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 …

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