The legislative history of current law, contemporary morals, and the increasingly widespread legalization of marijuana led two out of three judges on the Ninth Circuit to rule that a petitioner’s request for review of her deportation order from the Board of Immigration Appeals, for selling and transporting less than two pounds of marijuana, should be granted.

Writing for the majority, Judge A. Wallace Tashima of the United States Court of Appeals for the Ninth Circuit decided that petitioner Pattie Page Walcott was “not removable” due to her arrest and conviction for two “crimes involving moral turpitude (CIMT).” Her CIMTs were the selling and transporting of small amounts of marijuana. The court ruled that her actions did not amount to moral turpitude and did not warrant her deportation.

Judge Marsha S. Berzon concurred, but Judge Daniel J. Collins dissented after disagreeing with the reasoning of his colleagues.

Walcott has been a “lawful, permanent resident of the United States” since 1999. Her deportation back to Jamaica was ordered in 2011, after her arrest and conviction for violating two Arizona statutes that prohibited her conduct. An immigration judge sustained the charges, found her “removable,” and denied her application asking that her removal be canceled. She petitioned the Ninth Circuit and claimed the law was overbroad and divisible, did not constitute a CIMT, and therefore did not warrant her deportation. A majority of the three-judge panel for the Ninth Circuit agreed.

The key to the decision rests on the court’s definition of CIMTs. Tashima wrote that the subsection of the Arizona law that classifies marijuana sale as a CIMT is out of step with the accepted classification of crimes involving “moral turpitude.” That label, he wrote, generally “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.” In the majority opinion, the sale of small amounts of marijuana is not a CIMT like the sale of “drugs that present serious risk of injury or death,” such as heroin and cocaine.

The majority concluded that the rationale of the court’s case law –that drug trafficking involves actual injury that can be compared to ”murder on the installment plan,” should not apply to the sale of just two pounds of marijuana. They also explained that “contemporary societal attitudes toward marijuana and widespread legalization” across the country supported their decision.

In addition, Tashima cited precedent that “expressly left open the question presented in Walcott’s case: “whether an offense involving a very small quantity of marijuana for sale is a CIMT.” The precedent, he said, was based on the sale of four pounds of the drug and “expressly left open” the question of how the sale of smaller amounts should be treated.

After explaining that the Ninth Circuit had jurisdiction and explaining the standard for review of Walcott’s case, Tashima’s opinion went directly to a discussion of the proper definition of moral turpitude, a critical element of the statute under which Walcott was charged. He criticized the Bureau of Immigration Appeals (BIA) decision for its misplaced reliance on “the general principle that drug trafficking offenses are CIMTs.” He also disagreed with their reliance on a previous case that approved the deportation of a seller and transporter of four pounds of the drug.

He stressed that the appeals court had not previously discussed the appropriate penalty for possession of a very small quantity of marijuana for sale, such as, “a single marijuana cigarette at a party with personal friends.” He wrote that the statute “criminalizes conduct that goes beyond the element of the CIMT of drug trafficking” and concluded that certain sections of the controlling statute were therefore “overbroad.”

Tashima next turned to the question of whether sections of the statue were divisible or indivisible. He found that “transport for sale” and “import into the state” have different elements and thus should be considered separately. The court’s next step was to determine which “offenses in a divisible statute” Walcott committed. Because of the small amount of marijuana involved in one of the sections, its relevance to all sections is impermissible.

He wrote, “Because Walcott’s offenses involved the categories in the statute involving the smallest quantity of marijuana, we conclude that her convictions are not CIMTs.” He reiterated that “very small amounts of marijuana are not offenses that are so inherently base, vile, or depraved that they offend society’s most fundamental values or shock society’s conscience.”

To support this conclusion, he referred to Arizona’s passage of Proposition 207 in 2020, which legalized the recreational use and possession or purchases of one ounce or less of marijuana. He noted that 15 other states and the District of Columbia have similar laws. These facts support his conclusion that Walcott’s actions “did not violate accepted moral standards” or meet the requirement of “unconscionable conduct (that) surpasses the threshold of moral turpitude.” He stressed that the court needs to consider “current moral standards” in cases such as Walcott’s.

Judge Berzon concurred, noting the “unconstitutionally vague” definition of a CIMT that hinders BIA decision-making. Judge Collin’s dissent said Walcott’s petition should have been denied because he believes Walcott’s two drug trafficking convictions did amount to moral turpitude. He said that selling marijuana is not the same as personal use and noted that Arizona’s new law does not decriminalize Walcott’s conduct.