Interim Decision #3I79

Interim Decision #3I79

MATTER OF BELTRAN

In Deportation Proceedings

A 287 1 9740

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Decided by Board May 28, 1992

A conviction for solicitation to commit a crime relating to a controlled substance

renders an alien deportable under section 241(aX11) of the Immigration and Nationality

Act, 8 U.S.C. § 1251(a)(11) (1988), as an alien convicted of a violation of a law relating

to a controlled substance.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)J—Entered without inspection

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(101—Convicted of controlled

substance violation

ON BEHALF OF RESPONDENT.

Jose A. Bracamonte, Esquire

Fajardo, Garcia Gallegos & Bracamonte

1100 East Washington Street, Suite 125

Phoenix, Arizona 85034

ON BEHALF OF SERVICE:

Dorothea P. Kraeger

General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated November 27, 1989, the immigration judge

found the respondent deportable under section 241(a)(11) of the

Immigration and Nationality Act, 8 U.S.C. § 1251(aX11) (1988), 1 as

an alien convicted of a crime relating to a controlled substance, and

ordered him deported from the United States. 2 The respondent has

appealed from that decision. The appeal will be dismissed.

'This section of the Act has been revised and redesignated as section 241(a)(2)(13)(i) of

the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (Supp. II 1990), by section 602(a) of the

Immigration Act of 1990, Pub. L No. 101-649, 104 Stet. 4978, 5080, but that

amendment does not apply to deportation proceedings for which notice has been

provided to the alien before March 1, 1991. See section 602(d) of the Immigration Act of

1990, 104 Stat. at 5082.

2.

nic respondent was also charged with &portability under section 24 l(a)(2) of the

Act, as an alien who entered the United States without inspection. However, the record

reflects that he had been granted temporary residence, so the immigration judge did not

find him deportable on that ground.

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The respondent is a 25-year-old native and citizen of Mexico who

last entered the United States without inspection on April 15, 1985.

The record reflects that he was convicted on May 12, 1989, in the

Superior Court of Arizona, Maricopa County, of solicitation to possess

narcotic drugs.3

At his deportation hearing, the respondent denied that he was

deportable under section 241(a)(11) of the Act and submitted a motion

to dismiss to the immigration judge. In the motion to dismiss, the

respondent argued that under Arizona law, the crime of solicitation is

a separate and distinct offense from the narcotics laws and therefore is

not a violation of a law relating to a controlled substance. He relied

primarily on the decision in Castaneda de Esper v. INS, 557 F.2d 79

(6th Cir. 1977), in which it was held that a conviction for misprision of

a felony, in that case conspiracy to possess heroin, was not a

conviction for a violation of a law relating to the illicit possession of

narcotic drugs. In its opinion, the court noted that the crime of

misprision of a felony has historically been a criminal offense separate

and distinct from the particular felony concealed. The court further

stated that the language of the statute defining misprision of a felony

did not indicate that it was contemplated to be a narcotic law, and that

the statute was not included by reference in any part of the federal

code pertaining to drugs. The respondent asserted that the Arizona

solicitation statute was similar in that it contains no reference to

narcotics laws and does not otherwise indicate that it was contemplated as a controlled substance law.

The respondent also sought to distinguish the Arizona solicitation

statute from the crime of aiding and abetting. He noted that in

Londona Gomez v. INS, 699 F.2d 475 (9th Cir. 1983), aiding and

abetting the distribution of cocaine was found to be a crime relating to

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3 The Arizona statute defining the crime of solicitation provides in pertinent part as

follows:

A. A person, other than a peace officer acting in his official capacity within the scope

of his authority and in the line of duty, commits solicitation if, with the intent to

promote or facilitate the commission of a felony or misdemeanor, such person

commands, encourages, requests or solicits another person to engage in specific

conduct which would constitute the felony or misdemeanor or which would establish

the other's complicity in its commission.

B. Solicitation is a:

I. Class 3 felony if the offense solicited is a class I felony.

2. Class 4 felony if the offense solicited is a class 2 felony.

7. Class 3 misdemeanor if the offense solicited is a misdemeanor.

Ariz. Rev. Stat. Ann. § 13-1002 (1989). In this case, the crime of solicitation, considered

a preparatory offense under Arizona law, was charged in conjunction with the

underlying substantive offense of possession of narcotic drugs.

