A-6815221
Decided by Board May 27, 1949
Narcotic violation — Conviction for unlawfully concealing and possessing fraudulently imported opium in violation of 21 U.S.C. 174 — Deportability under the act of February 18, 1931, as amended (8 U.S.C. 156 (a)).
(1) A conviction on February 28, 1947, for unlawfully concealing and possessing fraudulently imported opium in violation of 21 U.S.C. 174, is a sufficient basis for an alien's deportation under the provisions of the act of February 18, 1931, as amended by the Alien Registration Act of 1940, approved June 28, 1940 (8 U.S.C. 156 (a)), since after such amendment it was not required that the conviction be followed by sentence ( U.S. ex rel. Casseta v. Watkins, 73 F. Supp. 399 (1947)).
(2) The statutory exception set forth in the act of February 18, 1931, as amended relates to an addict and not to one who merely used the drug ( Mow v. McGrath, 101 F. (2d) 983, 1939) occasionally ( Ex parte Eng, 77 F. Supp. 74, D.C.N.D. Cal., 1948).
CHARGE:
Warrant: Act of 1931 — Convicted and sentenced for narcotic violation.
BEFORE THE BOARD
Discussion: This case presents an appeal from an order entered by the Commissioner on February 23, 1949, directing the respondent's deportation to Germany and denying his application for suspension of deportation. The order further directed that execution of the warrant of deportation be deferred until such time as the respondent is released from imprisonment.
Counsel during oral argument before us on March 29, 1949, requested that the proceedings be canceled because, in his opinion, the respondent was a member of one of the classes enumerated within the exception set forth in section 156 (a), 8 U.S.C.A.
The record relates to a native and citizen of Germany, 50 years of age, married, who has resided continuously in the United States since his admission for permanent residence at New York, N.Y., on April 8, 1903. The respondent's wife is a United States citizen, born on May 9, 1905, in Defiance, Ohio.
The record establishes that the respondent was arrested on or about November 30, 1944, in Caldwell, N.J., for violations of section 174, title 21, U.S.C.A., for unlawfully concealing and possessing fraudulently imported narcotic drugs, to wit, 42 1/2 ounces of solution of opium, 2 ounces of smoking opium, and 10 grains of ashes of opium. The respondent, on his plea of guilty, was convicted on February 28, 1947, in the District Court of the United States, District of New Jersey. He was sentenced to a term of 5 years in prison and to pay a fine of $5,000. It was further ordered by the court that the respondent stand committed until the fine is paid. The respondent is now confined in the Federal Correctional Institution, Milan, Mich. The respondent was found deportable on the above designated charge.
Respondent, on his plea of guilty, was convicted on February 28, 1947, for violation of section 174, title 21, U.S.C.A. This section provides:
If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than 10 years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.
The question presented in the instant case is whether the respondent's conviction of violations of section 174, 21 U.S.C., is sufficient to cause his deportation under the provisions of the act of February 18, 1931, as amended, section 156 (a), 8 U.S.C.A.
The Court ruled in Mow v. McGrath, 101 F. (2d) 983, March 1, 1939, "That an alien convicted after indictment under section 174, 21 U.S.C.A., of concealing and facilitating concealment of drugs known to have been unlawfully imported and who used opium but was not an addict was subject to deportation (8 U.S.C.A., sec. 156 (a))." In Ex parte Eng, 77 F. Supp. 74, District Court, N.D. Cal., March 16, 1948, the alien was convicted on his plea of guilty of violating the provisions of section 174, 21 U.S.C.A. The court ruled in that case, "That where an alien by his own admissions during deportation proceedings, was not a drug addict, but merely an occasional user of opium, he could not claim exception from deportation following his conviction of violations of Narcotics Act on that ground (Immigration Act 1917, sec. 19 (a), as amended, 8 U.S.C.A. sec. 155, 8 U.S.C.A. 156 (a))."
In U.S. ex rel. Casseta v. Watkins, 73 F. Supp. 399, September 10, 1947, the court said, "That under amendment to the act of February 18, 1931, providing for deportation of aliens convicted and sentenced for violation of narcotic laws with respect to violations committed on or after date of enactment of the Alien Registration Act, June 28, 1940, conviction only is necessary as grounds for deportation. Marijuana is included among enumerated narcotics and the violation may be of any statute relating to traffic in narcotics, within the territorial confines of the United States (Act of February 18, 1931, as amended by the Alien Registration Act, June 28, 1940, sec. 21, 8 U.S.C.A., sec. 156 (a))."
After careful consideration of the record, we affirm the order entered by the Commissioner on February 23, 1949. The appeal will be dismissed.
Order. It is ordered that the appeal be and the same is hereby dismissed.