A-7645761
Decided by Board, February 18, 1949 Memorandum by Central Office, March 17, 1949 Decided by Board, May 26, 1949
Narcotic violation — Conviction for violation of section 2593 (a) Internal Revenue Code — "Unlawful possession of marihuana" — Deportability under the act of February 18, 1931, as amended.
1. Not every conviction under the Marihuana Tax Act of 1937 (26 U.S.C. 2593, Internal Revenue Code) constitutes a basis for deportation under the provisions of the act of February 18, 1931, as amended by the act approved June 28, 1940.
2. A conviction for violation of section 2593 (a) of the Internal Revenue Code (26 U.S.C. 2593 (a), Marihuana Tax Act of 1937), for unlawful possession of marihuana, does not render an alien subject to deportation under the provisions of the act of February 18, 1931, as amended. (See 1 IN Dec. 160.)
3. Evidence outside the record of conviction will not be considered an appropriate basis for deportation under the provisions of the act of February 18, 1931, as amended, where the conviction was as a mere transferee of the narcotic (as above) though such evidence, outside the record of conviction, indicates the alien was a trafficker or transferor or conduit in the course of illegal traffic of the drug. (The Board of Immigration Appeals decision to the contrary in the Matter of L---- C----, 2990174, May 30, 1945, was expressly overruled.)
CHARGE:
Warrant: Act of 1931 — Convicted of narcotic violation.
BEFORE THE BOARD
(February 18, 1949)
Discussion: This case is before us on appeal from an order entered by the Commissioner October 20, 1948, directing the alien's deportation to Brazil at Government expense on the charge stated above.
The respondent, a native and citizen of Brazil, male, unmarried, 28 years of age, was admitted to the United States for permanent residence at the port of Boston on August 27, 1947. He last entered the United States as a seaman at the port of New York on April 28, 1948. The record indicates that he has been a seaman for approximately 12 years.
The respondent has been convicted on two occasions for violation of section 2593 (a), Internal Revenue Code (unlawful possession of marihuana). The Commissioner, relying upon our decision in Matter of L---- C----, 2990174 (May 30, 1945), finds the respondent deportable under the provisions of the act approved February 18, 1931, as amended by the act of June 28, 1940, in that he is an alien who after the enactment of the act was convicted for violation of a (Federal) statute "* * * taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of * * * marihuana * * *".
February 21, 1946, he pled guilty to a charge of violating section 2593 (a), title 26, Internal Revenue Code, unlawful possession of marihuana. June 2, 1948, pled guilty to a charge of violating section 2593 (a), title 26, Internal Revenue Code, unlawful possession of marihuana. On the first conviction imposition of sentence was suspended and the respondent placed on probation for 1 year. On the second conviction he was sentenced to imprisonment for a period of 3 months.
The indictments under which the respondent was convicted are identical. They read in part as follows:
The defendant herein, being then and there a transferee required to pay the transfer tax imposed by section 2590 (a) of the Internal Revenue Code, unlawfully, wilfully, and knowingly did acquire approximately * * * ounces and * * * grains of Cannabis Sativa, commonly known as marihuana, without having paid such tax; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided. (Sec. 2593, Internal Revenue Code.)
This Board has held that possession alone is not within the terms of the act of February 18, 1931, as amended ( Matter of L---- O----, 56075/298 (July 24, 1941). In another case, the facts of which are similar to both the case at bar and the case relied upon by the Commissioner, we held that this legislation (the 1931 act) was directed at the seller, distributor, manufacturer, importer or transferor and not the transferee of marihuana. Matter of V----, 1 IN Dec. 160, Sept. 4, 1941.
In Mow v. McGrath, 101 F. (2d) 982 (1939), the Circuit Court of Appeals for the Ninth Circuit dismissed an appeal from an order entered by the District Court, N.D. Cal., So. Div., denying a petition for a writ of habeas corpus. The appellant, a Chinese alien, had been found deportable under the 1931 act because of conviction (for violation) of a statute which regulated the importation of opium (sec. 2 (c) (f), Jones — Miller Act, as amended, 42 Stat. 596, 21 U.S.C. 174). Judge Healy in his opinion (p. 983) distinguished mere possession and use of the drug and pointed to the fact that the alien had been convicted under a statute concerned with the concealment and facilitating the concealment of drugs known to have been unlawfully imported. The statute with which we are concerned deals only with unlawful possession on the part of the transferee.
