United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 27, 2004
_______________________ Charles R. Fulbruge III
Clerk
NO. 03-60029
_______________________
RAMON ANTHONY PETERS,
Petitioner,
versus
JOHN ASHCROFT,
United States Attorney General,
Respondent.
Petition for Review of an
Order of the Board of Immigration Appeals
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
According to the Government, Ramon Peters, a lawful
permanent resident alien, became deportable because of his
conviction for felony solicitation to transport marijuana for sale
under Arizona law. Because we agree that Peters violated a law
“relating to” a controlled substance, he was removable under
8 U.S.C. § 1227(a)(2)(B)(i). Accordingly, we lack jurisdiction and
dismiss this petition.
I. BACKGROUND
Ramon Anthony Peters, a native and citizen of Jamaica,
was admitted to the United States in July 1993 as a nonimmigrant
visitor, but he soon adjusted his status to that of a lawful
permanent resident. On May 22, 2000, Peters was convicted in
Arizona state court for felony solicitation to transport marijuana
for sale and was sentenced to four years’ probation. The
Immigration and Naturalization Service (“INS”)1 initiated removal
proceedings against Peters under 8 U.S.C. § 1227(a)(2)(A)(iii),
rendering deportable “[a]ny alien who is convicted of an aggravated
felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii)
(2000). After being denied bond by an immigration judge, Peters
appealed to the Board of Immigration Appeals (“BIA”), and the BIA
reversed because it did not consider Peters’s prior conviction an
aggravated felony. INS then withdrew the aggravated felony charge
and filed a new deportation charge against Peters as an
. . . alien who at any time after admission has been
convicted of a violation of (or a conspiracy or attempt
to violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled
substance (as defined in section 802 of Title 21), other
than a single offense involving possession for one’s own
use of 30 grams or less of marijuana . . . .
8 U.S.C. § 1227(a)(2)(B)(i) (2000).
Peters moved to terminate the removal proceedings based
on the Ninth Circuit’s decision that a conviction for solicitation
to possess cocaine under Arizona law did not render an alien
1
All references to the INS refer to the organization now known as the
Bureau of Immigration and Customs Enforcement (“BICE”). As of March 1, 2003, the
INS’s administrative, service, and enforcement functions were transferred from
the Department of Justice to the new Department of Homeland Security (“DHS”).
Within the Department of Homeland Security, BICE assumed the INS’s detention,
removal, enforcement and investigative functions.
2
removable under § 1227(a)(2)(B)(i). See Coronado-Durazo v. INS,
123 F.3d 1322, 1326 (9th Cir. 1997). Peters’s proceedings,
however, occurred in Oakdale, Louisiana, in the Fifth Circuit, and
the immigration judge refused to be bound by Ninth Circuit
precedent. Instead, the immigration judge applied a BIA decision
contrary to Coronado-Durazo. See Matter of Beltran, 20 I. & N.
Dec. 521, 528 (BIA 1992). On appeal to the BIA, Peters again
relied on the Ninth Circuit opinion and also contended that the
BIA’s earlier decision in his bond proceeding barred his
deportation based on res judicata principles. The BIA rejected
Peters’s arguments. He has appealed the resulting removal order.
II. DISCUSSION
Notwithstanding the limited scope of judicial review of
deportation orders authorized by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, PUB. L. NO. 104-208, 110 STAT.
3009-546 (“IIRIRA”), this court retains jurisdiction to review
facts concerning our jurisdiction. Lopez-Elias v. Reno, 209 F.3d
788, 791 (5th Cir. 2000). Specifically, we have jurisdiction to
determine whether the petitioner is an alien who is deportable for
committing an offense that bars this court’s review. Smalley v.
Ashcroft, 354 F.3d 332, 335 (5th Cir. 2003) (citing Nehme v. INS,
252 F.3d 415, 420 (5th Cir. 2001)). If he is, then we lack
jurisdiction to consider other issues.
Our jurisdiction here turns on whether Peters’s Arizona
3
conviction for solicitation to transport marijuana for sale
constitutes
a violation of (or a conspiracy or attempt to violate)
any law or regulation of a State, the United States, or
a foreign country relating to a controlled substance
. . . .
8 U.S.C. § 1227(a)(2)(B)(i).2 There are three components to this
determination: whether Peters’s Arizona conviction constitutes a
violation of a law “relating to a controlled substance”; whether
the Ninth Circuit’s interpretation of the interplay of the federal
and state statutes in Coronado-Durazo is correct; and whether a
2
Peters makes additional arguments that do not directly involve this
statute’s interpretation. First, Peters argues that the BIA is collaterally
estopped from finding him removable based upon its prior decision that he was not
convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). This
argument lacks merit. The current removal proceeding pending against Peters is
based on a wholly separate provision — 8 U.S.C. § 1227(a)(2)(B)(i) — relating to
prior drug-related offenses. Therefore, the BIA’s prior decision has no res
judicata effect on the current removal proceeding.
