E-069269 A-4273315
Decided by the Board June 26, 1953
Narcotics — Marihuana — Planting and cultivating first step in manufacture or production — Deportability under section 241 (a) (11) of the Immigration and Nationality Act.
(1) Section 11530 of the Health and Safety Code of California prohibiting the planting and cultivation, etc., of marihuana (which is defined as a narcotic) is a law governing or controlling the manufacture and production of a narcotic drug.
(2) An alien convicted in 1949 for violation of the above statute: planting and cultivating marihuana, is deportable under section 241 (a) (11) of the Immigration and Nationality Act.
CHARGES:
Warrant: Section 241 (a) (11) of the Immigration and Nationality Act, in that, he at any time has been convicted of any law or regulation relating to the illicit traffic in narcotic drugs: Possession of a narcotic, to wit: Cannabis sativa, Indian hemp, or loco weed, in violation of section 11500 of the Health and Safety Code of the State of California;
Section 241 (a) (11) of the Immigration and Nationality Act, in that, he 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, or exportation, or the possession for the purpose of manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of any of the drugs described therein: Planting and cultivating loco weed or cannabis sativa, in violation of section 11530 of the Health and Safety Code of the State of California;
Section 241 (a) (4) of the Immigration and Nationality Act, in that, he at any time after entry has been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct, to wit: Grand larceny, and planting and cultivating loco weed or cannabis sativa, in violation of section 11530 of the Health and Safety Code of the State of California.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated May 1, 1953, of the special inquiry officer finding the respondent subject to deportation on the second and third charges set forth in the warrant of arrest.
The record relates to a native and citizen of Mexico, 64 years old, male, who testified that he last entered the United States at El Paso, Tex., on or about September 20, 1920, and has since resided continuously in this country. The entry as alleged cannot be verified. On July 5, 1949, in the Superior Court of the State of California, in and for the county of Santa Barbara, the respondent was convicted on his plea of guilty of wilfully and unlawfully possessing a narcotic, to wit: Cannabis sativa, Indian hemp, or loco weed without benefit of having a written prescription of a licensed physician, dentist, chiropodist, or veterinarian in violation of section 11500 of the Health and Safety Code of California (count 1); and wilfully, unlawfully and knowingly planting and cultivating loco weed or cannabis sativa in violation of section 11530 of the Health and Safety Code of California (count 2) and was sentenced to imprisonment for a term of 8 months to run consecutively plus a fine of $300.
Section 241 (a) (11) of the Immigration and Nationality Act insofar as pertinent, provides that:
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported * * * who at any time 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 manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate; * * *
Section 11530 of the Health and Safety Code of the State of California under which the second count in the information is laid, provided that: "No person shall plant, cultivate, cut, harvest, dry, or process any cannabis sativa or any part thereof or any of the genii of the lophophora or any of the parts thereof." The respondent was convicted of wilfully, unlawfully and knowingly planting and cultivating loco weed or cannabis sativa. Section 11001 includes cannabis sativa (commonly known as marihuana) within the definition of "narcotics." It is evident that a law prohibiting the planting, cultivation, etc., of cannabis sativa (marihuana) is a law governing or controlling the manufacture or production of a narcotic drug, since the first step in such manufacture or production would be the planting, cultivating, cutting, harvesting, drying, or processing of the marihuana weed. The record therefore sustains the ground of deportation contained in the second charge stated in the warrant of arrest.
In view of the fact that we find the second charge stated in the warrant of arrest to be sustained, we prefer at this time not to concern ourselves with the first and third charges stated in the warrant of arrest.
Deportation will be ordered solely on the second charge stated in the warrant of arrest.
Order: It is ordered that the appeal be dismissed and that the alien be deported pursuant to law solely on the following charge:
Section 241 (a) (11) of the Immigration and Nationality Act, in that, he 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, or exportation, or the possession for the purpose of manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation of any of the drugs described therein: Planting and cultivating loco weed or cannabis sativa, in violation of section 11530 of the Health and Safety Code of the State of California.