FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVA ISABEL GONZALEZ ROMO, Eva

AKA Eva Isabel Romo,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 16-71559

Agency No.

A047-334-955

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted July 8, 2019

Portland, Oregon

Filed August 14, 2019

Before: Ferdinand F. Fernandez, Susan P. Graber,

and John B. Owens, Circuit Judges.

Opinion by Judge Fernandez;

Concurrence by Judge Owens;

Dissent by Judge Graber
2 GONZALEZ ROMO V. BARR

SUMMARY*

Immigration

Denying Eva Isabel Gonzalez Romo’s petition for review

of the Board of Immigration Appeals’ precedential decision

in Matter of Gonzalez Romo, 26 I. & N. Dec. 743 (BIA 2016),

the panel held that Gonzalez was inadmissible under 8 U.S.C.

§§ 1101(a)(13)(C)(v) and 1182(a)(2)(A)(i)(I), because her

conviction for solicitation to possess marijuana for sale, in

violation of Ariz. Rev. Stat. §§ 13-1002(A), 13-3405(A)(2),

was a crime involving moral turpitude.

The panel gave Chevron deference to the BIA’s

determination that a returning lawful permanent resident who

has a felony conviction for solicitation to possess marijuana

for sale is inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I),

even though that provision refers only to attempt and

conspiracy to commit a crime involving moral turpitude, and

not solicitation. 

The panel noted that there was no doubt that Gonzalez

was convicted in Arizona of the crime of solicitation to

possess over four pounds of marijuana for sale, and that drug

trafficking crimes are generally crimes involving moral

turpitude. The panel further noted that this court held

in Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.

2007), that “solicitation to possess at least four pounds of

marijuana for sale constitutes a crime involving moral

turpitude.” However, Barragan-Lopez involved 8 U.S.C.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GONZALEZ ROMO V. BARR 3

§ 1227(a)(2)(A)(i)(I), which applies to deportability

determinations, and does not include the “attempt or

conspiracy to commit such a crime” phrase that appears in

§ 1182(a)(2)(A)(i)(I), for inadmissibility purposes. 

The panel rejected Gonzalez’s contention that,

by referencing only “attempt or conspiracy,”

§ 1182(a)(2)(A)(i)(I) excluded crimes of solicitation. The

panel stated that it saw no reason to deviate from the holding

in Barragan-Lopez that solicitation of a crime of the

magnitude of possession of at least four pounds of marijuana

for sale is as turpitudinous as commission of the crime itself. 

The panel discussed the cases relied upon by Gonzalez,

Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999)

(addressing drug trafficking aggravated felonies, 8 U.S.C.

§ 1101(a)(43)(B)) and Coronado-Durazo v. I.N.S., 123 F.3d

1322 (9th Cir. 1997) (addressing controlled substance

offenses under 8 U.S.C. § 1227(a)(2)(B)(i)), in which this

court held that other statutes referencing only attempts and

conspiracies did not cover solicitation offenses. While

recognizing that reasoning which excludes solicitation as to

certain provisions could be said to applywhenever conspiracy

or attempt are specifically mentioned in a statute, the panel

stated that would be unlikely when it comes to crimes

involving moral turpitude, which are a separate concept with

a long history that has been used by Congress in the

immigration laws for over a century. The panel explained

that it was doubtful that Congress intended to give the phrase

different scope in different provisions, and this court’s cases

do not suggest that it did. The panel further explained that

the legislative history indicated that Congress’s inclusion of

the terms attempt and conspiracywere meant to be clarifying,

and that for inchoate crimes that are bad enough to be

considered crimes of moral turpitude, there was little reason
4 GONZALEZ ROMO V. BARR

to think that Congress eliminated some, such as solicitation,

from consideration, simply because it decided to make it clear

that others did fall into that category. 

Because the panel concluded that Congress’s intent was

clear, it stopped at step one of the Chevron deference test. 

However, to the extent there was some perceived uncertainty

regarding the meaning and reach of the statute, the panel

concluded that it was clear that the BIA’s resolution of the

uncertainty was permissible and reasonable. 

 

Concurring, Judge Owens wrote that he did not believe

reliance on Chevron was necessary, but he concurred with the

majority opinion because it comports with Supreme Court

and Ninth Circuit law. Judge Owens continues to believe that

the current moral turpitude jurisprudence makes no sense, and

pointed out that he is not a lone wolf in so thinking.

Dissenting, Judge Graber wrote that the majority opinion

misapplies both Ninth Circuit and Supreme Court precedent,

and violates several canons of statutory construction. Judge

Graber wrote that following this court’s precedents, the text

of § 1182(a)(2)(A)(i)(I) unambiguously covers only the

generic crimes of “attempt or conspiracy,” and that

Barragan-Lopez, by its own terms, limited its holding to

§ 1227(a)(2)(A)(i)(I), which does not contain similar

wording.
GONZALEZ ROMO V. BARR 5

COUNSEL

Samuel L. Brenner (argued), Matthew L. McGinnis, and

Courtney M. Cox, Ropes & Gray LLP, Boston,

Massachusetts; Marta F. Belcher, Ropes & Gray LLP, East

Palo Alto, California; for Petitioner.

Rebecca Hoffberg Phillips (argued), Trial Attorney; John S.

