rise to the special hazard of 

cooperation among criminals," 7it is thought that "the fortuity that the 

person solicited does not agree to commit or attempt to commit the 

incited crime plainly should not relieve the solicitor of liability," 8 

when "otherwise he would be a conspirator or an accomplice." Id. at 

365-66.9The essential difference, therefore, between the crime of 

solicitation and the act of being an accomplice is that no crime need be 

committed for the offense of solicitation to be complete. See generally 

Cherry v. State, 306 A.2d 634 (Md. 1973). 

&The crime of solicitation is closely related to attempt and historically was dealt with 

under the laws relating to that offense. See, e.g., Slate v. Otto, 629 P.2d 646 (Idaho 

1981); People v. Bloom, 133 N.Y.S. 708 (1912); People v. Bush, 4 Hill 133 (N.Y. 1843); 

see also Model Penal Code § 5.02 commentary at 368 -69; Herbert Wechsler et al., The 

Treatment of Inchoate Crimes in the. Model Penal Code of the American Law Institute: 

A ttempt. Solicitation, and Conspiracy, 61 Colum. L Rev. 571, 623-25 (1961); S. Rep. 

No. 225, 98th Cong., 2d Sess. 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3488 

("[Sjolicitation may be seen as a particular instance of the more general category of 

criminal attempts."). Thus it has been held that when a solicitation proceeds "to the 

point of some overt act in the commission of crime ... it becomes an attempt to 

commit crimc and is indictable as such." Wiseman v. Commonwealth, 130 S.E. 249, 251 

(Va. 1925). 

6As stated in Clark and Marshall, supra note 4, "It is immaterial whether the 

solicitation is of any effect and whether the crime solicited is in fact committed .... " 

7The Model Penal Code notes that a "solicitor, working his will through one or more 

agents, manifests an approach to crime more intelligent and masterful than the efforts of 

his hireling.... Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for 

liability." Model Penal Code § 5.02 commentary at 366. 

&According to Clark and Marshall, supra note 4, "The necessity for punishing such 

persons is obvious, and such conduct is generally punished as a substantive crime, 

notwithstanding the solicitation does not move the party solicited to commit the 

offense." 

9The legislative history relating to the federal crime of solicitation to commit a crime 

of violence, 18 U.S.C. § 373 (1988), states that "if the person solicited actually carries 

out the crime, the solicitor is punishable as an alder and abettor." S. Rep. No. 225, 98th 

Cong., 2d Sees. 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487; see also United 

Slates v. Nearing, 252 F. 223, 227 (S.D.N.Y. 1918), cert. denied, 254 U.S. 637 (1920) 

(noting that successful incitement to crime would make pamphlet author accessory 

before the fact). 

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We note in this regard that an accomplice is defined in pertinent 

part under Arizona law as a person who, with the intent to promote or 

facilitate the commission of an offense, "iddieits or commands 

another person to commit the offense." Ariz. Rev. Stat. Ann. § 13-301 

(1991) (emphasis added); see also Model Penal Code § 2.06 (1985). 10 

Under modem federal law, one who commands, encourages, or 

requests a crime is considered to be an accomplice, who is guilty of the 

substantive offense as if he committed it directly. See 18 U.S.C. § 2(a) 

(1988); Scales v. United States, 367 U.S. 203, 226 n.17 (1961) (quoting 

American Law Institute, Model Penal Code § 2.04 (3), tentative draft 

No. 1 (1953)); Nye & Nissen v. United States, 336 U.S. 613 (1949); 

Clinton Cotton Mills v. United States, 164 F.2d 173 (4th Cir. 1947). As 

under federal law, a person is criminally accountable for the conduct 

of another in Arizona if he is an accomplice of such other person in the 

commission of an offense. Ariz. Rev. Stat. § 13-303(A)(3) (1991). 11 

Section 241(a)(11) of the Act provides for the deportability of aliens 

who have been "convicted of a violation of, or a conspiracy to violate, 

10 We note the similarity of the language of the solicitation statute to the common law 

definition of an accessory before the fact, who is "one who was not present actually or 

constructively, when the offense was committed, but who counseled, procured, or 

commanded another to commit it." Morel v. United States, 127 F.2d 827, 830 (6th Cir. 

1942) (emphasis added). An accessory before the fact "must incite, or procure, or 

encourage the criminal act, or assist or enable it to be done, or engage or counsel, or 

command the principal to do Id. at 830-31 (emphasis added); see also Robinson v. 

