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Matter of Eva Isabel GONZALEZ ROMO, Respondent

Decided May 19, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, a

returning lawful permanent resident who has a felony conviction for solicitation to 

possess marijuana for sale is inadmissible under section 212(a)(2)(A)(i)(I) of the 

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), even though that 

section refers only to attempt and conspiracy to commit a crime involving moral 

turpitude, and is therefore properly considered to be an arriving alien under section 

101(a)(13)(C)(v) of the Act, 8 U.S.C. § 1101(a)(13)(C)(v) (2012). Matter of Vo, 25 I&N 

Dec. 426 (BIA 2011), clarified.

FOR RESPONDENT: Benjamin H. Harville, Esquire, Florence, Arizona 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan J. Goldstein, Assistant

Chief Counsel

BEFORE: Board Panel: PAULEY and GUENDELSBERGER, Board Members; 

GELLER, Temporary Board Member.

PAULEY, Board Member:

In a decision dated September 29, 2015, an Immigration Judge 

determined that the respondent is inadmissible and ineligible for relief from 

removal and ordered her removed from the United States. The respondent 

has appealed from that decision. The appeal will be dismissed. The 

respondent’s fee waiver request is granted pursuant to 8 C.F.R. 

§ 1003.8(a)(3) (2016).

The respondent is a native and citizen of Mexico who became a lawful 

permanent resident of the United States on November 18, 1999. She was 

convicted on March 12, 2010, of solicitation to possess marijuana for sale, 

which is a class 4 felony under sections 13-1002 and 13-3405(A)(2) of the 

Arizona Revised Statutes. The respondent was detained and paroled into

the United States when she attempted to reenter as a lawful permanent 

resident on May 3, 2014. 

The Department of Homeland Security (“DHS”) initiated removal 

proceedings against the respondent, charging that she is an arriving alien 

who is inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and 

Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2012), as an alien 
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convicted of a crime involving moral turpitude, and under section

212(a)(2)(C)(i) of the Act, as an alien who the Attorney General knows or 

has reason to believe is an illicit trafficker in a controlled substance. The 

Immigration Judge found that the respondent’s conviction was for a crime 

involving moral turpitude and that the conviction provided a reason to 

believe that she was a controlled substance trafficker. Accordingly, the 

Immigration Judge determined that the respondent is inadmissible as

charged. She further denied the respondent’s requests for relief from 

removal.

On appeal, the respondent argues that she was not properly placed in 

removal proceedings as an “arriving alien.” She contends that because she 

is a returning lawful permanent resident, to charge her with inadmissibility 

as an arriving alien under section 212(a) of the Act, the DHS must establish 

that she is seeking admission. See Matter of Rivens, 25 I&N Dec. 623, 

624−27 (BIA 2011). The respondent can only be regarded as seeking 

admission if she falls within one of the exceptions in section 101(a)(13)(C) 

of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012).

1

 See Matter of Pena, 26 I&N 

Dec. 613, 615 (BIA 2015). 

According to the respondent, the only possible exception that may be

applicable is section 101(a)(13)(C)(v), namely, that she “has committed an 

offense identified in section 212(a)(2).” Although the DHS has charged 

that the respondent is inadmissible under section 212(a)(2)(A)(i)(I) of the 

Act because she was convicted of a crime involving moral turpitude, she 

asserts that the offense of solicitation to possess marijuana for sale is not 

such a crime under the law of the United States Court of Appeals for the 

 1 Section 101(a)(13)(C) of the Act provides:

An alien lawfully admitted for permanent residence in the United States shall not 

be regarded as seeking an admission into the United States for purposes of the 

immigration laws unless the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a continuous period in excess of 

