933 F.3d 1191

GRABER, Circuit Judge, dissenting:
I respectfully dissent. In my view, the majority opinion misapplies our own precedent and misapplies Supreme Court precedent as well. I would grant the petition.
Title 8 U.S.C. § 1182(a)(2)(A)(i)(I) renders inadmissible any alien convicted of "a crime involving moral turpitude ... or an attempt or conspiracy to commit such a crime." Here, Arizona's crime of possessing marijuana for sale is one that involves moral turpitude. The only question is whether "solicitation" to commit that crime also involves moral turpitude.
In Coronado-Durazo v. INS , 123 F.3d 1322, 1324 (9th Cir. 1997), we considered a similar question: whether 8 U.S.C. § 1227(a)(2)(B)(i), rendering removable any alien convicted of "a violation of (or a conspiracy or attempt to violate)" a law relating to controlled substances, covers "solicitation" to possess cocaine under Arizona law. We held: (1) solicitation is a generic offense under Arizona law, and (2) the plain text of § 1227(a)(2)(B)(i) does not cover solicitation because Congress chose to list only the generic crimes of conspiracy and attempt, but omitted the generic crime of solicitation. Id. at 1324-25.
In Leyva-Licea v. INS , 187 F.3d 1147, 1150 (9th Cir. 1999), we properly described our earlier holding in broad terms about statutory construction: "In Coronado-Durazo , we held that where a statute listed some generic offenses but omitted others, the statute covered only the generic offenses expressly listed." Of course, that is a straightforward application of the common canon expressio unius est exclusio alterius . See Barnhart v. Peabody Coal Co. , 537 U.S. 149, 168, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003) (explaining that the canon applies "when the items expressed are members of an 'associated group or series,' justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence." (quoting United States v. Vonn , 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90. 65 (2002)).
Barragan-Lopez v. Mukasey , 508 F.3d 899 (9th Cir. 2007), does not detract from the forceful and plain statutory construction demanded by Coronado-Durazo . As a three-judge panel, the Barragan-Lopez court could not overrule earlier precedent, and it carefully avoided doing so. Barragan-Lopez couched its holding in narrow terms: an Arizona conviction for solicitation to possess marijuana for sale "constitutes a crime involving moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(i)." 508 F.3d at 905 (emphasis added); see also id. at 904-05 (noting that Coronado-Durazo and Leyva-Licea did not address the specific question whether the crime involves moral turpitude "under 8 U.S.C. § 1227(a)(2)(A)(i)"). Section 1227(a)(2)(A)(i) provides, simply, that an alien who "is convicted of a crime involving moral turpitude committed within" a certain period of time after admission "is deportable" if a sentence of one year or longer could be imposed for that crime. Unlike the statutes in Coronado-Durazo , Leyva-Licea , and here, § 1227(a)(2)(A)(i) does not refer to any generic crimes, and thus does not list attempt and conspiracy to the exclusion of solicitation; we distinguished it from the earlier decisions on that ground. Barragan-Lopez , 508 F.3d at 904-05.
We have continued to recognize that Coronado-Durazo remains good law concerning basic statutory construction. For example, in Mielewczyk v. Holder , 575 F.3d 992, 997 (9th Cir. 2009), we noted that in Coronado-Durazo "the statute of conviction was a generic solicitation statute, and 8 U.S.C. § 1227(a)(2)(B)(i) limits convictions for generic crimes that may result in [removal] to conspiracy and attempt." (internal quotation marks omitted).
In short, following our precedents, the text of § 1182(a)(2)(A)(i)(I) unambiguously covers only the generic crimes of "attempt or conspiracy." Like the statute that we interpreted in Coronado-Durazo , this statute omits the term "solicitation." And we also held there that, in Arizona, solicitation is a generic offense. Barragan-Lopez , by its own terms, limited its holding to a different statute that did not contain similar wording. The majority opinion's interpretation sidesteps the holdings of Coronado-Durazo and Leyva-Licea .
