LENNON
(2) Since respondent was found to be ineligible for adjustment of status under
(3) The decision whether or not to grant voluntary departure under
(4) Since “marihuana” includes “cannabis resin” within the meaning of
The respondent entered the United States with his wife, a native and citizen of Japan, on August 13, 1971. They were authorized to remain until February 29, 1972, but they did not depart from the United States by that date. They received a letter from the district director, dated March 1, 1972, informing them that their authorized stay had expired, that the Service expected them to depart from the United States by March 15, 1972, and that failure to depart would result in the institution of deportation proceedings. On March 3, 1972, the respondents filed petitions for preferred immigration status under
In a letter dated March 6, 1972, the district director informed the respondent and his wife that the privilege of voluntary departure from the United States had been revoked pursuant to
A deportation hearing was held. In a decision dated March 23, 1973, the immigration judge found (1) that the respondent and his wife were nonimmigrants who had stayed longer than authorized and were there
I. MOTION TO DEFER
On appeal, counsel has submitted a motion that we defer the decision in this case pending the outcome of two court actions filed by the respondent in the United States District Court for the Southern District of New York. These suits involve three basic claims by the respondent.
Initially, the respondent is seeking pursuant to
Similar claims have been made that a discretionary Service policy, which permits certain deportable aliens who are beneficiaries of approved visa petitions to remain here until a visa becomes available, may confer an enforceable right to remain in the United States. Such claims have been consistently rejected. Vassiliou v. INS, 461 F.2d 1193 (C.A. 10, 1972); Spata v. INS, 442 F.2d 1013 (C.A. 2, 1971), cert. denied, 404 U.S. 857 (1971); Armstrong v. INS, 445 F.2d 1395 (C.A. 9, 1971); Bowes v. District Director, 443 F.2d 30 (C.A. 9, 1971); Manantan v. INS, 425 F.2d 693 (C.A. 7, 1970); Lumarque v. INS, Civil No. 71-1886 (C.A. 7, June 12, 1972); Discaya v. INS, 339 F. Supp. 1034 (N.D. Ill., 1972); Matter of Merced, 14 I. & N. Dec. 644 (BIA 1974); Matter of Gallares, 14 I. & N. Dec. 250 (BIA 1972); Matter of Geronimo, 13 I. & N. Dec. 680 (BIA 1971); Matter of Li, 13 I. & N. Dec. 629 (BIA 1970). We have held
The respondent is also seeking an order compelling the Attorney General and certain Service officials to perform their statutory duty under
Counsel claims that a court is the only forum in which evidentiary hearings under
Counsel did not present his motion under
It is unclear exactly how much evidence of surveillance must be presented for a party to show that he or she is “aggrieved” within the meaning of
In the present case, all counsel has presented is a photocopy of an
Moreover, the thrust of the material offered seems to be in the direction of showing that someone improperly influenced the district director to institute deportation proceedings. As we have already stated, this is a matter outside the scope of our jurisdiction.
Finally, the respondent claims that his case has been prejudged by the Service. Counsel has cited Accardi v. Shaughnessy, 347 U.S. 260 (1954), and Bufalino v. Kennedy, 322 F.2d 1016 (D.C. Cir., 1963), as authority for this contention. Both of those cases involved aliens who were concededly deportable and were denied discretionary relief from deportation. Both aliens challenged the denial of discretionary relief on the ground that statements by the Attorney General had prevented the Board (or, in Bufalino, the Service) from making an independent discretionary determination as required by the applicable regulations. On appeal it was held that the district court should have given the aliens an opportunity to prove their allegations of prejudgment.
The present case, however, is distinguishable from Bufalino and Accardi. The respondent was found to be statutorily ineligible for adjustment of status. Since the immigration judge ruled the respondent ineligible as a matter of law, he never had an opportunity to exercise his discretion with regard to the application for adjustment of status. Therefore, he cannot be considered to have prejudged the respondent‘s application. See Marcello v. Bonds, 349 U.S 302, 313 (1954). The only discretionary relief for which the respondent was found to be statutorily eligible was voluntary departure, and with respect to this relief the immigration judge exercised his discretion in favor of the respondent.
