A-6944003
Decided by Board January 25, 1956
Narcotic violation — Section 11502, Health and Safety Code of California — Deportability under section 241 (a) (11) of Immigration and Nationality Act.
An alien who has been convicted under section 11502 of the Health and Safety Code of California for selling a liquid, substance, or material in lieu of a narcotic drug, after he had agreed, offered, or consented to sell a narcotic, is deportable under section 241 (a) (11) of the Immigration and Nationality Act.
CHARGES:
Warrant: Act of 1952 — Section 241 (a) (1) — Crime prior to entry, to wit: Petit theft.
Lodged: Act of 1952 — Section 241 (a) (11) — Convicted of violation of narcotic drug law, to wit: Section 11502, Health and Safety Code of California.
BEFORE THE BOARD
Discussion: This respondent, a 32-year-old married male alien, a native and citizen of Mexico, appeals from a decision of a special inquiry officer on September 13, 1955, which ordered deportation on the charge lodged in the proceeding. The warrant charge is not sustained. Deportability is in issue.
The respondent was admitted to the United States at El Paso, Texas, for permanent residence on June 26, 1948. He last entered at that port on August 20, 1951, apparently upon the presentation of a resident alien's border-crossing identification card, to resume residence. The ground for deportation arises by reason of the respondent's conviction in Superior Court, State of California, on May 18, 1954, on plea of guilty to violation of section 11502 of the Health and Safety Code of California, case No. 160316. He was sentenced to imprisonment in the state prison for the term prescribed by law (not exceeding 10 years). On June 1, 1954, on motion, the Superior Court recommended to the Attorney General of the United States that the defendant not be deported on the basis of his conviction under criminal action No. 160316. It may be added that respondent had been charged also with violation of section 11500 of the Health and Safety Code of California, at the same time in the same court, and that charge (case No. 160315) was dismissed.
Counsel concedes that the court was without authority to effectively recommend against deportation pursuant to section 241 (b) of the Immigration and Nationality Act. However, counsel contends that the charge on which respondent has been found deportable is not a valid ground for deportation under section 241 (a) (11) of the Immigration and Nationality Act, because the statute violated, namely, section 11502 of the Health and Safety Code of the State of California, deals with fraud and false pretenses and is not a statute relating to a narcotic drug. It is, therefore, argued that the court realized that the conviction did not bring the respondent within the purview of section 241 (a) (11) of the Immigration and Nationality Act and for that reason recommended that such conviction be not made a basis for deportation.
It is our opinion that respondent has been convicted of violation of a narcotic drug law as contemplated within the provisions of section 241 (a) (11) of the Immigration and Nationality Act. The information to which the respondent pleaded guilty on May 18, 1954, case No. 160316, Superior Court of California, charged violation of section 11502 of the Health and Safety Code of that State, as follows:
On November 7, 1953 ____ ____ did willfully, unlawfully and feloniously agree, consent and offer to unlawfully sell, furnish, transport and give a narcotic, to wit, heroin, to ____ ____ a human being, and did then and there sell, deliver, furnish and give to the said ____ ____ another substance and material in lieu of said narcotic.
The judgment of conviction reads in part, as follows:
____ ____ the said defendant, having duly pleaded guilty in this court of the crime of violation of section 11502, Health and Safety Code of the State of California (sell), a felony as charged in the information — It is therefore ordered, adjudged and decreed that the said defendant be punished by imprisonment in the state prison for the term prescribed by law.
The special inquiry officer has emphasized that section 11502 of the Health and Safety Code of California was added by the legislature of that state in 1953 and comes under Division 10, entitled "Narcotics," which is Chapter V, entitled "Illegal Narcotics." Article 1 of that chapter is entitled "Illegal Sale, Possession, Administration and Transportation." The title to section 11502 is "Sale, furnishing, etc., of narcotic: Punishment." That section reads:
Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of any narcotic shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years.
We find, after careful consideration, that section 11502 of the Health and Safety Code of California, quoted above, is a statute relating to (among other acts) the governing or controlling of the transportation, sale, exchange, dispensing, administering, giving away, etc., of any narcotic drugs to any person or the offering, arranging or negotiating to have a narcotic sold, delivered, transported, furnished, etc., to any person, and then selling, delivering, furnishing, or giving to any person any other liquid, substance, or material in lieu of any narcotic drug. The conviction of the respondent for the acts charged (as quoted above), which were in violation of the statute were, therefore, acts contemplated by the broad provisions of section 241 (a) (11), Immigration and Nationality Act. This is true notwithstanding the fact that the respondent was actually convicted of selling a liquid, substance or material in lieu of a narcotic drug after he had agreed, offered, or consented to sell a narcotic, to wit, heroin. The words "relating to" have been construed to be the controlling phrase in section 241 (a) (11), Immigration and Nationality Act. Those words have broad coverage. In fact, that phrase has been construed to cover within its scope a conviction for conspiracy to violate a narcotic law ( Matter of N----, A-1732847, 6 IN Dec. 557 (Atty. Gen., Sept. 23, 1955)). Counsel's contention must be rejected. The appeal will be dismissed.
Order: It is ordered that the appeal be dismissed.