In Matter of L---- C---- ( supra), we were concerned with a narcotic conviction obtained on a plea of guilty to an indictment charging in two counts the violation of sections 2593 and 3321 of title 26, United States Code. The first count of the indictment was practically identical with the one now before us. The second count was not pertinent to deportation proceedings. We distinguished it from the case of Matter of V---- ( supra) by going behind the record of conviction to determine, independently, from the testimony of the alien, that he was trafficking in marihuana and therefore a "conduit" as distinguished from a mere "possessor." Upon reconsideration we believe our conclusion in the L---- C---- case ( supra) is not in accord with judicial precedent.
It is well settled in immigration proceedings that the nature of the crime is conclusively established by the record of conviction consisting of the charge or indictment, the plea, the verdict and sentence ( U.S. ex rel. Zaffarino v. Corsi, 63 F. (2d) 757, 758 (C.C.A. 2d, 1933)). We are not permitted to go behind this record to determine purpose, motive, or facts, either favorable or unfavorable to the alien ( U.S. ex rel. Mylius v. Uhl, 203 Fed. 152, 154 (S.D.N.Y., 1913, aff'd. 210 Fed. 860)). The act of February 18, 1931, does not empower us to retry a closed narcotic case ( U.S. ex rel. Robinson v. Day, 51 F. (2d) 1022 (C.C.A. 2d, 1931)).
L---- C---- was convicted for violation of a statute (Federal or State) which taxes, prohibits, or regulates the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of marihuana. The statute in question (sec. 2593 (a), title 26, U.S.C.) deals solely with the unlawful possession of marihuana in that the person concerned acquired the drug by means of a transfer without paying the tax required by law (sec. 2590 (a), title 26, U.S.C.). The act of February 18, 1931, as amended, is directed at the alien seller, distributor, manufacturer, producer, compounder, or transferor of marihuana and other specified narcotics. Inasmuch as the indictment on which L---- C---- was convicted only charged that he was a transferree who had unlawfully acquired a stated amount of marihuana without paying the required tax, L---- C---- was not convicted under a statute contemplated in the act of February 18, 1931, as amended.
We are unable to distinguish the facts with which we are now concerned, nor the facts found in Matter of L---- C---- ( supra) from those found in Matter of V---- ( supra).
For the foregoing resaons our decision in Matter of L---- C----, 2990174 (May 30, 1945) is overruled. As the case before us presents an identical situation, even to the extent of going behind the record of conviction, the charge stated in the warrant of arrest cannot be sustained. On the record, therefore, the proceedings under the warrant of arrest will be terminated.
Order: It is directed that the appeal be and the same is hereby sustained. The proceedings under the warrant of arrest are hereby terminated.
Motion to the Board of Immigration Appeals that it reconsider and withdraw its order of February 18, 1949, terminating the proceedings in this case and enter an order directing that the respondent be deported; or in the alternative refer its decision to the Attorney General for review.
Discussion: The respondent is a native and citizen of Brazil, age 28, single, who last entered the United States as a seaman on April 28, 1948. He had previously been admitted to this country for permanent residence on August 27, 1947, although prior thereto he had entered as a seaman many times. He had been convicted upon pleas of guilty, on two occasions of violating section 2593 (a), Internal Revenue Code (transferee of marihuana without payment of the transfer tax). His first conviction occurred on February 21, 1946, and he received a suspended sentence and was placed on probation for 1 year. The second conviction occurred on June 2, 1948, at which time he was sentenced to imprisonment for a period of 3 months. The indictments upon which these convictions took place are identical and read in part as follows:
The defendant herein, being then and there a transferee required to pay the transfer tax imposed by section 2590 (a) of the Internal Revenue Code, unlawfully, wilfully and knowingly did acquire approximately * * * ounces and * * * grains of Cannabis Sativa, commonly known as marihuana, without having paid such tax; against the peace of the United States and their dignity and contrary to the form of the statute and of the United States in such case made and provided. (Sec. 2593, Internal Revenue Code.)
