Pattie Walcott v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATTIE PAGE WALCOTT, AKA Pattie No. 18-70393

Clark, AKA Pattie Watson,

Petitioner, Agency No.

A075-930-578

v.

MERRICK B. GARLAND, Attorney OPINION

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 5, 2020

Submission Vacated January 6, 2021

Argued and Submitted February 18, 2021

San Francisco, California

Filed December 22, 2021

Before: A. Wallace Tashima, Marsha S. Berzon, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Tashima;

Concurrence by Judge Berzon;

Dissent by Judge Collins

2 WALCOTT V. GARLAND

SUMMARY*

Immigration

Granting Pattie Page Walcott’s petition for review of a

decision of the Board of Immigration Appeals, the panel held

that Arizona Revised Statutes § 13-3405(A)(4), which

prohibits certain conduct relating to marijuana, is overbroad

and divisible; 2) Walcott’s § 13-3505(A) convictions, which

involved categories in the statute involving the smallest

quantity of marijuana, were not crimes involving moral

turpitude (“CIMT”); and 3) Walcott was therefore not

removable.

After becoming a lawful permanent resident, Walcott was

found removable under 8 U.S.C. § 1227(a)(2)(A)(ii) for

having been convicted of two CIMTs: 1) solicitation to

possess for sale less than two pounds of marijuana under

§§ 13-1002, 13-3405(A)(2), and (B)(4); and 2) offering to

transport less than two pounds of marijuana for sale under

§§ 13-3405(A)(4) and (B)(10).

Applying the categorical approach, the panel held that

subsection 13-3405(A)(4) is overbroad with respect to the

generic definition of a CIMT. The panel explained that this

court has held that drug trafficking crimes are generally

CIMTs and that “moral turpitude” refers to conduct that is

inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between

persons or to society in general. The panel concluded that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

WALCOTT V. GARLAND 3

subsection 13-3405(A)(4) is overbroad because it includes the

offenses of importation and transfer, neither of which

necessarily involves trafficking. Addressing the least

egregious conduct covered by the subsection and whether

there was a realistic probability that the state would apply it

to conduct outside the definition of a CIMT, the panel pointed

to case law where Arizona has applied the subsections

involving less than two pounds of marijuana to conduct

involving very small amounts.

The panel also concluded that subsection 13-3405(A)(4)

is divisible because it defines multiple, separate crimes. In so

concluding, the panel looked to the text of the statute, the

Shepard documents in the record here, as well as state law.

Applying the modified categorical approach, the panel

concluded that Walcott’s subsection 13-3405(A)(4)

conviction was not a CIMT. The panel observed that in

Barragan-Lopez v. Mukasey, 508 F.3d 899 (9th Cir. 2007),

this court held that an Arizona conviction for solicitation to

possess at least four pounds of marijuana for sale constituted

a CIMT. However, the panel explained that Barragan-Lopez

expressly left open the question presented here – whether an

offense involving a very small quantity of marijuana for sale

is a CIMT.

The panel explained that early cases holding that drug

trafficking offenses were CIMTs involved drugs that present

serious risk of injury or death (such as heroin and cocaine)

and observed that the legislative history on which the BIA

relied in concluding that drug trafficking offenses are CIMTs

emphasized the harms of narcotics. The panel concluded that

the underlying rationale of the court’s case law – that drug

trafficking involves actual injury tantamount to murder on a

4 WALCOTT V. GARLAND

slower scale – does not apply to the sale of small amounts of

marijuana. Because Walcott’s offenses involved the

categories in the statute involving the smallest quantity of

marijuana, the panel concluded that her convictions were not

CIMTs. The panel also concluded that contemporary societal

attitudes toward marijuana and widespread legalization of

marijuana supported its conclusion.

Concurring, Judge Berzon wrote that she continues to

believe that the phrase “crime involving moral turpitude” is

unconstitutionally vague. Judge Berzon concurred, however,

because the opinion properly applied the existing case law.

Dissenting, Judge Collins concluded that the BIA

correctly held that Walcott’s convictions were CIMTs. Judge

Collins wrote that it was significant that her offenses involved

“sale,” and wrote that the majority read too much into the

court’s reservation of the question in Barragan-Lopez. Judge

Collins found persuasive the BIA’s conclusion that the

sharing of a small amount of marijuana would be considered

morally turpitudinous if it involved sales, but not if it

involved giving away a few cigarettes. Observing that this

bright line coheres both with Barragan-Lopez and

comparable judgments reflected elsewhere in federal law,

Judge Collins concluded that the BIA’s decision was entitled

to Skidmore deference.

Judge Collins also wrote that the majority’s reliance on

legislative history, current moral standards, and

decriminalization of marijuana was flawed. Finally, Judge

Collins concluded that Walcott provided no other persuasive

basis for setting aside her removal order.

WALCOTT V. GARLAND 5

COUNSEL

Altin Nanaj (argued), Nanaj Law Firm PLLC, New York,

New York, for Petitioner.

Daniel E. Goldman (argued), Senior Litigation Counsel;

Lindsay Corliss, Trial Attorney; Office of Immigration

Litigation, Civil Division, United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

TASHIMA, Circuit Judge:

Pattie Page Walcott, a citizen of Jamaica, became a lawful

permanent resident of the United States in March 1999. In

2011, the government charged her with removability pursuant

to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of

two crimes involving moral turpitude (“CIMT”), based on

two Arizona convictions for marijuana-related offenses.

Walcott’s first conviction was in October 2010, when she

entered a guilty plea to one count of solicitation to possess for

sale less than two pounds of marijuana, in violation of Ariz.

Rev. Stat. §§ 13-1002 (solicitation), 13-3405(A)(2)

(possession for sale), and (B)(4) (less than two pounds).

Shortly thereafter, she suffered her second conviction, for

offering to transport less than two pounds of marijuana for

sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) (offer to

transport) and (B)(10) (less than two pounds).

The Immigration Judge (“IJ”) sustained the charges,

found Walcott removable, and denied her application for

cancellation of removal under 8 U.S.C. § 1229b(a). The

6 WALCOTT V. GARLAND

Board of Immigration Appeals (“BIA” or “Board”) agreed

with the IJ that Walcott’s convictions were CIMTs and that

she was not entitled to cancellation of removal; it thus

dismissed her appeal. We conclude that Walcott’s

convictions are not CIMTs and that Walcott accordingly was

not removable under 8 U.S.C. § 1227(a)(2)(A)(ii).

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(2)(D). See Barrera-Lima v. Sessions, 901 F.3d

1108, 1114 (9th Cir. 2018) (whether a crime involves moral

turpitude is a legal question this court has jurisdiction to

review). “We review de novo whether a particular conviction

under state law is a removable offense.” Arellano Hernandez

v. Lynch, 831 F.3d 1127, 1130 (9th Cir. 2016).

DISCUSSION

I

“We determine whether a conviction qualifies as a CIMT

by applying the categorical approach and, if necessary, the

modified categorical approach.” Vasquez-Valle v. Sessions,

899 F.3d 834, 839 (9th Cir. 2018). “Under the categorical

approach, a conviction is a crime of moral turpitude if ‘the

full range of conduct encompassed by the statute,’ including

the least egregious conduct prosecuted under the statute, is a

crime of moral turpitude.” Barragan-Lopez v. Mukasey,

508 F.3d 899, 903 (9th Cir. 2007) (quoting Quintero-Salazar

v. Keisler, 506 F.3d 688, 692 (9th Cir. 2007)).