Counsel has characterized the immigration judge‘s refusal to terminate proceedings as improvidently begun, and his refusal to issue subpoenas, as instances where applications for “discretionary relief” were prejudged. Counsel‘s characterization is incorrect. Those requests related to matters outside the scope of the immigration judge‘s jurisdiction, and therefore his denials were proper as a matter of law.
On June 27, 1972, after the hearing had been completed, counsel moved that the immigration judge issue subpoenas pursuant to
If the respondent had made a sufficient showing that illegal acts took place which might have tainted evidence used at the hearing, or if he had established a prima facie case of prejudgment, we would not have to defer to a court, but rather could remand the proceedings to an immigration judge for further hearing. In essence, however, the issues in both of the respondent‘s court actions relate to his attempt to challenge the district director‘s decision to issue an order to show cause. Determinations relating to the district director‘s decision to institute deportation proceedings are not germane to our function.
We are not required to delay deportation proceedings to allow the respondent to pursue collateral remedies in the courts. Matter of Agarwal, 13 I. & N. Dec. 171 (BIA 1969). The ends of justice are best served by insisting upon a speedy resolution of the administrative deportation proceedings. Should the collateral challenge remain undecided upon the conclusion of the deportation proceedings, the alien could then apply to the district director for a stay of deportation pending the outcome of his other litigation, and he could seek review of a denial of such a stay in the federal courts. This approach should afford an opportunity for any respondent with a meritorious claim to preserve his rights, while not providing an extra measure of delay for those who in reality seek nothing more. We must, therefore, deny the respondent‘s motion that we defer our decision.
In a letter to the Chairman of the Board of Immigration Appeals dated November 16, 1973, counsel expressed his understanding that we had agreed to inform him of our decision on his motion to defer prior to rendering a decision on the merits. Counsel was informed by a letter dated November 20, 1973 that such an understanding was incorrect.
Counsel had more than seven months in which to prepare for oral
II. DEPORTABILITY
The respondent is charged under
On March 6, 1972, the district director revoked the respondent‘s privilege of voluntary departure pursuant to
The respondent‘s situation, however, is quite different. His authorized stay expired on February 29, 1972. At that point he lost his lawful nonimmigrant status. He remained in the United States merely as a deportable alien who had been granted the discretionary privilege of departing voluntarily pursuant to
III. ELIGIBILITY FOR ADJUSTMENT OF STATUS
The respondent applied for adjustment of status under
The immigration judge found that the respondent was not admissible to the United States for permanent residence because he was excludable under
Any alien who 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 or marihuana . . .
Dangerous Drugs Act 1965, section 1:
The drugs to which this Part of this Act applies are raw opium, coca leaves, poppy-straw, cannabis, cannabis resin and all preparations of which cannabis resin forms the base
Regulation 3, Dangerous Drugs (No. 2) Regulations 1964:
A person shall not be in possession of a drug unless he is generally so authorised or, under this Regulation, so licensed or authorised as a member of a group, nor otherwise than in accordance with the provisions of these Regulations and, in the case of a person licensed or authorised as a member of a group, with the terms and conditions of his licence or group authority.
The respondent has admitted that the record of conviction relates to him (Transcript of hearing, p. 30). Nevertheless, the respondent contends that his conviction does not place him within the exclusion provision of
As to the contention regarding mens rea, it is maintained by counsel in his brief that a binoculars case containing cannabis resin was found in the respondent‘s house, but that the respondent had no knowledge of the presence of the drug (Respondent‘s brief on appeal, p. 54; Transcript of hearing, p. 81). He pleaded guilty, counsel alleges, because lack of knowledge was not a defense to a prosecution under the Dangerous Drugs Act of 1965 (Transcript of oral argument, p. 46). Therefore, counsel claims, the respondent‘s plea of guilty was an admission only of physical control of a binoculars case which proved to contain a dangerous drug (Respondent‘s brief on appeal, p. 62). Counsel argues that the respondent did not admit any knowledge of the drug‘s presence, and that he therefore would not come within the class of persons whom Congress wished to exclude under