180 days,

(iii) has engaged in illegal activity after having departed the United States,

(iv) has departed from the United States while under legal process seeking 

removal of the alien from the United States, including removal proceedings under 

the Act and extradition proceedings,

(v) has committed an offense identified in section 212(a)(2), unless since such 

offense the alien has been granted relief under section 212(h) or 240A(a), or

(vi) is attempting to enter at a time or place other than as designated by 

immigration officers or has not been admitted to the United States after 

inspection and authorization by an immigration officer.
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745

Ninth Circuit, in whose jurisdiction this case arises.2 The principal issue 

before us, therefore, is whether a felony conviction for solicitation to 

possess marijuana for sale is a conviction for a crime involving moral 

turpitude under section 212(a)(2)(A)(i)(I) of the Act. We review this 

question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2016). 

In support of her conclusion that the respondent is inadmissible under 

section 212(a)(2)(A)(i)(I) of the Act as an alien convicted of a crime 

involving moral turpitude, the Immigration Judge relied on the Ninth 

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

2007). In that case, the court held that the petitioner’s felony conviction for 

solicitation to possess at least 4 pounds of marijuana for sale in violation of 

sections 13-1002(A) and 13-3405(A)(2) of the Arizona Revised Statutes

was a conviction for a crime involving moral turpitude for purposes of

deportability under section 237(a)(2)(A)(i) of the Act, 8 U.S.C. 

§ 1227(a)(2)(A)(i) (2006). Id. at 904. 

In Barragan-Lopez, the Ninth Circuit first rejected the petitioner’s 

assertion that his solicitation offense should be viewed as separate from the 

underlying drug possession crime, stating that he was not convicted of 

solicitation of unspecified criminal conduct but, instead, of soliciting the 

possession of a significant amount of marijuana. The court noted that it has 

previously looked to the underlying offense in determining whether 

inchoate crimes, such as solicitation, constitute crimes involving moral 

turpitude. Id. at 903 (citing Goldeshtein v. INS, 8 F.3d 645, 647 n.6 (9th 

Cir. 1993), and McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980)). 

Stating that “[d]rug trafficking offenses, including possession of unlawful 

substances for sale, generally involve moral turpitude,” the court 

emphasized that by pleading guilty to solicitation to possess marijuana for 

sale, the petitioner had admitted his specific intent to promote or facilitate 

the commission of a crime involving moral turpitude under Arizona law. 

Id. at 903−04 (citing Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th 

Cir. 1987), and United States ex rel. DeLuca v. O’Rourke, 213 F.2d 759, 

762 (8th Cir. 1954) (stating that “there can be nothing more depraved or 

 2 The respondent also argues that she cannot be considered to have “committed an 

offense identified in section 212(a)(2)” of the Act on the basis of the section 

212(a)(2)(C)(i) charge. Relying on a statement of the Supreme Court in Vartelas 

v. Holder, 132 S. Ct. 1479, 1492 n.11 (2012), she asserts that a conviction or an

admission to an offense is required in order to be an arriving alien under section 

101(a)(13)(C)(v). Although we acknowledge that no conviction is required to sustain a

charge under section 212(a)(2)(C)(i), in light of our disposition in this case, we need not 

determine whether the Supreme Court’s Vartelas requirement is met where such a charge

is, in fact, supported by a conviction.
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morally indefensible than conscious participation in the illicit drug 

traffic”)).

The court also rejected the petitioner’s reliance on Coronado-Durazo 

v. INS, 123 F.3d 1322 (9th Cir. 1997), and Leyva-Licea v. INS, 187 F.3d 

1147 (9th Cir. 1999), finding that those cases were distinguishable.