“The BIA has defined the term ‘moral turpitude’ as

referring to conduct that is ‘inherently base, vile, or depraved,

WALCOTT V. GARLAND 7

and contrary to the accepted rules of morality and the duties

owed between persons or to society in general.’” Silva v.

Garland, 993 F.3d 705, 712 (9th Cir. 2021) (quoting Matter

of Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA 2016)). If

the full range of conduct proscribed by the statute does not

constitute a CIMT, “we apply the modified categorical

approach, which permits us to look beyond the language of

the statute to documents that are part of the record of

conviction, but not to the particular facts underlying the

conviction.” Vasquez-Valle, 899 F.3d at 839.

II

We focus our discussion on Walcott’s second conviction,

noting that the modified categorical analysis is substantially

similar for her first conviction, and conclude that neither of

her convictions is a CIMT. Her second conviction was for

offering to transport less than two pounds of marijuana for

sale, in violation of Ariz. Rev. Stat. § 13-3405(A)(4) and

(B)(10). The BIA concluded that the conviction was a CIMT,

relying on the general principle that drug trafficking offenses

are CIMTs and citing its decision in Matter of Khourn, 21 I.

& N. Dec. 1041 (BIA 1997). Although we generally apply

Chevron1 deference where the BIA relies on its own

precedential decision, “[w]e have hesitated to defer to the

BIA’s general understanding of the term ‘moral turpitude’

because the BIA’s ‘general definition of moral turpitude fails

to particularize the term in any meaningful way.’” Betansos

v. Barr, 928 F.3d 1133, 1139 (9th Cir. 2019) (quoting

Marmolejo-Campos v. Holder, 558 F.3d 903, 910 (9th Cir.

2009) (en banc)). Khourn involved a conviction for

1

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

(1984).

8 WALCOTT V. GARLAND

distribution of cocaine under 21 U.S.C. § 841 and does not

establish that Walcott’s state conviction for offering to

transport less than two pounds of marijuana is a CIMT. We

therefore decline to apply Chevron deference to the BIA’s

reliance on Khourn in this case.

The Board also relied on our decision in Barragan-Lopez,

where we held that the petitioner’s conviction for solicitation

to possess at least four pounds of marijuana for sale, in

violation of subsections 13-3405(A)(2) and (B)(6),

constituted a CIMT for purposes of removability under

8 U.S.C. § 1227(a)(2)(A)(i)).2 Barragan-Lopez, 508 F.3d

at 904. As pertinent here, the Barragan-Lopez court reasoned

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

unlawful substances for sale, generally involve moral

turpitude. The quantity inherent in Barragan[-]Lopez’s

conviction – four pounds of marijuana – was too great to

justify treating this crime differently.” Id. at 903–04. We

thus concluded that the petitioner’s conviction was a CIMT.

Id. at 904; see also Romo v. Barr, 933 F.3d 1191, 1196–99

(9th Cir. 2019) (relying on Barragan-Lopez to hold that an

Arizona conviction for solicitation to possess for sale at least

four pounds of marijuana was a CIMT for purposes of

inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I)). We

stated, however, that we did not “address the question that

would be presented if Barragan-Lopez had been convicted of

2

The issue in Barragan-Lopez was whether the court should focus on

the solicitation offense rather than the underlying crime in determining

whether the prior conviction was a CIMT. Reasoning that “[w]e have

previously looked to underlying crimes in determining whether

convictions for inchoate offenses constitute crimes involving moral

turpitude,” the court looked to the underlying possession offense to

determine if the conviction was a CIMT. Barragan-Lopez, 508 F.3d

at 903.

WALCOTT V. GARLAND 9

solicitation to possess a very small quantity of marijuana for

sale, such as, for example, a single marijuana cigarette at a

party with personal friends.” Barragan-Lopez, 508 F.3d

at 904.

Barragan-Lopez does not control as to Walcott’s second

conviction because it involved a different subsection of the

statute, and “[w]e look at the specific subsections of a statute

that the petitioner is convicted under to determine if it is a

crime of moral turpitude.” Id. at 903. Barragan-Lopez’s

conviction (and Walcott’s first conviction) was under

subsection 13-3405(A)(2), which prohibits only possession of

marijuana for sale. Walcott’s second conviction was under

subsection 13-3405(A)(4), which provides that a person shall

not knowingly “[t]ransport for sale, import into this state or

offer to transport for sale or import into this state, sell,

transfer or offer to sell or transfer marijuana.”

In contrast to subsection (A)(2), which prohibits only one

offense, subsection (A)(4) includes two offenses that do not

necessarily involve trafficking of marijuana – importation and

transfer. Importation could be accomplished by driving into

the State of Arizona with a small amount of marijuana in the

car that is for personal use, not for sale. See State v. Farid,

471 P.3d 668, 669 (Ariz. Ct. App. 2020) (holding that a

conviction under subsection 13-3405(A)(4) for importation

“does not require proof a defendant who knowingly imported

marijuana did so ‘for sale’”); State v. Chabolla-Hinojosa,

965 P.2d 94, 98 (Ariz. Ct. App. 1998) (discussing subsection

13-3405(A)(4) and noting that “an importation charge has no

‘for sale’ element”). Similarly, transfer could be

accomplished by someone sharing marijuana with a friend

without being paid. See State v. Cota, 956 P.2d 507, 507,

508–09 (Ariz. 1998) (en banc) (observing that “transfer” in

10 WALCOTT V. GARLAND

subsection 13-3405(A)(4) is defined “to mean ‘furnish,

deliver or give away’”) (emphasis added). Subsection 13-

3405(A)(4) accordingly is overbroad because it “criminalizes

conduct that goes beyond the elements” of the CIMT of drug

trafficking. Almanza-Arenas v. Lynch, 815 F.3d 469, 476

(9th Cir. 2016) (en banc) (quoting Lopez-Valencia v. Lynch,

798 F.3d 863, 867–68 (9th Cir. 2015)).

In addition, to determine overbreath, we consider the

“least egregious conduct” covered by the statute. Baragan-

Lopez, 508 F.3d at 903. Here that offense is transportation or

transfer, without sale, of a very small amount of marijuana.

“To show that the stated offense is broader than the generic

definition of a CIMT and thus not a categorical match, the

petitioner must demonstrate that there is ‘a realistic

probability, not a theoretical possibility, that the State would

apply its statute to conduct that falls outside the generic

definition of moral turpitude.’” Vasquez-Valle, 899 F.3d

at 839 (quoting Turijan v. Holder, 744 F.3d 617, 620 (9th Cir.

2014))). In Cota, the defendant was charged under

subsection 13-3405(A)(4) after he was seen purchasing “a

small amount of marijuana, the equivalent of two to three

cigarettes,” 956 P.2d at 508. Arizona therefore has applied

the subsections of the statute involving “less than two

pounds” of marijuana, under which Walcott was charged, to

conduct involving very small amounts.3 For the reasons

discussed in Part IV, infra, such conduct is not “inherently

base, vile, or depraved, and contrary to the accepted rule of

3

The Arizona Supreme Court reversed Cota’s conviction because the

prosecution’s theory was that Cota was liable as an accomplice in

transferring marijuana to himself, but “a transferee cannot transfer to

himself or herself.” Cota, 956 P.2d at 508.