The provisions of
A. Knowledge Requirement of British Statute.
The history of the British laws relating to illegal possession of drugs is quite involved.5 The earliest reported decision relating to possession of drugs is R. v. Carpenter, [1960] Crim. L. Rev. 633. In that case, drugs were found in the trunk of a car parked outside a house in which the defendant was arrested. The defense was that he had borrowed the car from a friend some 24 hours earlier and was unaware of the presence of the drugs. The trial court convicted the defendant, but the Court of Criminal Appeal reversed, holding that there was not sufficient evidence of conscious possession of the drug to go to the jury. Since it was conceded by the prosecution at trial that knowledge was a necessary element of the crime, this case does not help greatly in clarifying the legal definition of possession. However, one commentator has noted that “as the law tends to work rather by description than by definition the case is important as an illustration of a fact-situation where a person was held not to be in possession.” A. Owen, Dangerous Drugs—Possession, The New Law Journal, September 28, 1972, at 844.
In Lockyer v. Gibb, [1966] 2 All E.R. 653 (Q.B.), the first fully reported case, a bottle containing tablets was discovered in the hold-all which the defendant was carrying. The tablets were found to be a prohibited drug. The defendant admittedly was aware that she was in possession of the bottle and that the bottle contained tablets; however, she claimed that a friend had given the bottle to her to look after and that she did not know what the tablets were. The trial court concluded that she was in unauthorized possession of a prohibited drug, notwithstanding the fact that she might not have known that the tablets she had were such a prohibited drug. The defendant was given leave to appeal her conviction.
On appeal, the Queen‘s Bench Division sustained the conviction, holding that while it was necessary for the prosecution to show that the
In my judgment, before one comes to a consideration of a necessity for mens rea or, as it is sometimes said, a consideration of whether the regulation imposed an absolute liability, it is of course necessary to consider possession itself. In my judgment, it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, or may be, in her handbag, in her room, or in some other place over which she has control. That, I should have thought, is elementary; if something were tipped into one‘s basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it.6
Lord Parker also referred to the Canadian case of Beaver v. R., [1957] S.C.R. 531, in which the majority of the Supreme Court of Canada concluded under a similar statute that one who has physical possession of a package which he believes to contain a harmless substance, but which in fact contains a narcotic drug, cannot be convicted of being in possession of the drug. Lord Parker expressed disagreement with this view and agreed instead with the dissenting justices in Beaver.
In R. v. Smith, [1966] Crim. L. Rev. 558, the defendant was convicted of possessing a drug found in a room at a house where she was living. The trial judge had instructed the jury that it was necessary for the prosecution to show that the defendant lived in the room and “had a common interest in it so that she controlled all the things that were in it of any significance.” The conviction was quashed by the Court of Criminal Appeal, which held that the jury should have been directed to decide whether the defendant knew of the drug and if so whether she had possession or control of it.
In the case of Dalas, [1967] Crim. L. Rev. 125, the defendant appealed from a conviction for possession of cannabis and the imposition of a three-year sentence. He claimed a belief that the substance he possessed was an Indian culinary herb rather than a dangerous drug. The Court of Criminal Appeal accepted the idea that for the sentence to have a rational foundation there must be convincing evidence that the defendant knew he was carrying cannabis rather than curry powder. The court concluded, however, that the evidence fully justified the trial judge‘s rejection of the defendant‘s explanation of innocence and also justified the imposition of the severe sentence.
The House of Lords considered for the first time the type of knowledge required for conviction of the statutory offense of drug possession in Warner v. Metropolitan Police Commissioner, [1968] 2 All E.R. 356 (H.L.). In that case, the defendant‘s van was stopped by police and two parcels were found, one containing bottles of perfume and the other
On appeal to the House of Lords, there were only two points on which the five justices could agree: (1) that as per Lord Parker‘s dictum in Lockyer, a person does not possess something which is slipped into his control entirely without his knowledge; and (2) that the appeal in Warner should be dismissed. As to the mental element necessary to convict a man of possession, the individual justices took diverse approaches.