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narcotic drugs, in part because a person convicted under the aiding

and abetting statute is subject to the same penalties as one convicted

under the statute defining the substantive offense. The respondent

contended that the penalties prescribed by the Arizona solicitation

statute, on the other hand, are separate and distinct from those

imposed for the underlying offense of possession of a narcotic drug.

Another difference claimed by the respondent was that, unlike aiding

and abetting, which according to United States v. Gonzalez, 582 F.2d

1162, 1166 (7th Cir. 1978), creates no crime apart from the substantive offense charged, solicitation is separate from the underlying crime.

Finally, citing Matter of Bronsztejn,

15 I&N Dec. 281 (BIA 1974),

affd, 526 F.2d 1290 (2d Cir. 1975), the respondent argued that

solicitation is also unlike the crime of attempt because it does not take

its character or quality from the underlying offense. He stated that

solicitation is a substantive crime in itself, not an abortive effort to

commit the crime solicited, and that its elements are distinct from the

crime of attempt.

The immigration judge rejected the arguments presented by the

respondent. She acknowledged that the solicitation statute does not

refer to narcotic drugs, but noted that, in addition to being charged

with solicitation, the respondent was charged with violating section

13-3408 of the Arizona Revised Statutes, which prohibits the possession of narcotic drugs. Therefore, she found that he had been

convicted of a crime relating to a controlled substance. On appeal the

respondent has reiterated the arguments presented to the immigration

judge.

In order to determine whether the crime of solicitation to possess

narcotic drugs under Arizona law is a crime relating to a controlled

substance under the immigration laws, we must first examine the

nature and history of the offense. According to the statute, a person is

guilty of solicitation if he "commands, encourages, requests or

solicits" another person to engage in criminal activity with the intent

to promote or facilitate the commission of the crime. Ariz. Rev. Stat.

Ann. § 13-1002.4 Under Arizona law, the crime of solicitation is

classified as a preparatory offense, along with attempt, conspiracy, and

facilitation. Such crimes are also commonly known as inchoate crimes,

which is the term used by the Model Penal Code (1985).

According to the introduction to Article 5 of the Model Penal Code,

4 In regard to the nature of the crime of solicitation, it has been stated: "The gist of this

offense is incitement. In brief, the zravamen of this common-law misdemeanor lay in

counselling, enticing, or inducing another to commit a crime .... " Clark and Marshall,

Law of Crimes 219-23 (7th ed. 1967), quoted in Cherry v. State, 306 A.2d 634, 637-38

(Md. 1973).

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which deals with inchoate crimes, these offenses always presuppose a

purpose to commit another substantive offense, which "has failed ...

or has not yet achieved its culmination because there is something that

the actor or another still must do." Model Penal Code art. 5

introduction at 293 (1985). It has been stated that the crime of

solicitation can be thought of as an "attempt to conspire." Id. § 5.02

commentary at 366. 5 There is no requirement that a solicitation result

in any action by the person solicited. Id. at 370. 6 However, given the

fact that the solicitation "may give rise to the special hazard of

cooperation among criminals," 7 it is thought that "the fortuity that the

person solicited does not agree to commit or attempt to commit the

incited crime plainly should not relieve the solicitor of liability," 8

when "otherwise he would be a conspirator or an accomplice." Id. at

365-66.9 The essential difference, therefore, between the crime of

solicitation and the act of being an accomplice is that no crime need be

committed for the offense of solicitation to be complete. See generally

Cherry v. State, 306 A.2d 634 (Md. 1973).

&The crime of solicitation is closely related to attempt and historically was dealt with

under the laws relating to that offense. See, e.g., Slate v. Otto, 629 P.2d 646 (Idaho

1981); People v. Bloom, 133 N.Y.S. 708 (1912); People v. Bush, 4 Hill 133 (N.Y. 1843);

see also Model Penal Code § 5.02 commentary at 368 69; Herbert Wechsler et al., The

Treatment of Inchoate Crimes in the. Model Penal Code of the American Law Institute:

A ttempt. Solicitation, and Conspiracy, 61 Colum. L Rev. 571, 623-25 (1961); S. Rep.