WALCOTT V. GARLAND 11

morality and the duties owed between persons or to society in

general.” Silva, 993 F.3d at 712.

III

Because subsection 13-3405(A)(4) is overbroad, we must

move to the next step and determine whether it is divisible or

indivisible. Barbosa v. Barr, 926 F.3d 1053, 1057 (9th Cir.

2019). If the statute is indivisible, “‘our inquiry ends,

because a conviction under an indivisible, overbroad statute

can never serve as a predicate offense.’” Id. (quoting

Almanza-Arenas, 815 F.3d at 475). If it is divisible, we

proceed to the modified categorical approach. Id.; accord

Ibanez-Beltran v. Lynch, 858 F.3d 294, 297 (5th Cir. 2017)

(per curiam) (“Courts may only use the modified approach

. . . when the statute of conviction is divisible.”).

In determining whether a statute is divisible, the question

is whether the listed items are alternative elements or if they

are “various factual means of committing a single element.”

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). If the

elements “are alternative to each other – not the mode or

means of proving an element of the crime – the statute is

divisible.” Almanza-Arenas, 815 F.3d at 477. We conclude

that subsection 13-3405(A)(4) is divisible.

The first step in determining divisibility is to examine the

text of the statute. Id. Subsection (A)(4) provides that a

person shall not knowingly “[t]ransport for sale, import into

this state or offer to transport for sale or import into this state,

sell, transfer or offer to sell or transfer marijuana.” Because

the subsection “list[s] elements in the alternative,” the

phrasing of the statute suggests that it “define[s] multiple

crimes” and thus is divisible. Mathis, 136 S. Ct. at 2249; see

12 WALCOTT V. GARLAND

Gomez Fernandez v. Barr, 969 F.3d 1077, 1089 (9th Cir.

2020) (explaining that disjunctive text “‘alone cannot end the

divisibility inquiry,’” but it “suggests” the statute lists

different crimes and thus is divisible (quoting Rendon v.

Holder, 764 F.3d 1077, 1086 (9th Cir. 2014))).

We also examine “Shepard documents to see whether the

statute displays alternative elements instead of alternative

means of committing the same crime.” Almanza-Arenas,

815 F.3d at 478; see Mathis, 136 S. Ct. at 2249 (explaining

that, under Shepard v. United States, 544 U.S. 13 (2005), the

court may examine “a limited class of documents (for

example, the indictment, jury instructions, or plea agreement

and colloquy)”). Walcott pled guilty to count 2 of a five-

count indictment, charging her with transportation of

marijuana for sale.4 The plea agreement stated that Walcott

“unlawfully offered to transport marijuana for sale, having a

weight of less than two pounds.” The indictment and plea

agreement’s use of “one alternative term to the exclusion of

all others” in the statute “indicates that the terms within the

statute are individual elements.” Ibanez-Beltran, 858 F.3d

at 298; see Mathis, 136 S. Ct. at 2257 (“[A]n indictment and

jury instructions could indicate, by referencing one

alternative term to the exclusion of all others, that the statute

contains a list of elements, each one of which goes toward a

separate crime.”); Almanza-Arenas, 815 F.3d at 479 (“[A]

prosecutor charging a violation of a divisible statute must

generally select the relevant element from its list of

4

The other four counts in the indictment were: count 1, conspiracy

to commit transportation of marijuana for sale and/or possession of

marijuana for sale; counts 3 and 4, possession of drug paraphernalia; and

count 5, possession of less than two pounds of marijuana.

WALCOTT V. GARLAND 13

alternatives.” (quoting Descamps v. United States, 570 U.S.

254, 272 (2013))).

We also look to state law to determine whether the statute

is divisible. Almanza-Arenas, 815 F.3d at 480. Arizona law

suggests that subsection 13-3405(A)(4) lists alternative

offenses. For example, in Chabolla-Hinojosa, 965 P.2d 94,

the defendant’s conviction on one count each of transporting

marijuana for sale and importing marijuana indicates that

those are separate offenses listed in subsection 13-

3405(A)(4). The charges in Farid, 471 P.3d 668 (importation

of marijuana), and State v. Fierro, 206 P.3d 786 (Ariz. Ct.

App. 2008) (transportation of marijuana for sale), similarly

suggest that the offenses listed in subsection 13-3405(A)(4)

are separate offenses and that the statute accordingly is

divisible.

Farid’s holding further supports the conclusion that the

statute is divisible. The court there held that a conviction

under subsection 13-3405(A)(4) for importing marijuana does

not require proof the defendant imported it for sale. Farid,

471 P.3d at 672. This distinction indicates that the statute is

divisible because “transport for sale” and “import into this

state” have different elements and thus are different offenses.

Walcott relies on State v. Brown, 177 P.3d 878 (Ariz. Ct.

App. 2008) to argue that section 13-3405 is not divisible at

all, but Brown does not support her position. The defendant

in Brown was convicted under Ariz. Rev. Stat. § 13-

3408(A)(7) of three counts each of sale and transfer of a

14 WALCOTT V. GARLAND

narcotic drug, based on three separate sales of crack cocaine.5

The question was whether the “sell, transfer or offer to sell or

transfer” phrase in subsection 13-3408(A)(7) “represent[ed]

different ways to commit a single crime or rather . . .

create[d] separate offenses when a single transaction is

involved.” Id. at 881. Observing that the heading of the

statute included sale of narcotic drugs, but not transfer or

offer to sell or transfer, and assuming that “the legislature

intended to create no more offenses than those listed in the

heading of the statute,” the court concluded that “the

legislature intended the terms ‘sale’ and ‘transfer’ to

represent different ways of committing the same offense

when a single transaction is involved. Id. at 881–82.

Although Brown concluded that sale and transfer

represented different ways of committing the same offense,

the court noted that sale and transportation do not. Id. at 882

n.3. Brown thus acknowledged that at least two of the

offenses listed in subsection 13-3408(A)(7) are not the same

offense. The case therefore does not establish that subsection

13-3405(A)(4), whose language is nearly identical to

subsection 13-3408(A)(7), is entirely indivisible.

The structure of the subsection, the indictment, and

Walcott’s plea agreement all indicate that subsection (A)(4)

is divisible with regard to the transportation offense with

which Walcott was charged. The holding of Farid and the

charges in Chabolla-Hinojosa, Farid, and Fierro further

support our conclusion that the statute is divisible in that

regard. Accord Ibanez-Beltran, 858 F.3d at 298 (concluding

5

Subsection 13-3408(A)(7) proscribes “[t]ransport for sale, import

into this state, offer to transport for sale or import into this state, sell,

transfer or offer to sell or transfer a narcotic drug.”

WALCOTT V. GARLAND 15

that “[t]he plea agreement, judgment, and instructions are

enough, without settled state law to the contrary, to hold that

section 13-3405(A)(4) is divisible”). We therefore turn to the

modified categorical approach.

