F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

E V A I S A B E L G O N Z A L E Z R O M O , Eva AKA Eva I sabel Romo, P etitioner ,

v

.

W I L L I A M P. B A R

R , Attorney

General, Respondent. N o. 16-71559

Ag ency No. A047-334-955

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted J uly 8, 2019 Portland, Oreg on

F iled Aug ust 14, 2019

B e fore: F erdinand F . F ernandez , Susan P. Graber, and J ohn B . Owens, Circuit J udg es.
Opinion by

J udg e F ernandez ; Concurrence by

J udg e Owens; Dissent by

J udg e GraberG O N Z A L E Z R O M O V

. B A R R 2

SUMMARY *

Im m igration

Deny ing Eva I sabel Gonz alez Romo’s petition for r eview

o f the B oard of I mmig ration A ppeals’ p recedential decision in Matter of G onzalez Romo
, 26 I

. & N. Dec. 743 (B I A 2016), the panel h eld that Gonz alez 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 sal e , in violation o f Ariz

. Rev. Stat. § § 13-1002(A), 13-3405(A)(2), was a crime involving moral turpitude.

T h e panel g ave Chevron deference to the B I A ’s determination that a returning lawful permanent resident w ho has a f elony c o n viction for solicitation to possess marijuana for sale is inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I ),

even tho u gh that provision refers only to attempt a nd conspiracy to commit a crime involving moral turpitude, a nd not solicitation.

The p anel noted that there w as no d oubt that Gonz alez

was c o n v i cted in Ariz ona of the crime of solicitation to possess over four p ounds of marijuana for sale, and that d rug trafficking crimes are g e nera l ly crimes involving moral turpitude. Th e panel further noted that this court h eld in Barragan-L o

p ez v. Mukasey
, 508 F .3d 899 (9th Cir. 2007 )
, t h a t “ solicitation to possess at least four pounds o f marijuana for sale cons t itutes a crime involving moral turpitude.” However, Barragan

- L opez involved 8 U .S.C.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G O N Z A L E Z R O M O V

. B A R R 3

§ 1227(a)(2)(A)(i)(I

), which applies to deportabili t y determinations, and d oes not include the “ attempt o r conspiracy to commit such a crime” phrase that appears in § 1182(a)(2)(A)(i)(I

), for inadmissibility

purposes.

The panel r ejected Gonz alez ’s contention tha t , b y r e f e r e n c i n g o n l y “ a t t e m p t o r c o n s p i r a c y , ” § 1182(a)(2)(A)( i)(I ) ex cluded c rimes of solicitation. The panel stated that it saw no reason to deviate from the holding in Barragan-Lopez that sol i c itation of a crime of the mag nitude o f possession of at least four pounds of marijuana for sale is as turpitudinous as commission of the crime itself. The p a n el d iscussed the cases relied upon by Gonz a lez
, Leyva-Li c ea v

. I.N.S.
, 187 F

. 3d 1147 (9th Cir. 1 999) (addressing drug trafficking ag g ravated fel o n ies, 8 U .S.C. § 1101(a)(43)(B )) and Coronado-Durazo v. I.N.S. , 123 F .3d 1322 (9th Cir. 1997) (addressing con t r o l led substance offenses under 8 U.S.C. § 1 227(a)(2)(B )( i ))
, in which this court held that other statutes referencing only attempts a nd conspiracies did not cover solicitation of f e n s es. W hile recog niz ing that reasoning which ex cl u d e s solicitation as to certain provisions could be said to a pply w henever conspiracy

or attempt are specificall y mentioned in a statute, the panel stated that w ould be unlikely when it comes to crimes involving moral turpitude, which are a separate concept with

a long history that has been u sed by Cong ress in the immig ration laws for over a century

. The p ane l e x p l a ined that it was doubtful that Cong ress intended to g ive the phrase different scope in different provisions, a nd this court’s cases do not sug g est that it d id. The panel f u rther e x plained that the leg islative h i story indicated that Cong ress’s inclusion o f the terms attempt and conspiracy were meant to be clarify ing
, and that for inchoate crimes that are b a d enoug h to be considered crimes of moral turpitude, there was little reasonG O N Z A L E Z R O M O V

. B A R R 4

to think that Cong ress eliminated some, such as solicitation, from consideration, simply because it decided to make it clear that others did fall into that categ ory

.

B e c a u s e the panel concluded that Cong ress’s intent was
c lear, it stopped at step one of the Chevron deferen c e t e s t

. However, to the e x tent there was some perceived uncertainty reg arding the meaning and r e a c h o f the statute, the panel concluded that it w as clear that the BI A ’ s r esolution of the uncertainty

was permissible and reasonable.

Concurring
, J udg e Owens wrote that he did no t b e l ieve reliance on Chevron was necessary , but h e concurred with the majority o pinion b ecause it comports with Supreme Court and Ninth Circuit law. J udg e Owens continues to believe that the current mo ral turpitude jurisprudence makes no sense, a nd pointed out that he is not a lone wolf in so thinking

. Dissenting
, J udg e G raber wrote that the majority opinion misapplies both Ninth Circuit a n d Supreme Court precedent, and violates several canons of statutory construction. J udg e Graber wrote that following this c o u r t’s precedents, the tex t of § 1182(a)(2)(A)(i)(I

) unambig uously covers only the g eneric crimes of “attempt or conspir acy ,” and that B a r r a gan-Lopez
, by its own terms, limited its holding to § 1227(a)(2 )( A ) (i)(I ), which does not contain similar wording

.G O N Z A L E Z R O M O V

. B A R R 5

COUNSEL

Samuel L

. B renner (arg

ued), Matthew L

. McGi n n i s , a nd Courtney M. Cox
, Ropes & Gray L L P, B oston, Massachusetts; Marta F

. B el cher, Ropes & Gray L L P, E a st Palo Alto, California; for Petitioner.

Rebecca Hoffberg P h illips ( arg ued), T rial Attorney ; J o hn S. Hog an, Assistant Director; Office of I mmig ration L itig ation, Civil Division, U n i ted States Department of J ustice, W a shing ton, D.C.; for Respondent.

