Solicitation to commit drug offense such as 11352, 11379, 11391.
Aggravated Felony (AF)
Solicitation to commit a drug offense is not a drug trafficking AF, in cases arising within the Ninth Circuit only.
Outside the Ninth Circuit it can be an AF.
Crime Involving Moral Turpitude (CIMT)
Solicitation will take on the CIMT quality of the offense solicited.
The BIA has held that selling or giving away drugs is a CIMT.
Other Removal Grounds
See Advice regarding possible defenses against an inadmissible and deportable CS conviction.
Advice and Comments
Deportable/ Inadmissible CS conviction. Two possible defenses. First, this plea can use the unspecified or nonfederal substance defenses. See 11377. Also, there is an argument that 11391 is not a CS offense. If that is true, soliciting it is not a CS offense. See 11391.Second, imm counsel can argue that this is not a deportable CS offense because it is generic solicitation.1See Mielewczyk v. Holder, 575 F.3d 992, 998 (9th Cir. 2009), stating in discussion that because § 653f is a generic solicitation statute that pertains to different types of offenses, as opposed to a statute passed primarily to restrict controlled substances, it is not an offense “relating to” a controlled substance. But see Arriola-Carrillo v. Holder (9th Cir. 2015) WL1346157 (unpublished) which assumed that § 653(f) is a CS conviction and found that Lujan/Nunez does not apply to § 653f because it is not a lesser included offense of possession. For information on Lujan/Nunez, see H&S C § 11377 in chart.
Trafficking penalties. Beyond being an AF, any offense that involves trafficking (commercial element) is a “particularly serious crime,” bad for asylees and refugees. It also can make D inadmissible by giving gov’t “reason to believe” D is involved in trafficking. See 11379.