Lord Guest felt that the prosecution must show that the accused had knowledge that he possessed the package or bottle which contained the drugs. According to this view, a person shown to be in possession of a package will be deemed to also possess its contents.7
Lord Morris expressed the opinion that a person possesses the contents of a container when he is knowingly in control of the container in circumstances in which he had the opportunity, whether availed of or not, to discover the contents.8
On the other hand, Lord Pearce and Lord Wilberforce both thought that a person could not be said to be in possession of the contents of a package if he was entirely unaware of those contents. These two justices concluded that proof that a person knowingly possessed a package raised a strong inference that he also knew the contents; however, the defendant should be allowed to assert in his defense that he had no knowledge of, or was genuinely mistaken as to, the actual contents or their illicit nature, and received them innocently, and that he had no reasonable opportunity since acquiring the package to acquaint himself with its contents.9
With the exception of Lord Guest, the justices expressed the opinion that the direction to the jury given by the trial court had been defective.13 Nevertheless, Lords Reid, Pearce, and Wilberforce believed that the defendant‘s story regarding lack of knowledge was so preposterous that no reasonable jury could have acquitted him, and that therefore no injustice had been done.14
From the foregoing discussion, it is evident that a majority of the court, consisting of Lords Reid, Pearce, and Wilberforce, believed that there was a substantial knowledge requirement for conviction of possession of a dangerous drug. The inference that possession of a package meant possession of its contents could be rebutted by the defendant if he raised substantial doubt that he knew the contents; this could be done either by showing that he had no right to open the package and no reason to suspect its contents to be illicit, or by showing that he was genuinely mistaken as to the contents and had no reasonable opportunity to ascertain what they were. See D. Miers, The Mental Element In Drug Offences, 20 Nor. Ir. L.Q. 370, 389-90 (1969). The majority view in Warner, then, was the prevailing interpretation at the time of the respondent‘s conviction in 1968.
The cases which were decided after Warner confirm the existence of a substantial knowledge requirement for conviction of possession. In R. v. Marriott, [1971] 1 All E.R. 595 (C.A.), the defendant possessed a penknife with some traces of cannabis on the blade. On appeal from the defendant‘s conviction, the Court of Appeal held that, in order to establish unlawful possession of cannabis, the prosecution had to show that the defendant knew or had reason to know that a foreign substance was
In R. v. Irving, [1970] Crim. L. Rev. 642, the defendant had a bottle in his possession which contained his stomach pills along with some amphetamines, the latter being a prohibited drug. He defended on the ground that the amphetamines had been prescribed for his wife, and that she must have put them in his bottle by mistake; consequently, he claimed, he had no knowledge that the amphetamines were there. The trial judge directed that if the defendant knowingly possessed the bottle he also possessed the contents, and the jury returned a guilty verdict. The Court of Appeal sustained the appeal, stating that the jury direction was wrong because the circumstances were comparable to those where a drug was slipped into a person‘s pocket or bag without his knowledge.
In R. v. Fernandez, [1970] Crim. L. Rev. 277, the defendant was convicted of possession of cannabis. The facts adduced at trial showed that the respondent had reason to believe that the package he was carrying contained a prohibited substance. The trial judge directed that “if the person were to receive the package under circumstances whereby it would be clear to any person of ordinary common sense that it might well contain either drugs or some other article which ought not to be in distribution the mere fact that it could not be shown that the carrier knew the exact contents would not prevent him from being guilty . . . the mere fact that the prosecution cannot show that he knew the exact nature of the drug would not matter if he did know that the package might well contain some prohibited article and if in fact it did contain a prohibited drug.” On appeal it was held that, on the facts of the case, the direction was adequate. The Court of Appeal observed that: “The majority view in Warner was that one could not safely regard the offence as absolute: some mental element, or subjective test, might have to be applied.”