OP INION

F ERNANDEZ , Circuit J udg e:

Eva I sabel Gonz alez Romo, a native and citi z en o f Mex ico and a lawful permanent resident of the United States, petitions for review of the B oard o f I mmig ration Appeals’ (“B I A”) determination that she was inadmissible because she had been convicted of a c rime involving moral turpitude. See 8 U

. S

. C

. § 1 1 8 2 ( a ) ( 2 ) ( A ) ( i ) ( I ) ; 1 s e e a l s o i d

. § 1101(a)(13)(C)(v). The crime in question was solicitation
t o possess marijuana for sale, which she committed i n t h e State of Ariz ona. See Ariz

. Rev. Stat. § § 13-1002(A), 13- 3405(A)(2). W e deny the petition.

Gonz a lez had been a lawf u l permanent r esident of the United States since Nov e m ber 18, 1999. O n October 11, 2009, while d

r iving w ith a suspended license, G onz alez was

1 H ereaf ter all statu to ry ref

eren ces are to T itle 8 o f th e U n ited States Co d e, u n less o th erw ise in d icated

.G O N Z A L E Z R O M O V

. B A R R 6
pulled over in Ariz ona for f ailing to make a complete stop at

a red lig h t. T h e police o fficer noticed two larg e cardboard box es in Gonz ale z ’ s vehicle, and a strong odor of air fr e s h e ner emanated from that vehicle. Upon securing Gonz a lez ’s c onsent to search the vehicle, officers discovered 150 pounds of marijuana, which Gonz alez a dmitted that she had knowing ly ag reed to transport for $1,000. As a result, on March 12, 2 010, s h e was convicted of f elony solicitation to possess marijuana for sale u n d er Ariz ona Revised Statutes sections 1 3

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

After Gonz alez was released from prison, she traveled to Mex ico. Upon returning from h er trip on May 3, 2014, she

was detained a

nd p a r oled into the United States for removal proceeding s. As relevant h e r e , the g overnment charg ed Gonz a lez with inadmissibility due to her conviction of a crime involving moral turpitude. 2 See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I

). G onz alez disputed that al l e g a tion. On September 29, 2015, the immig ration judg e found Gonz alez inadmissible as charg ed. I n p articular, the immig ration judg e held that solicitation to possess marijuana for sale is a crime involving moral turpitude. She appealed that determination to the B I A.

I n a precedential decision, the B I A dismissed Gonz a lez ’s appeal. The B I A concluded that even thoug h Gonz alez was

a lawful permanent resident, because she had been convicted

2 “ [A ] crim e in v o l v in g m o ral tu rp itu de is g en erally a crim e t h at (1 ) is

v ile, b ase, o r d ep rav ed an d (2 ) v i o lates accep ted m o ral stan d ard s.” La tterS in g h v. Ho ld

er , 66 8 F.3 d 1 1 5 6
, 1 16 1 (9 th Cir. 20 1 2 ) (in tern al q u o tatio n

m ark s o m i tted ); s ee a lso Qu in tero -S ala za r v. Keisler
, 5 0 6 F.3 d 6 8 8, 6 9 2 (9 th Cir. 2 00 7 ).G O N Z A L E Z R O M O V

. B A R R 7

o f a n offense identified in § 1182(a)(2)(A)(i)(I ), she wa s
s e e k i n g a d m i s s i o n t o t h e U n i t e d S t a t e s d u e t o § 1101(a)(13)(C)(v). Matter of Gonzalez Romo
, 26 I

. & N

. D e c

. 743, 748 (B I A 2016). That is, the B I A concluded t h at G o nz alez ’s conviction was a crime involving moral turpitu d e

. Id. I t rejected Gonz a l ez ’s contention that, by referencing “attempt or conspiracy ,” § 1182(a)(2)(A)(i)(I ) ex cludes crimes of solicitation even if they otherwise constitute crimes involving moral turpitude. I d. at 74 7

– 4 8

. I n doing so, the B I A receded f

rom contrary lang uag e in a footnote in an
e a r l i e r case, 3 which it now characteriz es as dicta. Matter o f Gonzalez Romo
, 26 I . & N. Dec. at 748. Even in that earlier footnote, however
, t h e BI A had not specifically said that it ag reed with the Ninth Circuit’s then-supposed position. This petition for review followed.

J U RI SDI CTI ON AND STANDARD OF REVI EW

W e have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). “W e review the B I A’s determination of purely leg al questions reg arding the I mmig ration and Nationality Act de novo,” with appropriate deference. Kankamalage v. I.N.S.
, 335 F .3d 858, 861 (9th Cir. 2003).

3 T h e f o o tn o t e read s “ In ef

f ect, th e Nin t

h Circu it h a s i n d icated th at [§ 1 2 2 7(a)( 2 ) ( A )] is bro a d er in its co v erag e o f crim es in v o lv in g m o ral tu rp itu d e t

h an [§ 1 1 8 2 (a)(2 )(A )(i)(I)], b ecau se it w o u ld in clu d e in ch o ate

o f f en ses , su ch as so licitatio n an d f acilitatio n , th at are n o t sp ecif ically

en u m erated in [§ 1 1 82 (a ) ( 2 )(A )(i)(I)], w h ich lists o n ly attem

p ts an d

co n sp iracies.” Ma tter o

f Vo , 2 5 I. & N. Dec. 4 26 , 4 2 9 n .4 (B IA 2 01 1 ).G O N Z A L E Z R O M O V

. B A R R 8

W h ere, a s h e r e , the B I A’s decision is published, it may well be entitled to Chevron 4 deference. See Chen v. Mukasey
, 524 F

. 3d 1 028, 1031 (9th Cir. 2 008); Kankamalage
, 335 F .3d

a t 862. Under Chevron ’s f ramework, the first step i s t o ascertain “whether Cong ress 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 employ s “traditional tools of statutory

construction.” I

d. at 843 n.9, 104 S. Ct. at 2782 n .9. I f the statute’s meaning is clear, “that is the end o f the matter ; for the court, as well as the ag ency , must g ive effect to the u nambig u o usly ex pressed intent of C o n gress.” 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 ambig uous with respect to the specific issue, the question for the court is whether the ag ency ’s answer is b ased on a permissible construction o f the statute.” Id. at 843, 104 S. Ct. at 2782. I f i t is, “a court may not substitute its own construction o f a statutory provision for a reasonable interpretation made b y the . . . ag ency .” Id. at 844, 104 S. Ct. at 2782.

