                                                                NOT PRECEDENTIAL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 marijuana for sale is not an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). See Leyva-Licea v. INS, 187 F.3d 1147, 1150
(9th Cir. 1999). Thereafter, in United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir.
2010), the Court of Appeals for the Fifth Circuit reached the same conclusion.
        We agree that Rivers’ solicitation offense is not an aggravated felony under the
hypothetical federal felony approach, as solicitation is not punishable as a felony under
the Controlled Substances Act. See Jeune v. Att’y Gen., 476 F.3d 199, 201 (3d Cir. 2007).
This is no doubt why the Board only addressed the illicit trafficking approach in
determining if a state drug offense is an aggravated felony under federal law.
6
  Rivers’ solicitation conviction is a class four felony under Arizona law. See Ariz. Rev.
Stat. §§ 13-1002, 13-3401, 13-3405, 13-3418, 13-701, 13-702, and 13-801.
7
  Gerbier v. Holmes, 280 F.3d 297, 313 (3d Cir. 2002).
                                                3
       Aiding and abetting the possession of cocaine does not include a transaction in

commerce between the parties and is therefore not a trafficking offense.8 The Board also

applies a “commercial transaction test” to determine if a statute includes an element of

trafficking, defining a “commercial transaction” as the “passing of goods from one

person to another for money or other consideration.”9

       Under none of these descriptions of illicit trafficking does Rivers’ conviction for

solicitation include an element of trafficking. Solicitation under Arizona law is complete

as soon as encouragement has occurred, whether or not the person solicited agrees to any

criminal plan or even believes the solicitor is serious.10 Because Rivers’ conviction could

be complete at the moment of encouragement, without any subsequent transaction, it did

not include an element of trafficking.

       Contrary to the Government’s suggestion,11 we cannot look to the elements of the

underlying criminal behavior that Rivers solicited in order to find the commercial

element.12 Arizona caselaw makes clear that solicitation is “a completely separate crime

from the offense solicited” and “cannot be equated with the underlying offense.”13


8
  Lopez v. Gonzales, 549 U.S. 47, 54 (2006).
9
  Matter of L-G-H, 26 I&N Dec. 365, 371 n.9 (B.I.A. 2014).
10
   State v. Miller, 316 P.3d 1219, 1230 (Ariz. 2013) (“But solicitation only requires action
and intent by the solicitor. It does not require that the solicited persons believe the
solicitor is serious.”); State v. Flores, 188 P.3d 706, 709 (Ariz. Ct. App. 2008)
(“Solicitation is a crime separate from the crime solicited, and, unlike conspiracy, the
crime of solicitation is complete when the solicitor, acting with the requisite intent,
makes the request. It requires no agreement or action by the person solicited.”).
11
   Gov’t Br. at 26-7.
12
   See Moncrieffe v. Holder, 569 U.S. 184, 191 (2013).
13
   State v. Ysea, 956 P.2d 499, 503 (Ariz. 1998); State v. Tellez, 799 P.2d 1, 4 (Ariz. Ct.
App. 1989). See also State v. Woods, 815 P.2d 912, 913 (Ariz. Ct. App. 1991) (“The
                                             4
       The aggravated felony statute is reserved for “the most serious criminal

offenses,”14 and we therefore decline to extend the definition to include the mere

solicitation of another person to commit an enumerated offense. Because Rivers’

conviction for soliciting the possession of marijuana for sale is not punishable as a felony

under the Controlled Substances Act and does not include an element of commercial

dealing, it is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(B).

                                             IV.

       For the reasons above, we grant Rivers’ petition for review, vacate the order of

removal, and remand for further proceedings consistent with this opinion.




crime of solicitation is not ‘by its very nature always a constituent part’ of the crime of
sale of a narcotic drug because the mental and physical elements of solicitation are not
necessarily elements of the underlying offense.”).
14
   H.R. Rep. No. 109-135(I), at 69 (2005).
                                              5