Hogan, Assistant Director; Office of Immigration Litigation,

Civil Division, United States Department of Justice,

Washington, D.C.; for Respondent.

OPINION

FERNANDEZ, Circuit Judge:

Eva Isabel Gonzalez Romo, a native and citizen of

Mexico and a lawful permanent resident of the United States,

petitions for review of the Board of Immigration Appeals’

(“BIA”) determination that she was inadmissible because she

had been convicted of a crime involving moral turpitude. See

8 U.S.C. § 1182(a)(2)(A)(i)(I);

1

see also id.

§ 1101(a)(13)(C)(v). The crime in question was solicitation

to possess marijuana for sale, which she committed in the

State of Arizona. See Ariz. Rev. Stat. §§ 13-1002(A), 13-

3405(A)(2). We deny the petition.

Gonzalez had been a lawful permanent resident of the

United States since November 18, 1999. On October 11,

2009, while driving with a suspended license, Gonzalez was

1 Hereafter all statutory references are to Title 8 of the United States

Code, unless otherwise indicated.
6 GONZALEZ ROMO V. BARR

pulled over in Arizona for failing to make a complete stop at

a red light. The police officer noticed two large cardboard

boxes in Gonzalez’s vehicle, and a strong odor of air

freshener emanated from that vehicle. Upon securing

Gonzalez’s consent to search the vehicle, officers discovered

150 pounds of marijuana, which Gonzalez admitted that she

had knowingly agreed to transport for $1,000. As a result, on

March 12, 2010, she was convicted of felony solicitation to

possess marijuana for sale under Arizona Revised Statutes

sections 13-1002, 13-3405(A)(2) and sentenced to one-and-ahalf years in prison.

After Gonzalez was released from prison, she traveled to

Mexico. Upon returning from her trip on May 3, 2014, she

was detained and paroled into the United States for removal

proceedings. As relevant here, the government charged

Gonzalez with inadmissibility due to her conviction of a

crime involving moral turpitude.2See §§ 1101(a)(13)(C)(v),

1182(a)(2)(A)(i)(I). Gonzalez disputed that allegation. On

September 29, 2015, the immigration judge found Gonzalez

inadmissible as charged. In particular, the immigration judge

held that solicitation to possess marijuana for sale is a crime

involving moral turpitude. She appealed that determination

to the BIA.

In a precedential decision, the BIA dismissed Gonzalez’s

appeal. The BIA concluded that even though Gonzalez was

a lawful permanent resident, because she had been convicted

2

“[A] crime involving moral turpitude is generally a crime that (1) is

vile, base, or depraved and (2) violates accepted moral standards.” LatterSingh v. Holder, 668 F.3d 1156, 1161 (9th Cir. 2012) (internal quotation

marks omitted); see also Quintero-Salazar v. Keisler, 506 F.3d 688, 692

(9th Cir. 2007).
GONZALEZ ROMO V. BARR 7

of an offense identified in § 1182(a)(2)(A)(i)(I), she was

seeking admission to the United States due to

§ 1101(a)(13)(C)(v). Matter of Gonzalez Romo, 26 I. & N.

Dec. 743, 748 (BIA 2016). That is, the BIA concluded that

Gonzalez’s conviction was a crime involvingmoral turpitude. 

Id. It rejected Gonzalez’s contention that, by referencing

“attempt or conspiracy,” § 1182(a)(2)(A)(i)(I) excludes

crimes of solicitation even if they otherwise constitute crimes

involving moral turpitude. Id. at 747–48. In doing so, the

BIA receded from contrary language in a footnote in an

earlier case,3 which it now characterizes as dicta. Matter of

Gonzalez Romo, 26 I. & N. Dec. at 748. Even in that earlier

footnote, however, the BIA had not specifically said that it

agreed with the Ninth Circuit’s then-supposed position. This

petition for review followed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). 

“We review the BIA’s determination of purelylegal questions

regarding the Immigration and NationalityAct de novo,” with

appropriate deference. Kankamalage v. I.N.S., 335 F.3d 858,

861 (9th Cir. 2003).

3 The footnote reads “In effect, the Ninth Circuit has indicated that

[§ 1227(a)(2)(A)] is broader in its coverage of crimes involving moral

turpitude than [§ 1182(a)(2)(A)(i)(I)], because it would include inchoate

offenses, such as solicitation and facilitation, that are not specifically

enumerated in [§ 1182(a)(2)(A)(i)(I)], which lists only attempts and

conspiracies.” Matter of Vo, 25 I. & N. Dec. 426, 429 n.4 (BIA 2011).
8 GONZALEZ ROMO V. BARR

Where, as here, the BIA’s decision is published, it may

well be entitled to Chevron4deference. See Chen v. Mukasey,

524 F.3d 1028, 1031 (9th Cir. 2008); Kankamalage, 335 F.3d

at 862. Under Chevron’s framework, the first step is to

ascertain “whether Congress has directly spoken to the

precise question at issue.” Chevron, 467 U.S. at 842, 104 S.

Ct. at 2781. To so determine, the court employs “traditional

tools of statutory construction.” Id. at 843 n.9, 104 S. Ct. at

2782 n.9. If the statute’s meaning is clear, “that is the end of

the matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of Congress.” 