D I SCUSSI ON

T h e B I A determined that e v en thoug h Gonz alez w a s a leg al permanent resident, she was removable because she was inadmissible to the United States when she presented h erself at the border. See §§ 1101(a)(13)(C)(v), 1182(a)(2)(A)(i)(I );

see also Matter of Gonzalez Romo
, 26 I

. & N. De c

. at 748. Gonz a lez arg ues that the B I A erred b e cause she was not

4 Ch evro n , U.S .A., In c. v. Na t. Res. Def. Co u n cil, In c. , 46 7 U.S. 8 3 7
, 8 4 2

– 4 4 , 1 0 4 S. Ct. 2 7 7 8 , 2 78 1 –8 2 , 8 1 L . Ed . 2 d 6 9 4 (1 9 8 4 ).G O N Z A L E Z R O M O V

. B A R R 9
subject to those provisions. 5 W e disag ree. As relevant h ere, pursuant to § 1101(a)(13)(C)(v), an alien who is a leg al permanent resident is treated as one seeking admission if the alien “has committed an o ffense identified in section 1182(a)(2).” And pursuant t o § 1182(a)(2)(A)(i)(I ), a s relevant here, an “alie n co n v i ct ed o f

. . . a crime involving moral turpitude

. . . o r an attempt or conspiracy to commit such a crime . . . is inadmissible.”

There can be no d o ubt that Gonz alez was convicted in Ariz ona o f the c rime of solici tation to possess o ver four pounds of marijuana for sale. See Ariz

. Rev. S t a t

. §§ 13- 1002(A), (B )(2), 13-3405(A)(2), B (6). Nor c an there be any doubt that drug t rafficking crimes are g enerally crimes involving moral turpitude. See Barragan-Lopez v. Mukasey
, 508 F .3d 899, 903–04 (9th Cir. 2 007) ( so stating a nd underscoring

just how turpitudinous drug trafficking is); see also Turijan v. Holder
, 744 F .3d 617, 62 1 ( 9 th Cir. 2 014); Rohit v. Holder
, 670 F .3d 1085, 1 088–89 ( 9 t h Cir. 2012). Moreover, we have specifically held tha t “solicitation to possess at least four pounds of marijuana for sale

. . . constitutes a crime involving moral t urpitude.” 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). I n fact, Barragan-Lopez
, 508 F .3d a t 9 0 1
, dealt with a conviction under Ariz o na statutory p rovisions which are the

s a m e as those involved here. A ll of that would l e a d inex orably to our denial of Gonz alez ’s petition were it not for

5 W e n ote th at b ecau se h er o f f en se w as co m

m itted in 2 0 0 9
, sh e is n o t

en titled t o th e b en ef

it o f th e ru les th at ap p lied to leg al p erm an en t resid en ts b ef o re th e statu tes w ere am en d ed in 1 9 9 6

. Cf. Va rtela s v. Ho l d e r , 5 6 6 U.S. 2 5 7
, 2 6 1
, 1 3 2 S. Ct. 1 4 7 9
, 14 8 3– 8 4
, 18 2 L

. Ed

. 2 d 4 7 3 (2 0 1 2 ); Cen tu rio n v. S

essio ns , 8 6 0 F.3 d 6 9 , 7 7 (2 d Cir. 2 0 1 7 ).G O N Z A L E Z R O M O V

. B A R R 10

t h e f a c t t h a t B a r r a g a n

- L o p e z w a s c o n s t r u i n g § 1227(a)(2)(A)(i)(I

) which states, in pertinent part, “[ a] n y alien who

. . . i s c o n victed of a crime involving moral tu r pitude

. . . is deportable.” As Gonz alez points out, the l ang uag e of § 1227(a)(2)(A)(i)(I ), for deportation p urpos e s , d oes not include the “attempt or conspiracy to commi t s u c h

a crime” p hrase that appears in § 1182(a)(2)(A)(i)( I )
, for inadmissi b i l i t y purposes, and that, she arg ues, makes all the difference in the world. The a rg umen t has some purchase, 6 but like the B I A, 7 we are not convinced.

As Barragan-Lopez stated, 8 in n e i t h er of the cases that Gonz a lez relies upon were we a sked to consider the meaning and scope of the phrase “crime involving mor a l t u r pitude,” and w e certainly did n o t r eflect u pon whether solicitation to possess a larg e amount o f m arijuana for sale would be turpitudinous enoug h to come within t h e reach of that phrase. 9 Rather, in Leyva-Licea
, 1 0 w e a s ked whether a conviction in Ariz ona of solicitation to possess at le as t t wo pounds, but less than four pounds, of marijuana for sale was

an ag g ravated felony

. W e d etermined that it was not because the definition of a g g ravated felony
, as set f o r th 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 S ee Leyva -Licea v. I.N.S

. , 1 8 7 F .3 d 1 1 4 7, 1 1 5 0 ( 9 t h Cir. 19 9 9 ); Co ro n a d o-Du ra zo v. I.N.S

. , 1 2 3 F.3 d 1 3 2 2 , 1 3 2 5 (9 th Cir. 1 9 9 7 ).

7 Ma tter o f Go n za lez Ro mo , 2 6 I. & N. Dec. at 7 4 6

– 4 7

.

8 5 0 8 F.3 d at 9 0 4

– 0 5

.

9 Id

.

10 1 87 F.3 d at 1 1 5 0

.G O N Z A L E Z R O M O V

. B A R R 11

upon 21 U.S.C. § 846, w h i c h covered only attempts o r conspiracies. 1 1 Nothing therein treated solicitation as t he kind of offense that would b e an a g g ravated felon y

. 1 2 Moreover, in Coronado-Durazo
, 1 3 we asked w hether a convict i o n in Ariz ona of solicitation to possess cocaine w as a controlled substance offense within the meaning of § 1227(a)(2)(B )(i). 1 4 W e held it was not because that section covered only “ ‘a violation [by an alien] of ( o r a c o nspiracy or attempt to vi o l a t e ) a n y law or reg u lation

. . . relating to a controlled substance.’” 1 5 I t did not by its terms i n d i c a t e that the scope of the phrase “violation

. . . relating to a controlled substance offense” included s olicitation, or that solicitation was encompassed by an attempt or conspiracy

. As we have since

n o ted, had solicitation been included within the meaning o f controlled substance offense, the result would have been the opposite. See Mielewczyk v. Holder
, 5 7 5 F.3d 992, 997–98 (9th Cir. 2009). Ag a in, in Barra gan-Lopez
, 1 6 we asked whether the scope of “ crime involving mo r a l 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 mag nitude was as turpitudinous as commission

11 S ee id

.