On October 20, 1948, this Service ordered that the respondent, who is not an addict, be deported to Brazil under the act of February 18, 1931, as amended. On appeal, a majority of the Board of Immigration Appeals decided that the charge against the respondent could not be sustained on the basis of their decision in Matter of V----, 1 IN 160, September 4, 1941, in which it was held that an alien convicted of being a transferee of marihuana without payment of the transfer tax in violation of section 2593 of the Internal Revenue Code, was not subject to deportation. The dissenting member was of the opinion that the respondent is deportable.
This Service believes that the decision in Matter of V----, supra, is unsound. The act of February 18, 1931, as amended by the Alien Registration Act of 1940 upon which these proceedings are predicated provides as follows:
That any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this act) who, after the enactment of this act, shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating 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 of coca leaves, shall be taken into custody and deported in manner provided in sections 19 and 20 of the act of February 5, 1917, entitled "An act to regulate the immigration of aliens to, and the residence of aliens, in, the United States." [Italics added.]
The term "transfer" or "transferred" means any type of disposition resulting in a change of possession * * * (26 U.S.C. 3238). It would therefore appear that the term "exchange" as used in the act of February 18, 1931, would contemplate within its meaning a transfer. As a matter of fact both the Board and this Service have held that a transferor is subject to deportation thereunder ( Matter of P----, 55699/855, Mar. 11, 1942). The act, making no distinction, would also include transferees.
The conclusion in Matter of V----, supra, was arrived at by the Board (1) after due consideration of the legislative history of the act of February 18, 1931, as amended; and (2) upon analysis of the language of such statute.
In its consideration of the legislative history of the amended act the Board referred to the various bills which were considered and which culminated in the Alien Registration Act of 1940, and quoted a brief excerpt from the Senate hearings on it. A careful examination of that history shows it to be so general, that the specific assumptions made by the Board with regard to transferees appear to be unjustified. Furthermore, it would seem that if Congress intended to exempt transferees, it could easily have done so by using appropriate language.
The Board's analysis of the language of that statute reads as follows:
In the instant case we are concerned with a violation that is presumed from mere possession; namely, that a person acquired marihuana by means of transfer without paying the tax required by law. For the purposes of this statute, a distinction is made between acquisition by transfer and acquisitions by theft or cultivation. Only the former is taxed. Insofar as the deportation of an undesirable alien is concerned, no reason appears why less favorable treatment should be given to the transferee than to the thief or grower of marihuana. The average person who merely uses or possesses marihuana is usually no more than a transferee. We have recently held that possession alone is not within the terms of the deportation statute. In re L---- O---- (56076/298) July 27, 1941; and see Mow v. McGrath, 101 F. 2d 938 (1939). A distinction may be drawn between the instant case and one where the conviction is for being a transferee or conduit in the course of illegal traffic of narcotic drugs. A simple transfer is involved herein. On the occasion of the transfer in question respondent was a transferee who obtained marihuana for his own use. His conviction was based solely upon acquisition or possession by transfer. It is noted that the deportation statute expressly covers the seller of narcotic drugs but makes no mention whatsoever of the buyer.
This analysis does not appear to be sound. There is no distinction between acquisition of marihuana by theft or cultivation and acquisition by transfer as far as the liability for tax is concerned. A person who acquires marihuana by cultivation is subject to tax (26 U.S.C. 3234, 3237), is considered a producer (26 U.S.C. 3238), and if convicted for failure to pay the required tax, would clearly be subject to deportation under the act of February 18, 1931, as amended. There is nothing in 26 United States Code 2590 (a) and 2593 (a) which would exempt from payment of tax a person who acquired marihuana by theft (see definition of transfer, supra). Furthermore there would appear to be no actual distinction between acquisition by transfer and acquisition by manufacture, production, exchange, importation, etc., and yet no one has ever successfully contended that an alien convicted of violating a statute taxing, prohibiting, or regulating the latter, is not subject to deportation. In short, the Board has read into the act an exemption not provided for therein.
