A-6192630
Decided by Board September 5, 1957
Deportability — Conviction for possession of narcotics — Narcotic Control Act of 1956, amending section 241 (a) (11) of the 1952 act, given retroactive effect.
(1) Section 241 (a) (11) of the Immigration and Nationality Act as amended by the act of July 18, 1956 (Narcotic Control Act of 1956) is retroactive in application.
(2) Hence, an alien who was convicted by an Arizona court on May 8, 1956, for unlawful possession of narcotics (marihuana) is presently deportable under section 241 (a) (11), although he was not deportable under this section of law prior to the amendment enacted on July 18, 1956. (See note at end of decision.)
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (11) ( 8 U.S.C. 1251 (a) (11), 1952 ed., supp. IV) — Convicted of illicit possession of narcotic drug.
BEFORE THE BOARD
Discussion: This case is before us on appeal from a decision of a special inquiry officer directing the respondent's deportation.
The respondent's age, marital status, and length of residence in the United States do not appear in the record. He is an alien, native and citizen of Mexico, and last entered the United States on September 16, 1954. Presumably, he was lawfully admitted at that time. Counsel stated that the respondent has resided in the United States over 10 years and apparently he has lived in this country most of his life since counsel also stated that the respondent obtained his entire education in the United States. On May 8, 1956, the respondent was convicted of unlawful possession of narcotics (marihuana) in violation of an Arizona statutory provision, and he was sentenced to imprisonment for a term of 1 to 2 years.
The issues to be determined are whether the respondent is deportable and what action should be taken relative to counsel's request for suspension of deportation or reopening.
With respect to the first issue, counsel asserts that the respondent was not amenable to deportation under 8 U.S.C. 1251 (a) (11) at the time of the conviction on May 8, 1956, but that the charge can only be sustained by reason of the amendment which was made by the Act of July 18, 1956 ( 70 Stat. 575; 8 U.S.C. 1251 (a) (11), 1952 ed., supp. IV). Prior to the amendment, 8 U.S.C. 1251 (a) (11) required the deportation of an alien "* * * who at any time has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, * * *." By virtue of the amendment, the latter part now reads, "relating to the illicit possession of or traffic in narcotic drugs, * * *." We agree with counsel that it is only because of the amendment that the respondent has become subject to deportation.
Counsel argues that there is no specific provision of law that the amendatory act must be applied retroactively. He also contends that the savings clause in section 405 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1101, Note) preserves the respondent's nondeportable status. These contentions are rejected on the authority of Lehmann v. United States ex rel. Carson, 353 U.S. 685, and Mulcahey v. Catalanotte, 353 U.S. 692, both of which were decided on June 3, 1957.
There is one matter that was not touched upon by counsel nor by the special inquiry officer which requires consideration in the determination of the question of the respondent's deportability. Section 401 of the Act of July 18, 1956 (Narcotic Control Act of 1956), which is set forth in full in 1956 U.S. Code Congressional and Administrative News, vol. 1, pp. 651-663, provides as follows: "The amendments made by this Act shall take effect on the day following the date of enactment of this Act."
The Narcotic Control Act of 1956 amended various acts, including sections of the Immigration and Nationality Act and criminal provisions in Title 18 of the United States Code. The amendments to Title 18 of the United States Code would not be applicable, of course, to offenses committed prior to July 19, 1956, in view of the constitutional prohibition against ex post facto legislation, and this would be true even if section 401 had not been included. On the other hand, Congress has legislated retrospectively in establishing grounds for deportation and this has been upheld by the courts ( Harisiades v. Shaughnessy, 342 U.S. 580; Galvan v. Press, 347 U.S. 522; Marcello v. Bonds, 349 U.S. 302).
Section 401 of the Narcotic Control Act does not differ materially from section 407 of the Immigration and Nationality Act ( 8 U.S.C. 1101, Note) which provided that the act should take effect on the 180th day immediately following the date of enactment (June 27, 1952). Nevertheless, the fact that the Immigration and Nationality Act was not effective until December 24, 1952, did not preclude its retroactive application to aliens who prior thereto had not been deportable, nor did it prevent the application of the act to cases in which the convictions and other factors, that were the basis for deportation, had occurred long prior to the enactment of the act ( Lehmann v. United States ex rel. Carson, supra; Mulcahey v. Catalanotte, supra; Marcello v. Bonds, supra).
