(A)  General Argument.  Congress clearly knew how to specify that solicitation falls within a ground of deportation, since it expressly listed solicitation or offering to commit an offense, which is equivalent,[96] as part of a number of different grounds of inadmissibility and deportation.  See generally Appendix H, Non-Substantive Offenses, infra.  Solicitation is expressly listed in the following grounds of inadmissibility: the Multiple Conviction ground,[97] the Terrorist Conduct ground,[98] the Genocide Conduct ground,[99] and the Alien Smuggling Conduct ground.[100] In addition, Congress included solicitation in a number of other grounds of deportation: the Alien Smuggling Conduct ground,[101] the sale portion of the Firearms ground,[102] the Terrorist Conduct ground,[103] and the Genocide Conduct ground.[104]  Soliciting convictions (aka, convictions of offering to commit a certain offense)[105] are not included in any other ground of deportation.  Therefore, they are not included in any aggravated felony category of deportable offense.

[96] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).

[97] INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B) (all “offenses”).

[98] INA § 212(a)(3)(B)(iv)(V)(aa), 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(aa) (“to solicit any individual – (aa) to engage in conduct otherwise described in this clause”).

[99] INA § 212(a)(3)(B)(i), 8 U.S.C. § 1182(a)(3)(B)(i) (“ordered, incited, assisted, or otherwise participated in”).

[100] INA § 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i) (“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter”).

[101] INA § 212(a)(1)(E)(i), 8 U.S.C. § 1182(a)(1)(E)(i) (“knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law”).

[102] INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) “offering for sale…or of attempting or conspiring to purchase, sell, offer for sale [etc.]”).  Offering to sell is the same as soliciting the sale of.  United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).

[103] This is defined by reference to the analogous ground of inadmissibility.  INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B).  This ground of inadmissibility includes solicitation.  INA § 212(a)(3)(B)(iv)(V)(aa), 8 U.S.C. § 1182(a)(3)(B)(iv)(V)(aa) (“to solicit any individual – (aa) to engage in conduct otherwise described in this clause”)

[104] INA § 237(a)(4)(D), 8 U.S.C. § 1237(a)(4)(D), referring to INA § 212(a)(3)(E)(ii), 8 U.S.C. § 1182(a)(3)(E)(ii) (committed, ordered, incited, assisted, or otherwise participated in the commission of any listed act).

[105] United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001).

Fifth Circuit

CONTROLLED SUBSTANCES - SOLICITATION CONSTITUTES A CONVICTION RELATING TO A CONTROLLED SUBSTANCE
Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (Fifth Circuit rejected reasoning of Coronado-Durazo, holding a conviction of solicitation to transport marijuana for sale constituted a conviction of an offense relating to a controlled substance)

Seventh Circuit

SOLICITATION OF AN AGGRAVATED FELONY - SOLICITATION OF SEXUAL ACT IS SUFFICIENT TO SHOW SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (applying definition of "sexual abuse" at 18 U.S.C. 3509(a)(8), the court found that solicitation of a sexual act constitutes "sexual abuse," as that section includes "inducement, enticement, or coercion.") NOTE: This case is distinguishable from the Ninth Circuit cases, such as Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sep. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. 13- 1002, was not conviction for violation of law "relating to a controlled substance," within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA 241(a)(2)(B)(i), 8 U.S.C. 1251(a)(2)(B)(i)), since Gattem in essence finds that "solicitation" in inherent in the definition of "sexual abuse of a minor", just as it is inherent in aggravated felony alien smuggling [8 U.S.C. 274(a)(1)(A)(iv) punishes encouraging or inducing a noncitizen to enter the United States in violation of law].

SHOW SEXUAL ABUSE OF A MINOR
Gattem v. Gonzalez, __ F.3d __, 2005 WL 1422373 (7th Cir. June 20, 2005) (applying definition of "sexual abuse" at 18 U.S.C. 3509(a)(8), the court found that solicitation of a sexual act constitutes "sexual abuse," as that section includes "inducement, enticement, or coercion.") NOTE: This case is distinguishable from the Ninth Circuit cases, such as Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. Sep. 30, 1997) (Arizona conviction for solicitation to possess cocaine, under A.R.S. 13- 1002, was not conviction for violation of law "relating to a controlled substance," within meaning of federal deportation statute, but rather was conviction for generic crime that was distinct from underlying crime and that, unlike conspiracy or attempt, was not included in federal statute as possible basis for deportation under INA 241(a)(2)(B)(i), 8 U.S.C. 1251(a)(2)(B)(i)), since Gattem in essence finds that "solicitation" in inherent in the definition of "sexual abuse of a minor", just as it is inherent in aggravated felony alien smuggling [8 U.S.C. 274(a)(1)(A)(iv) punishes encouraging or inducing a noncitizen to enter the United States in violation of law].

Eleventh Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - SOLICITATION
United States v. Aguilar-Ortiz, __ F.3d __ (11th Cir. May 31, 2006) (Florida conviction for solicitation of delivery of drugs, in violation of Fla. Stat. 777.04(2) is not a "drug trafficking offense" for illegal re-entry sentencing purposes because the guidelines include aiding and abetting attempt, and conspiracy, but not solicitation offenses).