A-6783046
Decided by Board August 7, 1957
Narcotic violation — Conviction for unlawful use is within scope of section 241 (a) (11) of the 1952 act.
An alien convicted under section 11721 of the Health and Safety Code of California for unlawful use of a narcotic and for addiction to the unlawful use of narcotics is deportable within the terms of section 241 (a) (11) of the act as having been convicted under a law relating to the illicit possession of narcotic drugs.
CHARGE:
Order To Show Cause: Act of 1952 — Section 241 (a) (11) ( 8 U.S.C. 1251 (a) (11)) — Convicted of violation of law relating to illicit possession of narcotic drugs to wit: addiction to unlawful use of narcotics.
BEFORE THE BOARD
Discussion: The case comes forward on appeal from the order of a special inquiry officer entered May 21, 1957, denying the respondent's motion to reopen the hearing and for reconsideration of the decision entered April 25, 1957, ordering the respondent deported on the charge stated in the order to show cause.
The record relates to a native and citizen of Mexico, male, who last entered the United States at the port of El Paso, Texas, on October 2, 1947. On February 27, 1957, the respondent pleaded guilty to a criminal complaint filed in the Municipal Court at Santa Ana, California, which charged the respondent with a misdemeanor, to wit, violation of section 11721 of the Health and Safety Code in that the respondent did then and there willfully and unlawfully use a narcotic, and was addicted to the unlawful use of narcotics. Respondent was sentenced to the county jail for the term of 90 days.
Section 11721 of the Health and Safety Code of the State of California provides as follows:
Punishment of Addicts. No person shall unlawfully use or be addicted to the unlawful use of narcotics. * * * Any person convicted of violating any provision of this section is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in the county jail. * * * In no event does the court have the power to absolve a person who violates this section from the obligation of spending at least 90 days in confinement in the county jail. [Amended by Stats. 1953, ch. 1770, Section 11; Stats. 1955, ch. 1381, Section 1.]
Section 241 (a) (11) of the Immigration and Nationality Act, as amended by the Act of July 18, 1956, under which the special inquiry officer has found respondent subject to deportation, reads in pertinent part: "* * * who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs * * *." (Emphasis supplied.) Prior to its amendment, the Attorney General had occasion to construe the phrase "violation of any law or regulation relating to the illicit traffic in narcotic drugs." Regarding the controlling phrase "relating to," the Attorney General observed that it was broad enough to cover a conviction for conspiracy to violate the narcotic laws and courts have construed the phrase to have broad coverage ( Matter of N----, A-1732847, 6 IN Dec. 557 (Atty. Gen., 1955)).
Regarding section 11721 of the Health and Safety Code of the State of California, it has been held that the legislature effectively made it a misdemeanor for a person either (a) to make unlawful use of narcotics, or (b) to be addicted to the unlawful use; the former is an act, the other is a condition or status ( People v. Thompson, 301 P. (2d) 313). The term "addict" is defined in section 11009 of the Health and Safety Code of the State of California as a person who unlawfully uses, or is addicted to the unlawful use of, narcotics. This definition does not necessarily mean a person who habitually uses narcotic drugs, but includes a person who unlawfully used the drug on one occasion ( People v. Hopkins, 226 P. (2d) 74).
It would appear to us that a statute which punishes the unlawful use of narcotics is included within the scope of section 241 (a) (11) of the Immigration and Nationality Act as a law "relating to" the illicit possession of narcotic drugs and that the quoted phraseology is broad enough to embrace illicit possession as an incident to a conviction for unlawful use under section 11721 of the Health and Safety Code of the State of California. Accordingly, we find the charge under the order to show cause sustained.
Counsel adverted to the fact that examination of the record of respondent's conviction, exhibit 2, discloses that the complaint was filed on February 26, 1957, but that the commission of the crime was charged as occurring on February 27, 1957, a day later. Counsel cites sections of the California Penal Code and cases in support of his contention that the conviction is irregular and invalid on its face and states that he expects to obtain an order by the courts setting aside and declaring void the action of conviction. However, until the conviction is actually set aside by court order, we agree with the special inquiry officer that the record of conviction is binding upon us. The appeal will accordingly be dismissed without prejudice to a motion for reconsideration in the event counsel succeeds in having the judgment of conviction set aside.
Order: It is ordered that the appeal be and the same is hereby dismissed.