A-5462239.
Decided by Board November 23, 1954.
Evidence — Conviction under California statute as narcotic drug addict not sufficient in and of itself to support a deportation charge under section 241 (a) (11) of the Immigration and Nationality Act — Definition of "addict."
(1) Congress has defined "addict" as a person who habitually uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction ( 42 U.S.C. 201 (k)).
(2) Conviction under section 11721 of the Health and Safety Code of California as a "narcotic drug addict" is not in and of itself sufficient evidence to support a deportation charge under section 241 (a) (11) of the Immigration and Nationality Act where no specification of guilt to any particular charge in the complaint was made. Under the California statute a narcotic drug addict may be either "a person who unlawfully uses, or is addicted to the unlawful use of, narcotics" and the burden of establishing that conviction was for a particular charge is upon the Service. Where positive evidence is introduced by the respondent that he is not a narcotic drug addict and the Government's case is based solely on the conviction, the Service has failed to sustain its burden of proof.
CHARGE:
Warrant: Act of 1952 — Narcotic drug addict after entry.
BEFORE THE BOARD
Discussion: Appeal is taken from the order of the special inquiry officer requiring respondent's deportation on the ground stated above. The issue presented is whether the record establishes that the respondent is a narcotic drug addict.
Respondent is a 42-year-old married male, a native and citizen of China, who has made his home in the United States since 1924, when he was admitted as the alien son of a native-born citizen of the United States. The special inquiry officer found that the respondent's conviction on November 18, 1953, on a plea of guilty, for violation of section 11721 of the Health and Safety Code of the State of California was sufficient to support the charge in the warrant of arrest. Counsel contends that the conviction should not be held binding upon the respondent since it resulted from his plea of guilty to a charge he did not fully understand because he spoke no English and no interpreter was made available to him although he had requested that he be provided with one. It is further argued that on the evidence of record, the Government has not sustained its burden of establishing that respondent is an addict. In support of this contention, counsel relies upon respondent's testimony that he has used narcotics to relieve a painful eye condition, but that he is not an addict, and the corroboration furnished this testimony by the certification of the United States Public Health Service after respondent had been examined. We believe that the Service has failed to sustain the burden of proof upon it and will terminate the proceedings.
Section 241 (a) (11) of the Immigration and Nationality Act, insofar as is pertinent to this discussion, provides for the deportation of any alien who
is, or hereafter at any time after entry has been, a narcotic drug addict, * * *.
The term "narcotic drug addict" is not defined in the Immigration and Nationality Act. However, in connection with legislation concerning the care and treatment of "narcotic addicts," Congress has furnished the following definition:
The term "addict" means any person who habitually uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction ( 42 U.S.C.A. 201 (k)).
The definition appears to be in accord with the judicial decisions which recognize that one may be a user of drugs without being an addict ( Matter of B----, A-6815221, 3 IN Dec. 620, 621).
Respondent's conviction on November 18, 1953, was under section 11721 of the Health and Safety Code of the State of California which after September 9, 1953, read as follows:
Section 11721. Punishment of addicts. No person shall unlawfully use or be addicted to the unlawful use of narcotics. Any person convicted of violating any provision of this section is guilty of a misdemeanor and shall be placed on probation for not more than five years and the court shall sentence the person convicted to not less than 90 days nor more than one year in the county jail as a condition of probation.
The term "addict" is defined in the Health and Safety Code of the State of California as follows:
Section 11009. "Addict." "Addict," as used in this division, means a person who unlawfully uses, or is addicted to the unlawful use of, narcotics.
It may thus be seen that the California definition of the word "addict" does not necessarily mean a person who habitually uses narcotic drugs, but includes a person who unlawfully used the drug on one occasion ( People v. Hopkins, 226 P. (2d) 74, D.C. of Appeals, First District, California). We shall use the term "addict" in the sense defined by Congress.
