Cortes-Maldonado v. Barr

978 F.3d 643

Jonatan CORTES-MALDONADO, aka Jonathan Cortes, aka Jonatan Cortes Maldonado, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-70927

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 2020 Portland, Oregon

Filed October 15, 2020

Brian Patrick Conry (argued), Portland, Oregon, for Petitioner.

Alison Marie Igoe (argued), Principal Litigation Counsel; Tim Ramnitz, Attorney; Shelley R. Goad, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX0-128

Before: M. Margaret McKeown and Richard A. Paez, Circuit Judges, and Paul C. Huck,^* District Judge.

PAEZ, Circuit Judge:

We address whether the conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. § 475.860 (2011),¹ constitutes the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B). We conclude that it does not because the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. We thus grant the petition for review and remand.

I.

Jonatan Cortes-Maldonado is a native and citizen of Mexico. He entered the United States without admission or inspection in 1998. In 2006, he became a lawful permanent resident.

In 2012, Cortes-Maldonado pled guilty to one count of Delivery of Marijuana for Consideration in violation of Oregon Revised Statutes section 475.860 (2011) and was sentenced to twenty-four months' probation. He violated his probation, however, when he was found in possession of a small amount of marijuana and was sentenced to ten days in the county jail. While in custody, Cortes-Maldonado was interviewed by Immigration and Customs Enforcement (ICE) agents. ICE issued a detainer on Cortes-Maldonado and served him with a Notice to Appear (NTA). The NTA alleged that Cortes-Maldonado's conviction for Delivery of a Controlled Substance, Marijuana, constituted an aggravated drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B).

Cortes-Maldonado appeared with counsel before an immigration judge (IJ). He conceded removability and admitted the factual allegations in the NTA but stated that he intended to file for post-conviction relief in state court to challenge his conviction. He also stated that he had a generalized fear of returning to Mexico and was considering the possibility of filing for asylum.

In June 2013, Cortes-Maldonado filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In October 2016, at his merits hearing, Cortes-Maldonado withdrew his asylum and withholding of removal claims. The IJ denied Cortes-Maldonado's application for CAT protection and ordered him removed, noting that Cortes-Maldonado conceded removability as an alien convicted of an aggravated drug trafficking crime. The IJ did not analyze whether Cortes-Maldonado's conviction constituted an aggravated felony.

Cortes-Maldonado appealed the IJ's decision to the Board of Immigration Appeals (BIA). He argued that our then-recent decision in Sandoval v. Yates (Sandoval I ), 847 F.3d 697 (9th Cir. 2017), issued after the IJ's decision, warranted remand because he was no longer removable as an aggravated felon. In Sandoval I , we held that Delivery of Heroin under Oregon Revised Statutes § 161.405(1) constitutes neither a "drug trafficking" crime, because it includes solicitation, nor "illicit trafficking in a controlled substance," because it includes non-commercial delivery. 847 F.3d at 701–05. Cortes-Maldonado argued that because Oregon's marijuana delivery statute likewise included solicitation offenses, he was not removable as an aggravated felon. The government argued that even if Cortes-Maldonado's statute of conviction was categorically broader than the federal definition of "drug trafficking," his conviction nonetheless constituted "illicit trafficking in a controlled substance" under § 1101(a)(43)(B), and suggested that Sandoval I was wrongly decided.

While Cortes-Maldonado's appeal was pending before the BIA, we withdrew and amended our opinion in Sandoval I to delete any analysis regarding the "illicit trafficking" prong of § 1101(a)(43)(B). Sandoval v. Sessions (Sandoval II ), 866 F.3d 986, 989 n.3 (9th Cir. 2017) ("The previously published version of this opinion [ Sandoval I ] also considered whether [Oregon Revised Statutes] § 475.992(1)(a) was an ‘illicit trafficking’ offense .... Because the BIA did not consider this issue, we decline to do so here."). At the BIA's direction, the parties filed supplemental briefs in response to Sandoval II . The BIA dismissed Cortes-Maldonado's appeal and concluded that his conviction under Oregon Revised Statutes § 475.860(2)(a) categorically constituted illicit trafficking in a controlled substance.