United States, 262 F.2d 645 (9th Cir. 1959). Thus, it appears that the crime of 

solicitation is closely related to the common law offenses of complicity, particularly the 

crime of accessory before the fact. See generally United States v. Nearing, supra, at 227. 

Under federal law, which has eliminated the distinctions of guilt between principals, 

aiders and abettors, and accessories before the fact, a person is punishable as a principal 

if he "commits an offense against the United States or aids, abets, counsels, commands, 

induces or procures its commission." 18 U.S.C. § 2(a) (1988) (emphasis added); see also 

United States v. Molina, 581 F.24 56,61 n.8 (2d Cir. 1978); Tarkington v. United States, 

194 F.2d 63 (4th Cir. 1952); Morel v. United States, supra. It should also be noted that 

since the enactment of statutes making accessories and aiders and abettors liable as 

principals, many courts have indiscriminately referred to accessories as eiders and 

abettors. Morel v. United States, supra, at 831; see also United States v. Molina, supra, at 

61 n.8 (2d Cir. 1978). 

11Section 13-303 of the Arizona Revised Statutes, which deals with the criminal 

liability of a person based on the conduct of another, further provides as follows: 

B. If causing a particular result is an element of an offense, a person who acts with 

the kind of culpability with respect to the result that is sufficient for the commission of 

the offense is guilty of that offense if: 

1. The person solicits or commands another person to engage in the conduct causing 

such result; or 

2. The person aids, counsels, agrees to aid or attempts to aid another person In 

planning or engaging in the conduct causing such result. 

(Emphasis added). 

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any law relating to a controlled substance." The phrase "relating to" in 

this context has long been construed to have broad coverage. See 

Matter of Bmnsztejn, supra, at 283; Matter of N-, 6 I&N Dec. 557, 561 

(BIA, A.G. 1955); see also Matter of el Risco, 20 I&N Dec. 109 (BIA 

1989); Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). This 

interpretation, that Congress intended to give inclusive meaning in the 

immigration laws to the phrase "relating to," has led to the conclusion 

that Congress meant for section 241(a)(11) of the Act to encompass the 

other inchoate or preparatory crimes of attempt, conspiracy, and 

facilitation when the underlying substantive crime involves a drug 

offense. See Matter of Del Risco, supra (facilitation); Matter of 

Bronsztejn, supra (attempt); Matter ofN-, supra (conspiracy); Matter of 

G-, 6 I&N Dec. 353 (BIA 1954) (attempt). In fact, the crime of 

conspiracy was long ago included in the statutory provision for 

deportability of aliens convicted of drug offenses. See Act of Feb. 18, 

1931, Pub. L. No. 71-683, 46 Stat. 1171; Narcotic Control Act of 1956, 

Pub. L. No. 84-728, § 301(6), 1956 U.S.C.C.A.N. (70 Stat.) 651, 661-

62. Furthermore, Congress has also recently added the crime of 

attempt to the statute.' 2 See section 241(a)(2)(B)(i) of the Act, 8 U.S.C. 

§ 125 I(a)(2)(B)(i) (Stipp. II 1990) (providing that any alien who "has 

been convicted of a violation of (or a conspiracy or attempt to violate) 

any law ... relating to a controlled substance ... is deportable"). 

As noted above, solicitation is closely related to attempt and 

conspiracy, being considered by some to be an attempt to conspire to 

commit a substantive offense, and, in some jurisdictions, even 

constituting an attempt, either alone or in conjunction with other overt 

acts. See Model Penal Code § 5.02 commentary at 365-66, 368-69; see 

also People v. Coleman, 86 N.W.2d 281 (Mich. 1957) (stating that 

words intended to dissuade a witness from testifying may themselves 

be overt acts sufficient to constitute crime of attempt to obstruct 

justice); State v. Mandel, 278 P.2d 413 (Ariz. 1954) (holding that 

solicitation to murder, coupled with overt act of partial payment, is 

sufficient to establish attempt). Like attempt and conspiracy, which 

are now included in the statutory language of section 241(a)(11) of the 

Act, solicitation is an inchoate crime that presupposes a purpose to 

12We note that efforts to draw an implication regarding the absence of a specific crime 

in the statute from Congress' inclusion of another have been rejected. See United States 

v. Gonzalez, supra, at 1165 (absence of aiding and abetting); cf. Matter of N-, supra, at 

560-61 (omission of conspiracy). See generally National Petroleum Refiners &en v. 

