E-082751
Decided by the Board October 13, 1953
Narcotics, conviction for possession of — Deportability under section 241 (a) (11) of the Immigration and Nationality Act — Record of conviction.
(1) An alien who was convicted in 1952 of unlawfully possessing a narcotic drug in violation of section 422 of the Public Health Law of the State of New York has been convicted merely of possession and is not subject to deportation under any of the provisions of section 241 (a) (11) of the Immigration and Nationality Act.
(2) One may not go behind the record of conviction to determine deportability under section 241 (a) (11) of the Immigration and Nationality Act, although such action is proper in determining excludability under section 212 (a) (23) of that act.
CHARGES:
Warrant: Immigration and Nationality Act — failed to maintain status-seaman — admitted under the Act of 1924.
Lodged: Immigration and Nationality Act — Section 241 (a) (11) conviction possession narcotic drugs.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order dated July 6, 1953, of the special inquiry officer finding the respondent subject to deportation on the warrant and lodged charges.
The facts of the case are fully set forth in the decision of the special inquiry officer. Briefly, the record relates to a native of British Honduras, subject of Great Britain, who first entered the United States at the port of Charleston, S.C. on February 24, 1949, ex SS. Sam Truth as a seaman under section 3 (5) of the Immigration Act of 1924 for a temporary period not to exceed 29 days. Although his entry was a lawful one as a bona fide seaman, he was only admitted for a temporary period not to exceed 29 days, but has since continued to reside in the United States although never having received any extension of his temporary admission. It is concluded that the warrant charge is sustained by the evidence.
On June 25, 1953, in the court of general sessions of the county of New York, the respondent was convicted on his plea of guilty to the third count of an indictment which charged "the said defendant, in the county of New York, on or about said January 12, 1953, possessed a quantity of a narcotic drug, to wit, a quantity of heroin," and received a suspended sentence, and, if not deported, to be under the supervision of the probation department. Only a portion of the conviction record was made a part of the record, and the only information as to the offense is a reference in the Federal criminal record relating to respondent which bears a notation "1751 PL."
The respondent had previously been convicted on his plea of guilty on July 29, 1952, of unlawfully possessing a narcotic drug on or about July 11, 1952, in violation of section 422 of the public health law of the State of New York as defined by section 1751-a of the penal law and was sentenced to 30 days, suspended.
It appears that in both cases the respondent was guilty of violation of section 422 of the public health law of the State of New York which provides:
It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article.
This statute is plainly a divisible statute and in each instance the respondent has been convicted merely of possession. We had occasion to consider a conviction merely for possession under a similar statute, section 11500 of the health and safety code of California and it was there held that a conviction for possession alone under that statute did not show conduct contemplated by section 212 (a) (23) of the Immigration and Nationality Act. Matter of L----, A-9798106, Int. Dec. No. 454 (Atty. Gen., Aug. 11, 1953). In view of the fact that in the instant case the respondent has been convicted solely for possession under a statute very similar to that involved in Matter of L----, we come to the conclusion that in the instant case the facts likewise do not show conduct contemplated by section 241 (a) (11) of the Immigration and Nationality Act.
Sec. 11,500 of the Health and Safety Code of the State of California provides that no person shall possess, transport, sell, furnish, administer or give away or offer to transfer, sell, furnish, administer or give away, or attempt to transport a narcotic drug except upon the written prescription of a physician, dentist, chiropodist or veterinarian licensed to practice in the State.
Sec. 212 (a) (23) provides:
(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.
Sec. 241 (a) (11) provides:
(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or 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 the 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;
In the instant case the special inquiry officer has gone behind the record of conviction in order to ascertain from the testimony of the respondent that he was engaged in the unlawful transportation of any narcotics as proscribed by the statute. However, the record of conviction merely shows that the respondent was guilty of possession only and we are bound by the record of conviction and are precluded from going behind such record to the testimony of the respondent or to other evidence to establish the ground of deportability herein.
Matter of D---- S----, A-7645761, 3 IN Dec. 502 (1949).
It appears proper to observe that had the instant proceedings been exclusion rather than deportation, it would have been proper to go behind the record of conviction and to determine from other evidence such as the testimony of the respondent whether he was engaged in the illicit traffic in narcotic drugs. The reason for this appears obvious from an examination of the two sections which have been set out in the margin. Section 212 (a) (23) contains a provision excluding any alien who "immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs." There is no similar provision in section 241 (a) (11) and the finding of deportability in deportation cases must rest solely on the record of conviction. Accordingly, we find the lodged charge to be not sustained and we shall order deportation solely upon the charge contained 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 charge contained in the warrant of arrest.