12 Id

.

13 1 23 F.3 d at 1 3 2 4

.

14 T h is is th e cu rren t sectio n co n tain in g t h e p r o v isio n s w

h ich at th at tim e w ere co n tain ed in § 1 25 1 (a)(2 )(B )(i).

15 Co ro n a do -Du ra zo , 1 2 3 F.3 d at 1 3 2 4 ; see a lso id

. at 1 3 2 5

– 26

.

16 5 08 F.3 d at 9 0 3

.G O N Z A L E Z R O M O V

. B A R R 12

of the crime itself. 1 7 W e did not opine on whether the result would be the same for “a very small quantity ” 1 8 of the

s ubstance. W e ag ree w ith that a naly sis and see n o compelling reason to deviate therefrom. On the contrary , we see strong reasons not to do so.

F irst, we recog niz e that r easoning which ex cludes solicitation as to certain provisions coul d b e s a id to a pply whenever conspiracy or attempt are specifically mentioned in

a statute. However, that would be unlikely when it comes to crimes involving moral turpitude. That is a separate concept with a long history 1 9 w hich has been used by Cong ress in the immig ration laws for over a century

. 2 0 I t is doubtful that Cong r ess intended t o give the phrase different scope in different provisions, 2 1 and our cas e s do not sug g est that it did. 2 2

17 S ee id

. at 9 0 4

.

18 Id

.

19 T h e co n cep t is deep ly ro o ted in ou r law

. See Jo r d a n v. De G eo rg e , 3 4 1 U.S. 2 2 3 , 2 2 7 , 7 1 S. Ct. 7 0 3 , 7 0 5 –0 6 , 9 5 L . Ed . 8 8 6 (1 9 5 1 ).

20 S ee id

. at 2 2 9

– 3 0 , 7 1 S. Ct. at 7 07

.

21 S ee Merrill Lyn ch

, Pierce, Fen ner & S mith In c. v. Da b it , 5 4 7 U .S. 7 1
, 8 5

– 8 6, 12 6 S

. Ct. 1 5 0 3
, 1 5 1 3
, 16 4 L

. Ed

. 2 d 1 7 9 (2 0 0 6 ); cf. Po werex Co rp

. v. Relia n t En erg

y Servs., In c. , 5 5 1 U.S. 2 2 4
, 2 3 2
, 1 27 S. Ct. 2 4 1 1
, 2 4 1 7 , 1 6 8 L . Ed . 2 d 1 1 2 (2 0 0 7).

22 S ee, e.g

. , Isla s -Velo z v. W

h ita ker
, 9 1 4 F.3 d 1 2 4 9, 1 2 5 0

– 5 1 (9 th Cir. 2 0 1 9 ); G o n z a lez-Cerva n tes v. Ho ld er , 7 0 9 F.3 d 1 2 6 5
, 1 2 6 9 (9 t h Cir. 2 0 1 3 ); Mo ra les v. Go n za les
, 4 7 8 F.3 d 97 2
, 9 7 8 (9 th Cir. 2 00 7), a b ro ga ted

o n o th er gro un d

s b y An a y a

- O r t i z v. Ho ld er , 5 9 4 F.3 d 6 7 3
, 6 7 7

– 7 8 (9 th Cir. 2 0 1 0 ).G O N Z A L E Z R O M O V

. B A R R 13

Second, we recog niz e that solicitation is a t y p e o f inchoate crime because it would not be a cri m e i nvolving moral turpitude if the underly ing offense (here possession for sale of over four p ounds of marijuana) was not a c rime involving moral turpitude. S e e Barragan-Lopez
, 5 08 F .3d at 903. No doubt attempt and consp i ra cy are also inchoate crimes in that se nse. W hy then would Cong ress mention them specifically and not mention other inchoate crimes (like solicitation) when r eferring to c rimes involving moral turpitude? Of course, we cannot say f o r s u r e , and the leg islative history
, such a s i t is, does not make the answer perspicuous. I t just indicates that the addition of those words

was clarify

ing

. See 139 Cong

. Rec. 15,275 (1993) (indicating that the lang u ag e was intended to “make clear” that those concept s w e r e covered); see also I mmig ration and Nationality Technical Corrections Act of 1994, Pub. L . 103–416, § 203, 108 Stat. 4305, 4311 (indicating that the lang uag e constitutes

a clarification). However, when it comes to inchoate crimes that are ba d enoug h to be considered crimes of moral turpitude, we see little reason to think that Cong ress took this somewha t i ndirect approach to eliminating some of them from consideration simply because it decided to make it clear that others d id fall into that categ ory

. See Ali v. Fed. B u reau of Prisons
, 5 52 U.S. 214, 226–27, 1 28 S. Ct. 831, 840, 169 L

. Ed. 2d 680 (2008)

. I t is more likely that Cong ress was focused on the two that it mentioned and had no intention o f

e x cluding all others. See Marx v. Gen. Revenue Co r p

. , 568 U.S. 371, 385, 133 S. Ct. 1166, 1 177, 185 L

. Ed. 2d 242 (2013). And, while redundancy and sur plusag e are not alway s desirable, they are not anoetic. See Conn. Nat’l Bank

v. Germain
, 5 03 U .S. 249, 253, 112 S. Ct. 1146, 1149, 117 L

. Ed. 2d 391 ( 1 9 9 2 ). I n fact, it is not u nusual to see redundancy occur in c larify ing enactments, which do run the risk o f introducing o ther p roblems while focusing on the taskG O N Z A L E Z R O M O V

. B A R R 14

of making sure that a particular problem does n ot arise. See id. As the Court has said: “I n an y event, our hesitancy to construe statutes to r ender lang uag e superfluous does not require us to avoid surplusag e at all costs. I t is appropriate to tolerate a d eg ree of surplusage ra ther than adopt a tex tually d u b i o us construction that threatens to render the entire provision a nullity .” U

nited States v. Atl. Re s e a rch Corp.
, 551 U.S. 128, 137, 127 S. Ct. 2331, 2337, 168 L