IV

In applying the modified categorical approach, we

“‘review . . . record materials’ to determine which of the

offenses in a divisible statute the defendant was convicted of

committing.” Pereida v. Wilkinson, 141 S. Ct. 754, 764

(2021) (alteration in original) (quoting Mathis, 136 S. Ct. at

2256). We know that the record of conviction establishes that

Walcott was convicted of offering to transport less than two

pounds of marijuana for sale and that transport for sale

generally constitutes drug trafficking. However, as

Barragan-Lopez recognized, a drug trafficking offense

involving a small amount of marijuana might not involve

moral turpitude. The conviction in Barragan-Lopez involved

more than four pounds of marijuana, the category in the

statute for the largest quantity, and the court specifically

relied on the large quantity to conclude the offense was a

CIMT. Barragan-Lopez, 508 F.3d at 904; see § 13-

3405(B)(6).6 By contrast, Walcott’s conviction involved the

category in the statute addressing the smallest quantity of

marijuana, less than two pounds.7 See § 13-3405(B)(10). As

6

The statute categorizes offenses into different classes of felony

according to the weight of marijuana – less than two pounds, at least two

pounds but not more than four pounds, and more than four pounds. See

§ 13-3405(B). Within each category, there is no distinction as to the

amount of marijuana, so the categories are not internally divisible. See id.

7

Walcott’s first conviction similarly involved the category in the

statute addressing the smallest quantity of marijuana, § 13-3405(B)(4).

16 WALCOTT V. GARLAND

Cota indicates, the least culpable conduct prosecuted in that

category could involve an amount of marijuana equivalent to

only “two or three cigarettes.” Cota, 956 P.2d at 508. This

case thus presents the question left open in Barragan-Lopez

– whether an offense involving “a very small quantity of

marijuana for sale” is a CIMT. Id. We conclude that

Walcott’s convictions are not CIMTs.8

“‘Although the immigration statutes do not specifically

define offenses constituting crimes involving moral turpitude,

a crime involving moral turpitude is generally a crime that

(1) is vile, base, or depraved and (2) violates accepted moral

standards.’” Ceron v. Holder, 747 F.3d 773, 779 (9th Cir.

2014) (en banc) (quoting Latter-Singh v. Holder, 668 F.3d

1156, 1161 (9th Cir.2012)). We have described CIMTs as

offenses that “offend society’s most fundamental values, or

shock society’s conscience,” Barbosa, 926 F.3d at 1058

(quoting Mendoza v. Holder, 623 F.3d 1299, 1302 (9th Cir.

2010)), and have observed that “non-fraudulent [CIMTs]

‘almost always’ involve the intent to injure, actual injury, or

a protected class of victims.” Turijan, 744 F.3d at 619

(quoting Nunez v. Holder, 594 F.3d 1124, 1131 (9th Cir.

2010)).

We have also held that “drug trafficking crimes are

generally crimes involving moral turpitude.” Romo, 933 F.3d

at 1195. The history of that precept is informative here.

8

It is unclear what the dissent means by characterizing our resolution

of this open question as “read[ing] that comment as a negative pregnant.”

Dissent at 27. Contrary to the dissent’s assertion, Dissent at 27,

Barragan-Lopez’s explicit reliance on the large quantity at issue and its

reservation of the question when a small quantity is at issue are properly

characterized as suggesting that an offense involving a small quantity may

not be a CIMT.

WALCOTT V. GARLAND 17

Early cases holding that drug trafficking offenses were

CIMTs involved drugs such as heroin and cocaine – that is,

drugs that did present serious risk of injury or death. Atlantic

Richfield Co. v. Guerami, 820 F.2d 280 (9th Cir. 1987), for

example, held that possession of heroin for sale is a “crime of

moral turpitude,” id. at 282, citing United States ex el.

DeLuca v. O’Rourke, 213 F.2d 759 (8th Cir. 1954), which

explained that “there can be nothing more depraved or

morally indefensible than conscious participation in the illicit

drug traffic. The evils which result from unlawfully

importing or dealing with unlawfully imported narcotic drugs

are a matter of common knowledge,” id. at 762. “[N]arcotic

drugs” were defined under the then-applicable statute as

opium, coca leaves, cocaine, or any salt, derivative, or

preparation of opium, coca leaves, or cocaine.” 21 U.S.C.

§ 171(a) (1940).

In Khourn, the BIA similarly held in 1997 that a

conviction for distribution of cocaine under 21 U.S.C.

§ 841(a)(1) was a CIMT, relying in part on the legislative

history of the Narcotic Control Act of 1956. 21 I. & N. Dec.

at 1046, 1048–49. When Congress added a subsection to that

Act addressing the smuggling of marijuana, the House Report

noted that “[t]here are few criminal acts that are more

reprehensible than the act of abetting drug addiction by

engaging in the illicit narcotic and marihuana traffic.” H.R.

Rep. No. 84-2388 (1956), as reprinted in 1956 U.S.C.C.A.N.

3274, 3285. But the report as a whole emphasized the harms

of narcotics, explaining that “[t]he narcotic traffic has been

aptly described as ‘murder on the installment plan.’” Id.

at 3304. We have determined that trafficking of over four

pounds of marijuana is a CIMT, Barragan-Lopez, 508 F.3d

at 904, but the underlying rationale of our case law – that

drug trafficking involves actual injury tantamount to murder

18 WALCOTT V. GARLAND

on a slower scale – does not apply to the sale of small

amounts of marijuana. See Drug Enforcement

Administration, Drug Fact Sheet: Marijuana/Cannabis 3

(2020), https://www.dea.gov/sites/default/files/2020-06/Ma

rijuana-Cannabis-2020.pdf (noting that “‘[n]o deaths from

overdose of marijuana have been reported”).

Barragan-Lopez so acknowledged when it suggested that

possession of a small amount of marijuana for sale might not

be morally turpitudinous. Because Walcott’s offenses

involved the categories in the statute involving the smallest

quantity of marijuana, we conclude that her convictions are

not CIMTs. Contemporary societal attitudes toward

marijuana support the conclusion that offering to transport for

sale and solicitation to possess for sale very small amounts

of marijuana are not offenses that are so inherently base, vile,

or depraved that they offend society’s most fundamental

values or shock society’s conscience.

In November 2020, Arizona voters passed Proposition

207, which provides, in part, that it is lawful to possess or

purchase one ounce or less of marijuana, effective November

30, 2020.9 Ariz. Rev. Stat. § 36-2852(A)(1). In doing so,

Arizona joined fifteen other states and the District of

Columbia in legalizing the recreational use of marijuana. See

9

Arizona passed the Arizona Medical Marijuana Act in 2010,

permitting the use of medical marijuana, effective December 14, 2010.

See Ariz. Rev. Stat. § 36-2802; State v. Jones, 440 P.3d 1139, 1141 (Ariz.

2019). Thus, at the time of Walcott’s conviction, Arizona permitted those

who met the statutory conditions to use medical marijuana and regulated

medical marijuana dispensaries and third party laboratories who dispensed

the marijuana. See Ariz Rev. Stat. §§ 36-2801 to 36-2810. However,

“marijuana possession and use [were] otherwise illegal in Arizona.”

Reed-Kaliher v. Hoggatt, 347 P.3d 136, 139 (Ariz. 2015).

WALCOTT V. GARLAND 19

Michael Hartman, Nat’l Conf. of State Legislators, Cannabis

Overview (Apr. 8, 2021), https://www.ncsl.org/research/civ

il-and-criminal-justice/marijuana-overview.aspx (explaining

that, as of April 8, 2021, “[s]eventeen states, two territories,

and the District of Columbia have legalized the possession of

small amounts of cannabis (marijuana) for adult recreational

use”); see also Gary Michael Smith, Licensing, Zoning and

Recreational Cannabis’ Post-Election Obstacles, 57 Ariz.