In Sweet v. Parsley, [1969] 1 All E.R. 347 (H.L.), the House of Lords considered the question of whether a landlord who had no knowledge that cannabis was being smoked on his premises could be convicted for being concerned in the management of premises used for the smoking of cannabis under section 5(b) of the Dangerous Drugs Act of 1965. The court‘s holding that the conviction should be quashed hinged on the wording of section 5(b) and prior enactments. However, in the course of the opinion all of the justices agreed that knowledge is normally a requirement for conviction and that such requirement should not be lightly dispensed with. More important for the present case, several
Lord Reid stated that he had no reason to alter the view which he expressed in Warner, that knowledge is an element of the crime.15 Lord Pearce, Lord Wilberforce, and Lord Diplock all expressed the view that the term “possession” as used in Warner imported a mental element.16
One commentator has stated that prior to the enactment of the Misuse of Drugs Act of 1971, the mental element required for conviction for drug possession consisted of two states:
First, it had to be proved that an accused knew that he had actual or constructive possession of the article which contained the drugs. Secondly, although it could not be proved that the accused knew the exact nature of what he had, it had to be proved that there were facts from which it could be inferred that he knew he had a substance of an illicit nature, though not necessarily what kind of illicit substance it was.
I. McClean & P. Morrish, Harris‘s Criminal Law 269 (22d ed. 1973).17
We conclude that the statute under which the respondent was convicted contained a sufficient knowledge requirement to ensure that persons whose possession was entirely innocent would not be convicted. In this respect, cases such as Irving, Marriott, Smith, and Carpenter
It is true that some of the formulations of the knowledge requirement in the British cases seem obtuse. It has been suggested that this may be due, in part, to judicial overreaction to the fear that juries would abuse a liberal formulation of the knowledge requirement and be too eager to allow drug peddlers to escape for lack of proof of knowledge. D. Miers, The Mental Element In Drug Offences, 20 Nor. Ir. L.Q. 370, 376-77, 383 (1969). See the commentary on the Dalas case in [1967] Crim. L. Rev. 125. This fear may have been misplaced; however, we do not believe that the Dangerous Drugs Act of 1965 created an offense which permitted the conviction of persons whose possession was innocent and readily explainable.
Conviction for possession of cannabis resin under the Dangerous Drugs Act of 1965 required that the defendant have had knowledge that he possessed an illicit substance which proved to be cannabis resin. A person who was entirely unaware that he possessed any illicit substance would not have been convicted under the Dangerous Drugs Act of 1965. The respondent‘s plea of guilty to the charge of possession of cannabis resin under the Dangerous Drugs Act of 1965 is a conviction of a law relating to the illicit possession of marihuana within the meaning of
Furthermore, counsel‘s intimation that the respondent pleaded guilty on the advice of British counsel that British law did not permit a defense of lack of knowledge is not reflected in the record. In a letter dated March 14, 1972, British counsel retained by the respondent at the time of his conviction stated that he believed the respondent had a good defense on the facts of the case.18 However, the respondent allegedly expressed a concern for the welfare of his wife, who was then pregnant and suffering physical and emotional difficulties, if she were called upon to testify. British counsel stated that he “was obliged to explain to him [the respondent] that the only course open that would obviate the need for her [his wife‘s] appearance would be for him to plead guilty.” The letter implies that the respondent pleaded guilty to obviate the necessity for his wife‘s appearance as a witness. British counsel does not state that his advice to the respondent, or the respondent‘s decision to plead guilty, had anything to do with the unavailability of a defense based on lack of knowledge under the British statute.
The respondent had an opportunity to obtain advice of competent18
B. Is Cannabis Resin Marihuana Within the Meaning of Section 212(a)(23)?
The respondent asserts that the term “marihuana” as used in
According to Dr. Grinspoon, there are three grades of intoxicating drug which are prepared in India from the plant Cannabis sativa (L.), and which serve as standards against which preparations produced in other parts of the world are compared for potency. Bhang consists of Cannabis sativa leaves dried and then crushed into a coarse powder and perhaps mixed with seeds and chopped up stems of the plant. Ganja, the second strongest preparation, is made from the tops of cultivated female plants and is estimated as being two or three times as strong as bhang. Pure resin of the pistillate flowers is called charras and is the most potent of the intoxicants, being five to eight times more potent than bhang. Charras, or cannabis resin, is called hashish in some places.