Second, Peters argues that because the BIA looks to the convicting
jurisdiction’s law to determine whether an underlying offense qualifies as a
predicate offense for deportation, the Ninth Circuit’s decision in Coronado-
Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), should be binding upon the BIA.
This argument also lacks merit. This case raises questions regarding the scope
of the federal immigration laws and whether a particular state conviction falls
within the relevant federal statute. Because Peters’s immigration case was
properly heard in Oakdale, Louisiana, where he was detained, the BIA is bound
only by this circuit’s decisions. See 8 U.S.C. § 1252(b)(2) (requiring that a
petition for review of removal proceedings “shall be filed with the court of
appeals for the judicial circuit in which the immigration judge completed the
proceedings.”). To the extent that the BIA was required to analyze state law,
the same rule applies — only this circuit’s precedents (and those of the Supreme
Court) bind the BIA when considering an appeal from an immigration judge in the
Fifth Circuit.
Third, Peters asserts that he pled guilty to the Arizona charge only
because of and “in reliance on” the Ninth Circuit’s decision that a solicitation
offense concerning illegal drugs is not a deportable violation. As Peters had
no ground for insisting upon venue of his deportation proceeding in the Ninth
Circuit, this contention is frivolous.
Finally, contrary to Peters’s implication, this court is not bound
by the Ninth Circuit’s construction of Arizona law. See, e.g., Signal Oil & Gas
Co. v. The Barge W-701, 654 F.2d 1164, 1177 (5th Cir. 1981) (cases from different
circuits do not control this circuit’s construction of state and federal law).
While sister circuits’ experience construing the laws of the states within their
jurisdiction may render their decisions persuasive, we are not bound by those
decisions.
4
solicitation offense is excluded from the purview of this statute.
This court reviews the federal statute de novo, but if Congress’s
language is silent or ambiguous on the question at issue, as we
conclude it is, we must defer to a reasonable construction of the
language by the BIA. See Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842 (1984); INS v.
Aguirre Aguirre, 526 U.S. 415, 424-26 (1999) (applying Chevron
deference to BIA interpretation of immigration laws). In regard to
Chevron deference, however, we follow this court’s decision in
Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002), which
deferred to BIA on the interpretation of immigration law but not of
federal or state criminal laws. But see Coronado-Durazo, supra,
refusing to defer to BIA at all on the construction of §
1227(a)(2)(B)(i).
Initially, we agree with BIA’s conclusion that Peters
violated a law “relating to a controlled substance.” Peters’s
judgment of conviction, dated May 22, 2000, states:
IT IS THE JUDGMENT OF THE COURT that the Defendant is
guilty of the crime of Count I, Amended, SOLICITATION TO
TRANSPORT MARIJUANA FOR SALE a Class 4 felony, non-
dangerous and non-repetitive offense, in violation of
A.R.S. §13-3405(A)(4), 13-1002, 13-701, 13-801 committed
on or about January 9, 2000.
(emphasis added). Under Arizona Revised Statute § 13-3405(A)(4),
“[a] person shall not knowingly . . . [t]ransport for sale . . .
marijuana”, and under § 13-1002,
[a] person . . . commits solicitation if, with the intent
to promote or facilitate the commission of a felony . . .
5
such person . . . solicits another person to engage in
specific conduct which would constitute the felony . . .
or which would establish the other’s complicity in its
commission.
Because Peters was convicted of a class 4 felony, the relevant
provisions indicate that he solicited the commission of a class 2
felony and that the underlying offense involved at least two pounds
or more of marijuana. See ARIZ. REV. STAT. § 13-1002(B)(2)
(“Solicitation is a . . . Class 4 felony if the offense solicited
is a class 2 felony.”); ARIZ. REV. STAT. § 13-3405(B)(11) (“A person
who violates . . . Subsection A, paragraph 4 of this section
involving an amount of marijuana having a weight of two pounds or
more is guilty of a class 2 felony.”).
The Arizona statutes thus expressly define the offense of
solicitation in the context of another underlying illegal act. A
person cannot be convicted of felony solicitation without the
specific intent to promote or facilitate the commission of another
felony. Moreover, pursuant to the statutes, Peters’s penalty was
directly based on the severity of the felony crime that he
solicited; had he solicited the transportation of a lesser amount
of drugs, he would have been subject to a lesser penalty. In this
legislative framework, and particularly on the state record of
Peters’s conviction, it makes no sense to speak of a conviction for
solicitation in the abstract — — solicitation is only a crime
insofar as an individual acts with the intent to get another to
commit a particular underlying felony.