Att’y 28 (Mar. 2021) (“Passage of Proposition 207 makes

Arizona the 13th state to enact an adult-use marijuana law.”).

As one article posited, “[i]n less than a decade, marijuana

legalization has gone from unthinkable to seemingly

unstoppable.” Douglas A. Berman & Alex Kreit, Ensuring

Marijuana Reform Is Effective Criminal Justice Reform,

52 Ariz. St. L.J. 741, 741 (2020). Berman and Kreit

explained that “[s]ixty-seven percent of Americans favor

legalizing marijuana according to a late-2019 Pew Research

Center survey – up from 32% in 2006.” Id. at 741–42

(footnote omitted); see also Daniel Tilleman, Canada Shows

the United States How to Do Marijuana at the Federal Level:

A Comparison and Suggestion for A Federal Medical

Marijuana Law, 38 Ariz. J. Int’l & Comp. L. 111, 113 (2021)

(“In 1990, some studies found that only 16.4% of Americans

supported the legalization of marijuana in the US. Recent

studies are now showing that the percentage has climbed to

over sixty percent.” (footnote omitted)).10

10

The dissent characterizes our reliance on these source materials as

“subjective moral intuitions derived from our reading of polling data and

law review commentary.” Dissent at 32. These data, however,

objectively show society’s changing moral standards regarding the

possession and use of marijuana and the dissent does not challenge their

accuracy.

20 WALCOTT V. GARLAND

The widespread legalization of marijuana makes it clear

that offering to transport for sale a very small amount of

marijuana does not involve conduct that violates accepted

moral standards.11 As we have explained, “‘[o]nly truly

unconscionable conduct surpasses the threshold of moral

turpitude.’” Turijan, 744 F.3d at 621 (alteration in original)

(quoting Robles-Urrea v. Holder, 678 F.3d 702, 708 (9th

Cir.2012)).

The need to consider current moral standards in

determining whether an offense is morally turpitudinous is

illustrated by Chavez-Alvarez v. Attorney General U.S.,

850 F.3d 583 (3d Cir. 2017), in which the Third Circuit held

that a 2000 conviction for sodomy was not a CIMT in light of

the Supreme Court’s 2003 decision in Lawrence v. Texas,

539 U.S. 558 (2003). Nearly a decade after the petitioner in

Chavez-Alvarez was convicted of violating three sections of

the Uniform Code of Military Justice, including for sodomy,

he was charged with removability for having been convicted

of an aggravated felony and two or more CIMTs. The

petitioner challenged his removal, arguing that “he was only

convicted of sodomy, a constitutionally protected activity”

under Lawrence. Chavez-Alvarez, 850 F.3d at 585. The BIA

rejected his argument on the ground that his offense was

committed forcibly, making it subject to a sentence

enhancement that rendered it the “functional equivalent” of

a conviction for forcible sodomy, a CIMT. The Third Circuit

11

The same reasoning applies to Walcott’s first conviction, for

solicitation to possess for sale less than two pounds of marijuana.

Although this conviction came under the same subsection of the statute as

was addressed in Barragan-Lopez, her offense presents the question left

open there – whether a conviction under § 13-3405(A)(2) for a very small

quantity of marijuana is a CIMT. We conclude that it is not.

WALCOTT V. GARLAND 21

reversed the BIA and granted the petition, reasoning that the

sentence enhancement was not an element of the offense. Id.

at 587–90. As pertinent here, the court concluded that

sodomy was not a CIMT because, “[p]er Lawrence v. Texas,

the ‘crime’ in the Code affecting Chavez-Alvarez does not

withstand constitutional scrutiny.” Id. at 590.

Although Chavez-Alvarez did not address the question we

face, the determination whether sodomy was morally

turpitudinous was viewed through the lens of Lawrence v.

Texas, which was decided three years after the petitioner’s

conviction. As the Supreme Court has explained, the drafters

of the Constitution “knew times can blind us to certain truths

and later generations can see that laws once thought

necessary and proper in fact serve only to oppress.”

Lawrence, 539 U.S. at 579.

We acknowledge that, in the context of assessing an

aggravated felony, we have held that “when conducting a

categorical analysis for removability based upon a state

criminal conviction, it is proper to compare drug schedules at

the time of the petitioner’s underlying criminal offense, not

at the time of the petitioner’s removal.” Medina-Rodriguez

v. Barr, 979 F.3d 738, 742 (9th Cir. 2020). Similarly, we

have held that in determining whether a CIMT is “a crime for

which a sentence of one year or longer may be imposed,”

8 U.S.C. § 1227(a)(2)(A)(i), we consider the maximum

sentence at the time of conviction. Velasquez-Rios v.

Wilkinson, 988 F.3d 1081, 1084–89 (9th Cir. 2021).

The determination of whether an offense is morally

turpitudinous, however, is not based on a discrete, objective,

concrete factor, such as a drug schedule or the statutory

22 WALCOTT V. GARLAND

maximum prison time. Instead, as the BIA has

acknowledged,

Both the courts and this Board have referred

to moral turpitude as a nebulous concept with

ample room for differing definitions of the

term. Under this standard, the nature of a

crime is measured against contemporary

moral standards and may be susceptible to

change based on the prevailing views in

society.

Islas-Veloz v. Whitaker, 914 F.3d 1249, 1258 (9th Cir. 2019)

(W. Fletcher, J., concurring) (emphasis added) (cleaned up)

(quoting In re Lopez-Meza, 22 I. & N. Dec. 1188, 1191 (BIA

1999)), cert. denied, 140 S. Ct. 2704 (2020); cf. In re Barug,

76 F. Supp. 407, 409 (N.D. Cal. 1948) (explaining that “[t]he

term ‘good moral character’ in the Nationality Act is not a

term of technical legal connotation,” but instead “must be

viewed in the light of the standards of society,” and that “the

morals of the community” are not “static”); In the Matter of

G-, 1 I. & N. Dec. 59, 60 (BIA 1941) (in determining whether

an offense is a CIMT, the standard “is that prevailing in the

United States as a whole, regarding the common view of our

people concerning its moral character”). A determination that

an offense is base, vile, or depraved, or contrary to accepted

moral standards depends on the accepted moral standards or

prevailing views at the time. Thus, a removal order for

having committed a CIMT is fundamentally different from

basing removal on a drug schedule or maximum sentence in

force at the time of conviction and should not be based on an

offense previously, but no longer, thought to be turpitudinous

under societal standards.

WALCOTT V. GARLAND 23

For example, could a removal order be enforced on the

basis of a conviction under antimiscegenation laws obtained

prior to Loving v. Virginia, 388 U.S. 1 (1967)? As Judge

Norris observed, “the Virginia legislature may have adopted

this law in the sincere belief that miscegenation – the mixing

of racial blood lines – was evil.” Watkins v. U.S. Army,

875 F.2d 699, 730 (9th Cir. 1989) (en banc) (Norris, J.,

concurring in the judgment); cf. Barug, 76 F. Supp. at 409–10

(rejecting the government’s argument that the petitioner

lacked good moral character based on his marriage, which

was invalid because it violated miscegenation law). Because

society’s moral judgments change over time, the

determination whether an immigrant is removable for having

committed a CIMT should be viewed in light of

contemporary moral standards, as in Chavez-Alvarez.

