BELTRAN

                                                             Interim Decision #3I79




                           MATTER OF BELTRAN
                            In Deportation Proceedings
                                      A 287 1 9740
                                        -




                        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.                              ON BEHALF OF SERVICE:
  Jose A. Bracamonte, Esquire                           Dorothea P. Kraeger
  Fajardo, Garcia Gallegos & Bracamonte                 General Attorney
  1100 East Washington Street, Suite 125
  Phoenix, Arizona 85034

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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Interim Decision #3179

   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 contemplat-
ed 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
   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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                                                                Interim Decision #3179

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 substan-
tive 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 posses-
sion 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).

                                             523
Interim Decision #3179

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
("[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 interven-
tion 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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                                                               Interim Decision #3179

  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
command the principal to do           

Id. at 830-31

 (emphasis added); see also Robinson v.
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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Interim Decision #3179

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
                                    -


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, 661-
62. 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").

                                           526
                                                  Interim Decision #3179

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 Londo-
no 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

                                      527
Interim Decision #3179

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.




                                   528