Id. at 842–43, 104 S. Ct. at 2781. Otherwise, we proceed to

the second step, that is: “[I]f the statute is silent or ambiguous

with respect to the specific issue, the question for the court is

whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 843, 104 S. Ct. at 2782. If

it is, “a court may not substitute its own construction of a

statutory provision for a reasonable interpretation made by

the . . . agency.” Id. at 844, 104 S. Ct. at 2782.

DISCUSSION

The BIA determined that even though Gonzalez was a

legal permanent resident, she was removable because she was

inadmissible to the United States when she presented herself

at the border. See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I);

see also Matter of Gonzalez Romo, 26 I. & N. Dec. at 748. 

Gonzalez argues that the BIA erred because she was not

4 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

842–44, 104 S. Ct. 2778, 2781–82, 81 L. Ed. 2d 694 (1984).
GONZALEZ ROMO V. BARR 9

subject to those provisions.5 We disagree. As relevant here,

pursuant to § 1101(a)(13)(C)(v), an alien who is a legal

permanent resident is treated as one seeking admission if the

alien “has committed an offense identified in section

1182(a)(2).” And pursuant to § 1182(a)(2)(A)(i)(I), as

relevant here, an “alien convicted of . . . a crime involving

moral turpitude . . . or an attempt or conspiracy to commit

such a crime . . . is inadmissible.”

There can be no doubt that Gonzalez was convicted in

Arizona of the crime of solicitation to possess over four

pounds of marijuana for sale. See Ariz. Rev. Stat. §§ 13-

1002(A), (B)(2), 13-3405(A)(2), B(6). Nor can there be any

doubt that drug trafficking crimes are generally crimes

involving moral turpitude. See Barragan-Lopez v. Mukasey,

508 F.3d 899, 903–04 (9th Cir. 2007) (so stating and

underscoring just how turpitudinous drug trafficking is); see

also Turijan v. Holder, 744 F.3d 617, 621 (9th Cir. 2014);

Rohit v. Holder, 670 F.3d 1085, 1088–89 (9th Cir. 2012). 

Moreover, we have specifically held that “solicitation to

possess at least four pounds of marijuana for sale . . .

constitutes a crime involving moral turpitude.” BarraganLopez, 508 F.3d at 904; see also Rohit, 670 F.3d at 1089; Atl.

Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir. 1987). 

In fact, Barragan-Lopez, 508 F.3d at 901, dealt with a

conviction under Arizona statutory provisions which are the

same as those involved here. All of that would lead

inexorably to our denial of Gonzalez’s petition were it not for

5 We note that because her offense was committed in 2009, she is not

entitled to the benefit of the rules that applied to legal permanent residents

before the statutes were amended in 1996. Cf. Vartelas v. Holder, 566

U.S. 257, 261, 132 S. Ct. 1479, 1483–84, 182 L. Ed. 2d 473 (2012);

Centurion v. Sessions, 860 F.3d 69, 77 (2d Cir. 2017).
10 GONZALEZ ROMO V. BARR

the fact that Barragan-Lopez was construing

§ 1227(a)(2)(A)(i)(I) which states, in pertinent part, “[a]ny

alien who . . . is convicted of a crime involving moral

turpitude . . . is deportable.” As Gonzalez points out, the

language of § 1227(a)(2)(A)(i)(I), for deportation purposes,

does not include the “attempt or conspiracy to commit such

a crime” phrase that appears in § 1182(a)(2)(A)(i)(I), for

inadmissibility purposes, and that, she argues, makes all the

difference in the world. The argument has some purchase,6

but like the BIA,7 we are not convinced.

As Barragan-Lopez stated,8in neither of the cases that

Gonzalez relies upon were we asked to consider the meaning

and scope of the phrase “crime involving moral turpitude,”

and we certainly did not reflect upon whether solicitation to

possess a large amount of marijuana for sale would be

turpitudinous enough to come within the reach of that

phrase.9 Rather, in Leyva-Licea,

10 we asked whether a

conviction in Arizona of solicitation to possess at least two

pounds, but less than four pounds, of marijuana for sale was

an aggravated felony. We determined that it was not because

the definition of aggravated felony, as set forth in

§ 1101(a)(43)(B) (trafficking in controlled substances) in turn

referred to 18 U.S.C. § 924(c), which in turn ultimately relied

6

See Leyva-Licea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999);

Coronado-Durazo v. I.N.S., 123 F.3d 1322, 1325 (9th Cir. 1997).

7 Matter of Gonzalez Romo, 26 I. & N. Dec. at 746–47.

8

 508 F.3d at 904–05.

9

Id.

10 187 F.3d at 1150.
GONZALEZ ROMO V. BARR 11

upon 21 U.S.C. § 846, which covered only attempts or

conspiracies.11 Nothing therein treated solicitation as the kind

of offense that would be an aggravated felony.