An analogous case which also illustrates that the Board's position is untenable is Mow v. McGrath, supra, which was referred to in Matter of V----. In that case the alien was convicted of violating the Jones-Miller Act, as amended ( 42 Stat. 596, 21 U.S.C.A. 174), under an indictment charging that he "did fraudulently and knowingly conceal and facilitate concealment" of a certain opium derivative which "had been imported into the United States of America contrary to law as said defendant then and there well knew," and was sentenced to 6 months in the county jail and a small fine imposed. In finding him subject to deportation the court stated:
The alien was not subject to deportation under the act of February 9, 1909, as amended by the act of May 26, 1922, because he had not been sentenced to imprisonment for a term of 1 year or more ( Weedin v. Moy Fat, 8 F. (2d) 488 (1925)).
The facts quite clearly bring the deportation order within the verbiage of the act of February 8, 1931. Appellant was convicted and sentenced for a violation of a "statute of the United States * * * prohibiting, or regulating the * * * importation * * * of opium." He contends, though, that it was the intent of Congress to exempt from the operation of the act those who merely use the drug mentioned, and for this purpose have them in their possession. The legislative history of the statute is appealed to as disclosing such intention.
As originally introduced in the lower house of Congress, the act (H.R. 3394) included in the descriptive matter the words "possession" and "use." By amendment these words were stricken. The bill was further changed by inserting the parenthetical exception relating to addicts and by substituting a requirement of conviction and sentence in lieu of the mere finding of a violation or conspiracy to violate the described statutes, as was originally proposed.
As applied here, however, the statute is sufficiently unambiguous to make recourse to its legislative history of doubtful propriety. And even if its history be resorted to appellant is no better off. He was not convicted on a charge of possession or use, but of concealing and facilitating the concealment of drugs known to have been unlawfully imported. We find nothing in the congressional reports or in the proceedings leading up to the passage of the act indicating an intent to exempt from deportation an alien convicted of a charge to which appellant pleaded guilty.
To paraphrase the court and perhaps repeat in part what we said previously, the respondent was convicted of being a transferee of narcotics without payment of tax, not of possession; and this Service finds nothing in the congressional intent to exempt from deportation an alien so convicted.
Since this Service is of the opinion that the respondent is deportable and as the Board itself is split on the issue, it is believed that the case should be further considered by the Board and if it does not see fit to find the respondent deportable to refer it to the Attorney General in order that a definitive opinion may be obtained on the question of whether an alien convicted of violating section 2593 (a), Internal Revenue Code (transferee of marihuana without payment of the transfer tax) is deportable under the act of February 18, 1931, as amended.
Motion is hereby made, That the Board of Immigration Appeals reconsider and withdraw its order of February 18, 1949, terminating the proceedings in this case and enter an order directing that the respondent be deported; or in the alternative refer its decision to the Attorney General for review.
Discussion: This record is before us on the Assistant Commissioner's motion to reconsider and withdraw our order of February 18, 1949, wherein we terminated the within proceedings on the ground that the respondent's conviction as a transferee of marihuana under section 2593 (a) of title 26 United States Code is not within the terms of the act of February 18, 1931, as amended. The Assistant Commissioner requests the entry of an order of deportation or, in the alternative, the reference of our decision to the Attorney General for review.
The respondent herein has been convicted solely as a "transferee" of marihuana as distinguished from a "transferor" or "conduit." The facts of the case are adequately stated in our opinion of February 18, 1949. When we considered the case on that occasion, we overruled a prior decision of this Board, Matter of L---- C----, 2990174 (May 30, 1945), on which the Commissioner had relied to sustain the respondent's deportability under the act of February 18, 1931, as amended by the act of June 28, 1940. Upon reconsideration of our prior decision, we observed that in order to place the alien ( L---- C----) within the terms of the statute (act of 1931, as amended), we had gone behind the record of conviction to determine independently from the alien's testimony that he was trafficking in marihuana and therefore a "conduit" as distinguished from a mere "possessor." We concluded that this was not in accord with judicial precedent and cited cases in support of our position.
When we considered the case on appeal, we found that the facts then before us were analogous to those found in Matter of V----, 1 IN Dec. 160, a case decided by us on September 4, 1941, which holds that the 1931 act was directed at the seller, distributor, manufacturer, importer and transferor, and not the transferee of marihuana. The Commissioner in his motion belatedly attacks the soundness of our decision in Matter of V---- ( supra), which has stood for almost 8 years (since September 4, 1941), and has been used as a precedent on numerous occasions, both by the Immigration Service and this Board. We find nothing in the Assistant Commissioner's motion to indicate that our 1941 decision was incorrect.
