A-9798106
Decided by the Board March 13, 1953 Approved by the Attorney General August 11, 1953
Narcotics, conviction for possession of — Excludability under section 212(a)(23) of the Immigration and Nationality Act.
A conviction solely for possession of narcotics (consisting of two butts of marihuana cigarettes), without any allegation in the record of conviction that such possession was related to illicit traffic in narcotic drugs, is not a ground of exclusion under section 212(a)(23) of the Immigration and Nationality Act and does not constitute a conviction of illicit traffic in narcotics within the meaning of that section. In determining whether an alien is excludable under said section 212(a)(23) because he has been convicted of a violation of a law or regulation relating to the illicit traffic in narcotic drugs, the facts must be examined upon which the violation of law is based.
BEFORE THE BOARD
(March 13, 1953)
Discussion: The case comes forward under the provisions of 8 C.F.R. 236.16 upon appeal by the District Director, New York, from the decision of the special inquiry officer finding the applicant admissible under section 101(a)(27)(B).
The record relates to a native and citizen of Australia, 35 years old, male, who was lawfully admitted for permanent residence on October 8, 1948. His last arrival occurred at the Port of New York on January 2, 1953, on the SS. Santa Paula as a member of the crew and the record establishes admissibility as an immigrant lawfully admitted for permanent residence who is returning from a temporary visit abroad.
The applicant was convicted in the Superior Court of the State of California in and for the county of Los Angeles on June 6, 1951, of violation of section 11500, Health and Safety Code of the State of California (possession), a felony, as charged in the information and was sentenced to imprisonment for a term of 1 month. The information charges that on or about May 11, 1951, the defendant did willfully, unlawfully and feloniously have in his possession flowering tops and leaves of Indian hemp ( cannabis sativa), in violation of section 11500, Health and Safety Code of the State of California. The special inquiry officer found that the applicant had not been convicted of a crime involving moral turpitude nor of a violation of any law or regulation relating to the illicit traffic in narcotic drugs and concludes that he is not inadmissible. The district director takes issue with this conclusion and finds that the alien's conviction of violation of section 11500 of the Health and Safety Code of California constitutes a conviction of a law relating to the illicit traffic in narcotic drugs and thus finds him inadmissible under the provisions of section 212(a)(23) of the Immigration and Nationality Act.
The provisions of section 212(a)(23) of the Immigration and Nationality Act of 1952 (Public Law 414, 82d Cong., 2d sess., 66 Stat. 184; 8 U.S.C. 1182 (a)(23)) reads as follows:
(23) Any alien who has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any salt derivative or preparation of opium or coca leaves, or isonipecaine or any addiction-forming or addiction-sustaining opiate; or any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs.
This section creates a new class of excludable aliens not found in the previous law relating to inadmissible classes of aliens. The provisions relating to the exclusion of narcotic drug addicts, which appeared in paragraph (23) of section 212(a) of S.716 was transferred to paragraph (5) of section 212(a) of the act as finally enacted, providing for the exclusion of aliens who are narcotic drug addicts or chronic alcoholics. An analysis of the sections set forth above shows that it is comprised of four parts. The first part relates to aliens convicted of a law or regulation relating to the illicit traffic in narcotic drugs; the second part deals with a conviction or violation of any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, and exportation of narcotic drugs; the third part relates to the possession for the same purposes set forth in the second part; and the fourth part relates to aliens who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs.
S.Rept. 1137 to accompany S. 2550 (82d Cong., 2d. sess.), p. 7; H.Rept. 1365 to accompany H.R. 5678 (82d Cong., 2d sess.), p. 50.
S.Rept. 1137, p. 9.
The fourth part of the section set forth above is not concerned herein. The second part is virtually a reenactment of the language contained in the act of February 18, 1931, as amended, as to which we have held that mere possession of narcotics does not render an alien subject to deportation. The third part of the section relating to possession for the enumerated purposes set forth therein is new and was added to cover the cases of those persons convicted of possession of large quantities of narcotics which were intended to be used in the manufacture, selling, distributing, transferring or otherwise trafficking in narcotic drugs. Both the special inquiry officer and the district director concede that the applicant was not convicted on a charge which would bring him within this clause, and this particular clause is clearly inapplicable to the case.
