56073/670
Decided by the Board September 4, 1941.
Narcotics — Conviction as transferee.
An alien convicted as being the transferee of marihuana in violation of the Marihuana Tax Act is not subject to deportation under the Act of February 18, 1931, as amended.
CHARGE:
Warrant: Act of 1931 — Conviction for violation of narcotics statute.
Mr. Jack Wasserman, Board attorney-examiner.
STATEMENT OF THE CASE: The warrant of arrest on above-stated charge was issued on March 26, 1941, and served on April 1, 1941. A hearing was accorded respondent thereunder on July 15, 1941, at which time he waived counsel.
The presiding inspector recommended deportation.
The matter is now before this Board for review and decision.
Respondent is serving a sentence for violation of the Marihuana Tax Act of 1937.
DISCUSSION: Respondent testified that he is a native and citizen of Mexico, of the white race, aged 43 and single. He stated that his last and only entry into the United States was over the toll bridge at El Paso, Tex., about February 1919.
Respondent is serving a sentence for violation of the Marihuana Tax Act of 1937 (26 U.S.C.A. 2593). Respondent pleaded guilty and was sentenced on December 21, 1940, on the count of an indictment which read:
Third count (26 U.S.C.A. sec. 2593).
26 U.S.C.A. sec. 2593, provides in part:
"(a) Persons in general. — It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by sec. 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 sec. 2591 to be retained by him, shall be presumptive evidence of guilt under this section and of liability for the tax imposed by sec. 2590 (a)."
And the said grand jurors, upon their oaths aforesaid, do further present:
That said defendant on or about the 10th day of December 1940, in the city and county of San Francisco, within said division and district, being then and there a transferee of a certain lot of marihuana, in quantity particularly described as 12 cigarettes containing marihuana, and said defendant being theretofore unregistered with tax unpaid, contrary to the provisions of sections 3230 and 3231 of the Internal Revenue Code (26 U.S.C. 3230 and 3231), did willfully, unlawfully, and knowingly acquire and obtain said lot of marihuana without having first paid to the United States of America that certain transfer tax required by section 2590 of the Internal Revenue Code (26 U.S.C. 2590) to be paid by said defendant upon the transfer of said lot of marihuana to said defendant.
The warrant of arrest herein was issued pursuant to the Act of February 18, 1931, as amended, which contains the following provisions:
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 * * * taxing * * * the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of * * * marihuana * * * shall be taken into custody and deported in manner provided in sections 19 and 20 of the Act of February 5, 1917, * * *.
Respondent testified at the present hearing that he bought the marihuana, which resulted in his conviction, for his own use, not to sell, that he smoked one or two marihuana cigarettes a month, and that he did not have to use marihuana in order to bolster his spirits. The burden of proving that he is an addict who is not a dealer or peddler is upon the alien ( Wong Hong Jim v. Carmichael, 115 F. 2d 529 (1940); Nicoli v. Briggs, 83 F. 2d 375 (1936)). Respondent has stated that he is a user of marihuana but has not sustained the burden of showing that he is an addict. He, therefore, does not come within the exception of the deportation statute.
Whether a conviction under section 2593 of title 26 of the United States Code is within the provisions of the Act of February 18, 1931, as amended by sections 21 and 22 of the Alien Registration Act of 1940 (8 U.S.C.A. 156 (a)) presents a more difficult problem.
The legislative history of the deportation statute is revealing. As originally introduced, the bill (H.R. 3394) read:
That any alien who, after the enactment of this act, shall violate or conspire to violate any statute of the United States taxing, prohibiting, or regulating the manufacture, production, compounding, possession, use, sale, exchange, dispensing, giving away, transportation, importation, or exportation of opium, coca leaves, heroin, 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 * * *.
Opposition arose to the inclusion of the addict, possessor, and user. The debates and reports, which resulted in their elimination, indicate that the guiding purpose of the Act of February 18, 1931, was to provide for the deportation of the distributor of narcotics rather than the receiver.
House Report No. 1373 (71st Cong., 2d sess.) stated that:
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.
On July 2, 1930, Representative Fish suggested an amendment to the bill excepting the addict who was not a dealer or a peddler. Thereupon the following colloquy resulted:
Mr. O'CONNOR of New York. Reserving the right to object, the gentleman's amendment goes somewhat in the direction I had in mind. The criminal the gentleman is trying to get at is the distributor.
Mr. FISH. The dealer and peddler; yes.
Mr. O'CONNOR of New York. But there is still in the bill a matter which I object to, "possession."
Mr. FISH. But that would not make any difference unless the man is a dealer or peddler. That is excepted.
Mr. O'CONNOR of New York. But this point has not been covered. The bill reads "except an addict." I could imagine an alien child, not any addict, having this stuff in its possession, somewhat innocently, or not criminally guilty, and yet he could be deported. The gentleman does not want that.
Mr. FISH. I certainly do not.
Mr. O'CONNOR of New York. Why does the gentleman not leave out the possession and simply make it seller.
Mr. FISH. I am willing to strike out the word "possession."
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).
As originally introduced on March 30, 1939, the Alien Registration Act contained no provision requiring deportation for violation of the Federal marihuana statute. It merely recited that an alien was deportable if he "has been convicted of violation of a state narcotic law" (H.R. 5138, 76th Cong., 1st sess., title III; H. Rept. 994). Before this bill had been approved by either House, H.R. 6724, known as the Starnes bill, was passed by the Senate and House.