Cortes-Maldonado timely petitioned for review, raising similar arguments to those he raised before the BIA.²

We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) ; Sandoval II , 866 F.3d at 988, and we grant Cortes-Maldonado's petition for review and remand. We hold that because Oregon Revised Statutes § 475.860 covers solicitation, it is categorically broader than the federal generic definition of "illicit trafficking of a controlled substance," and Cortes-Maldonado is thus not removable as an aggravated felon.

II.

We review de novo the BIA's legal conclusions, including its determination of the elements of a statute of conviction. Vasquez-Valle v. Sessions , 899 F.3d 834, 838 (9th Cir. 2018). We do "not defer to an agency's interpretations of state law." Sandoval II , 866 F.3d at 988.

III.

Before addressing whether Cortes-Maldonado's conviction for marijuana delivery constitutes "illicit trafficking" under the INA, we briefly explain the categorical approach and the legal framework that guides our analysis.

A.

Under the INA, any noncitizen who is convicted of an aggravated felony suffers several consequences, such as becoming deportable,³ inadmissible,⁴ and ineligible for cancellation of removal.⁵ Congress defined the term "aggravated felony" to include, among other offenses, "illicit trafficking in a controlled substance." § 1101(a)(43)(B).⁶ To determine whether a state criminal conviction constitutes "illicit trafficking in a controlled substance," we must apply the so-called "categorical approach." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

Under the categorical approach, we ignore the actual facts of the particular prior conviction and instead compare the elements of the state statute of conviction to the federal "generic" crime "to determine whether the conduct proscribed by the state statute is broader than the generic federal definition." Alvarez-Cerriteno v. Sessions , 899 F.3d 774, 778–79 (9th Cir. 2018) (quotation marks and brackets omitted). If the state statute criminalizes more conduct than the federal statute does, "then the conviction does not qualify as a predicate offense under the categorical approach." Id. at 779 (quotation marks omitted).

"Thus, the BIA must construe both the state and federal statutes." Id. In doing so, the BIA "must determine first the elements of the offense the petitioner has been convicted of committing, and second whether the conviction falls within the definition of a removable offense under the INA." Fregozo v. Holder , 576 F.3d 1030, 1034–45 (9th Cir. 2009). Because the BIA has "no statutory expertise" in state law, we "review[ ] de novo its determination of the elements of the offense for which the petitioner was convicted." Id. at 1034. But, "if in resolving the federal law issue, the BIA has interpreted an ambiguous INA statutory term"—here, "illicit trafficking in a controlled substance"—"and rendered its interpretation in a precedential decision intended to carry the force of law, [we] defer[ ] to the BIA's interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)." See Alvarez-Cerriteno , 899 F.3d at 779 (quoting Fregozo , 576 F.3d at 1034–35 ) (brackets, quotation marks, and parallel citations removed).

We thus "proceed in three steps." Id. First, we determine the elements of "illicit trafficking of a controlled substance." See id. Second, we analyze the state criminal statute—section 475.860—to determine its elements. See id. In analyzing the state statute, we determine whether the statute is "divisible," and, if it is, we apply the so-called "modified categorical approach," which allows us to "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the [petitioner's] prior conviction." Descamps , 570 U.S. at 257, 133 S.Ct. 2276. Finally, in the third step, we "compare the federal generic crime and [ section 475.860 ]" to determine whether (1) the Oregon statute's "elements encompass more conduct than do the federal generic crime's elements"; and whether (2) "there is a ‘realistic probability’ that [Oregon] could prosecute conduct under its statute that falls outside the scope of the federal generic crime, as required by Gonzales v. Duenas-Alvarez , 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)." See Alvarez-Cerriteno , 899 F.3d at 779 (parallel citations removed).

The second step—that is, the elements of Oregon's marijuana delivery statute—are not in dispute. At the time of Cortes-Maldonado's conviction, it was "unlawful for any person to deliver marijuana." Or. Rev. Stat. § 475.860(1) (2011). The statute listed different punishments depending on whether the delivery was with or without "consideration." For example, a person who delivered marijuana "for consideration" committed a "Class B felony," § 475.860(2)(a...