Matter of V----, 56073/670, 1 IN Dec. 160 (1941); Matter of D---- S----, A-7645761, 3 IN Dec. 502 (1949); Mow v. McGrath, 101 F. (2d) 982 (C.C.A. 9, 1939).
S.Rept. 1515, Report of the Committee on the Judiciary pursuant to S.Res. 137, p. 410 (80th Cong.).
The contention of the district director is that an alien convicted under section 11500 of the Health and Safety Code of California comes within the scope of the first portion of section 212(a)(23) set out above even though the record of conviction charges only illegal possession of narcotics. He asserts that section 11500 of the California Code is a section relating to illicit trafficking in drugs within the meaning of section 212(a)(23) of the Immigration and Nationality Act and the fact that the subject alien was indicted for any one of the specific enumerations therein does not in any way change the nature of the statute which remains nevertheless a statute relating to illicit trafficking in narcotic drugs. The district director goes further and states that even if we were dealing with a statute making possession alone a violation of law, conviction of possession alone is now an excludable offense under the Immigration and Nationality Act, because possession is a chain in the sequence of trafficking; that it was believed that Congress intended to exclude not only the narcotic addict but also the possessor of narcotics who must necessarily possess for one or two reasons, either for the purpose of trafficking or for his own use and addiction.
We believe that the district director has read into the law more than was intended by Congress. The first portion of section 212(a)(23) refers to an alien who has been convicted of a violation of any law or regulation relating to the illicit traffic in narcotic drugs. Section 11500 of the Health and Safety Code of California states that no person shall possess, transport, sell, furnish, administer, or give away or offer to transport, sell, furnish, administer, or give away, or attempt to transport a narcotic except upon the written prescription of a physician, dentist, chiropodist, or veterinarian licensed to practice in that State. Clearly this is a divisible statute.
The alien in the instant case was convicted merely of possession. (There is evidence to show that the quantity of narcotics involved consisted of two butts of marihuana cigarettes.) It is not believed that it is possible to bring within the scope of traffic in narcotic drugs a conviction of possession alone without any indication that such possession was related to the traffic in narcotic drugs. Traffic has been defined as commerce; trade; sale or exchange of merchandise, bills, money, and the like; the passing of goods or commodities from one person to another or an equivalent in goods or money; and a trafficker is one who trafficks or a trader, a merchant. Neither the plain language of the statute nor the legislative history of the law indicates that it was aimed at the casual, occasional, nonaddict user of narcotics.
Bouviers' Law Dictionary.
We therefore conclude that a conviction solely for possession, without more, and absent any allegation in the record of conviction that such possession was related to the illicit traffic in narcotic drugs, is not within the scope of section 212(a)(23) of the Immigration and Nationality Act, and does not constitute a conviction of illicit traffic in narcotic drugs as prescribed in that act. Accordingly, we find ourselves in agreement with the decision of the special inquiry officer and we shall accordingly dismiss the appeal of the district director from that decision.
Order: It is ordered that the appeal of the district director from the decision of the special inquiry officer be and the same is hereby dismissed, and that the proceedings be terminated.
In accordance with the provisions of section 6.1(h) of Title 8, Code of Federal Regulations, the case is certified to the Attorney General for review of the Board's decision.
(August 11, 1953)
In determining whether an alien is excludable under section 212(a)(23) of the Immigration and Nationality Act because he has been convicted of a violation of a law or regulation relating to the illicit traffic in narcotic drugs, the facts must be examined upon which the violation of law is based. In this proceeding the facts do not show conduct contemplated by section 212(a)(23). The order of the Board of Immigration Appeals dated March 13, 1953, is hereby approved.