We conclude that Walcott’s marijuana convictions are not

CIMTs. She therefore is not removable for having been

convicted of two CIMTs under 8 U.S.C. § 1227(a)(2)(A)(ii).12

The petition for review is GRANTED.

12

In light of our holding that Walcott is not removable, we need not

address the numerous other contentions she raises.

24 WALCOTT V. GARLAND

BERZON, Circuit Judge, concurring:

I continue to believe that the phrase “crime involving

moral turpitude” (“CIMT”) is unconstitutionally vague. See

Silva v. Garland, 993 F.3d 705, 719–20 (9th Cir. 2021)

(Berzon, J., concurring) (as amended); Jauregui-Cardenas v.

Barr, 946 F.3d 1116, 1121 (9th Cir. 2020) (Berzon, J.,

concurring); Barbosa v. Barr, 926 F.3d 1053, 1060–61 (9th

Cir. 2019) (Berzon, J., concurring); see also Islas-Veloz v.

Whitaker, 914 F.3d 1249, 1251–61 (9th Cir. 2019) (W.

Fletcher, J., concurring); Marmolejo-Campos v. Holder,

558 F.3d 903, 921–22 (9th Cir. 2009) (en banc) (Berzon, J.,

dissenting). I concur in Judge Tashima’s opinion, however,

as it properly applies the existing case law concerning the

CIMT concept to the crime of conviction in this case.

COLLINS, Circuit Judge, dissenting:

In my view, the Board of Immigration Appeals (“BIA”)

correctly held that Petitioner Pattie Walcott’s two marijuana-

trafficking convictions were crimes involving moral turpitude

and that she was therefore removable under § 237(a)(2)(A)(ii)

of the Immigration and Nationality Act (“INA”). I therefore

dissent from the majority’s contrary conclusion. And because

Walcott has raised no other persuasive basis for setting aside

the BIA’s decision, I would deny her petition for review.

I

In October 2010, Walcott was sentenced by an Arizona

state court to two years of probation after her plea of guilty to

a single count of “solicitation of possession of marijuana for

WALCOTT V. GARLAND 25

sale, having a weight of less than two pounds” in violation of

Arizona Revised Statutes §§ 13-1002 and 13-3405(A)(2),

(B)(4) (2009 ed.). In April 2011, Walcott was again

sentenced by an Arizona state court, this time to three years

in prison after she pleaded guilty to a single charge of “offer

to transport marijuana for sale” in violation of Arizona

Revised Statutes § 13-3405(A)(4), (B)(10) (2011 ed.). The

BIA concluded that these two convictions were for crimes

involving moral turpitude, which rendered Walcott removable

under INA § 237(a)(2)(A)(ii). See 8 U.S.C.

§ 1227(a)(2)(A)(ii) (stating that “[a]ny alien who at any time

after admission is convicted of two or more crimes involving

moral turpitude, not arising out of a single scheme of criminal

misconduct,” is removable).

In reviewing this decision, I agree with the majority that

we must apply the categorical approach, under which a

particular offense of conviction is a “crime involving moral

turpitude” only if “‘the full range of conduct encompassed by

the statute,’ including the least egregious conduct prosecuted

under the statute, is a crime of moral turpitude.” Barragan-

Lopez v. Mukasey, 508 F.3d 899, 903 (9th Cir. 2007) (citation

omitted); see also Opin. at 6. I also agree that, as to

Walcott’s first offense of conviction, the focus of analysis

under the categorical approach is on the underlying offense

solicited—viz., Arizona Revised Statutes § 13-3405(A)(2)

(criminalizing “possess[ing] marijuana for sale”)—and not

the generic offense of solicitation. See Gonzalez Romo v.

Barr, 933 F.3d 1191, 1196–97 (9th Cir. 2019); Barragan-

Lopez, 508 F.3d at 903; see also Opin. at 8 n.2. I further

agree that Arizona Revised Statutes § 13-3405(A)(4)—the

statute underlying Walcott’s second conviction—is a

divisible statute, and that the offense of “offer to transport for

sale . . . marijuana” that is described in one clause of that

26 WALCOTT V. GARLAND

subsection is a distinct offense from those set forth in the

other clauses contained in that subsection. See Opin.

at 11–15. Under the so-called “modified categorical

approach,” our analysis of § 13-3405(A)(4) is therefore

properly limited only to that clause.1 Accordingly, the

question here is whether the offenses of (1) possessing less

than two pounds of marijuana “for sale”; and (2) offering to

transport less than two pounds of marijuana “for sale” are

both categorically crimes involving moral turpitude.

In addressing that question, I note that the resulting

offenses at issue here are categorically limited to situations

involving possession or transportation of marijuana “for

sale.” See ARIZ. REV. STAT. § 13-3405(A)(2), (A)(4). That

point is significant, because it is well established that “drug

trafficking crimes are generally crimes involving moral

turpitude.” Gonzalez Romo, 933 F.3d at 1195 (emphasis

added); Barragan-Lopez, 508 F.3d at 903–04 (“Drug

trafficking offenses, including possession of unlawful

substances for sale, generally involve moral turpitude.”)

(emphasis added); see also, e.g., Ferraz Mota v. Barr,

971 F.3d 96, 100 (2d Cir. 2020) (“[W]e, as well as numerous

other courts, have acknowledged the reprehensible conduct

inherent in drug trafficking offenses, and, as a result, courts

1

Because it is so clear that this clause describes a separate offense, it

seems to me pointless to take any position on the broader question of

whether § 13-3405(A)(4) as a whole is a categorical match to a crime of

moral turpitude. Cf. Opin. at 9–11. If the answer to that question is yes,

then Walcott’s conviction is a crime involving moral turpitude. But if the

answer is no, then we would simply proceed to examine whether the

separate clause at issue in this case is a categorical match. Because that

latter question is thus dispositive here, I express no view as to whether the

majority is correct in concluding that the broader statute is not a

categorical match.

WALCOTT V. GARLAND 27

have concluded that such offenses involve moral turpitude.”

(citation omitted)); United States ex rel. De Luca v.

O’Rourke, 213 F.2d 759, 762 (8th Cir. 1954) (“[T]here can be

nothing more depraved or morally indefensible than

conscious participation in the illicit drug traffic.”). Indeed,

prior to Walcott’s offenses, we had squarely held that

possession of more than four pounds of marijuana for sale in

violation of Arizona Revised Statutes § 13-3405(A)(2), (B)(6)

is categorically a crime involving moral turpitude. See

Barragan-Lopez, 508 F.3d at 903–04. And, at the time of

Walcott’s convictions, the leading precedential BIA decision

similarly recognized that “both Federal and State courts

concur that participation in illicit drug trafficking is a crime

involving moral turpitude.” In re Khourn, 21 I. & N. Dec.

1041, 1046–47 (BIA 1997).

The BIA concluded that Walcott’s marijuana-sales-related

offenses fell within this general rule. The majority notes,

however, that the court in Barragan-Lopez stated that,

because the offense there involved more than four pounds of

marijuana, the court had no occasion to “address the question

that would be presented if Barragan-Lopez had been

convicted of solicitation to possess a very small quantity of

marijuana for sale, such as, for example, a single marijuana

cigarette at a party with personal friends.” 508 F.3d at 904;

see also Opin. at 8–9. Although Barragan-Lopez thus left

that point as an open question, the majority instead reads that

comment as a negative pregnant that affirmatively “suggested

that possession of a small amount of marijuana for sale might

not be morally turpitudinous.” See Opin. at 18. But nothing

in Barragan-Lopez hinted at an answer to the reserved

question, and the majority “reads too much into the [c]ourt’s

reservation of a question that was not before it.” Ali v.