Barragan-Lopez, 508 F.3d at 904−05. In Coronado-Durazo, the Ninth 

Circuit found that a conviction under Arizona’s solicitation statute was not

a deportable offense under former section 241(a)(2)(B)(i) of the Act, 

8 U.S.C. § 1251(a)(2)(B)(i) (1994), as a conviction for a crime “relating to 

a controlled substance” because the deportation statute included conspiracy 

and attempt, but not solicitation. Similarly, in Leyva-Licea, 187 F.3d at 

1150, the court concluded that solicitation to possess marijuana for sale 

under Arizona law was not an aggravated felony under section 

101(a)(43)(B) of the Act because the “Controlled Substances Act does . . .

cover attempt and conspiracy,” but “it does not list solicitation.” In 

addition to noting that the statutes at issue were different in those cases, the 

court stated, “In neither case were we asked to determine whether 

solicitation to possess more than four pounds of marijuana for sale is a 

crime involving moral turpitude under [section 237(a)(2)(A)(i) of the Act].” 

Barragan-Lopez, 508 F.3d at 904−05.

We have long held that evil intent is inherent in the illegal distribution 

of drugs and that “participation in illicit drug trafficking is a crime 

involving moral turpitude.” Matter of Khourn, 21 I&N Dec. 1041, 

1046−47 (BIA 1997). Furthermore, it is well established that for 

immigration purposes, with respect to moral turpitude, there is no 

meaningful distinction between an inchoate offense and the completed

crime. Matter of Vo, 25 I&N Dec. 426, 428 (BIA 2011); see also Rohit 

v. Holder, 670 F.3d 1085, 1089−90 (9th Cir. 2012) (holding that solicitation 

of prostitution is a crime involving moral turpitude). It is therefore

appropriate to look at the substantive crimes to determine whether inchoate 

offenses, such as attempt, conspiracy, accessory before the fact, 

facilitation, or solicitation, constitute crimes involving moral turpitude. 

Barragan-Lopez, 508 F.3d at 903; Matter of Vo, 25 I&N Dec. at 428 

(collecting cases); cf. Matter of Beltran, 20 I&N Dec. 521, 526 (BIA 1992) 

(stating that inchoate or preparatory offenses have been found to be crimes 

“relating to” a controlled substance “when the underlying substantive crime 

involves a drug offense”). 

We agree with the Ninth Circuit’s conclusion in Barragan-Lopez that 

solicitation to possess marijuana for sale is a crime involving moral 

turpitude. See also Morrison v. Holder, 580 F. App’x 622 (9th Cir. 2014) 

(holding that a conviction for solicitation to possess marijuana for sale 

under sections 13-1002 and 13-3405 of the Arizona Revised Statutes 
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categorically constitutes a conviction for a crime involving moral 

turpitude); Landero-Guzman v. Holder, 344 F. App’x 454, 456 (9th Cir. 

2009) (“Because solicitation of an offense requires the intent that the 

substantive offense be committed, solicitation of a drug trafficking offense 

is also a [crime involving moral turpitude].”); cf. Sanchez-Resendez 

v. Lynch, 608 F. App’x 537 (9th Cir. 2015) (holding that facilitation of the 

unlawful transportation of marijuana for sale is a crime involving moral 

turpitude). 

However, the respondent argues that under Ninth Circuit law, she is not 

inadmissible under section 212(a)(2)(A)(i)(I) of the Act because, unlike the 

deportability ground at section 237(a)(2)(A)(i) that the court addressed in 

Barragan-Lopez, the inadmissibility ground expressly references attempt 

and conspiracy offenses. She therefore asserts that under the reasoning in

Coronado-Durazo and Leyva-Licea, solicitation offenses are necessarily 

excluded from section 212(a)(2)(A)(i)(I).

We have previously concluded that a statute’s inclusion of some generic 

offenses, such as attempt or conspiracy, does not indicate Congress’ intent

to exclude other generic crimes like solicitation from the statute’s reach. 