. Ed. 2d 28 (2007). I n the case at hand, the c os t w o u l d b e p a rticularly hig h because it would create an anomaly in application of the statutory scheme, w hich we d oubt Cong r ess intended when it adopted its clarify

ing amendments. 2 3 The an o m a l y can be

seen if we start with the r ather uncontroversial reflection that

“ [ o] ur immig ration law has g enerally treated aliens w ho a r e already on our soil (and who are therefore deportable) more favorably than aliens who are merely seeking admittance (and who are therefore ex cludable).” S ervin-Espinoza v. Ashcroft
, 309 F .3d 1193, 1198 (9 t h C i r

. 2002). B u t removing solicitation of possession o f over four po u n d s o f marijuana from the definition of a crime involvin g m o r a l turpitude in § 1182(a)(2)(A)(i)(I

)
, althoug h soli c i t a t ion 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 leg al p e r m a n e n t r e s i d e n t ca n b e r e m o v e d p u r s u a n t t o § 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 f r o m t he definition of crime in v o l ving moral turpitude in § 1 182(a)(2)(A)(i)(I ), no alien (leg a l permanent resident or not) can b e ex cluded for solicitin g a c rime involving moral turpitude, reg ardless o f

2 3 I n g en eral, w e d o attem p t to av oid an o m alies an d try t o v iew th e sch em e at h an d as “ sy

m m etrical an d co h eren t.” Perez-Gu zma n v. Lyn ch
, 8 3 5 F.3 d 1 0 6 6 , 1 0 7 4 (9 th Cir. 2 0 1 6 ) (in tern al q u o tatio n m ark s o m itted ).G O N Z A L E Z R O M O V

. B A R R 15

h o w t u rpitudinous that c rime may be. A g ain, we doubt tha t Cong r ess intended any such thing

. I n fact, in the contex t o f this statutory scheme reg arding who can enter and who can be

r e m o ved, ascribing that intent to Cong ress would lead t o a result so dubious that it would be nothing short of a n internal inconsistency amountin g to a n 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 a vo i d e d a nd internal inconsistencies in t h e s t atute must be dealt w ith.”);

see also McNeill v. United States , 563 U.S. 816, 822, 131 S. Ct. 2218, 2223, 180 L . Ed. 2d 35 (2011).

The discussi o n above indicates that we can stop at step

one of the Chevron process 2 4 because Cong ress’ true intent is clear to us. However, t o the ex tent that there is some pe rc eived uncertainty 2 5 reg arding the meaning and reach o f the statute, that ambig uity 2 6 would direct us to step two. 2 7 At that step, it is clear that the B I A’s resolution of the

24 4 67 U.S. at 8 4 2

– 4 3, 1 0 4 S. Ct. at 2 78 1

.

25 S ee, e.g

. , Mielewczyk
, 57 5 F.3 d at 9 9 6

– 9 8 ; Ba rra g an -Lo p ez , 5 0 8 F.3 d at 9 02

– 0 5 ; Co ro na d o -Du r a zo , 1 2 3 F.3 d at 1 3 2 4 –2 6 ; s ee a l so Mizra h i v. Go n za les
, 4 9 2 F.3 d 1 56
, 1 6 4– 6 7 (2 d Cir. 2 0 0 7 ); Peters v. Ash cro ft , 3 83 F.3 d 3 0 2, 3 0 5

– 0 9 (5 th Cir. 2 0 0 4 ).

26 W e n o te th at so m e am b ig u ity in statu t o ry lan g u ag e d oes n o t p reclu d e reso lu tio n o f th at am big u ity b y t

h e B IA

. S

ee Ch evro n , 4 6 7 U .S. at 8 4 3 , 1 04 S. Ct. at 2 78 2 ; Perez-Gu zma n , 8 3 5 F.3 d at 1 0 76 n .5

.

27 Ch evro n , 4 6 7 U.S. at 8 4 3

– 4 4 , 1 04 S. Ct. at 2 7 8 1

– 8 2

.G O N Z A L E Z R O M O V

. B A R R 16
uncertainty

is permissible and reasonable. I ndeed, it appears to us that it is the best resolution. 2 8

Thus, we deny

the petition.

CONCL USI ON

W e hol d t h a t a conviction in Ariz ona for solicitation to possess at least four pounds of marijuana for sale constitutes

a crime involving moral turpitude for purposes o f § 1182(a)(2)(A)(i)(I

)
, a nd, therefore, Gonz alez was inadmissible. See § 1101(a)(13)(C)(v).

Petition DENIED

.

28 W e h av e n o t o v erlo o k ed Go n zalez’ s arg u m en t th at th e B IA sh ou ld b e a c c o r d ed less d ef

eren ce b ecau se it ch an g ed its p o sitio n ab o u t w h at i t th o u g h t o u r case law

req u ired

. S

ee Ma tter o

f Vo , 2 5 I. & N. D ec. at 4 2 9

n .4

. Ho w ev er, as w e see i t, an ag en cy ’ s ref lectio n s o n w

h at it th o u g h t w e h av e said
, o r m ig h t s ay , is q u ite d if f eren t f ro m a d eterm i n atio n o f w

h at th e law is. I n a n y ev en t: “ In th e circu m stan ces o f th i s case, w h ere th e ag en cy ’ s in terp retatio n of a statu t e is at least as p lau sib l e a s c o m p etin g

o n es, th ere is little, if

an y , reaso n n o t to d ef

er to its co n stru ctio n .” G o o d S a ma rita n Ho sp

. v. S

h a l a la
, 50 8 U.S. 4 0 2
, 4 1 7, 1 1 3 S. Ct. 2 15 1
, 2 1 6 1
, 1 2 4 L . Ed . 2 d 3 6 8 (1 9 9 3 ).G O N Z A L E Z R O M O V

. B A R R 17

OW ENS, Circuit J udg e, concurring :

Because the majority opinion comports with Supr e m e Court and Ninth Circuit law, I concur (and I d o not think reliance on Chevron is necessary ). B u t I continue to believe that the c urrent moral turpitude j u risprudence makes no sense, a nd I am not a lone wolf in so thinking

. See Jordan v

. De George
, 341 U.S. 223, 2 32–45 (1951) ( J ackso n , J
., dissenting ); Barbosa v

