Peters v. Ashcroft

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.