No. 225, 98th Cong., 2d Sess. 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3488

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("[Sjolicitation may be seen as a particular instance of the more general category of

criminal attempts."). Thus it has been held that when a solicitation proceeds "to the

point of some overt act in the commission of crime ... it becomes an attempt to

commit crimc and is indictable as such." Wiseman v. Commonwealth,

130 S.E. 249, 251

(Va. 1925).

6 As stated in Clark and Marshall, supra note 4, "It is immaterial whether the

solicitation is of any effect and whether the crime solicited is in fact committed .... "

7 The Model Penal Code notes that a "solicitor, working his will through one or more

agents, manifests an approach to crime more intelligent and masterful than the efforts of

his hireling.... Purposeful solicitation presents dangers calling for preventive intervention and is sufficiently indicative of a disposition towards criminal activity to call for

liability." Model Penal Code § 5.02 commentary at 366.

&According to Clark and Marshall, supra note 4, "The necessity for punishing such

persons is obvious, and such conduct is generally punished as a substantive crime,

notwithstanding the solicitation does not move the party solicited to commit the

offense."

9 The legislative history relating to the federal crime of solicitation to commit a crime

of violence, 18 U.S.C. § 373 (1988), states that "if the person solicited actually carries

out the crime, the solicitor is punishable as an alder and abettor." S. Rep. No. 225, 98th

Cong., 2d Sees. 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487; see also United

Slates v. Nearing, 252 F. 223, 227 (S.D.N.Y. 1918), cert. denied, 254 U.S. 637 (1920)

(noting that successful incitement to crime would make pamphlet author accessory

before the fact).

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We note in this regard that an accomplice is defined in pertinent

part under Arizona law as a person who, with the intent to promote or

facilitate the commission of an offense, "iddieits or commands

another person to commit the offense." Ariz. Rev. Stat. Ann. § 13-301

(1991) (emphasis added); see also Model Penal Code § 2.06 (1985). 10

Under modem federal law, one who commands, encourages, or

requests a crime is considered to be an accomplice, who is guilty of the

substantive offense as if he committed it directly. See 18 U.S.C. § 2(a)

(1988); Scales v. United States, 367 U.S. 203, 226 n.17 (1961) (quoting

American Law Institute, Model Penal Code § 2.04 (3), tentative draft

No. 1 (1953)); Nye & Nissen v. United States, 336 U.S. 613 (1949);

Clinton Cotton Mills v. United States, 164 F.2d 173 (4th Cir. 1947). As

under federal law, a person is criminally accountable for the conduct

of another in Arizona if he is an accomplice of such other person in the

commission of an offense. Ariz. Rev. Stat. § 13-303(A)(3) (1991). 11

Section 241(a)(11) of the Act provides for the deportability of aliens

who have been "convicted of a violation of, or a conspiracy to violate,

10 We note the similarity of the language of the solicitation statute to the common law

definition of an accessory before the fact, who is "one who was not present actually or

constructively, when the offense was committed, but who counseled, procured, or

commanded another to commit it." Morel v. United States, 127 F.2d 827, 830 (6th Cir.

1942) (emphasis added). An accessory before the fact "must incite, or procure, or

encourage the criminal act, or assist or enable it to be done, or engage or counsel, or

Id. at 830-31 (emphasis added); see also Robinson v.

command the principal to do

United States, 262 F.2d 645 (9th Cir. 1959). Thus, it appears that the crime of

solicitation is closely related to the common law offenses of complicity, particularly the

crime of accessory before the fact. See generally United States v. Nearing, supra, at 227.

Under federal law, which has eliminated the distinctions of guilt between principals,

aiders and abettors, and accessories before the fact, a person is punishable as a principal

if he "commits an offense against the United States or aids, abets, counsels, commands,

induces or procures its commission." 18 U.S.C. § 2(a) (1988) (emphasis added); see also

United States v. Molina, 581 F.24 56,61 n.8 (2d Cir. 1978); Tarkington v. United States,

194 F.2d 63 (4th Cir. 1952); Morel v. United States, supra. It should also be noted that

since the enactment of statutes making accessories and aiders and abettors liable as

principals, many courts have indiscriminately referred to accessories as eiders and

abettors. Morel v. United States, supra, at 831; see also United States v. Molina, supra, at

61 n.8 (2d Cir. 1978).