Dr. Grinspoon has stated that the chemical compounds responsible for the intoxicating effect of cannabis are commonly found in the resin. Although it is generally believed that the plant‘s active agents are found solely in the resin, there is insufficient evidence to support this hypothesis. It is possible that other parts of the female and male plants may contain active substances.
The gist of Dr. Grinspoon‘s testimony is that, as used in the United States, the term “marihuana” refers only to a preparation comparable to Indian bhang, and should be distinguished from cannabis resin which is comparable to Indian charras (or hashish) (Transcript of hearing, p. 37). While this argument has some technical appeal, we are not persuaded by it.
The term “marihuana” is not defined in the Act, nor is the legislative history explicit as to the meaning to be given to the term. In the absence
The provisions for the exclusion and deportation of persons convicted of possession of marihuana were part of a congressional scheme to deal with the evils of drug abuse. S. Rep. No. 1651, 86th Cong., 2d Sess., U.S. Code Cong. & Ad. News 2134-35 (1960). In other statutes having the same objective, Congress has treated the term “marihuana” as including cannabis resin.
Several federal courts have noted that hashish (cannabis resin) is merely a refined form of marihuana. United States v. Piercefield, supra; see United States v. Cepelis, supra. It would be illogical to construe the term “marihuana” under
Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965), is distinguishable. That case involved a factual issue concerning the identity of the drug that the alien was convicted of trafficking in. The record of conviction referred only to a “narcotic drug” under California law, which included substances not defined as “narcotic drugs” under the immigration laws as interpreted by the federal courts. Since the conviction was alleged to be the ground for deportation under
In the present case, however, there is no factual dispute as to what drug the respondent was convicted of possessing. The issue is a legal one: Is cannabis resin “marihuana” within the meaning of
Counsel has cited Matter of Gray, A-30310271 (IJ September 23, 1971), an unpublished decision by an immigration judge, which held that hashish is not “marihuana” within the meaning of
In his brief, counsel attacks the constitutionality of
We are not unsympathetic to the plight of the respondent and others in a similar situation under the immigration laws, who have committed only one marihuana violation for which a fine was imposed. Nevertheless, arguments for a change in the law must be addressed to the legislative, rather than the executive, branch of government.
IV. SUMMARY AND CONCLUSION
We have concluded that the respondent‘s motion to defer our decision must be denied. We have also concluded that the respondent is deportable under
ORDER: The appeal is dismissed.
Further order: Pursuant to the immigration judge‘s order, the respondent is permitted to depart from the United States voluntarily within 60 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent shall be deported as provided in the immigration judge‘s order.
Notes
By the enactment of this section, Parliament appears to have been taking the course suggested by Lord Reid and Lord Pearce in Warner, and thereby placing the burden on the defendant who has been shown to be in the physical control to prove that his possession was innocent.(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.
There are several statements in the legislative history of the Misuse of Drugs Act of 1971 which indicate that at least one member of Parliament believed that as a result of Warner the crime of possession under the Dangerous Drugs Act of 1965 was “absolute” and did not require any mens rea. 808 Parl. Deb., H.C. (5th ser.) 617-18 (1970). This view ignores the fact that there was a substantial knowledge requirement before one could even be said to be in “possession” of a drug. To say that possession is an “absolute” offense begs the question. The term “absolute” is very imprecise. As was pointed out by Lord Pearce in Sweet v. Parsley, [1969] 1 All E.R. 347, 358 (H.L.), the term “absolute” may describe “an offence to which the normal assumption of mens rea does not apply, but in which the actual words of the offence (without any additional implication of mens rea) may well import some degree of knowledge, e.g., the word ‘possession’ as in Warner‘s case.” We believe that the cases, not the Parliamentary Debates, are the most accurate source of information as to the state of English law at the time of the respondent‘s conviction.