. B arr , 9 2 6 F .3d 1053, 1060–61 (9th Cir. 2 019) (B erz o n, J
., concurring ); Islas-Veloz v. W h itaker
, 914 F

. 3d 1 249, 1251–61 (9th Cir. 20 1 9) (F letcher, J
., concurring ); Menendez v

. W hitak e r , 9 08 F .3d 467, 475 (9th Cir. 2018) (Callahan, J
., concurring ); Ortega-Lopez v. Lynch
, 834 F

. 3d 1015, 1018–19 (9th Cir. 2016) (B ea, 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) (B ea, J

. , dissenting ); Navarro-Lopez v

. Gonzales
, 5 0 3 F .3d 1063, 1084–86 (9th Cir. 2007) (en banc) (B ea, J
., dissenting ), overruled on other g rounds by United States v. A guila-Montes d e Oca
, 6 55 F .3d 915 (9th Cir. 2 011) (en banc).

Until Cong ress o r the Su p r e m e Court intervenes, the present reg ime will co n t i n u e to be a b lack hole for judicial

resources. And the ex pe r i e n ce of our court leaves no doubt about t h e arbitrariness of the results. F o r ex ample, we have held that k

nowing possession o f child pornog rap h y is categ orica lly a crime involving moral turpitude. United States v. Santacruz
, 563 F .3d 894, 896–97 (9th Cir. 2 009) (per curiam). B ut some cond u c t d irectly between the defendant and victi m is not—such a s committing a lewd o r lascivious act on a child ag ed 14 or 15 (w i th a d e fendant at least ten y ears older tha n t h e child) with the intent o f arousing
, appealing to, or g rati f y ing the lust, passions, o rG O N Z A L E Z R O M O V

. B A R R 18

sex ual d esires of the defendant or the child, Menendez
, 9 0 8 F .3d at 472–74, or annoy ing or molesting a child und e r the ag e of 18, motivated by unnatural or abnorm al sex ual interest, Ni canor-Romero v. Mukasey
, 523 F .3d 992, 997–1007 (9th Cir. 2008), overruled in part on o ther grounds by Marmolejo-Campos v. Holder
, 5 58 F .3d 903 (9th Cir. 2009) (en banc).

W e have also been quick to conc l u d e , under the current framework, t h a t fraud crimes categ o rically involve moral turpitu d e , such as making false statements to obtain credit cards, Tijani v. H

older
, 628 F

. 3 d 1 071, 1075–79 (9th Cir. 2 0 1 0 ), but relatively more serious non-fraudulent crimes do not, such as simple kidnapping
, Castrijon-Garcia v. H older
, 704 F .3d 1205, 1212–18 ( 9th C ir. 2013). I n addition, we have determined that beating up y our wife is morally turpitudinous, Grageda v. INS
, 12 F

. 3 d 9 1 9
, 922 (9th Cir. 1993), superseded by statute on other gr o u n d s a s stated in Planes v. Holder
, 652 F .3d 991, 995 (9t h C i r

. 2011), but beating u p y our live-in g irlfriend does n o t categ orically involve moral turpitude, Morales-Garcia v. Holder
, 567 F .3d 1058, 1067 (9th Cir. 2009).

Rather than play the role of a Rorschach psy cholog ist, we should focus o n a more objective standard, such a s the leng th of the underlying criminal sentence, b efore removing

someone f

rom the United States. See Almanza-Arenas v

. Lynch
, 815 F .3d 469, 482–83 ( 9 t h C i r

. 2015) (en banc) (Owens, J
., concurring ) (“A better mousetrap is long o verdue. Rather than c ompete with Rube Goldberg
, we instead should look to a more objective standard, such as the l e n gth of the underly ing sentence

. . . . ” ) ; cf. United States v. Brown
, 879 F .3d 1043, 1051 (9th Cir. 2018) (Owens, J
., concurring ) (“A reg ime based o n the leng th o f previous sentences, ratherG O N Z A L E Z R O M O V

. B A R R 19

than on the vag aries of state law, is t he way to g o.”). W hile not perfect, this a

pproach would be far more evenhanded a nd predictable than what we have now.

GRAB ER, Circuit J udg e, dissenting :

I respectfully dissent. I n my view, the ma j o r i t y opinion misapplies our own precedent and misapplies Supreme Court precedent as well. I

would g rant the petition.

Title 8 U.S.C. § 1182(a)(2)(A)(i)(I ) r enders inadmissible any alien convicted of “a crime involving moral turpitude

. . . or an a ttempt or conspiracy to commit such a crime.” Here, Ariz ona’s c rime o f p ossessing marijuana for sale is one that involves moral turpitude. The o nly q uestion is whether “solicitation” to commit that crime a lso involves mo r al turpitude.

I n Coronado-D u r a z o v. INS
, 123 F

. 3d 1322, 1324 (9th Cir. 1997), w e considered a s i m i l a r question: whether 8 U.S.C. § 1227(a)(2)(B )(i), rendering r emovable a n y al ien convicted of “a violation of (or a conspir a cy or attempt to violate)” a law relating to controlled substances, covers “solicitation” to possess c ocaine under Ariz ona law. W e held: ( 1) solicitation is a g eneric offense under Ariz o na law, and (2) the plain tex t o f § 1227(a)(2)(B )(i) does not cover solicitation b ecause Cong ress chose to list only the g eneric crimes of conspiracy and attempt, but omitted the g eneric crime of solicitation. Id. at 1324–25.

I n Leyva-Licea v. INS
, 1 8 7 F .3d 1147, 1150 (9th Cir. 1999), w e properly d escribed our e arlier holding in broadG O N Z A L E Z R O M O V

. B A R R 20

terms about statutory construction: “I n Coronado-Durazo
, we held that where a statute listed some g eneric offenses but omitted o thers, the statute covered only the g eneric o ffenses

ex p ressly listed.” Of course, that is a straig htf o rward application of the common canon expressio unius est exclusio alterius

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

. 149, 168 (2003) (ex plaining that the canon applies “when the items ex pressed are memb e r s o f an ‘ associated g roup o r series,’ justify ing the inference that items not mentioned were
ex c luded by deliberate c hoice, not inadvertence. ” ( quoting United States v. Vonn , 535 U.S. 55. 65 (2002)).