11 Section 13-303 of the Arizona Revised Statutes, which deals with the criminal

liability of a person based on the conduct of another, further provides as follows:

B. If causing a particular result is an element of an offense, a person who acts with

the kind of culpability with respect to the result that is sufficient for the commission of

the offense is guilty of that offense if:

1. The person solicits or commands another person to engage in the conduct causing

such result; or

2. The person aids, counsels, agrees to aid or attempts to aid another person In

planning or engaging in the conduct causing such result.

(Emphasis added).

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any law relating to a controlled substance." The phrase "relating to" in

this context has long been construed to have broad coverage. See

Matter of Bmnsztejn, supra, at 283; Matter of N-, 6 I&N Dec. 557, 561

(BIA, A.G. 1955); see also Matter of el Risco, 20 I&N Dec. 109 (BIA

1989); Matter of Hernandez Ponce, 19 I&N Dec. 613 (BIA 1988). This

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interpretation, that Congress intended to give inclusive meaning in the

immigration laws to the phrase "relating to," has led to the conclusion

that Congress meant for section 241(a)(11) of the Act to encompass the

other inchoate or preparatory crimes of attempt, conspiracy, and

facilitation when the underlying substantive crime involves a drug

offense. See Matter of Del Risco, supra (facilitation); Matter of

Bronsztejn, supra (attempt); Matter ofN-, supra (conspiracy); Matter of

G-, 6 I&N Dec. 353 (BIA 1954) (attempt). In fact, the crime of

conspiracy was long ago included in the statutory provision for

deportability of aliens convicted of drug offenses. See Act of Feb. 18,

1931, Pub. L. No. 71-683, 46 Stat. 1171; Narcotic Control Act of 1956,

Pub. L. No. 84-728, § 301(6), 1956 U.S.C.C.A.N. (70 Stat.) 651, 66162. Furthermore, Congress has also recently added the crime of

attempt to the statute.' 2 See section 241(a)(2)(B)(i) of the Act, 8 U.S.C.

§ 125 I(a)(2)(B)(i) (Stipp. II 1990) (providing that any alien who "has

been convicted of a violation of (or a conspiracy or attempt to violate)

any law ... relating to a controlled substance ... is deportable").

As noted above, solicitation is closely related to attempt and

conspiracy, being considered by some to be an attempt to conspire to

commit a substantive offense, and, in some jurisdictions, even

constituting an attempt, either alone or in conjunction with other overt

acts. See Model Penal Code § 5.02 commentary at 365-66, 368-69; see

also People v. Coleman, 86 N.W.2d 281 (Mich. 1957) (stating that

words intended to dissuade a witness from testifying may themselves

be overt acts sufficient to constitute crime of attempt to obstruct

justice); State v. Mandel, 278 P.2d 413 (Ariz. 1954) (holding that

solicitation to murder, coupled with overt act of partial payment, is

sufficient to establish attempt). Like attempt and conspiracy, which

are now included in the statutory language of section 241(a)(11) of the

Act, solicitation is an inchoate crime that presupposes a purpose to

12 We note that efforts to draw an implication regarding the absence of a specific crime

in the statute from Congress' inclusion of another have been rejected. See United States

v. Gonzalez, supra, at 1165 (absence of aiding and abetting); cf. Matter of N-, supra, at

560 61 (omission of conspiracy). See generally National Petroleum Refiners &en v.

FTC, 482 F.2d 672, 676 (D.C. Cir. [973), cert. denied, 415 U.S. 951 (1974) (stating that

the maxim of statutory construction "expressio unius est exclusio alterius" (expression

of one thing is the exclusion of another) is increasingly considered unreliable "for it

stands on the faulty premise that all possible alternative or supplemental provisions were

necessarily considered and rejected by the legislative draftsmen").