12 Moreover,

in Coronado-Durazo,

13 we asked whether a conviction in

Arizona of solicitation to possess cocaine was a controlled

substance offense within the meaning of § 1227(a)(2)(B)(i).14

We held it was not because that section covered only “‘a

violation [by an alien] of (or a conspiracy or attempt to

violate) any law or regulation . . . relating to a controlled

substance.’”15It did not by its terms indicate that the scope

of the phrase “violation . . . relating to a controlled substance

offense” included solicitation, or that solicitation was

encompassed by an attempt or conspiracy. As we have since

noted, had solicitation been included within the meaning of

controlled substance offense, the result would have been the

opposite. See Mielewczyk v. Holder, 575 F.3d 992, 997–98

(9th Cir. 2009). Again, in Barragan-Lopez,

16 we asked

whether the scope of “crime involving moral turpitude” did

include solicitation of that crime for amounts of marijuana

over four pounds and said that it did because solicitation of a

crime of that magnitude was as turpitudinous as commission

11 See id.

12 Id.

13 123 F.3d at 1324.

14 This is the current section containing the provisions which at that

time were contained in § 1251(a)(2)(B)(i).

15 Coronado-Durazo, 123 F.3d at 1324; see also id. at 1325–26.

16 508 F.3d at 903.
12 GONZALEZ ROMO V. BARR

of the crime itself.17 We did not opine on whether the result

would be the same for “a very small quantity”

18

of the

substance. We agree with that analysis and see no

compelling reason to deviate therefrom. On the contrary, we

see strong reasons not to do so.

First, we recognize that reasoning which excludes

solicitation as to certain provisions could be said to apply

whenever conspiracy or attempt are specificallymentioned in

a statute. However, that would be unlikely when it comes to

crimes involving moral turpitude. That is a separate concept

with a long history19 which has been used by Congress in the

immigration laws for over a century.

20

It is doubtful that

Congress intended to give the phrase different scope in

different provisions,21and our cases do not suggest that it

did.22

17 See id. at 904.

18 Id.

19 The concept is deeply rooted in our law. See Jordan v. De George,

341 U.S. 223, 227, 71 S. Ct. 703, 705–06, 95 L. Ed. 886 (1951).

20 See id. at 229–30, 71 S. Ct. at 707.

21 See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S.

71, 85–86, 126 S. Ct. 1503, 1513, 164 L. Ed. 2d 179 (2006); cf. Powerex

Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411,

2417, 168 L. Ed. 2d 112 (2007).

22 See, e.g., Islas-Veloz v. Whitaker, 914 F.3d 1249, 1250–51 (9thCir.

2019); Gonzalez-Cervantes v. Holder, 709 F.3d 1265, 1269 (9th Cir.

2013); Morales v. Gonzales, 478 F.3d 972, 978 (9thCir. 2007), abrogated

on other grounds by Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th

Cir. 2010).
GONZALEZ ROMO V. BARR 13

Second, we recognize that solicitation is a type of

inchoate crime because it would not be a crime involving

moral turpitude if the underlying offense (here possession for

sale of over four pounds of marijuana) was not a crime

involving moral turpitude. See Barragan-Lopez, 508 F.3d at

903. No doubt attempt and conspiracy are also inchoate

crimes in that sense. Why then would Congress mention

them specifically and not mention other inchoate crimes (like

solicitation) when referring to crimes involving moral

turpitude? Of course, we cannot say for sure, and the

legislative history, such as it is, does not make the answer

perspicuous. It just indicates that the addition of those words

was clarifying. See 139 Cong. Rec. 15,275 (1993) (indicating

that the language was intended to “make clear” that those

conceptswere covered); see also Immigration and Nationality

Technical Corrections Act of 1994, Pub. L. 103–416, § 203,

108 Stat. 4305, 4311 (indicating that the language constitutes

a clarification). However, when it comes to inchoate crimes

that are bad enough to be considered crimes of moral

turpitude, we see little reason to think that Congress took this

somewhat indirect approach to eliminating some of them

from consideration simply because it decided to make it clear

that others did fall into that category. See Ali v. Fed. Bureau

of Prisons, 552 U.S. 214, 226–27, 128 S. Ct. 831, 840, 169 L.

Ed. 2d 680 (2008). It is more likely that Congress was

focused on the two that it mentioned and had no intention of

excluding all others. See Marx v. Gen. Revenue Corp.,

568 U.S. 371, 385, 133 S. Ct. 1166, 1177, 185 L. Ed. 2d 242

(2013). And, while redundancy and surplusage are not

always desirable, they are not anoetic. See Conn. Nat’l Bank

v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 1149, 117 L.

Ed. 2d 391 (1992). In fact, it is not unusual to see

redundancy occur in clarifying enactments, which do run the

risk of introducing other problems while focusing on the task
14 GONZALEZ ROMO V. BARR

