NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-1395 _____________ CALVIN CARLYLE RIVERS, Appellant v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A096-731-761) Immigration Judge: Kuyomars Q. Golparvar ______________ Argued on September 23, 2019 ______________ Before: McKEE, AMBRO, and ROTH Circuit Judges. (Opinion filed: July 9, 2020) Wayne P. Sachs [Argued] Sachs Law Group 1518 Walnut Street, Suite 610 Philadelphia, PA 19102 Counsel for Appellant Joseph H. Hunt Carl McIntyre Virginia M. Lum [Argued] Andrew J. Oliveira Gregory A. Pennington, Jr. United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Appellee _____________________ OPINION* _____________________ McKEE, Circuit Judge. Calvin Carlyle Rivers petitions for review of the Board of Immigration Appeals decision finding him ineligible for Cancelation of Removal based on a conviction for solicitation to commit possession of marijuana for sale under Arizona law. For the reasons that follow, we will grant Rivers’ petition for review, vacate the order of removal and remand to the Board for further proceedings.1 I. Rivers argues that solicitation to commit possession of marijuana for sale is not an aggravated felony under 8 U.S.C. § 1101(a)(43).2 * This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 We exercise jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). When an order of removal is based on an aggravated felony conviction, we review only “constitutional claims or questions of law raised upon [the] petition for review.” 8 U.S.C. § 1252(a)(2)(C)-(D); Rachak v. Att’y Gen., 734 F.3d 214, 216 (3d Cir. 2013). 2 Pet. Br. at 6. 2 We review whether a state criminal conviction constitutes a federal aggravated felony de novo.3 Under Arizona law, a person 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” that would constitute the underlying crime.4 Specifically, Rivers pled guilty to soliciting another person to possess marijuana for sale. The Board found that Rivers’ solicitation offense was an illicit trafficking offense under 8 U.S.C. § 1101(a)(43)(B). The Board relied upon the “illicit trafficking” approach to hold that solicitation to commit possession of marijuana for sale is an aggravated felony.5 Under the illicit trafficking approach, a state drug conviction is an aggravated felony if it is a felony under state law6 and contains an element of trafficking.7 3 Evanson v. Att’y Gen., 550 F.3d 284, 288 (3d Cir. 2008). 4 Ariz. Rev. Stat. Ann. § 13-1002(A). 5 See Evanson, 550 F.3d at 288-89 (explaining that we use the “hypothetical federal felony” approach or the “illicit trafficking” approach to determine whether a state drug offense constitutes an aggravated felony under federal law). The Court of Appeals for the Ninth Circuit has held that solicitation to possess ...
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