0300-K-70818
Decided by the Board April 6, 1953
Narcotics, trafficker in — Ground of exclusion, section 212 (a) (23) of the Immigration and Nationality Act of 1952.
An alien is excludable under section 212 (a) (23) of the Immigration and Nationality Act of 1952 as one with respect to whom there is reason to believe that he is or has been an illicit trafficker in narcotics, even though the evidence shows only one purchase abroad for resale in the United States.
EXCLUDED: Section 212 (a) 20 and 212 (a) 23.
BEFORE THE BOARD
Discussion: This is an appeal from an order entered by the hearing officer on January 9, 1953, directing that the applicant be excluded from the United States under the provisions of the two above-cited sections of the Immigration and Nationality Act of 1952. Counsel contends that the applicant does not come within the class of aliens who are excludable from the United States under the provisions of section 212 (a) (23) of the Immigration and Nationality Act and that the provisions of section 212 (a) (20) of that act could be waived under the provisions of 8 C.F.R. 211.3.
The applicant, a 32-year-old single male, native and citizen of Uruguay, last arrived in the United States at the port of New York on January 5, 1953, as a member of the crew of the S.S. Argentina and was held for a hearing before a board of special inquiry. The alien sought admission to the United States under the provisions of section 101 (a) (27) (B) as a returning resident alien. The applicant was legally admitted to the United States for permanent residence on May 26, 1947 and has continuously maintained residence in the United States since that time, although sailing foreign in his employment as a seaman. At the time of his last arrival, he was in possession of a valid unexpired Uruguayan passport, however, he did not have in his possession a valid immigration visa or other entry documents required by section 212 (a) (20) of the Immigration and Nationality Act.
The record shows that the alien was arrested in New York City on June 25, 1949, on the charges of unlawful possession of narcotic drugs and possession of a concealed weapon. He was, on his plea of guilty, convicted of the second offense and was sentenced to serve an unspecified term in the penitentiary. The alien was not prosecuted on the charge of unlawful possession of narcotics and was, on June 16, 1950, released on his own recognizance on that charge.
Counsel's primary argument is that the alien is not within that class of aliens who are excludable from the United States under the provisions of section 212 (a) (23) of the Immigration and Nationality Act of 1952. This section, as is pointed out by counsel, is divided into three parts. The first two parts, not material here except possibly as they indicate legislative intention, pertain to exclusion of aliens who have been convicted of any of a variety of criminal offenses under narcotic laws. It may not be amiss to point out that though the alien has not been convicted on the narcotic charge, it would not appear that his discharge or release on own recognizance would preclude a subsequent prosecution on the charge if brought within the statutory period. The pertinent part of this section and the one on which the alien has been found excludable is that part which provides: "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."
Counsel maintains that the question narrows itself down to the single issue of whether the respondent is in fact a "trafficker." His argument is fundamentally founded on definitions and legal interpretations of the word "trafficker." On the basis of these definitions counsel argues that a "trafficker" is in the common or popular use of the word "one who is engaged in a continuous business or trade in the commodities from which the individual derives his livelihood."
Counsel's statement of the incidents and background relative to the alien's arrest on the narcotic charge is substantially in accord with the record. This background in brief relates to the alien's purchase of a certain amount of heroin in Italy in 1949, for which he paid by a barter of merchandise and Italian currency, an amount estimated by the alien to total approximately $180. He freely admits that it was his intention to illegally resell the narcotics which he believed could be sold for approximately $800. The alien, after smuggling the narcotics into the United States, retained them in his possession approximately 3 months before attempting to dispose of them. His arrest, upon the charge of illegal possession of narcotics, it is alleged, followed his first and only attempt to sell the drugs.