The Assistant Commissioner alleges that in our opinion in Matter of V---- ( supra) we have read into the act an exemption not provided therein. It appears that the Assistant Commissioner has not properly distinguished those sections of the Marihuana Act of August 2, 1937, which require registration and a special tax levy against every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marihuana (secs. 3230-3238, title 26, U.S.C.) from those sections which deal strictly with the actual transfer of marihuana both by those registered under the act and those not registered (secs. 2590-2593, title 26 U.S.C.).
The Assistant Commissioner also refers to the case of Mow v. McGrath, 101 F. (2d) 938 (C.C.A. 9th, 1939) as an illustration that our present position is untenable. We find no merit to the argument advanced by the Assistant Commissioner. We distinguished this case in our opinion of February 18, 1949. We pointed out that the court was there dealing with a statute which regulated the importation of opium, while in the case at bar we were concerned with a statute which deals only with unlawful possession on the part of a transferee.
Inasmuch as the Commissioner's motion is not directed to the legal sufficiency of our action in overruling our prior decision in Matter of L---- C---- ( supra), but more to the soundness of an opinion that has stood the test of almost 8 years as a precedent, we see no need for certification to the Attorney General. For the reasons stated above, the motion is hereby dismissed.
Order: It is directed that the motion be and the same is hereby dismissed, the proceedings to be terminated in accordance with our opinion of February 18, 1949.
This matter is before the Board on appeal from the decision of the Assistant Commissioner of Immigration and Naturalization. dated October 20, 1948, wherein deportation of the respondent to Brazil has been ordered in that on or after June 28, 1940, he has been convicted for a violation of the Narcotic Drugs Act. I agree with the decision of the Assistant Commissioner of Immigration and Naturalization for reasons hereinafter set forth.
The subject hereof testified that he was born in Castanhal, Para — Belem, Brazil, on May 16, 1920, and that he is a citizen of the country of his nativity. He last arrived at New York on April 28, 1948, as a member of the crew of the S.S. Ancon. The record also shows that on December 15, 1945, this alien arrived at New York as a member of the crew of the S.S. Clarksville Victory, and that thereafter he was admitted at Boston, Mass., on August 27, 1947, at which time he presented a consular immigration visa. He subsequently continued his calling as a seaman.
On February 21, 1946, the alien was convicted for a violation of the Narcotic Drugs Act. The indictment returned in connection with that proceeding reads in part as follows:
That heretofore, to wit, on or about the 15th day of December 1945, at the Southern District of New York and within the jurisdiction of this Court, O---- B.---- D---- S----, the defendant herein, being then and there a transferee required to pay the transfer tax imposed by section 2590 (a) of the Internal Revenue Code, unlawfully, wilfully, and knowingly did acquire approximately 4 ounces and 370 grains of Cannabis Sativa, commonly known as marihuana, without having paid such tax; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided (sec. 2593, Internal Revenue Code).
On June 2, 1948, the subject hereof was again convicted for a second narcotic violation. The indictment returned in connection with that offense reads as follows:
That heretofore, to wit, on or about the 28th day of April 1948, at the Southern District of New York and within the jurisdiction of this Court, O---- B.---- D---- S----, the defendant herein, being then and there a transferee required to pay the transfer tax imposed by section 2590 (a) of the Internal Revenue Code, unlawfully, wilfully, and knowingly did acquire approximately 105 grains of Cannabis Sativa, commonly known as marihuana, without having paid such tax; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided (sec. 2593, Internal Revenue Code).
In connection with the 1945 offense the alien was asked the following question to which he made the answer hereinafter set forth:
Q. What were the circumstances surrounding your arrest for having in your possession bulk marijuana in the amount of 4 ounces, 370 grams at that time?
A. I got it in France in exchange for clothing and someone asked me to buy, and I brought it to him to buy, and sometimes somebody buy it and last time I asked if the fellow wanted to buy it or exchange it for clothing.