Federal Bureau of Prisons, 552 U.S. 214, 218 n.3 (2008).

28 WALCOTT V. GARLAND

The BIA recognized that this case presents the question

reserved in Barragan-Lopez, and the BIA therefore expressly

addressed whether it made a difference that Walcott’s

marijuana trafficking offenses involved less than two pounds

rather than, as in Barragan-Lopez, more than four pounds.

The BIA concluded that, “given the statute’s remuneration

requirement,” the covered illicit trafficking of small amounts

of marijuana for money still qualified as “turpitudinous” and

distinguished it from a trafficking offense that involved only

“casual sharing of a marijuana cigarette among friends” for

no money. Thus, the BIA concluded that the sort of sharing

among friends posited in Barragan-Lopez would be

considered morally turpitudinous if it involves sales, but not

if it involved giving away a few cigarettes for free.

That reasoning seems to me to be sound, and the bright

line it draws notably does not contradict any of the analogous

(and in some cases, stricter) lines drawn elsewhere by the

INA and by the Controlled Substances Act. See 8 U.S.C.

§ 1182(h) (stating that the inadmissibility of an alien for

having committed a crime of moral turpitude may be waived

if “it relates to a single offense of simple possession of

30 grams or less of marijuana”) (emphasis added); id.

§ 1227(a)(2)(B)(i) (separate rule rendering deportable any

alien convicted of an offense “relating to a controlled

substance” does not apply to “a single offense involving

possession for one’s own use of 30 grams or less of

marijuana”); 21 U.S.C. § 841(b)(4) (providing that trafficking

in marijuana shall be “treated” as simple possession under

21 U.S.C. § 844 if the offense consisted of “distributing a

small amount of marihuana for no remuneration” (emphasis

added)). While the BIA’s decision here is entitled only to

Skidmore deference and not to Chevron deference, see

Barrera-Lima v. Sessions, 901 F.3d 1108, 1114–15 (9th Cir.

WALCOTT V. GARLAND 29

2018), it seems to me persuasive. I therefore agree with the

BIA that Walcott’s two offenses were crimes involving moral

turpitude, and she was properly found to be removable under

INA § 237(a)(2)(A)(ii).

II

The majority nonetheless holds that illicit small-scale

retail sales of marijuana are not morally turpitudinous. See

Opin. at 16–22. The majority’s reasons for reaching this

conclusion are all flawed.

A

The majority first invokes an irrelevant snippet of 60-

year-old legislative history to substantially narrow the

rationale for treating drug trafficking as a crime involving

moral turpitude. See Opin. at 17. Specifically, the majority

notes that, in a 1997 precedential decision concluding that

cocaine trafficking was a crime involving moral turpitude, the

BIA at one point cited a 1956 House committee report in

which the committee members opined that “‘[t]here are few

criminal acts that are more reprehensible than the act of

abetting drug addiction by engaging in the illicit narcotic and

marihuana traffic.’” Khourn, 21 I. & N. Dec. at 1047

(quoting H.R. REP. NO. 84-2388 (1956), reprinted in 1956

U.S.C.C.A.N. 3274, 3285). That BIA decision also noted that

the same report stated that “[n]arcotics trafficking was also

described as ‘murder on the installment plan.’” Id. (quoting

1956 U.S.C.C.A.N. at 3304 (further quotation marks

omitted)). Seizing on this second quotation, the majority

declares that the “underlying rationale” for treating drug

trafficking as a crime of moral turpitude in our caselaw is that

“drug trafficking involves actual injury tantamount to murder

30 WALCOTT V. GARLAND

on a slower scale.” See Opin. at 17–18. That rationale “does

not apply to the sale of small amounts of marijuana,” the

majority concludes, because statistics from the Drug

Enforcement Administration (“DEA”) show that “[n]o deaths

from overdose of marijuana have been reported.” Id.

(quoting DEA Drug Fact Sheet: Marijuana/Cannabis at 3,

available at https://www.dea.gov/sites/default/files/2020-

06/Marijuana-Cannabis-2020_0.pdf).

The obvious problem with this reasoning is that it proves

too much: under this rationale, Barragan-Lopez was wrongly

decided. If the majority is right that overdose deaths are the

linchpin of moral turpitude, then any trafficking in

marijuana—whether more than four pounds or less than two

pounds—cannot be deemed morally turpitudinous. The

majority’s narrow reconceptualization of what makes drug

trafficking morally turpitudinous thus cannot provide a

coherent basis for drawing a line between small-scale

retailers on the one hand and large-scale retailers and

wholesalers on the other. Because the majority’s view is

logically irreconcilable with Barragan-Lopez, it cannot be

correct.

B

The majority alternatively concludes that the moral

turpitude of an offense must be evaluated under “current

moral standards” and that, based on the majority’s assessment

of “[c]ontemporary societal attitudes,” small-scale retail sales

of marijuana are not morally turpitudinous. See Opin.

at 17–18, 20 (emphasis added). This alternative theory is also

wrong.

WALCOTT V. GARLAND 31

The BIA has stated that, in assessing whether an offense

is a crime involving moral turpitude, “the nature of [the]

crime is measured against contemporary moral standards and

may be susceptible to change based on the prevailing views

in society.” Matter of Lopez-Meza, 22 I. & N. Dec. 1188,

1192 (1999). Even assuming arguendo that this view is

correct,2 it does not support the majority’s conclusion here.

2

We do not appear to have ever explicitly adopted that view until

today’s decision. On the contrary, in applying the categorical approach

under the various provisions of the INA, we have generally made time-of-

conviction comparisons, rather than time-of-removal comparisons. See,

e.g., Medina-Rodriguez v. Barr, 979 F.3d 738, 749 (9th Cir. 2020)

(holding that the determination whether a particular drug offense is an

aggravated felony must be based on “the time-of-conviction federal drug

schedule” and that a subsequent federal amendment decriminalizing hemp

therefore did not destroy the categorical match under prior law);

Dominguez v. Barr, 975 F.3d 725, 735 n.3 (9th Cir. 2020) (holding that,

in examining whether a particular offense is an aggravated felony, “we

consider the law that the petitioner was convicted of violating as it applied

at the time of conviction”); see also Velasquez-Rios v. Wilkinson, 988 F.3d

1081, 1089 (9th Cir. 2021) (holding that federal immigration

consequences of state convictions “cannot be altered or contradicted

retroactively by state law actions”). As we have recognized, using a time-

of-removal standard would make it impossible to discern the immigration

consequences of an offense at the time of conviction. See Medina-

Rodriguez, 979 F.3d at 748; see also Velasquez-Rios, 988 F.3d at 1087

(noting that a time-of-conviction approach avoids the “absurd result[]”

that “an alien’s removability would depend upon the timing of the

immigration proceeding”) (simplified). This latter criticism would seem

to apply equally to a determination of moral turpitude: an alien cannot

know, at the time he or she is convicted of an offense, whether the moral

turpitude of that offense will be viewed more harshly or less harshly under

future standards applied many years later. (Separately, I would also note

that the majority’s reliance upon caselaw holding certain criminal statutes

unconstitutional is wholly inapposite: of course, the applicable current

constitutional limits must always be obeyed, but that rule has no

application here given that small-scale marijuana sales are not

constitutionally protected. See United States v. Christie, 825 F.3d 1048,

32 WALCOTT V. GARLAND

In making contemporary judgments about moral turpitude,

our analysis must be guided by more objective considerations

rooted in the relevant body of law than by our own subjective

moral intuitions derived from our reading of polling data and

law review commentary. Cf. Opin. at 18–19. Indeed, the

latter approach would greatly exacerbate the potential

vagueness objections to the entire enterprise of defining

“crimes of moral turpitude.” Cf. Islas-Veloz v. Whitaker,

914 F.3d 1249, 1251–61 (9th Cir. 2019) (W. Fletcher, J.,

concurring). Here, the available objective legal indicia do not

support the majority’s conclusion that illicit small-scale retail

sales of marijuana are not morally turpitudinous.