To establish respondent's deportability on the charge in the warrant of arrest, it is not necessary to show that he has been convicted of being an addict. The law requires only that the alien at some time after entry shall have been an addict. The conviction in the state court in California is of course not res judicata of the issue before us for the reason, if none other, that the parties to that action are neither the same as the parties in this action nor. are they privies to the original parties. Thus, even if the subject matter or facts in both actions were substantially similar, res judicata would not apply ( Strong v. Aetna Casulty and Surety Co., 52 F. Supp. 787 (1943) N.D. Texas; Deitrick v. Fenderson, 27 F. Supp. 469 (1939); Soap Corp. of America v. Reynolds, 178 F. (2d) 503 (C.A. 5, 1949)). The conviction thus becomes merely one of the factors to be considered in determining whether respondent has been an addict. We find the conviction to be of ambiguous import on this issue. The conviction does not establish whether the respondent was convicted of being an unlawful user of narcotics or whether he was convicted of being a person addicted to the unlawful use of narcotics. The complaint in the respondent's case charged him with committing a violation of section 11721 of the Health and Safety Code in that he
was then and there willfully and unlawfully a narcotic addict, in that he was a person who unlawfully used and was addicted to the unlawful use of narcotics, to wit: Opium and derivatives thereof.
The statement in the complaint terming the respondent to be a narcotic addict, if not superfluous, must be considered in the light of the California statutory definition of the term "addict." By that definition, this can mean that respondent was either an unlawful user of the drug, or a person addicted to the unlawful use of the drug. The complaint goes on to charge the respondent with being an unlawful user and a person addicted to the unlawful use of narcotics. He is in effect charged with the commission of an act and the assumption of a status in violation of law. This is in the language of the statute except that the two charges are in the conjunctive while the statute sets them forth in the disjunctive. It does not appear that the two charges set forth in the statute (unlawful use and addiction to unlawful use) set up two separate and distinct offenses in the sense that they are as distinct and independent of each other as if they had been enacted in separate sections so that an individual who either committed the proscribed act or possessed the proscribed status could be convicted and punished by more than one sentence. The charges appear of the type that, although either may constitute a distinct offense when committed by the same person at the same time, charge but one crime when combined and can be punished only as one offense ( Bealmear v. So. California Edison Co., 139 P. (2d) 20, S. Ct. of California; People v. Craig, 110 P. (2d) 403, S. Ct. of California); such charges may be made in the conjunctive although set forth in the disjunctive in the statute and proof of the commission of either act would suffice to obtain a conviction ( People v. McCennegen, 234 P. 91, S. Ct. of California; Bealmear v. So. California Edison Co. ( supra); People v. Kinsley, 5 P. (2d) 938, D.C. of Appeals, Fourth District, California; 27 Am. Jur. 104). The fact that the statute requires the court to sentence the person convicted for violating any provision of the section to not less than 90 days in jail and the fact that respondent, who was charged with both committing the unlawful act and possessing the unlawful status, was sentenced to only 90 days in jail, is further indication that the statute defines one offense which may be committed by either one of the specified charges.
It thus may be seen that the conviction could have been obtained in the instant case by proof of the commission of any one of the two charges set forth in the count. A general plea of guilty was entered. Since no specification of guilt to any particular charge was made, we cannot determine that the respondent was not convicted solely on the ground that he was a person who unlawfully used narcotics on one occasion (see Stromberg v. California, 283 U.S. 359, 367-370 (1931), 75 L.Ed. 1117; Terminiello v. Chicago, 337 U.S. 1, 5 (1949), 93 L.Ed. 1131). The burden of establishing that conviction for a particular charge was upon the Service. Because the burden is upon the Service, we are not justified in drawing an inference most unfavorable to the alien. In fact, we should draw the inference most favorable to him. We must assume that he was convicted of being a person who had unlawfully used narcotics.
We come now to the evidence presented by the respondent to establish that he is not an addict. The respondent testified that he has used narcotics on occasions to alleviate a painful eye condition. Certification issued by the United States Public Health Service on March 10, 1954, after respondent was given a physical examination and his history taken, reveals that the respondent was found afflicted with blindness, unilateral in his right eye, that it was of a permanent nature; that there is ample evidence that the subject has had pain in his right eye and may still experience pain and irritation in that area; that the eye should probably be removed surgically; that there is evidence of past intravenous injections on both forearms but not as extensive as would be expected in a confirmed drug addict who had indulged his habit for 18 years; that there was no history of withdrawal symptoms in the past 14 weeks during which opium and equipment for administration of opium had not been available to the respondent; and that in the opinion of the United States Public Health Service physician, the respondent was not a narcotic drug addict.
The positive evidence introduced by the respondent and the ambiguous nature of the evidence relied upon by the Service causes us to conclude that the Service has failed to establish by substantial, reasonable, and probative evidence that the respondent has been a narcotic drug addict. The proceedings will be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.