Jonatan Cortes-Maldonado v. William Barr

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JONATAN CORTES-MALDONADO, No. 18-70927 AKA Jonathan Cortes, AKA Jonatan Cortes Maldonado, Agency No. Petitioner, A096-910-128 v. OPINION WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 6, 2020 Portland, Oregon Filed October 15, 2020 Before: M. Margaret McKeown and Richard A. Paez, Circuit Judges, and Paul C. Huck, * District Judge. Opinion by Judge Paez * The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. 2 CORTES-MALDONADO V. BARR SUMMARY ** Immigration The panel granted Jonatan Cortes-Maldonado’s petition for review of a decision of the Board of Immigration Appeals, and remanded, holding that Oregon’s former marijuana delivery statute, Or. Rev. Stat. § 475.860 (2011), is not an “illicit trafficking of a controlled substance” offense, and thus, Cortes-Maldonado’s conviction for that offense did not make him removable as an aggravated felon. The panel held that section 475.860 is not an “illicit trafficking of a controlled substance” aggravated felony because it criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel first set out the elements of the statute of conviction: (1) marijuana, (2) delivery, (3) for consideration, and observed that, under Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), Oregon’s definition of “delivery” encompasses solicitation and is indivisible. Next, the panel explained that controlled substance convictions qualify as “illicit trafficking,” under 8 U.S.C. § 1101(a)(43)(B), if they require the transfer or exchange of money or other consideration, and that this court extended that definition, in Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), to include possession with intent to sell. The panel also explained that the definition of aggravated felony ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CORTES-MALDONADO V. BARR 3 includes “an attempt or conspiracy to commit an offense,” but does not include solicitation. 8 U.S.C. § 1101(a)(43)(U). Addressing the relevant precedent and statutory structure, the panel concluded that solicitation to commit a trafficking offense does not fall under the definition of illicit trafficking, and therefore, the conduct proscribed by section 475.860 is not “illicit trafficking.” The panel also concluded that Rendon did not persuade it to hold otherwise, explaining that solicitation to deliver a controlled substance in Oregon is not the same as possession with intent to deliver a controlled substance. COUNSEL 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. 4 CORTES-MALDONADO V. BARR OPINION 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 ...

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