In connection with the 1948 offense, the alien was asked, among others, the following questions to which he answered as hereinafter set forth:
Q. How did you come into the possession of 105 grams of marijuana which you had in your possession on or about April 28, 1948?
A. I saw a fellow smoking some and he asked me if I wanted to try it, and I think I put the rest of it in my pocket and forgot to take it out. This happened at a bar in Panama.
Q. How did they happen to search you when you arrived in New York April 28, 1948?
A. The customs came on the boat and I was working at the dishwashing machine. I had my clothes in a locker and the inspector came aboard and inspected my clothes and found nothing, and he asked me if I had anything in my pocket, and I showed him my package of cigarettes and he looked at that and asked me if I had anything in my back pocket, and I said I have, and I showed it to him, and then he arrested me.
The only question in this case is whether or not the alien is subject to deportation pursuant to the act approved February 18, 1931, as amended ( 46 Stat. 1171; 54 Stat. 673; 8 U.S.C. 156 A).
That statute provides as follows:
That any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this act) who, after the enactment of this act, shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marijuana, or any salt, derivative, or preparation of opium or coca leaves, shall be taken into custody and deported, in manner provided in sections 19 and 20 of the act of February 5, 1917, entitled "An act to regulate the immigration of aliens to, and the residence of aliens in, the United States."
The majority of the Board are of the opinion that the respondent is not subject to deportation. With that opinion I must respectfully disagree and, therefore, as stated, concur in the opinion of the Assistant Commissioner of Immigration and Naturalization.
The Assistant Commissioner of Immigration and Naturalization predicates his opinion in the instant case upon the decision in the Matter of L---- C----, A-2990174, dated May 30, 1945, which decision the majority now seek to overrule. In that opinion it was obvious that the alien involved was engaged in trafficking in marihuana. Title 26, sections 2590 (a) and 2593 (a) provide in part as follows:
2590 (a). There shall be levied, collected, and paid upon all transfers of marihuana which are required by section 2591 to be carried out in pursuance of written order forms taxes at the following rates:
(1) Transfers to special taxpayers. — Upon each transfer to any person who has paid the special tax and registered under sections 3230 and 3231, $1 per ounce of marihuana or fraction thereof.
(2) Transfers to others. — Upon each transfer to any person who has not paid the special tax and registered under sections 3230 and 3231, $100 per ounce of marihuana or fraction thereof.
2593 (a). Persons in general. — It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 2590 (a) to acquire or otherwise obtain any marihuana without having paid such tax; and proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the collector, to produce the order form required by section 2591 to be retained by him, shall be presumptive evidence of guilt under this section and of liability for the tax imposed by section 2590 (a).
In the Matter of V----, 56073/670, decided by this Board on September 4, 1941, we had under consideration a narcotic violation. The transfer there, however, pertained to mere possession by the transferee. In that case the Board said:
A distinction may be drawn between the instant case and one where the conviction is for being a transferee or conduit in the course of illegal traffic of narcotic drugs. [Italics supplied.]
In the case of V----, supra, a simple transfer was involved and apparently nothing more.
In the case presently under consideration a different situation obtains in that the violator was a conduit engaged in the illegal trafficking of narcotic drugs.
The term transferee is one to whom a transfer is made * * * a liberal construction necessarily includes a vendee * * * ( Kramer v. Spradlin, 98 S.E. 487, 148 Ga. 805). The term transferee is said to be one of the broadest words that can possibly be used, and generally speaking may include * * * a vendee ( Buckhout v. Witwer, 122 N.W. 184). See also Hendrick v. Daniel, 46 S.E. 438. It therefore appears that being a vendee necessarily connotes a sale.
The majority indicate that the decision in the Matter of L---- C----, supra, is not in accord with judicial precedent, in that "We are not permitted to go behind this record to determine purpose, motive, or facts, either favorable or unfavorable to the alien ( U.S. ex rel. Mylius v. Uhl, 203 Fed. 152)." In my opinion it is unnecessary to go behind the record in this case because we have several convictions of the subject as a transferee who was required to pay the transfer tax imposed by statute and as such willfully and knowingly acquired large quantities of marihuana and thereafter brought it to the United States. He was not an addict and was more than a mere possessor as shown by the evidence of record and as supported by the several indictments. What other implication can be drawn from the record here than that the alien is within the statute and subject to deportation?