In addition, the majority opinion violates several canons of statutory construction. (1) As the opinion acknowledges, its reading renders the phrase "or an attempt or conspiracy to commit such a crime" surplusage. Maj. op. at 1197-98. Such a result is disfavored. See Ctr. for Biological Diversity v. Salazar , 695 F.3d 893, 903 (9th Cir. 2012) ("It is 'a cardinal principle of statutory construction' that a statute should be construed, if possible, so that 'no clause, sentence, or word shall be superfluous, void, or insignificant.' " (quoting TRW Inc. v. Andrews , 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) )). (2) Alternatively, the majority opinion adds "solicitation" to the statutory list, again in violation of the venerable principle that we may not add words that Congress has omitted. Lamie v. U.S. Tr. , 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). Congress obviously knew that solicitation is the third inchoate crime, because other provisions of the immigration statutes include it. See, e.g. , 8 U.S.C. § 1101(a)(15)(U)(iii) (excluding from a definition certain victims of "criminal activity," which is defined to mean certain substantive crimes or an "attempt, conspiracy, or solicitation to commit" such a crime). (3) As noted above, Coronado-Durazo and Leyva-Licea applied the canon expressio unius est exclusio alterius , another principle abandoned by the majority opinion. (4) Finally, the majority opinion ignores the use of "or" in § 1182(a)(2)(A)(i)(I) : by providing that an alien is inadmissible if she is convicted of "a crime involving moral turpitude ... or an attempt or conspiracy to commit such a crime, Congress clearly signaled that it viewed those categories as alternatives . (Emphasis added.) The opinion, instead, transmogrifies alternatives into illustrations, as if the statute read "including an attempt or conspiracy." In Garcia v. United States , 469 U.S. 70, 73, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984), the Supreme Court observed that "[c]anons of construction indicate that terms connected in the disjunctive in this manner [separated by "or"] be given separate meanings." Cf. Fed. Land Bank of St. Paul v. Bismarck Lumber Co. , 314 U.S. 95, 99-100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (pointing out that the use of the term "including" means that a statutory provision's application is not "limited to the specific illustrations mentioned in the participial phrase introduced by 'including' ").
Next, the majority incorrectly posits that the result of following the statutory construction principles of Coronado-Durazo and Leyva-Licea would be absurd because doing so would make the same crime a cause for removal but not inadmissibility . Maj. op. at 1197-98. That notion has surface appeal, but this result is actually common and not at all absurd.
Beginning with the big picture of the Immigration and Nationality Act, "removal" covers all matters that render an alien "inadmissible," but also an additional, longer list. Under 8 U.S.C. § 1227(a)(1)(A), "[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is [removable]." The statute continues, though, by making many other acts a cause for removal, including such disparate activities as alien-smuggling before, during, or after admission to the United States; failure to notify the Attorney General of a change of address; and violation of a protection order. That is, removal is designed to cover more situations than inadmissibility.
The relevant statutes contain specific examples of this phenomenon. For instance, "certain firearm offenses," such as unlawfully possessing or selling a firearm, render an alien "removable" under § 1227(a)(2)(C) but not "inadmissible." An alien who stands convicted of such an offense may, if otherwise eligible, seek adjustment of status, which "effectively converts the alien's [removal] proceedings into admissibility proceedings, where the firearms offenses (which do not bar admissibility) become irrelevant." Pascua v. Holder , 641 F.3d 316, 322 (9th Cir. 2011) ; see also Malilia v. Holder , 632 F.3d 598, 604 (9th Cir. 2011) ("Even an alien who is removable for a firearms conviction is eligible for adjustment of status if the alien presents an approved I-130."). Someone, like Petitioner here, who is a lawful permanent resident is entitled to apply for adjustment of status. Pascua , 641 F.3d at 322 n.4. Indeed, the very existence of adjustment of status shows that Congress intends more stringent rules to apply to removability than to admissibility. See, e.g. , Drax v. Reno , 338 F.3d 98, 107, 113 (2d Cir. 2003) (discussing adjustment of status and "the inherent differences between [removal] and exclusion").