See Matter of Vo, 25 I&N Dec. at 429−30 (stating that that we could not 

“reasonably conclude that Congress’ express inclusion of attempt offenses 

in other sections of the Act was actually an intentional exclusion of them 

from section 237(a)(2)(A)”); Matter of Beltran, 20 I&N Dec. at 526 n.12

(noting that “efforts to draw an implication regarding the absence of a 

specific crime in the statute from Congress’ inclusion of another have been 

rejected”). In Matter of Zorilla-Vidal, 24 I&N Dec. 768 (BIA 2009), we 

disagreed with the Ninth Circuit’s contrary position in Coronado-Durazo 

and reaffirmed our decision in Matter of Beltran, which had been upheld by 

the Second and Fifth Circuits. Mizrahi v. Gonzales, 492 F.3d 156, 174 (2d 

Cir. 2007) (stating that “Beltran reasonably concluded that Congress’s 

explicit reference to certain inchoate offenses as grounds for deportation 

did not indicate its intent to exclude others not so referenced”); Peters 

v. Ashcroft, 383 F.3d 302, 308 (5th Cir. 2004) (finding that the Board was 

“eminently reasonable” in Beltran in holding that “the statutory references 

to conspiracy and attempt are illustrative without being exclusive”).

We are not persuaded by the respondent’s arguments that we should 

now follow the Ninth Circuit’s decisions in Coronado-Durazo and 

Leyva-Licea. As the court stated in Barragan-Lopez, those cases are 

distinguishable because they did not address the question whether 

solicitation to possess marijuana for sale is a crime involving moral 

turpitude. Barragan-Lopez, 508 F.3d at 904−05. Furthermore, the court 

has never held that an inchoate offense other than attempt or conspiracy 

cannot qualify as a crime involving moral turpitude under section 
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212(a)(2)(A)(i)(I) of the Act. Moreover, the Ninth Circuit has made clear 

in Barragan-Lopez and subsequent cases that where an underlying offense 

is a crime involving moral turpitude, so too are the crimes of solicitation or 

facilitation to commit that offense. See Sanchez-Resendez, 608 F. App’x 

537; Morrison, 580 F. App’x 622; Landero-Guzman, 344 F. App’x 454.

In this regard, we note that we included a footnote in Matter of Vo,

25 I&N Dec. at 429 n.4, stating the following: “In effect, the Ninth Circuit 

has indicated that section 237(a)(2)(A) is broader in its coverage of crimes 

involving moral turpitude than section 212(a)(2)(A)(i)(I), because it would 

include inchoate offenses, such as solicitation and facilitation, that are not 

specifically enumerated in the inadmissibility statute, which lists only 

attempts and conspiracies.” This statement was dicta reflecting our 

expectation of a position the Ninth Circuit might take in the context of 

section 212(a)(2)(A)(i)(I) of the Act. However, this statement does not 

reflect our current understanding of the Ninth Circuit’s approach, and we

now withdraw from it.

Finally, we point out that if solicitation to commit a crime involving 

moral turpitude is not covered by section 212(a)(2)(A)(i)(I), then many 

other clearly turpitudinous offenses outside the controlled substances 

context would not render aliens inadmissible. Such offenses, many of 

which arguably involve even greater moral depravity than the respondent’s 

crime, could include solicitation to commit murder, rape, or arson or to 

engage in terrorist activity or human trafficking. We do not find it

reasonable that Congress would have intended such a result.

We therefore agree with the Immigration Judge that the respondent’s 

Arizona conviction for solicitation to possess marijuana for sale is a 

conviction for a crime involving moral turpitude that establishes her

inadmissibility under section 212(a)(2)(A)(i)(I) of the Act. Consequently,

because the respondent “has committed an offense identified in section 

212(a)(2),” she is properly considered an arriving alien under section 

101(a)(13)(C)(v). 

In her notice of appeal, the respondent presented a general challenge to 

the Immigration Judge’s denial of her requests for relief from removal. 

However, she has not meaningfully identified, in any manner, what aspects 

of the Immigration Judge’s decision are factually or legally erroneous. We 

therefore affirm the Immigration Judge’s findings. Accordingly, the 

respondent’s appeal will be dismissed.

ORDER: The appeal is dismissed.