In view of the foregoing there can be no doubt that it was the intent of Congress to eliminate from the United States aliens such as the subject hereof who is engaged in the illegal traffic of narcotics.
For the reasons herein set forth I agree with the decision of the Assistant Commissioner of Immigration and Naturalization and would dismiss the appeal.
Discussion: There is a motion filed by the Assistant Commissioner of Immigration and Naturalization requesting (1) reconsideration of the case; (2) withdrawal of decision of majority dated February 18, 1949, wherein proceedings were terminated; (3) entry of an order directing that respondent be deported; and (4) in the alternative that the matter be referred to the Attorney General for review.
The respondent testified that he was born in Castanhal, Para — Belem, Brazil, on May 16, 1920, and that he is a citizen of the country of his nativity. He last arrived at New York on April 28, 1948, as a member of the crew of the S.S. Ancon. The record further reveals that this alien previously arrived at New York on December 15, 1945, as a member of the crew of the S.S. Clarksville Victory and was subsequently admitted at Boston, Mass., on August 27, 1947, upon presentation of a consular immigration visa. He thereafter continued his calling as a seaman.
On February 21, 1946, the subject hereof was convicted for a violation of the Narcotic Drugs Act. The indictment reads in part as follows:
That heretofore, to wit, on or about the 15th day of December 1945, at the Southern District of New York * * * the defendant herein, being then and there a transferee required to pay the transfer tax imposed by section 2590 (a) of the Internal Revenue Code, unlawfully, wilfully, and knowingly did acquire approximately 4 ounces and 270 grains of Cannabis Sativa, commonly known as marihuana, without having paid such tax * * *.
On June 2, 1948, the subject of this proceeding was again convicted for a second narcotic drugs violation. The indictment returned for that offense reads similarly as the previous indictment except that the date of the offense was alleged on or about the 28th day of April 1948, and the amount of the drugs acquired being 105 grains.
The pertinent statute relating to the deportation of the subject alien ( 46 Stat. 1171; 54 Stat. 673; 8 U.S.C. 156 A) reads as follows:
That any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this act) who, after the enactment of this act, shall be convicted for violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating 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, shall be taken into custody and deported in manner provided in sections 19 and 20 of the act of February 5, 1917, entitled "An act to regulate the immigration of aliens to, and the residence of aliens in, the United States."
The majority of this Board in their present action dismiss the motion of the Assistant Commissioner of Immigration and Naturalization indicating "we see no need for certification to the Attorney General."
For all of the reasons heretofore advanced in my dissent of February 18, 1949, and for the reasons hereinafter set forth, I must respectfully disagree with the majority and again agree with the Assistant Commissioner of Immigration and Naturalization both in his opinion of October 20, 1948, and in his request of March 17, 1949, holding that the respondent is in fact subject to deportation.
The majority of the Board of Immigration Appeals in their present opinion state "The respondent herein has been convicted solely as a `transferee' of marihuana as distinguished from a `transferor' or `conduit'."
As heretofore indicated in the present case the respondent was twice convicted not solely for the reason that he was a transferee but for the further reasons as set forth in the indictment hereinafter discussed.
In the Matter of L---- C----, 2990174 of May 30, 1945, the alien was found subject to deportation because the evidence disclosed that he was a conduit through which the traffic in narcotics took place. It is my opinion that the decision in that case was correct and in accordance with the intention of Congress.
In House Report 1373 (71st Cong., 2d sess.) it was stated: "The main purpose of this bill is to permit the Government to deport the alien smugglers and those aliens higher up in the big international rings who are worse than murderers."
Representative Fish suggested an amendment to the bill excepting the addict who was not a dealer or a peddler.
Before final passage, however, both the word "possession" and "use" were omitted (Cong. Rec., vol. 72, pt. 11, 71st Cong., 2d sess., July 3, 1930, p. 12453).
It is therefore quite obvious who the Congress intended should be deported.
In the Matter of V----, 56073/670, decided by this Board on September 4, 1941 (administrative decisions under Immigration and Nationality Laws of the United States, vol. 1, p. 161-164) it was stated "A distinction may be drawn between the instant case and one where the conviction is for being a transferee or conduit in the course of illegal traffic of narcotic drugs." The case under consideration at that time involved a simple transfer.