B a r ragan-Lopez v. Mukasey
, 5 08 F .3d 899 (9th Cir. 2007), does not detract from t h e forceful and plain statutory construction d emand e d by Coronado-Durazo

. A s a threejudg e panel, the Barragan-Lope z court could not o verrule earlier precedent, and it carefully avoided doing so. Barragan-Lopez couched its holding in n a rr o w terms: an Ariz ona conviction for solicitation to possess m a r i j u ana for sale “constitutes a crime involving moral turpi t ude for
purposes of 8 U.S.C. § 1 227(a)(2)(A)( i ).” 508 F .3d at 905 (emphasis added); see also i d

. a t 9 0 4–05 (noting that Coronado-Durazo and Leyv a

- L i cea d id not address the specific question whether the c rime involves moral turpitude

“ u n d e r 8 U

. S

. C

. § 1 2 2 7 ( a ) ( 2 ) ( A ) ( i ) ” )

. S e c t i o n 1227(a)(2)(A)(i) p rovides, simply
, that an alien who “ is convict ed of a crime involving moral turpitude committed within ” a c ertain period of time a fter admission “ is deportable” i f a s e n t ence of one y ear or long er c ould be imposed for that crime. Unlike the statutes in C o r o n a d o

Durazo
, Leyva-Licea
, and he r e, § 1227(a)(2)(A)(i) does not refer to any g eneric crimes, and thus does not list attempt a nd conspiracy to the ex c lusion of solicitation; we disting u ishedG O N Z A L E Z R O M O V

. B A R R 21

it from the earlier decisions on that g round. Barragan-Lopez
, 508 F .3d at 904–05.

W e have continued to r ecog niz e t hat Coronado-Durazo remains g ood law concerning basic statutory construction. F or ex ample, in Mielewczyk v. Ho l d e r , 5 75 F

. 3d 992, 997 (9th Cir. 2009), w e n oted that in Coronado-Durazo “the statute o f conviction was a g eneric solicitation statute, a nd 8 U.S.C. § 1227(a)(2)(B ) (i) limits convictions f or g eneric crimes that may result in [ r e m oval] to conspiracy a nd attempt.” (internal quotation marks omitted).

I n short, following our precedents, the tex t o f § 1182(a)(2)(A)(i)(I

) unambig uously c overs only the g eneric crimes o f “ a ttempt or conspiracy

. ” L ike the statute that we interpreted in Coronado-Durazo
, this statute omits t h e term “solicitation.” And we also held th e r e t h a t, in Ariz ona, solicitation is a g eneric offense. Barragan-Lopez
, by its o wn t e r m s , limited its holding to a different statute that did not contain similar wording

. The majority opi n ion’s i nterpretation sidesteps the h olding s o f C o r o n a d o

- D u r a z o a n d Leyva-Licea

.

I n a ddition, the majority opinion violates several canons of statutory c onstruction. ( 1) As the opinion acknowledg es, its reading renders the phrase “or an attempt or conspiracy to commit such a crime” surplusag e. Maj. op. at 13–14. Such

a result is disfavored. See Ctr. for Biological Div e r s i ty v

. Salazar
, 695 F .3d 893, 903 (9th Cir. 2012) (“I t 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 insig nificant.’” (quoting TRW Inc. v. Andrews
, 534 U.S. 1 9, 31 (2001))). (2) Alternatively
, the majority opinion adds “solicita t i on” to the statutory list,G O N Z A L E Z R O M O V

. B A R R 22

ag ain in violation o f the venerable principle that we may not add words that Cong ress h as omitted. Lamie v. U.S. Tr.
, 540 U.S. 526, 538 ( 2 004). Cong ress obviously knew that solicitation is the th i rd inchoate c r ime, because other pro v i s i o n s o f the immig ration statutes include it. See, e.g. , 8 U.S.C. § 1101(a)(15) ( U )(iii) (ex cluding from a definition certain victims o f “criminal activity ,” which is defined to

mean certain sub stantive 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 e s t exclusio alterius
, another principle abandoned b y the majority opinion. (4) F inally
, the majority opinion ig nores the use of “or” in § 1 182(a)(2)(A)(i)(I ): b y providing that an alien is inadmissible if she i s c o n v icted o f “a crime involving moral turpitude

. . . or an attempt o r conspiracy to commit such a c rime, Cong ress clearly sig naled that it viewed those categ o ries as a lternatives

. (Emphasis added.) The opinion, instead, transmog rifies alternatives into i l l u s t r a tions, as if the statute read “ including an attempt o r conspiracy .” I n Garcia v. U nited States
, 469 U.S. 70, 73 (1984), the Supreme Court observe d that “ [ c] anons o f construction indicate that terms connected in the disjunctive in t h i s manner [ separated by “or”] be g iven separate meaning s.” Cf. Fed. Land Ba n k of St. Paul v. Bismarck Lumber Co.
, 314 U.S. 95, 99–100 (1941) ( poin t i n g o ut that the use of the term “including ” means that a statutory provision’s a

pplication is n o t “limited to the specific illustrations mentioned in the participial phrase introduced b y ‘including ’”).

Nex t, the majority i n correctly posits that the r esult o f following the statutory construction principles of CoronadoDu r a z o and Leyva-Licea would be absurd because doing so would make the same c rime a ca u s e f or removal but notG O N Z A L E Z R O M O V

. B A R R 23

i n a d missibility

. Maj. o p. at 1 4–15. That notion has surf ac e appeal, but this resu l t i s actually common and not at all absurd.