of making sure that a particular problem does not arise. See

id. As the Court has said: “In any event, our hesitancy to

construe statutes to render language superfluous does not

require us to avoid surplusage at all costs. It is appropriate to

tolerate a degree of surplusage rather than adopt a textually

dubious construction that threatens to render the entire

provision a nullity.” United States v. Atl. Research Corp.,

551 U.S. 128, 137, 127 S. Ct. 2331, 2337, 168 L. Ed. 2d 28

(2007). In the case at hand, the cost would be particularly

high because it would create an anomaly in application of the

statutory scheme, which we doubt Congress intended when it

adopted its clarifying amendments.23 The anomaly can be

seen if we start with the rather uncontroversial reflection that

“[o]ur immigration law has generally treated aliens who are

already on our soil (and who are therefore deportable) more

favorablythan aliens who are merelyseeking admittance (and

who are therefore excludable).” Servin-Espinoza v. Ashcroft,

309 F.3d 1193, 1198 (9th Cir. 2002). But removing

solicitation of possession of over four pounds of marijuana

from the definition of a crime involving moral turpitude in

§ 1182(a)(2)(A)(i)(I), although solicitation is part of the

definition in § 1227(a)(2)(A)(i)(I), would turn that concept on

its head. That is because we already know that even a legal

permanent resident can be removed pursuant to

§ 1227(a)(2)(A)(i)(I) for soliciting a crime involving moral

turpitude. See Barragan-Lopez, 508 F.3d at 905. However,

if solicitation is removed from the definition of crime

involving moral turpitude in § 1182(a)(2)(A)(i)(I), no alien

(legal permanent resident or not) can be excluded for

soliciting a crime involving moral turpitude, regardless of

23

In general, we do attempt to avoid anomalies and try to view the

scheme at hand as “symmetrical and coherent.” Perez-Guzman v. Lynch,

835 F.3d 1066, 1074 (9th Cir. 2016) (internal quotation marks omitted).
GONZALEZ ROMO V. BARR 15

how turpitudinous that crime may be. Again, we doubt that

Congress intended any such thing. In fact, in the context of

this statutory scheme regarding who can enter and who can be

removed, ascribing that intent to Congress would lead to a

result so dubious that it would be nothing short of an internal

inconsistency amounting to an absurdity. See United States

v. Turkette, 452 U.S. 576, 580, 101 S. Ct. 2524, 2527, 69 L.

Ed. 2d 246 (1981) (“[A]bsurd results are to be avoided and

internal inconsistencies in the statute must be dealt with.”);

see also McNeill v. United States, 563 U.S. 816, 822, 131 S.

Ct. 2218, 2223, 180 L. Ed. 2d 35 (2011).

The discussion above indicates that we can stop at step

one of the Chevron process24because Congress’ true intent is

clear to us. However, to the extent that there is some

perceived uncertainty25regarding the meaning and reach of

the statute, that ambiguity26 would direct us to step two.27 At

that step, it is clear that the BIA’s resolution of the

24 467 U.S. at 842–43, 104 S. Ct. at 2781.

25 See, e.g., Mielewczyk, 575 F.3d at 996–98; Barragan-Lopez,

508 F.3d at 902–05; Coronado-Durazo, 123 F.3d at 1324–26; see also

Mizrahi v. Gonzales, 492 F.3d 156, 164–67 (2d Cir. 2007); Peters v.

Ashcroft, 383 F.3d 302, 305–09 (5th Cir. 2004).

26 We note that some ambiguity in statutory language does not

preclude resolution of that ambiguity by the BIA. See Chevron, 467 U.S.

at 843, 104 S. Ct. at 2782; Perez-Guzman, 835 F.3d at 1076 n.5.

27 Chevron, 467 U.S. at 843–44, 104 S. Ct. at 2781–82.
16 GONZALEZ ROMO V. BARR

uncertainty is permissible and reasonable. Indeed, it appears

to us that it is the best resolution.28

Thus, we deny the petition.

CONCLUSION

We hold that a conviction in Arizona for solicitation to

possess at least four pounds of marijuana for sale constitutes

a crime involving moral turpitude for purposes of

§ 1182(a)(2)(A)(i)(I), and, therefore, Gonzalez was

inadmissible. See § 1101(a)(13)(C)(v).

Petition DENIED.

28 We have not overlooked Gonzalez’s argument that the BIA should

be accorded less deference because it changed its position about what it

thought our case law required. See Matter of Vo, 25 I. & N. Dec. at 429

n.4. However, as we see it, an agency’s reflections on what it thought we

have said, or might say, is quite different from a determination of what the

law is. In any event: “In the circumstances of this case, where the

agency’s interpretation of a statute is at least as plausible as competing

ones, there is little, if any, reason not to defer to its construction.” Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 417, 113 S. Ct. 2151, 2161,

124 L. Ed. 2d 368 (1993).
GONZALEZ ROMO V. BARR 17

OWENS, Circuit Judge, concurring:

Because the majority opinion comports with Supreme

Court and Ninth Circuit law, I concur (and I do not think

reliance on Chevron is necessary). But I continue to believe

that the current moral turpitude jurisprudence makes no

sense, and I am not a lone wolf in so thinking. See Jordan v.

De George, 341 U.S. 223, 232–45 (1951) (Jackson, J.,

dissenting); Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th

Cir. 2019) (Berzon, J., concurring); Islas-Veloz v. Whitaker,

914 F.3d 1249, 1251–61 (9th Cir. 2019) (Fletcher, J.,

concurring); Menendez v. Whitaker, 908 F.3d 467, 475 (9th

Cir. 2018) (Callahan, J., concurring); Ortega-Lopez v. Lynch,

834 F.3d 1015, 1018–19 (9th Cir. 2016) (Bea, J., concurring);

Arias v. Lynch, 834 F.3d 823, 830–36 (7th Cir. 2016) (Posner,

J., concurring); Ceron v. Holder, 747 F.3d 773, 785–89 (9th

Cir. 2014) (en banc) (Bea, J., dissenting); Navarro-Lopez v.

Gonzales, 503 F.3d 1063, 1084–86 (9th Cir. 2007) (en banc)

(Bea, J., dissenting), overruled on other grounds by United

States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011)

(en banc).