In the case of Mow v. McGrath, C.C.A. 9th, Mar. 1, 1939, 101 F. 2d 982, p. 983, the court said:
Appellant was convicted and sentenced for a violation of a "statute of the United States * * * prohibiting, or regulating the * * * importation * * * of opium." He contends, though, that it was the intent of Congress to exempt from the operation of the act those who merely used the drugs mentioned, and for this purpose have them in their possession. The legislative history of the statute is appealed to as disclosing such intention.
As originally introduced in the lower house of Congress, the act (H.R. 3394) included in the descriptive matter the words "possession" and "use." By amendment these words were stricken. The bill was further changed by inserting the parenthetical exception relating to addicts and by substituting a requirement of conviction and sentence in lieu of the mere finding of a violation or conspiracy to violate the described statutes, as was originally proposed.
What are the facts as adduced in the record and what does the evidence in this case establish? In my opinion it shows definitely that this alien was not only a transferee but in both convictions he acquired a large quantity of narcotic drugs. Certainly he was not shown to be an addict who is the only person exempted under the act of Congress and an addict as such is not exempt where it is shown that he is a dealer or peddler in narcotic drugs. In this connection reference may be made to the case of Nicoli v. Briggs, C.C.A. 10, Apr. 7, 1936 ( 83 F. 2d, 375, p. 379) wherein the court said:
Congress realized that many aliens were victims of this consuming habit; it did not wish to impose penalty of deportation upon those unfortunates who transgress the law in order to procure a drug which staves off torture. But it is not necessary to sell the drug to satisfy the craving of an addict. In an exception within an excepting parenthetical clause, brevity of expression is to be expected; and by the use of "dealers or peddlers" we have no doubt Congress intended to except addicts who did not violate the statutes prohibiting illegal sale. Cf. O'Neill v. United States, C.C.A. 8th, 19 F. 2d 322.
By the enactment of the act of February 18, 1931, it is only too obvious that the Congress intended to deport alien violators of the Narcotic Drugs Act with a view to eliminating this nefarious practice, at least by aliens, whether such violations were of the so-called Jones — Miller Act or the Harrison Narcotic Act and by subsequent amendment of the 1931 act in 1940, the Congress further intended to strengthen the deportation statutes so as to eradicate the unlawful trafficking by including for deportation violators of the State marijuana statutes.
It is clear from the discussion in Congress that the only-exception intended was the addict who was neither a dealer nor a peddler and who merely possessed the drug for his own use. It did not exempt any other individual. The addict or the possessor was not relieved from prosecution, he was only exempted from deportation in the event he was neither a dealer nor a peddler.
Congress fully intended to deport from this country the dealer, the peddler, which latter term is a broad one encompassing as it does the conduit through which narcotic drugs are unlawfully obtained, smuggled, sold, and otherwise dispensed and concealed and the like. The Congress intended to deport a violator as we have here, convicted twice for the same offense, since only one inference can be drawn that he was bringing in the drugs.
There are lawful sources for addicts and laws with which they must comply, but we are not concerned with that situation here. We are dealing with the violator who was a conduit through which the unlawful supply of narcotic drugs was passing, not alone on one occasion, but on several occasions as shown by the indictments and the convictions.
The majority of this Board fully recognized the foregoing by their several decisions, yet they now seek to overrule their prior determinations by stating that such prior determinations were error. With that I cannot agree.
The elimination of violators such as the apellant from our midst is the only method by which the unlawful source of supply can be eradicated. That is what the Congress intended by the enactment of the act of February 18, 1931. To weaken the enforcement of the law by the interpretation of the majority is error, whereas their prior determination to deport was correct and should not be overruled so lightly.
For all of the reasons heretofore advanced in my dissent of February 18, 1949, and for all of the reasons hereinabove set forth, I find it necessary to disagree with the majority and to adhere to my previous decision agreeing with the Assistant Commissioner of Immigration and Naturalization. Therefore, I would grant the present motion to enter an order of deportation or in the alternative to refer the matter to the Attorney General for final determination.