B e g inning with the b ig picture of t h e I mmig ration a nd Nationality Act, “removal” covers all matters that r ender an alien “inadmissible,” but also an additional, long er list. Under 8 U.S.C. § 1227(a)(1)(A), “[ a] n y alien who at the time of entry or adjustment of status was w ithin one or more of the classes of aliens inadmissible by the law ex isting at such time is [removable] .” The statute c o n tinues, thoug h
, b y making many other acts a cause for removal, including such disparate activ i t i e s as alien-smug g ling before, during
, or after admission to the United States; failure to notify the Attorney General o f a chang e of address; a nd violation of a protection order. That is, removal is desig ned to cover more situations than inadmissibility

.
The relevant statutes contain specific ex a m p l e s of this phenomenon. F or instance, “certain firearm offenses,” such

as unlawfully possessing or selling a firearm, render an alien “removable” under § 1227(a)(2)(C) b u t not “inadmissible.” A n alien who stands convicted of such an offense ma y , i f otherwise e lig ible, seek adjustment of status, which “effectively conv erts the a lien’s [ r emoval] proceeding s into admis s i b i l i t

y p r o c e e d i ng s, w here the firearms offenses (which do not b ar admissibility ) become irrelevant.” Pascua v

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

v. H older
, 632 F .3d 598, 604 (9th Cir. 2011) (“Even an alien who is removable for a firea r ms conviction is elig ible for adjustment of status if the alien presents an appr o v ed I

130.”). Someone, like Petitioner here, who is a law f u l permanent resident is entitled to a pply for adjustme nt o f status. P a s c u a , 641 F .3d at 322 n.4. I ndeed, the veryG O N Z A L E Z R O M O V

. B A R R 24

ex istence of a djustment of status shows that Cong ress intends

more st r i n ge n t rules to apply to removability than to admissibility

. See, e.g. , Drax v

. Reno
, 338 F .3d 9 8
, 107, 113 (2d Cir. 2003) (discussing adjustment of status an d “ the inherent differences between [ removal] and ex clusion”).

I n an a nalog ous contex t, we have held that Cong ress can have a r ational re a s o n to apply different r ules to the same conduct f or p urposes of removability and inadmissibility

. I n Abebe v. M

ukasey
, 554 F .3d 12 0 3 ( 9 t h Cir. 2009) (en banc) (per curiam), we overruled Tapia-Acuna v. INS
, 640 F .2d 223 (9th Cir. 1981). Tapia-Acuna h eld that no rational basis

ex isted “for g ranting additional immig ration r elief [under former I N A § 212(c)] to a l i e n s who temporarily leave the United States and t r y t o reenter (i.e., aliens facing in a dmissibility ), and not to aliens who remain in the United States (i.e., aliens facing [removal] ).” Abebe
, 554 F .3d at 1 205 (citing Tapia-Acuna
, 640 F .2d at 225). That is

e s s e n tially the position that the majority opinion takes. B ut Abebe held that “Cong ress 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 cou n t r y , ” thus saving r esources that the g overnment “would o therwise devote to arresting and [ r e m oving ] these aliens.” Id. at 1206 (internal quotation marks omitted).

Abebe ’s reasoning applies with equal force h ere. I n

a d d i t i o n , C o n g r e s s r a t i o n a l l y c o u l d c o n c l u d e t h at “solicitation ” i s a less serious crime than “attempt” o r “conspiracy

” because it is f

u r t h e r removed from the actual commission o f the underly ing crime involving moral turp i t u d e

. F or ex ample: I f a person a sks a friend if he’s interested in producing child pornog raphy
, that conversation

can consti t u t e s o l icitation

. I f the f riend ag rees and o ne o fG O N Z A L E Z R O M O V

. B A R R 25

them commits an overt act (such as buy ing a camera) that makes the production o f child pornog r aphy more likely
, the person is g uilty of conspiracy

. And if the person a lready has

a camera and lures a c hild into his home, or arrang es to meet

an undercover officer who poses as a child, the person attempts to produce child p o r n o graphy

. I t 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, o r inconsistent, t h at d e spite cong ressional z eal to eliminate illicit drug trafficking
, Cong ress limited [ removal] for g eneric crimes to conspiracy and attempt.”).

F inally
, the majority o pinion purports to follow Chevron USA I nc. v. Natural R esources Defense Council, Inc.
, 467 U.S. 837 ( 1984), maj. op. at 1 5–16, but Chevron counsels the opposite result. As the majority opinion correctly notes, at step o n e of the analy sis, if the statute is clear, we stop because we must g ive effect to unambig uo u s l y ex pressed cong ressional intent. Id. at 842–43. B ut in apply ing step one, the majority opinion overlooks the require m ent that we first must employ “traditional tools o f statut o ry construction” when ascertaining cong ressional inte n t

. Socop-Gonzalez v

. INS
, 272 F .3d 1176, 1 187 (9th Cir. 2001) (en b anc) (quoting Chevron
, 4 6 7 U.S. at 843 n.9). W hen w e apply those traditional tools, as we did in C o ronado-Durazo and LeyvaLicea
, w e must conclude that the relevant sta tute plainly

ex c ludes “solicitation.”

Even if the statu t e w e re ambig u ous, we would not owe the deference th a t t he majority opinion affords, for two

reasons. F irst, the B I A misread Ninth Circuit pre c e d e n t

. L ike the majority opinion, the B I A cited c ases, inc l u d i ng Barragan-Lopez and Rohit v. Holder
, 6 70 F .3d 1085 ( 9th Cir. 2012), which interpreted a d ifferent statute that does notG O N Z A L E Z R O M O V

. B A R R 26

separate out inchoate offenses. Second, the B I A in a previous
case, In re Khanh Hoang V o , 25 I

. & N. Dec. 426, 429 & n.4 (B .I .A. 2011), recog niz ed that 8 U.S.C. § 1182(a)(2)(A)(i)(I )

ex c l u d e s solicitation. B y 2011, all the Ninth Circuit cases

r e l e v a nt to this question had been decided. B ut in 2016 t h e B I A simply “withdr[ e] w from” its holding in Khanh Hoang Vo because “this statement does not r e f l e c t our current understanding of the Ninth Circuit’s approach.” T h e BI A ’s cursory discussion is insufficient to meet the requirement that

an ag ency “provide a reasoned e x planation for the chang e ” in po s i t i o n

. Encino Motorcars, LLC v. Navarro
, 136 S. Ct. 2117, 2125 (2016). The B I A’s terse about-face is p a rticularly suspe ct b ecause it mischaracteriz es a holding in Khanh Hoang Vo as dictum. W hen circumstances have not chang ed, the ag ency

must specify

why it disreg ards the circumstances that led to its e arlier p ositi o n

. F CC v. Fox Television Stations, Inc.
, 556 U.S. 502, 516 (2009). The B I A has failed to meet its oblig ation to justify a chang e in position. W e re
we to reach step two of the Chevron analy sis, we still would not owe deference to the B I A

.

F or all the foreg oing reasons, I dissent.