Until Congress or the Supreme Court intervenes, the

present regime will continue to be a black hole for judicial

resources. And the experience of our court leaves no doubt

about the arbitrariness of the results. For example, we have

held that knowing possession of child pornography is

categorically a crime involving moral turpitude. United

States v. Santacruz, 563 F.3d 894, 896–97 (9th Cir. 2009)

(per curiam). But some conduct directly between the

defendant and victim is not—such as committing a lewd or

lascivious act on a child aged 14 or 15 (with a defendant at

least ten years older than the child) with the intent of

arousing, appealing to, or gratifying the lust, passions, or
18 GONZALEZ ROMO V. BARR

sexual desires of the defendant or the child, Menendez,

908 F.3d at 472–74, or annoying or molesting a child under

the age of 18, motivated by unnatural or abnormal sexual

interest, Nicanor-Romero v. Mukasey, 523 F.3d 992,

997–1007 (9th Cir. 2008), overruled in part on other grounds

by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir.

2009) (en banc).

We have also been quick to conclude, under the current

framework, that fraud crimes categorically involve moral

turpitude, such as making false statements to obtain credit

cards, Tijani v. Holder, 628 F.3d 1071, 1075–79 (9th Cir.

2010), but relatively more serious non-fraudulent crimes do

not, such as simple kidnapping, Castrijon-Garcia v. Holder,

704 F.3d 1205, 1212–18 (9th Cir. 2013). In addition, we

have determined that beating up your wife is morally

turpitudinous, Grageda v. INS, 12 F.3d 919, 922 (9th Cir.

1993), superseded by statute on other grounds as stated in

Planes v. Holder, 652 F.3d 991, 995 (9th Cir. 2011), but

beating up your live-in girlfriend does not categorically

involve moral turpitude, Morales-Garcia v. Holder, 567 F.3d

1058, 1067 (9th Cir. 2009).

Rather than play the role of a Rorschach psychologist, we

should focus on a more objective standard, such as the length

of the underlying criminal sentence, before removing

someone from the United States. See Almanza-Arenas v.

Lynch, 815 F.3d 469, 482–83 (9th Cir. 2015) (en banc)

(Owens, J., concurring) (“A better mousetrap is long overdue.

Rather than compete with Rube Goldberg, we instead should

look to a more objective standard, such as the length of the

underlying sentence . . . .”); cf. United States v. Brown,

879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J., concurring)

(“A regime based on the length of previous sentences, rather
GONZALEZ ROMO V. BARR 19

than on the vagaries of state law, is the way to go.”). While

not perfect, this approach would be far more evenhanded and

predictable than what we have now.

GRABER, Circuit Judge, dissenting:

I respectfully dissent. In my view, the majority opinion

misapplies our own precedent and misapplies Supreme Court

precedent as well. I would grant the petition.

Title 8 U.S.C. § 1182(a)(2)(A)(i)(I) renders inadmissible

any alien convicted of “a crime involving moral turpitude . . .

or an attempt or conspiracy to commit such a crime.” Here,

Arizona’s crime of possessing marijuana for sale is one that

involves moral turpitude. The only question is whether

“solicitation” to commit that crime also involves moral

turpitude.

In Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th

Cir. 1997), we considered a similar question: whether

8 U.S.C. § 1227(a)(2)(B)(i), rendering removable any alien

convicted of “a violation of (or a conspiracy or attempt to

violate)” a law relating to controlled substances, covers

“solicitation” to possess cocaine under Arizona law. We

held: (1) solicitation is a generic offense under Arizona law,

and (2) the plain text of § 1227(a)(2)(B)(i) does not cover

solicitation because Congress chose to list only the generic

crimes of conspiracy and attempt, but omitted the generic

crime of solicitation. Id. at 1324–25.

In Leyva-Licea v. INS, 187 F.3d 1147, 1150 (9th Cir.

1999), we properly described our earlier holding in broad
20 GONZALEZ ROMO V. BARR

terms about statutory construction: “In Coronado-Durazo,

we held that where a statute listed some generic offenses but

omitted others, the statute covered only the generic offenses

expressly listed.” Of course, that is a straightforward

application of the common canon expressio unius est exclusio

alterius. See Barnhart v. Peabody Coal Co., 537 U.S. 149,

168 (2003) (explaining that the canon applies “when the

items expressed are members of an ‘associated group or

series,’ justifying the inference that items not mentioned were

excluded by deliberate choice, not inadvertence.” (quoting

United States v. Vonn, 535 U.S. 55. 65 (2002)).

Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir.

2007), does not detract from the forceful and plain statutory

construction demanded by Coronado-Durazo. As a threejudge panel, the Barragan-Lopez court could not overrule

earlier precedent, and it carefully avoided doing so. 