Among the cases relied on by counsel is Senior v. Ratterman, 11 N.E. 321 (Ohio). In that case it was stated that traffic "applies to every form of buying and selling." [Emphasis supplied.] Judge Spear in the same case states "the word traffic has always had a well understood meaning in the popular sense. It is the passing of goods or commodities from one person to another for an equivalent in goods or money, and a trafficker is one who traffics — a trader, a merchant. No limit as to the amount is fixed in the section and it is plainly as much traffic to deal in a given commodity by the wholesale as at retail." The weight of decisions seems to refute counsel's argument that there must be a continuous engagement in a particular trade to constitute a person so engaged as a trafficker, neither does the weight of the decisions seem to necessarily require a sale, the purchase to resell apparently fulfills the requirement of a "trafficker." In the case of Bender v. Addams, 162 N.E. 604, 606 (1928, Ohio), it was held that trafficking in intoxicating liquor is the buying or selling. In Merriam v. Langdon, 10 Connecticut 460, 461, trafficking was interpreted as the carrying about and offering such goods for sale. In the case of Sing v. Roth, 24 Ohio Decisions 437, it was held that where a restaurant owner, for accommodation of customers, bought beer as ordered by customers from a saloon below and the beer was delivered by a dumbwaiter and though the restaurant owner made no profit on the sale, he was nevertheless held to be engaged in trafficking in intoxicating liquor. In a similar case dealing with sale of intoxicants it was held that proof that on one evening said defendant had sold to an inspector four bottles of beer, obtained from a nearby saloon, at a profit of $3.40 it was held that the defendant was engaged in "trafficking in intoxicating liquors." Leonard v. Bowland, 17 Ohio Decs. 558. Traffic was defined in the case of In re Cameron Town Mutual Fire, Lightning and Windstorm Insurance Company, 96 Fed. 756, 757 (W.D. Mo. 1899) "that traffic is the buying of something from another or the selling of something to another." It was also held in Mollendorf v. State, 173 P. 2, 519, 522, 67 Idaho 151 that "traffic means the exchange of goods, wares, or merchandise, between individuals, communities or countries, whether directly by barter or by use of money, bills of exchange, etc."
Among the many definitions shown in the discussion of the word in Webster's New International Dictionary, second edition, unabridged, a few of the pertinent definitions are as follows: (1) The business of transporting merchandise; (3) The business of bartering or buying and selling. Traffic, ( v.) (1) To carry on traffic, or trade; to engage in commerce; to barter, buy or sell goods; (2) To engage in illicit sale or purchase; to trade in something not properly for sale, as to traffic in benefices or in human beings.
The above cases and decisions in no sense limit the meaning of trafficker to a single incident nor do these decisions or definitions indicate that there must be a continuous and organized trade in the merchandise to bring one within the meaning of the word trafficker. The record clearly shows that the alien dealt in narcotics for the purpose of reselling. It would appear that he therefore is a trafficker within the meaning of the definitions in the above cited decisions.
It is well established that the laws relating to immigration are not criminal laws. That portion of those laws which relate to the deportation, or exclusion of aliens, it is apparent were enacted to protect the citizens of the United States and their interests from admission of undesirable types of aliens. This legislation precludes from admission, or provides for deportation of aliens with criminal records, physical or mental deficiencies, anarchists and various other types who by securing admission into the United States, or being allowed to remain in the United States, would be detrimental to the interests and the welfare of this Nation. We therefore can find no merit in counsel's argument that it was the intent of Congress that the term "illicit trafficker" as used in this section applies only to organized continuous trade in narcotics.
This belief is borne out by the first two parts of the section, under discussion, wherein it is provided that an alien convicted of a violation of any law or regulation relating to the illicit traffic in narcotics shall be excluded from the United States. It would be preposterous to argue that the conviction would have to be based on more than one instance of the violation of any of the specified offenses before such conviction would make the offender subject to deportation or exclusion. It would seem to follow that Congress' intent was to provide equal protection by excluding any alien who was known to be dealing in narcotics whether on one or more occasion who had succeeded in avoiding conviction. The alien, herein, is known to have illegally possessed narcotics which he illegally secured, and illegally transported into this Nation. An unequivocal statement by the alien that he intended to illegally resell these drugs for a profit clearly shows that he was engaged in the illicit traffic in narcotics. There seems no reason to doubt that he would have consummated a sale of the drugs had he not been arrested. We cannot believe that it was Congress' intent to find that a person under these conditions was not an illicit trafficker, whom they would not exclude from the United States. It must follow that the hearing officer's decision was without error and the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.