It amended section 19 of the Act of February 5, 1917, to require deportation of an alien who "(2) has at any time after entry been convicted of a violation of, or conspiracy to violate, any narcotic law of the United States, or of any State, Territory, insular possession, or (3) has been lawfully committed to a public or private institution as a habitual user of narcotic drugs."
On April 6, 1940, the President vetoed House bill 6724, indicating that he disapproved the retroactive character of the legislation and the fact that deportation was required of an alien addict. In his veto message, he stated in part:
While severe treatment should be properly meted out to purveyors of narcotics, enlightened consideration of the entire subject inescapably leads to the conclusion that this principle does not necessarily apply to the unfortunate addicts of drugs who do not participate in peddling them to others. Addiction to narcotics is to be regarded as a lamentable disease, rather than a crime. It does not seem clear why aliens who acquire this weakness should be singled out for deportation.
In the meantime, the alien registration bill (H.R. 5138) had been amended to include the deportation of "any alien who, at any time after entry, has been convicted of a violation of or conspiracy to violate any narcotics law of the United States or of any State, Territory, insular possession, or of the District of Columbia, or of a violation of the Marihuana Tax Act of 1937, or has been lawfully committed to a public or private institution as a habitual user of narcotic drugs." (See copy of bill as reported in hearings before Senate subcommittee May 17, 1940, pp. 2, 25.) In the course of the hearings on House bill 5138 before the Senate subcommittee, Senator Danaher adverted to the severity involved in making any violation of the Marihuana Tax Act of 1937 a deportable offense. Particularly pertinent is the following discussion at page 33 of the report containing a transcript of these hearings:
Senator DANAHER. But granting we include as a deportable offense a violation of a State law, are you going to do it, as you say in line 13, at any time after entry, and make it a more drastic deportable offense, for instance, than in the case of a fellow who is guilty of highway robbery?
Mr. SHAUGHNESSY. That is true, Senator Danaher. There has been considerable objection to it, because, like the discussion we had on titles I and II, the man may have lived here for so long, and he would be deportable on his first offense. While it is not retroactive, there is no time limit against his deportation. I think other witnesses will object to that provision of the section because of the drastic nature, in that there is no statute of limitations against deportation for the first offense.
Senator DANAHER. In other words, let me rephrase it: Some of the most serious felonies for which deportation may ensue require that they be committed within 5 years after entry, or deportation will not follow?
Mr. SHAUGHNESSY. That is correct, Senator.
Senator DANAHER. And yet you would take, here, any number of young people, particularly, who violate the Marihuana Tax Act, who smoke these so-called reefer cigarettes, and make them deportable, no matter when they came in.
Mr. SHAUGHNESSY. That is correct, sir.
Senator DANAHER. Well, that is outrageous.
A complete revision of the bill ensued before its final passage, and it is significant that the present provisions of the Act of February 18, 1931, as amended, do not make every conviction under the Marihuana Tax Act of 1937 a ground for deportation.
We may assume, therefore, that only a limited type of marihuana tax law violation affords ground for deportation. 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 acquisition 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---- (56075/298) July 27, 1941; and see Mow v. McGrath, 101 F. 2d 982 (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 to be noted that the deportation statute expressly covers the seller of narcotic drugs but makes no mention whatsoever of the buyer.
After due consideration of the legislative history of the Act of February 18, 1931, as amended, upon analysis of the language of such statute, and mindful of the fact that no time limit is placed upon deportation for narcotic violations, it is the opinion of the Board of Immigration Appeals that this legislation was directed at the seller, distributor, or transferor and not at the transferee of marihuana.
FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing and upon the entire record in this case, it is found:
(1) That the respondent is a native and citizen of Mexico;
(2) That respondent last entered the United States at El Paso, Tex., during February 1919;
(3) That on or about December 21, 1940, respondent was convicted in the United States District Court, Northern District of California, for violation of the Marihuana Tax Act of 1937 (26 U.S.C.A. 2593) on a charge that stated that as a transferee he acquired and obtained marihuana on December 10, 1940, without paying any transfer tax;
(4) That respondent smoked one or two marihuana cigarettes a month but did not have to use marihuana in order to bolster his spirits.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact it is concluded:
(1) That respondent is not an addict of marihuana within the terms of the exception of the Act of February 18, 1931, as amended;
(2) That under the Act of February 18, 1931, as amended, respondent is not subject to deportation on the ground that since June 28, 1940, he has been convicted for violation of (or conspiracy to violate) a 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, derivation, or preparation of opium or coca leaves.
OTHER FACTORS: Respondent's mother and brothers reside in Mexico. He has no relief record, no dependents, no property in the United States and is unable to read or write in any language. Respondent has been arrested and convicted on several prior occasions. In 1932 he was charged and sentenced 10 days for petty larceny. He was sentenced to 60 days for unlawful possession of marihuana in 1936, and in 1938 he was given a year and a day for the unlawful sale of marihuana under the Gun Act and State Narcotic Act of California. It further appears that respondent has been twice convicted because of drunkenness. In view of these offenses, respondent is not entitled to registry under the Act of March 2, 1929, although he entered the United States prior to July 1, 1924.
Respondent stated that he registered under the Alien Registration Act, but that he is not yet in possession of his receipt. Although respondent is not a desirable alien, on the record before us, the warrant of arrest must be canceled. He has not been sentenced within 5 years of his entry for a term of a year or more because of a conviction of a crime involving moral turpitude, nor has he been twice sentenced for a year or more because of a conviction of a crime involving moral turptitude subsequent to his entry. Although he is unable to read or write in any language, he is no longer deportable for this deficiency at this time.
ORDER: It is ordered that the warrant of arrest be canceled and the proceeding considered closed.