In connection with an investigation of the immigration system which subsequently led to the passage of the Immigration and Nationality Act, the following statement appears in the report of the Senate Committee on the Judiciary dated April 20, 1950 (Senate Report No. 1515, 81st Cong., 2d sess., p. 410):
The subcommittee recommends that the immigration laws contain specific provision for the deportation of aliens who have been convicted of any law pertaining to narcotics. Such aliens should be deportable whether the conviction occurred prior to or after entry into the United States. The deportable class will include those convicted under any law in this country pertaining to narcotics or under any such law of a foreign country. [Emphasis supplied.]
The subcommittee clearly intended to broaden the coverage of the immigration laws with respect to aliens convicted under laws "pertaining to narcotics," and it was held that a conviction for conspiracy to violate a narcotic law was within the purview of 8 U.S.C. 1251 (a) (11) although that statutory provision did not specifically mention "conspiracy" which had been included in the previous legislation ((Act of February 18, 1931; 8 U.S.C. 156a, 1946 ed.), Matter of N----, A-1732847, 6 IN Dec. 557 (Atty. Gen., 1955)). In addition to the apparent inadvertent omission of the word "conspiracy" from the legislation, there had been also 2 court decisions which had a restrictive effect on 8 U.S.C. 1251 (a) (11) ( United States ex rel. De Luca v. O'Rourke, 213 F. (2d) 759 (C.A. 8, 1954); Ex parte Robles-Rubio, 119 F. Supp. 610 (N.D. Calif., 1954)).
From a consideration of the legislative history of the Narcotic Control Act of July 18, 1956, as it appears in 1956 U.S. Code Congressional and Administrative News, vol. 2, pp. 3274-3322, it is obvious that the purpose of this legislation was to make more severe the penalties for violation of the narcotic laws and to eliminate certain deficiencies in existing legislation. In discussing an amendment to another provision of the Immigration and Nationality Act ( 8 U.S.C. 1251 (b)), the subcommittee at page 3321 said that clarification of this provision was desirable by reason of the decisions in United States ex rel. De Luca v. O'Rourke and Ex parte Robles-Rubio, supra, and that additional language was being included in 8 U.S.C. 1251 (b) for the purpose of making it clear that this provision does not permit judicial recommendation against deportation of an alien convicted of a narcotic offense. The omission of "conspiracy" in 8 U.S.C. 1251 (a) (11) was also corrected by the Act of July 18, 1956, through the insertion in that provision of the words "conspiracy to violate."
It is well settled that a statute which is susceptible to either of two opposed interpretations is to be read in the manner which effectuates rather than frustrates the major purpose of the legislative draftsmen ( Shapiro v. United States, 335 U.S. 1, 31 (1948)). It has also been said that if an amendment is either procedural or remedial in character the settled rule permits its retroactive application ( Federal Broadcasting System v. Federal Communications Commission, 239 F. (2d) 941, 944 (C.A.D.C., 1956)). Since it is evident that the amendments to the Immigration and Nationality Act, which were made by the Narcotic Control Act of July 18, 1956, manifested a congressional intent to eliminate certain deficiencies, we are convinced that these provisions were intended to have retroactive application.
Prior to the amendment of July 18, 1956, as well as subsequent thereto, paragraph (11) of subsection (a) of 8 U.S.C. 1251 required the deportation of an alien who "at any time" had been convicted, and subsection (d) of 8 U.S.C. 1251, which was not amended, provides as follows:
(d) Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a) of this section, notwithstanding (1) that any such alien entered the United States prior to June 27, 1952, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a) of this section, occurred prior to June 27, 1952.
A statute which has been amended is to be read, as to all subsequent occurrences, as if the amendment had originally been incorporated in the act ( Blair v. Chicago, 201 U.S. 400, 475 (1906), Pennsylvania Co. v. United States, 236 U.S. 351, 362 (1915); United States v. La Franca, 282 U.S. 568, 576 (1931)). The limiting statement relating to subsequent occurrences has reference, of course, to a general rule that statutes and amendments are to be construed as operating prospectively. However, the portion of 8 U.S.C. 1251 (a) (11) with which we are here concerned was retroactive as originally enacted because of the use of the words "at any time" and by reason of the provisions of 8 U.S.C. 1251 (d), and a deportation proceeding based upon 8 U.S.C. 1251 (a) (11) was upheld where the alien was convicted of a narcotic offense in 1925 at which time there was no statute making that offense a ground for deportation ( Mulcahey v. Catalanotte, supra). Since this part of 8 U.S.C. 1251 (a) (11) was originally retroactive and since the change made by the amendment is to be regarded as though it had been in the statute from the beginning, it is our considered opinion that this part of 8 U.S.C. 1251 (a) (11) comprehends convictions for possession of a narcotic drug regardless of whether such convictions occurred prior to or subsequent to the amendment of July 18, 1956. We conclude, therefore, that the respondent is deportable on the charge stated in the order to show cause.