Barragan-Lopez couched its holding in narrow terms: an

Arizona conviction for solicitation to possess marijuana for

sale “constitutes a crime involving moral turpitude for

purposes of 8 U.S.C. § 1227(a)(2)(A)(i).” 508 F.3d at 905

(emphasis added); see also id. at 904–05 (noting that

Coronado-Durazo and Leyva-Licea did not address the

specific question whether the crime involves moral turpitude

“under 8 U.S.C. § 1227(a)(2)(A)(i)”). Section

1227(a)(2)(A)(i) provides, simply, that an alien who “is

convicted of a crime involving moral turpitude committed

within” a certain period of time after admission “is

deportable” if a sentence of one year or longer could be

imposed for that crime. Unlike the statutes in CoronadoDurazo, Leyva-Licea, and here, § 1227(a)(2)(A)(i) does not

refer to any generic crimes, and thus does not list attempt and

conspiracy to the exclusion of solicitation; we distinguished
GONZALEZ ROMO V. BARR 21

it from the earlier decisions on that ground. Barragan-Lopez,

508 F.3d at 904–05.

We have continued to recognize that Coronado-Durazo

remains good law concerning basic statutory construction. 

For example, in Mielewczyk v. Holder, 575 F.3d 992, 997

(9th Cir. 2009), we noted that in Coronado-Durazo “the

statute of conviction was a generic solicitation statute, and

8 U.S.C. § 1227(a)(2)(B)(i) limits convictions for generic

crimes that may result in [removal] to conspiracy and

attempt.” (internal quotation marks omitted).

In short, following our precedents, the text of

§ 1182(a)(2)(A)(i)(I) unambiguously covers only the generic

crimes of “attempt or conspiracy.” Like the statute that we

interpreted in Coronado-Durazo, this statute omits the term

“solicitation.” And we also held there that, in Arizona,

solicitation is a generic offense. Barragan-Lopez, by its own

terms, limited its holding to a different statute that did not

contain similar wording. The majority opinion’s

interpretation sidesteps the holdings ofCoronado-Durazo and

Leyva-Licea.

In addition, the majority opinion violates several canons

of statutory construction. (1) As the opinion acknowledges,

its reading renders the phrase “or an attempt or conspiracy to

commit such a crime” surplusage. Maj. op. at 13–14. Such

a result is disfavored. See Ctr. for Biological Diversity v.

Salazar, 695 F.3d 893, 903 (9th Cir. 2012) (“It is ‘a cardinal

principle of statutory construction’ that a statute should be

construed, if possible, so that ‘no clause, sentence, or word

shall be superfluous, void, or insignificant.’” (quoting TRW

Inc. v. Andrews, 534 U.S. 19, 31 (2001))). (2) Alternatively,

the majority opinion adds “solicitation” to the statutory list,
22 GONZALEZ ROMO V. BARR

again in violation of the venerable principle that we may not

add words that Congress has omitted. Lamie v. U.S. Tr.,

540 U.S. 526, 538 (2004). Congress obviously knew that

solicitation is the third inchoate crime, because other

provisions of the immigration statutes include it. See, e.g.,

8 U.S.C. § 1101(a)(15)(U)(iii) (excluding from a definition

certain victims of “criminal activity,” which is defined to

mean certain substantive crimes or an “attempt, conspiracy,

or solicitation to commit” such a crime). (3) As noted above,

Coronado-Durazo and Leyva-Licea applied the canon

expressio unius est exclusio alterius, another principle

abandoned by the majority opinion. (4) Finally, the majority

opinion ignores the use of “or” in § 1182(a)(2)(A)(i)(I): by

providing that an alien is inadmissible if she is convicted of

“a crime involving moral turpitude . . . or an attempt or

conspiracy to commit such a crime, Congress clearly signaled

that it viewed those categories as alternatives. (Emphasis

added.) The opinion, instead, transmogrifies alternatives into

illustrations, as if the statute read “including an attempt or

conspiracy.” In Garcia v. United States, 469 U.S. 70, 73

(1984), the Supreme Court observed that “[c]anons of

construction indicate that terms connected in the disjunctive

in this manner [separated by “or”] be given separate

meanings.” Cf. Fed. Land Bank of St. Paul v. Bismarck

Lumber Co., 314 U.S. 95, 99–100 (1941) (pointing out that

the use of the term “including” means that a statutory

provision’s application is not “limited to the specific

illustrations mentioned in the participial phrase introduced by

‘including’”).

Next, the majority incorrectly posits that the result of

following the statutory construction principles of CoronadoDurazo and Leyva-Licea would be absurd because doing so

would make the same crime a cause for removal but not
GONZALEZ ROMO V. BARR 23

inadmissibility. Maj. op. at 14–15. That notion has surface

appeal, but this result is actually common and not at all

absurd.

Beginning with the big picture of the Immigration and

Nationality Act, “removal” covers all matters that render an

alien “inadmissible,” but also an additional, longer list. 

Under 8 U.S.C. § 1227(a)(1)(A), “[a]ny alien who at the time

of entry or adjustment of status was within one or more of the

classes of aliens inadmissible by the law existing at such time

is [removable].” The statute continues, though, by making

many other acts a cause for removal, including such disparate

activities as alien-smuggling before, during, or after

admission to the United States; failure to notify the Attorney

General of a change of address; and violation of a protection

order. That is, removal is designed to cover more situations

than inadmissibility.

The relevant statutes contain specific examples of this

phenomenon. For instance, “certain firearm offenses,” such

as unlawfully possessing or selling a firearm, render an alien

“removable” under § 1227(a)(2)(C) but not “inadmissible.” 

An alien who stands convicted of such an offense may, if

otherwise eligible, seek adjustment of status, which

“effectively converts the alien’s [removal] proceedings into

admissibilityproceedings, where the firearms offenses (which

do not bar admissibility) become irrelevant.” Pascua v.