FTC, 482 F.2d 672, 676 (D.C. Cir. [973), cert. denied, 415 U.S. 951 (1974) (stating that 

the maxim of statutory construction "expressio unius est exclusio alterius" (expression 

of one thing is the exclusion of another) is increasingly considered unreliable "for it 

stands on the faulty premise that all possible alternative or supplemental provisions were 

necessarily considered and rejected by the legislative draftsmen"). 

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commit another crime. Model Penal Code art. 5 introduction at 293. 

Therefore, we conclude that when that underlying offense involves a 

drug violation, which alone would constitute a ground of deportability 

under section 241(a)(11) of the Act, it is consistent with congressional 

intent to likewise consider a conviction for solicitation to commit that 

crime to be a violation of a law "relating to a controlled substance." 

We further add that we deem it significant that, but for the failure of 

the person solicited to commit the incited crime, a solicitor would 

share guilt equally with the solicited perpetrator under the laws dealing 

with complicity. Model Penal Code § 5.02 commentary at 366. Thus, 

as a person guilty of solicitation, the respondent would be held liable 

as an accomplice for the commission of the substantive offense of 

possession of narcotics had the person he solicited committed the 

intended crime. For this reason, we find that the solicitation and the 

underlying offense are so interrelated that the solicitation "takes its 

character and its quality from the nature of the law toward whose 

violation it is ... directed." Matter of Bronsztejn, supra, at 282; see 

also Londono-Gomez v. INS, supra (holding that the aiding and 

abetting statute does not define a. separate offense); United States v. 

Gonzalez, supra (same); cf. Matter of Del Risco, supra (facilitation). See 

generally Matter of Short, 20 I&N Dec. 136 (BIA 1989) (noting that if 

underlying offense involves a crime involving moral turpitude, aider 

or accessory before the fact is considered convicted of such a crime); 

Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965) (accessory 

after the fact to crime involving moral turpitude); Matter of F-, 6 I&N 

Dec. 783 (BIA 1955) (accessory before the fact to crime involving 

moral turpitude). 

Contrary to the respondent's argument that the holdings in Londono-Gomez v. INS, supra; United States v. Gonzalez, supra; and Matter 

of Bronsztejn, supra, must be distinguished, we find support in those 

decisions for our conclusion in this case. As the respondent noted, the 

United States Court of Appeals for the Ninth Circuit found in 

Londono-Gomez that aiding and abetting the distribution of cocaine 

was a crime relating to narcotic drugs, in part because "one convicted 

under the aiding and abetting statute is subject to the same penalties as 

one convicted under the statute defining the substantive offense? 

Londono-Gomez v. INS, supra, at 477. In this case, the penalties for 

solicitation under the Arizona statute, although not identical, are 

founded in the underlying substantive offense since the classification 

of the solicitation corresponds to the severity of the underlying crime. 

See Ariz. Rev. Stat. Ann. § 13-1002. 

Moreover, in Londono-Gomez the Ninth Circuit also noted that an 

indictment under the aiding and abetting statute must be accompanied 

by an indictment for a substantive offense. Id. at 477. As the 

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immigration judge noted, in this case the indictment against the 

respondent included the charge of possession of narcotic drugs along 

with the charge of solicitation. 

Finally, distinguishing Castaneda de Esper v. INS, supra, the Ninth 

Circuit found that "[u]nlike the misprision of felony statute, the aiding 

and abetting statute does not define a separate offense ... " Londono 

Gomez v. INS, supra, at 476; accord United States v. Gonzalez, supra, 

at 1166. As we stated previously, since the crime of solicitation is so 

closely related to the underlying offense, we are convinced that it 

cannot be considered separate or distinct from that crime and, 

therefore, we find it to be more similar to aiding and abetting and 

attempt than it is to misprision of a felony. Compare Lorzdono-Gomez 

v. INS, supra (aiding and abetting) and Matter of Bronsztein, supra 

(attempt) with Matter of Velasco, 16 I&N Dec. 281 (BIA 1977) 

(misprision of a felony). See generally Matter of Carrillo, 16 I&N Dec. 

625 (BIA 1978) (unlawful carrying of firearm during commission of a 

felony). Consequently, we find that the holding in Castaneda de Esper 

v. INS is not persuasive or controlling here. 

Having reviewed the law regarding the offense of solicitation and 

considered the arguments presented on appeal, we conclude that the 

respondent's conviction for solicitation to possess narcotic drugs was 

for a violation of a law relating to a controlled substance within the 

meaning of section 241(011) of the Act. Accordingly, the appeal will 

be dismissed. 

ORDER: The appeal is dismissed. 

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