The majority notes that, long after Walcott’s offenses,

Arizona voters in 2020 adopted Proposition 207, which

decriminalizes possession of “one ounce or less of

marijuana.” See ARIZ. REV. STATS. § 36-2852(A)(1); see also

Opin. at 18–19. But nothing in that law decriminalizes

Walcott’s conduct. On the contrary, Proposition 207

authorizes sales only by licensed and heavily regulated

marijuana establishments and their agents, see ARIZ. REV.

STATS. § 36-2858(A)(1)(c), and it decriminalizes transfer of

marijuana among individuals only “if the transfer is without

remuneration and is not advertised or promoted to the

public.” Id. § 36-2852(A)(3) (emphasis added). Likewise,

the fact that many other States and the District of Columbia

have also legalized some form of recreational marijuana

usage since Walcott’s offenses, see Opin. at 18, does not

1065–66 (9th Cir. 2016); Gonzalez v. Raich, 500 F.3d 850, 865 (9th Cir.

2007).) Ultimately, however, I need not take a position as to whether

moral turpitude should be assessed under time-of-removal standards or

time-of-conviction standards—and I do not do so—because I conclude

that the majority’s theory fails in any event.

WALCOTT V. GARLAND 33

establish that illicit small-scale retail sales are not morally

turpitudinous. Moreover, the phrase at issue here—“crime of

moral turpitude”—is contained in a federal statute, and as

noted earlier, the relevant objective indicia in federal law do

not support the particular line that the majority has drawn

between small-scale retail sales and larger retail or wholesale

sales. See supra at 28–29. Rather, the line that emerges from

these materials is instead exactly the one that the BIA drew

here—namely, a distinction between small-scaling sharing of

marijuana for free and all other unlawful trafficking in

marijuana (including illicit sales of marijuana in any

quantity).

More broadly, the majority’s alternative argument once

again proves too much and is difficult to square with

Barragan-Lopez. The majority’s reliance on polling data

suggesting that 67% of Americans favor marijuana

legalization, as well as the majority’s survey of the

legalization movement in the States, see Opin. at 18–19,

would seem to suggest that marijuana trafficking should be

altogether excluded from the category of crimes involving

moral turpitude. Barragan-Lopez requires us to reject that

position, because it squarely holds that the offense of selling

more than four pounds of marijuana is a crime of moral

turpitude. The majority’s broad-based arguments that

marijuana is supposedly not that harmful3 and that

contemporary moral views concerning its use have shifted, do

not logically support drawing a line, in terms of moral

3

But cf. U.S. DEA, Denial of Petition to Initiate Proceedings to

Reschedule Marijuana, 81 Fed. Reg. 53688, 53691 (2016) (detailing the

Food and Drug Administration’s conclusion that some individuals use

marijuana “in amounts sufficient to create a hazard to their health and to

the safety of other individuals and the community”).

34 WALCOTT V. GARLAND

turpitude, between illicit marijuana retailers and wholesalers.

By contrast, the BIA’s line—which distinguishes between

small-scale sharing for free and all other trafficking—is based

on a rationale that logically coheres both with Barragan-

Lopez and with the comparable judgments reflected

elsewhere in federal law.

Accordingly, I would uphold the BIA’s conclusion that

Walcott’s 2010 and 2011 Arizona convictions were for

crimes of moral turpitude and that she is therefore removable

under INA § 237(a)(2)(A)(ii).

III

Walcott provides no other persuasive basis for setting

aside her removal order, and I therefore would deny her

petition for review.

A

Walcott contends that, because her initial notice to appear

did not include the date and time of the hearing, the

immigration court did not acquire jurisdiction over her

removal proceedings. But we have held that such defects do

not preclude jurisdiction from vesting in a particular

immigration court when the notice to appear was filed in that

court, especially where (as here) the correct hearing

information was supplied in a subsequent notice served on the

alien prior to the scheduled hearing. See Aguilar Fermin v.

Barr, 958 F.3d 887, 894–95 (9th Cir. 2020); Karingithi v.

Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).

WALCOTT V. GARLAND 35

B

Walcott also challenges the agency’s denial of her request

for cancellation of removal under INA § 240A. However, we

lack jurisdiction to review the agency’s ultimate discretionary

determination that Walcott does not merit cancellation of

removal. Vilchez v. Holder, 682 F.3d 1195, 1201 (9th Cir.

2012). Although we retain jurisdiction to review

constitutional claims and questions of law concerning the

denial of cancellation of removal, see 8 U.S.C.

§ 1252(a)(2)(D), Walcott has raised no meritorious legal or

constitutional issues.

The immigration judge did not commit any legal error in

connection with her finding that Walcott—who admitted

committing perjury at an earlier hearing in her removal

proceedings—was ultimately not a credible witness.

Although Walcott blames her then-counsel for that perjury,

an ineffective assistance of counsel claim based on that

theory fails because Walcott did not comply with the

procedural requirements of Matter of Lozada, 19 I. & N. Dec.

637 (BIA 1988), and because she did not properly exhaust

any such claim before the agency. Al Ramahi v. Holder,

725 F.3d 1133, 1139 (9th Cir. 2013); Hernandez Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Walcott also contends that the immigration judge violated

her due process rights by referencing the judge’s personal

experiences practicing criminal law during the hearing. Far

from being a due process violation, the judge’s comments

properly flagged significant potential credibility issues

concerning Walcott’s testimony. As to one such point,

relating to Walcott’s testimony about having served as an

undercover informant, the judge urged her counsel to fully

36 WALCOTT V. GARLAND

explore the matter and stated that the court would issue any

necessary subpoenas for testimony that Walcott might need.

As to another point, the judge properly explained the

credibility issue that had been raised by the Government and

expressly provided Walcott an opportunity “to comment

and/or explain.” Cf. Chen v. Ashcroft, 362 F.3d 611, 618 (9th

Cir. 2004) (emphasizing the importance of affording aliens a

reasonable opportunity to explain perceived inconsistencies

in testimony). Walcott has not established that there was a

due process violation. See Vargas-Hernandez v. Gonzales,

497 F.3d 919, 926–27 (9th Cir.2007) (“Where an alien is

given a full and fair opportunity to be represented by counsel,

to prepare an application for . . . relief, and to present

testimony and other evidence in support of the application, he

or she has been provided with due process.”).

IV

For these reasons, I would deny Walcott’s petition for

review. To the extent that the majority concludes otherwise,

I respectfully dissent.