6
That Peters was convicted of soliciting another
individual to transport two or more pounds of marijuana for sale on
its face constitutes a violation of a law “relating to a controlled
substance.” The fact that Peters did not personally transport the
marijuana does not exclude him from having committed a drug-related
offense.3 This understanding of the “relating to” language is
informed by Congress’s consistent effort to target aliens who are
involved in drug-related activities. As the Ninth Circuit
acknowledged, “Congress has clearly spoken against aliens who abuse
the hospitality of the United States by committing drug-related
crimes.” Coronado-Durazo, 123 F.3d at 1326 (citing a variety of
statutes enacted over the last two decades that place substantial
procedural and substantive burdens upon aliens convicted of drug-
related offenses); see also Luu-Le v. INS, 224 F.3d 911, 915-16
(9th Cir. 2000) (“We have construed the ‘relating to’ language
broadly in the past.”). Moreover, the Supreme Court has
traditionally afforded an expansive reading of “related to.” See
e.g., District of Columbia v. Greater Wash. Bd. of Trade, 506 U.S.
125, 134-35 (1992) (“Indeed, it has been reiterated so often that
petitioners did not challenge the proposition that the statute in
3
We do not suggest that solicitation is a lesser included offense of
a given underlying statutory violation or that the mental state and acts that are
required to commit the underlying offense are the same for the solicitation
conviction. Indeed, the Arizona Court of Appeals has held that such
considerations make solicitation a completely separate crime from the underlying
offense. See State v. Tellez, 799 P.2d 1, 3 (Ariz. Ct. App. 1989). But the
nuances of Arizona criminal law do not affect our construction of the federal
statute’s “relating to” provision.
7
this case ‘related to’ respondent’s ERISA plan.”).
Peters urges the opposite result for reasons that
originate in Coronado-Durazo. First, he contends, an alien
violates a law “relating to a controlled substance” only if the
underlying convicting statute, read without reference to any other
statutes, directly refers to controlled substances. See also, U.S.
v. Meza-Corrales, 183 F.3d 1116, 1117 (9th Cir. 1999) (citing
Coronado-Durazo for this proposition). Second, because the statute
parenthetically includes two generic crimes, conspiracy and
attempt, it necessarily excludes the also-generic crime of
solicitation. Coronado-Durazo, 123 F.3d at 1325. Peters posits
these positions as a plain language interpretation of
§ 1227(a)(2)(B)(i). Id. We disagree with all of these points.
As mapped out above, Peters’s solicitation conviction
expressly incorporated the underlying illegal delivery of over two
pounds of marijuana. The basis for the Ninth Circuit’s apparently
contrary conclusion is unclear. It may have been derived from
Coronado-Durazo’s lesser crime of solicitation to possess cocaine,
which constitutes a class 6 felony, see Coronado-Durazo, supra at
1325, as compared with Peters’s conviction of a class 4 felony
solicitation to transport marijuana. Alternatively, the convicting
record in the Ninth Circuit case may have differed from that before
us, inasmuch as Coronado-Durazo cites only the Arizona solicitation
statute, while Peters’s judgment also referred to the drug offense.
Finally, the Ninth Circuit failed to trace, as we have done, the
8
clear statutory nexus from illegal solicitation to a drug offense.
In any event, the Ninth Circuit’s decision in Coronado-Durazo seems
arbitrarily to narrow Congress’s intentionally broad phrase —
covering the violation of “any law” “relating to” a controlled
substance — at least if applied to the convicting record before us.
We agree that Congress required a nexus between the statute of
conviction and controlled substance regulations or laws. See,
e.g., Urena-Ramirez v. Ashcroft, 341 F.3d 51, 55 (1st Cir. 2004)
(holding a Travel Act violation to have both a factual and legal
nexus to drug crimes sufficient to fall within § 1227(a)(2)(B)(i));
Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983) (aiding and
abetting cocaine distribution falls within statutory predecessor to
§ 1227(a)(2)(B)(i)). We disagree with the Ninth Circuit’s conclu-
sion that no such nexus can be found in an Arizona solicitation
conviction.4
4
Our approach does not conflict with the Sixth Circuit’s ruling in
Castaneda de Esper v. INS, 557 F.2d 79 (6th Cir. 1977) or the BIA’s decision in
Matter of Carrillo, 16 I. & N. Dec. 625 (BIA 1978). In Castaneda, the Sixth
Circuit held that misprision of a felony — even where the underlying felony is
a drug offense — did not fall within the scope of an earlier version of the
statute at issue here. See 557 F.2d at 84. While both solicitation and
misprision relate to an underlying felony, misprision deals with the concealment
of a felony, whereas solicitation is undertaken with the specific intent to
promote or facilitate the commission of a felony. This difference is
significant. As the BIA noted in Matter of Beltran, there is a close
relationship between the offenses of attempt and solicitation that does not exist
with regard to misprision. See 20 I. & N. Dec. at 528. Thus, Castaneda is
distinguishable.