In an analogous context, we have held that Congress can have a rational reason to apply different rules to the same conduct for purposes of removability and inadmissibility. In Abebe v. Mukasey , 554 F.3d 1203 (9th Cir. 2009) (en banc) (per curiam), we overruled Tapia-Acuna v. INS , 640 F.2d 223 (9th Cir. 1981). Tapia-Acuna held that no rational basis existed "for granting additional immigration relief [under former INA § 212(c) ] to aliens who temporarily leave the United States and try to reenter (i.e., aliens facing inadmissibility), and not to aliens who remain in the United States (i.e., aliens facing [removal] )." Abebe , 554 F.3d at 1205 (citing Tapia-Acuna , 640 F.2d at 225 ). That is essentially the position that the majority opinion takes. But Abebe held that "Congress could have limited section 212(c) relief to aliens seeking to enter the country from abroad in order to create an incentive for [removable] aliens to leave the country," thus saving resources that the government "would otherwise devote to arresting and [removing] these aliens." Id. at 1206 (internal quotation marks omitted).
Abebe 's reasoning applies with equal force here. In addition, Congress rationally could conclude that "solicitation" is a less serious crime than "attempt" or "conspiracy" because it is further removed from the actual commission of the underlying crime involving moral turpitude. For example: If a person asks a friend if he's interested in producing child pornography, that conversation can constitute solicitation . If the friend agrees and one of them commits an overt act (such as buying a camera) that makes the production of child pornography more likely, the person is guilty of conspiracy . And if the person already has a camera and lures a child into his home, or arranges to meet an undercover officer who poses as a child, the person attempts to produce child pornography. It is rational to consider solicitation the least serious of the inchoate offenses. See Coronado-Durazo , 123 F.3d at 1326 ("[W]e do not find it absurd, or inconsistent, that despite congressional zeal to eliminate illicit drug trafficking, Congress limited [removal] for generic crimes to conspiracy and attempt.").
Finally, the majority opinion purports to follow Chevron USA Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), maj. op. at 1198-99, but Chevron counsels the opposite result. As the majority opinion correctly notes, at step one of the analysis, if the statute is clear, we stop because we must give effect to unambiguously expressed congressional intent. Id. at 842-43, 104 S. Ct. at 2781. But in applying step one, the majority opinion overlooks the requirement that we first must employ "traditional tools of statutory construction" when ascertaining congressional intent. Socop-Gonzalez v. INS , 272 F.3d 1176, 1187 (9th Cir. 2001) (en banc) (quoting Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778 ). When we apply those traditional tools, as we did in Coronado-Durazo and Leyva-Licea , we must conclude that the relevant statute plainly excludes "solicitation."
Even if the statute were ambiguous, we would not owe the deference that the majority opinion affords, for two reasons. First, the BIA misread Ninth Circuit precedent. Like the majority opinion, the BIA cited cases, including Barragan-Lopez and Rohit v. Holder , 670 F.3d 1085 (9th Cir. 2012), which interpreted a different statute that does not separate out inchoate offenses. Second, the BIA in a previous case, In re Khanh Hoang Vo , 25 I. & N. Dec. 426, 429 & n.4 (B.I.A. 2011), recognized that 8 U.S.C. § 1182(a)(2)(A)(i)(I) excludes solicitation. By 2011, all the Ninth Circuit cases relevant to this question had been decided. But in 2016 the BIA simply "withdr[e]w from" its holding in Khanh Hoang Vo because "this statement does not reflect our current understanding of the Ninth Circuit's approach." The BIA's cursory discussion is insufficient to meet the requirement that an agency "provide a reasoned explanation for the change" in position. Encino Motorcars, LLC v. Navarro , --- U.S. ----, 136 S. Ct. 2117, 2125, 195 L.Ed.2d 382 (2016). The BIA's terse about-face is particularly suspect because it mischaracterizes a holding in Khanh Hoang Vo as dictum. When circumstances have not changed, the agency must specify why it disregards the circumstances that led to its earlier position. FCC v. Fox Television Stations, Inc. , 556 U.S. 502, 516, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The BIA has failed to meet its obligation to justify a change in position. Were we to reach step two of the Chevron analysis, we still would not owe deference to the BIA.
For all the foregoing reasons, I dissent.

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