Holder, 641 F.3d 316, 322 (9th Cir. 2011); see also Malilia

v. Holder, 632 F.3d 598, 604 (9th Cir. 2011) (“Even an alien

who is removable for a firearms conviction is eligible for

adjustment of status if the alien presents an approved I130.”). Someone, like Petitioner here, who is a lawful

permanent resident is entitled to apply for adjustment of

status. Pascua, 641 F.3d at 322 n.4. Indeed, the very
24 GONZALEZ ROMO V. BARR

existence of adjustment of status shows that Congress intends

more stringent rules to apply to removability than to

admissibility. See, e.g., Drax v. Reno, 338 F.3d 98, 107, 113

(2d Cir. 2003) (discussing adjustment of status and “the

inherent differences between [removal] and exclusion”).

In an analogous context, we have held that Congress can

have a rational reason to apply different rules to the same

conduct for purposes of removability and inadmissibility. In

Abebe v. Mukasey, 554 F.3d 1203 (9th Cir. 2009) (en banc)

(per curiam), we overruled Tapia-Acuna v. INS, 640 F.2d 223

(9th Cir. 1981). Tapia-Acuna held that no rational basis

existed “for granting additional immigration relief [under

former INA § 212(c)] to aliens who temporarily leave the

United States and try to reenter (i.e., aliens facing

inadmissibility), and not to aliens who remain in the United

States (i.e., aliens facing [removal]).” Abebe, 554 F.3d at

1205 (citing Tapia-Acuna, 640 F.2d at 225). That is

essentially the position that the majority opinion takes. But

Abebe held that “Congress could have limited section 212(c)

relief to aliens seeking to enter the country from abroad in

order to create an incentive for [removable] aliens to leave

the country,” thus saving resources that the government

“would otherwise devote to arresting and [removing] these

aliens.” Id. at 1206 (internal quotation marks omitted).

Abebe’s reasoning applies with equal force here. In

addition, Congress rationally could conclude that

“solicitation” is a less serious crime than “attempt” or

“conspiracy” because it is further removed from the actual

commission of the underlying crime involving moral

turpitude. For example: If a person asks a friend if he’s

interested in producing child pornography, that conversation

can constitute solicitation. If the friend agrees and one of
GONZALEZ ROMO V. BARR 25

them commits an overt act (such as buying a camera) that

makes the production of child pornography more likely, the

person is guilty of conspiracy. And if the person already has

a camera and lures a child into his home, or arranges to meet

an undercover officer who poses as a child, the person

attempts to produce child pornography. It is rational to

consider solicitation the least serious of the inchoate offenses. 

See Coronado-Durazo, 123 F.3d at 1326 (“[W]e do not find

it absurd, or inconsistent, that despite congressional zeal to

eliminate illicit drug trafficking, Congress limited [removal]

for generic crimes to conspiracy and attempt.”).

Finally, the majority opinion purports to follow Chevron

USA Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), maj. op. at 15–16, but Chevron counsels

the opposite result. As the majority opinion correctly notes,

at step one of the analysis, if the statute is clear, we stop

because we must give effect to unambiguously expressed

congressional intent. Id. at 842–43. But in applying step one,

the majority opinion overlooks the requirement that we first

must employ “traditional tools of statutory construction”

when ascertaining congressional intent. Socop-Gonzalez v.

INS, 272 F.3d 1176, 1187 (9th Cir. 2001) (en banc) (quoting

Chevron, 467 U.S. at 843 n.9). When we apply those

traditional tools, as we did in Coronado-Durazo and LeyvaLicea, we must conclude that the relevant statute plainly

excludes “solicitation.”

Even if the statute were ambiguous, we would not owe

the deference that the majority opinion affords, for two

reasons. First, the BIA misread Ninth Circuit precedent. 

Like the majority opinion, the BIA cited cases, including

Barragan-Lopez and Rohit v. Holder, 670 F.3d 1085 (9th Cir.

2012), which interpreted a different statute that does not
26 GONZALEZ ROMO V. BARR

separate out inchoate offenses. Second, the BIA in a previous

case, In re Khanh Hoang Vo, 25 I. & N. Dec. 426, 429 & n.4

(B.I.A. 2011), recognized that 8 U.S.C. § 1182(a)(2)(A)(i)(I)

excludes solicitation. By 2011, all the Ninth Circuit cases

relevant to this question had been decided. But in 2016 the

BIA simply “withdr[e]w from” its holding in Khanh Hoang

Vo because “this statement does not reflect our current

understanding of the Ninth Circuit’s approach.” The BIA’s

cursory discussion is insufficient to meet the requirement that

an agency “provide a reasoned explanation for the change” in

position. Encino Motorcars, LLC v. Navarro, 136 S. Ct.

2117, 2125 (2016). The BIA’s terse about-face is particularly

suspect because it mischaracterizes a holding in Khanh

Hoang Vo as dictum. When circumstances have not changed,

the agency must specify why it disregards the circumstances

that led to its earlier position. FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 516 (2009). The BIA has failed

to meet its obligation to justify a change in position. Were

we to reach step two of the Chevron analysis, we still would

not owe deference to the BIA.

For all the foregoing reasons, I dissent.