Similarly, Matter of Carrillo dealt with possession of a firearm
during the commission of a drug felony. See 16 I. & N. Dec. at 625-26. In that
case, the BIA relied on Castaneda and held that the unlawful possession
conviction did not relate to a controlled substance. Id. at 626-27. As with
Castaneda, a firearm conviction is not as closely related to the underlying drug
felony as a solicitation conviction. In Matter of Beltran,the BIA found Carrillo
distinguishable from a solicitation conviction.
9
The Ninth Circuit’s narrow interpretation of
§ 1227(a)(2)(B)(i) draws support from Congress’s parenthetical
language, which includes conspiracy or attempt violations among the
deportable offenses denoted by the “relating to” phrase. The
Coronado-Durazo majority characterized conspiracy and attempt as
generic crimes and then held that their enumeration necessarily
excluded other generic crimes like solicitation from the statute’s
reach. This statutory interpretation is plausible, but, based on
the odd grammar of the provision, it is hardly plain. A more
plausible interpretation is that adopted by the BIA in Matter of
Beltran, which held that the statutory references to conspiracy and
attempt are illustrative without being exclusive.5 Further,
conspiracy and attempt are not rendered superfluous by such a
reading of the provision because “‘[a] parenthetical is, after all,
a parenthetical, and it cannot be used to overcome the operative
terms of the statutes.’” U.S. v. Monjaras-Castaneda, 190 F.3d 326,
330 (5th Cir. 1999) (quoting Cabell Huntington Hosp., Inc. v.
Shalala, 101 F.3d 984, 990 (4th Cir. 1996)).
While the Coronado-Durazo majority refused to defer to
Matter of Beltran and described the statutory language as plain, we
agree with Judge Farris’s dissent that the provision is ambiguous
or silent concerning the treatment of solicitation offenses. We
5
Indeed, the commentary to the Model Penal Code, upon which Arizona’s
criminal code is based, see State v. Mott, 931 P.2d 1046, 1050 (Ariz. 1997),
states that “[s]olicitation may . . . be thought of as an attempt to conspire.”
MODEL PENAL CODE § 5.02 cmt. at 365-66.
10
are consequently bound by this court’s application of Chevron
deference to a reasonable construction of the immigration laws by
the BIA. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).
Based on the deliberate breadth of § 1227(a)(2)(B)(i) and
Congress’s repeated attempts to expand the deportability and hasten
the process for aliens engaged in drug-related offenses, the BIA’s
approach in Matter of Beltran was eminently reasonable.6 This
approach finds additional support in decisions, cited by this court
in Monjaras-Castaneda, supra at 330, that have construed statutory
parentheticals to signify clarifications, non-exclusive identifica-
tions, or visual aids. Congress in fact reduced the grammatical
import of conspiracy and attempt, and correspondingly emphasized
the breadth of “relating to,” when it replaced commas cordoning off
conspiracy in the predecessor provision with the parentheses that
now appear.7
III. CONCLUSION
6
The primary question before the BIA in Matter of Beltran was a
question of federal immigration law — whether § 1251(a)(11), the predecessor to
§ 1227(a)(2)(B)(i), is broad enough to encompass solicitation to possess
narcotics under Arizona law. In reaching its ultimate decision, the BIA engaged
in an extended discussion of the offense of solicitation under Arizona law, the
Model Penal Code, and the common law. However, as the key issue in Matter of
Beltran was the scope and construction of a federal immigration statute, the
BIA’s determination on this issue is entitled to Chevron deference. See, e.g.,
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
7
Peters argues that we should not accord the BIA’s decision deference
because the statute has been amended since Matter of Beltran was decided. Before
the 1990 amendment, Section 1251(a)(11) rendered deportable any alien “convicted
of a violation of, or of a conspiracy to violate, any law relating to a
controlled substance.” Contrary to Peters’s view, Congress’s addition of attempt
and the substitution of parentheses for commas broadens the statute in the
direction of Beltran’s construction.
11
For the reasons here stated, Peters was convicted of an
offense “relating to controlled substances”; there was a sufficient
nexus between his solicitation conviction and drug-related laws to
satisfy the federal statute; and solicitation is not implicitly
outside the reach of 8 U.S.C. § 1227(a)(2)(B)(i). Consequently,
Peters is a deportable alien whose conviction deprives this court
of jurisdiction over the BIA removal order. His petition is
DISMISSED.
12