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commit another crime. Model Penal Code art. 5 introduction at 293.

Therefore, we conclude that when that underlying offense involves a

drug violation, which alone would constitute a ground of deportability

under section 241(a)(11) of the Act, it is consistent with congressional

intent to likewise consider a conviction for solicitation to commit that

crime to be a violation of a law "relating to a controlled substance."

We further add that we deem it significant that, but for the failure of

the person solicited to commit the incited crime, a solicitor would

share guilt equally with the solicited perpetrator under the laws dealing

with complicity. Model Penal Code § 5.02 commentary at 366. Thus,

as a person guilty of solicitation, the respondent would be held liable

as an accomplice for the commission of the substantive offense of

possession of narcotics had the person he solicited committed the

intended crime. For this reason, we find that the solicitation and the

underlying offense are so interrelated that the solicitation "takes its

character and its quality from the nature of the law toward whose

violation it is ... directed." Matter of Bronsztejn, supra, at 282; see

also Londono-Gomez v. INS, supra (holding that the aiding and

abetting statute does not define a. separate offense); United States v.

Gonzalez, supra (same); cf. Matter of Del Risco, supra (facilitation). See

generally Matter of Short, 20 I&N Dec. 136 (BIA 1989) (noting that if

underlying offense involves a crime involving moral turpitude, aider

or accessory before the fact is considered convicted of such a crime);

Matter of Sanchez-Marin, 11 I&N Dec. 264 (BIA 1965) (accessory

after the fact to crime involving moral turpitude); Matter of F-, 6 I&N

Dec. 783 (BIA 1955) (accessory before the fact to crime involving

moral turpitude).

Contrary to the respondent's argument that the holdings in Londono Gomez v. INS, supra; United States v. Gonzalez, supra; and Matter

of Bronsztejn, supra, must be distinguished, we find support in those

decisions for our conclusion in this case. As the respondent noted, the

United States Court of Appeals for the Ninth Circuit found in

Londono-Gomez that aiding and abetting the distribution of cocaine

was a crime relating to narcotic drugs, in part because "one convicted

under the aiding and abetting statute is subject to the same penalties as

one convicted under the statute defining the substantive offense?

Londono Gomez v. INS, supra, at 477. In this case, the penalties for

solicitation under the Arizona statute, although not identical, are

founded in the underlying substantive offense since the classification

of the solicitation corresponds to the severity of the underlying crime.

See Ariz. Rev. Stat. Ann. § 13 1002.

Moreover, in Londono Gomez the Ninth Circuit also noted that an

indictment under the aiding and abetting statute must be accompanied

by an indictment for a substantive offense. Id. at 477. As the

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immigration judge noted, in this case the indictment against the

respondent included the charge of possession of narcotic drugs along

with the charge of solicitation.

Finally, distinguishing Castaneda de Esper v. INS, supra, the Ninth

Circuit found that "[u]nlike the misprision of felony statute, the aiding

and abetting statute does not define a separate offense ... " Londono

Gomez v. INS, supra, at 476; accord United States v. Gonzalez, supra,

at 1166. As we stated previously, since the crime of solicitation is so

closely related to the underlying offense, we are convinced that it

cannot be considered separate or distinct from that crime and,

therefore, we find it to be more similar to aiding and abetting and

attempt than it is to misprision of a felony. Compare Lorzdono-Gomez

v. INS, supra (aiding and abetting) and Matter of Bronsztein, supra

(attempt) with Matter of Velasco, 16 I&N Dec. 281 (BIA 1977)

(misprision of a felony). See generally Matter of Carrillo, 16 I&N Dec.

625 (BIA 1978) (unlawful carrying of firearm during commission of a

felony). Consequently, we find that the holding in Castaneda de Esper

v. INS is not persuasive or controlling here.

Having reviewed the law regarding the offense of solicitation and

considered the arguments presented on appeal, we conclude that the

respondent's conviction for solicitation to possess narcotic drugs was

for a violation of a law relating to a controlled substance within the

meaning of section 241(011) of the Act. Accordingly, the appeal will

be dismissed.

ORDER:

The appeal is dismissed.

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