Solicitation or offer to commit certain drug offenses, such as offer to transport a controlled substance, should be considered a safe haven at least within the Ninth Circuit.  Given an adverse Fifth Circuit and Board of Immigration Appeals decision, however, this argument may not work outside the Ninth Circuit unless another circuit overrules the BIA on this point.[83]

[83] See, e.g., Peters v. Ashcroft, 383 F.3d 302 (5th Cir. Aug. 27, 2004) (state conviction of felony solicitation to transport marijuana for sale is controlled substances conviction for deportation purposes, depriving court of appeals of jurisdiction over petition for review challenging removal order), following Matter of Beltran, 20 I. & N. Dec. 521 (BIA 1992).

Fifth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING
United States v. Garza-Lopez, ___ F.3d __, 2005 WL 1178061 (5th Cir. May 19, 2005) (California conviction for "[t]ransport/sell methamphetamine" under Cal. Health & Safety Code 11379(a) did not constitute conviction of drug trafficking with sentence imposed in excess of 13 months for purposes of triggering a sentence enhancement under USSG 2L1.2(b)(1)(A)(i) (2003), for illegal reentry after deportation, because the statute of conviction is overbroad and prohibits some conduct that does not fall within the Guidelines enhancement definition of drug trafficking offense, and the record of conviction does not narrow the offense of conviction to conduct falling within the enhancement).

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)

Ninth Circuit

AGGRAVATED FELONY - DRUG TRAFFICKING - CALIFORNIA DRUG TRAFFICKING STATUTE IS DIVISIBLE
United States v. Gutierrez-Ramirez, ___ F.3d ___, 2005 WL 762664 (9th Cir. April 5, 2005) (illegal reentry sentence enhancement of 16-levels was reversed, on ground district court erred in relying solely on the Abstract of Judgment as establishing that California conviction of violating Health & Safety Code 11352(a) constituted an aggravated felony drug trafficking conviction, since the statute can be violated by conduct that does not fall within the aggravated felony definition), following United States v. Navidad-Marcos, 367 F.3d 903 (9th Cir. 2004).