We turn now to the other matters set forth in counsel's brief. He stated that the findings of fact and conclusion of law were based on an incomplete record since it did not contain a copy of a letter dated April 8, 1957, which was written by the judge who had sentenced the respondent. Apparently this had not reached the special inquiry officer when he rendered his decision on April 12, 1957. However, a copy of the letter is included in counsel's brief and we have considered it as though it were a part of the formal record.
The statutory provision authorizing a court to recommend against deportation is 8 U.S.C. 1251 (b). We pass by the fact that it requires that the recommendation be made within 30 days after the imposition of judgment and that due notice be given to certain parties prior to the recommendation. As amended by the Act of July 18, 1956, 8 U.S.C. 1251 (b) contains a specific statement that the provisions of subsection (b) shall not apply in the case of any alien who is charged with being deportable under 8 U.S.C. 1251 (a) (11). Hence, regardless of other considerations, the court's recommendation against deportation is not of assistance to the respondent.
Counsel also contends that the special inquiry officer "refused arbitrarily to entertain or receive" the respondent's application for discretionary relief. The record indicates that counsel stated that he desired to call witnesses to establish the hardship which would result if the respondent were deported. Presumably this would have required a continuance of the hearing for the production of witnesses since the hearing was being conducted at the Arizona State Prison where the respondent was confined. The special inquiry officer declined to hear evidence bearing on discretionary relief because he was of the opinion that there was no relief which could be afforded to the respondent.
Counsel indicated in his brief that the respondent desired to apply for suspension of deportation but the record does not show that there was any specific request during the hearing for permission to file a formal application for suspension of deportation. It was asserted in counsel's brief that the respondent could establish his good moral character; that his deportation would cause exceptional and extremely unusual hardship; that he has resided in the United States for over 10 years; that he is married to a United States citizen; and that he is the father of 3 minor children. These are appealing factors but, for the reasons which we shall indicate, the respondent is not statutorily eligible for suspension of deportation.
Suspension of deportation is governed by section 244 (a) of the Immigration and Nationality Act ( 8 U.S.C. 1254 (a)) which consists of 5 paragraphs. Counsel has not indicated which of these 5 paragraphs he considers applicable to the respondent's case, but we have considered each of them. The respondent does not come within the purview of paragraph (1) because it requires that the last entry must have occurred prior to June 27, 1950, whereas the respondent last entered the United States on September 16, 1954. Paragraphs (2) and (3) require continuous physical presence for 5 years and paragraph (4) requires such presence for 10 years. These paragraphs cannot be utilized by the respondent who has only been physically present in the United States continuously since September 16, 1954. We need not comment on certain other matters which make these three paragraphs inapplicable to the respondent's case. Paragraph (5), which specifically relates to aliens deportable under 8 U.S.C. 1251 (a) (11), is of no assistance to the respondent since it requires continuous physical presence of not less than 10 years. While we have no doubt that the respondent's deportation would result in exceptional and extremely unusual hardship to him, his wife and his children, suspension of deportation cannot be granted because the respondent's case does not meet the requirements of 8 U.S.C. 1254 (a).
8 U.S.C. 1254 (e) authorizes the granting of voluntary departure in certain cases but this would be of no value to the respondent inasmuch as he would be unable to return to the United States due to his excludability under 8 U.S.C. 1182 (a) (23) by reason of the narcotic conviction. In any event, 8 U.S.C. 1254 (e) does not permit the granting of voluntary departure to an alien who is within 8 U.S.C. 1251 (a) (11), unless he is eligible for suspension of deportation under paragraphs (4) or (5) of 8 U.S.C. 1254 (a). Since the statute does not permit the granting of discretionary relief from deportation in this case, no purpose would be served in reopening the hearing to receive evidence bearing on that matter, and we have no alternative but to dismiss the appeal.
Order: It is ordered that the appeal be and the same is hereby dismissed.