MATTER OF AMIET
A-18382872
In Deportation Proceedings
May 19, 1972
Interim Decision #2150 | 14 I. & N. Dec. 146
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of illicit possession of marijuana.
ON BEHALF OF RESPONDENT:
Don A. Petruccelli, Esquire
716 First National Building
Davenport, Iowa 52801
and
Margaret Stevenson, Esquire
Lambach, Stevenson & Goebel
100-2 Professional Arts Bldg.
Davenport, Iowa 52803
ON BEHALF OF SERVICE:
R. A. Vielhaber
Appellate Trial Attorney
Respondent appeals from the sрecial inquiry officer‘s order requiring his deportation. The appeal will be dismissed.
Counsel contends that respondent‘s conviction for illicit possession of mаrijuana may not serve as the basis for deportation because the conviction was for possession for personal use.
Respondent was admitted as a nonimmigrant in 1968. The facts have been fully stated by the special inquiry officer.
To avoid fruitless discussion as to the exact crime for which respondent was convicted, we assume for the purpose of this discussion that, as urged by counsel, respondent‘s conviction on November 10, 1970, in an Iowa county court was for the crime оf unlawful possession of marijuana for personal use. We hold, nevertheless, that such a conviction makes respondent deportable under section 241(а)(11) of the Act which provides for the deportation of an alien convicted of violation of a law or regulation relating to illicit possession of marijuаna. The immigration law
Prior to 1956, convictions which did not involve illicit traffiсking in narcotics were not grounds of deportation, Matter of R—M—, 8 I. & N. Dec. 397 (BIA, 1959); Matter of M—V—, 7 I. & N. Dec. 571 (BIA, 1957); Matter of B—, 5 I. & N. Dec. 479 (BIA, 1953). Thus, the 1952 Act did not make a conviction for illicit possession of a narcotic a ground of deportatiоn; it required a conviction for “illicit traffic,” Matter of L—, 5 I. & N. Dec. 169 (A.G.; 1953).
In 1956, Congress added language to section 241(a)(11) of the Act for the purpose of making a conviction relating to “illicit possession” of narcotics a ground of deportation, Narcotic Control Act of 1956 (Act of July 18, 1956, 70 Stat. 567, 575). The amended language required the deportation of an alien convicted of a law “relating to the illicit possession of or traffic in narcotic drugs.”1
Let us now determine the intent of Congress when it amended section 241(a)(11) in 1956 and in 1960. The amended law provides for the deportation of an alien convicted for the illicit possession of or traffic in narcotics or marijuana. Were we to equate illicit possession with traffic, as would be the result if counsel‘s argument were accepted, it would make the use of the word “traffic” meaningless.
Furthermore, since the Immigration Act was amended by the Narcotic Act of 1956 to provide for the deportation of the alien convicted of illicit possession, it would appear that the person referred to in the immigration laws would be at least the same person who could be convicted under the criminal рrovisions amended by the Narcotic Act of 1956; e.g.
Furthermore, Congress stated that the purpose of thе Narcotic Act was not only the eradication of illicit trafficking in forbidden substances, but also the “elimination of the illegal uses” of these substances, H.R. 2388, June 19, 1956, U.S. Code Cong. and Adm. News, 84th Cong., 2d Sess., 1956, p. 3274. In view of all these facts, we find that a conviction for violation of a marijuana statute involving personal use only was intended by Congress, when it аmended section 241(a)(11) in 1956 and in 1960, to make the convicted alien deportable under the immigration laws.
The case of Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964), relied upon by counsel, does not require a contrary сonclusion. The question there was whether an alien convicted of being illegally under the influence of narcotics had been convicted of a law relаting to the illicit possession of narcotics. The court held that “use” does not necessarily include “possession” (at 285). The instant case does involve possеssion, Matter of Sum, 13 I. & N. Dec. 569 (BIA, 1970).
Counsel points out that the criminal provisions affected by the Narcotic Control Act of 1956 were repealed by the Comprehensive Drug Control Act of 1970, approved on October 27, 1970 (P.L. 91-513;
In passing the Comprehensive Drug Control Act, Congress radically altered its approach to the problem of violations of laws relating to controlled substanсes to show greater leniency to the first offender guilty of possession for personal use only. Logically, Congress could have provided that an alien who is а first offender convicted for personal use only should not be deportable. However, in passing the Comprehensive Drug Control Act, Congress made
Counsel points out that respondent is pursuing studies of a nature that cannot be completed elsewhere and that he will complete his studiеs within a reasonable time. Counsel requests that respondent be permitted to complete his studies. This request should be addressed to the District Director who has the power to stay deportation.
ORDER: The appeal is dismissed.
Warren R. Torrington, Member, Concurring:
At oral argument, counsel discussed the provisions of section 404 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (
At the time of the respondent‘s conviction, the Comprehensive Drug Abuse Prevention and Control Act of 1970 had not even become effective. Also, this respondent was not convicted of a federal crime. Rather, on his рlea of “Guilty,” he was convicted of a crime punishable under Iowa state law, in the District Court of the State of Iowa for Scott County. Thus, our opinion should not havе been burdened with a gratuitous discussion of the Comprehensive Drug Abuse Prevention and Control Act of 1970.