MARTINEZ-GOMEZ

Jul 1, 1972

2138

Versions:14 I. & N. Dec. 104

Conviction of a violation of section 11557 of the California Health and Safety Code, which provides it is unlawful to “maintain any place for the purpose of unlawfully selling, giving away or using any narcotic,” is a conviction of a law relating to “illicit traffic in narcotic drugs or marijuana” within the meaning of section 241(a)(11) of the Immigration and Nationality Act.

The special inquiry officer certifies his order terminating the above-captioned proceedings. The trial attorney has submitted a brief in support of his argument that the respondent is deportable under section 241(a)(11) of the Immigration and Nationality Act as an alien who has been convicted of a law relating to the illicit traffic in narcotic drugs or marijuana. We will reverse the special inquiry officer.

The respondent, a native and citizen of Mexico, was admitted to the United States as an immigrant on June 18, 1967. He was convicted on September 29, 1967 in the Superior Court of California in and for the County of Santa Clara for violation of section 11557 of the California Health and Safety Code.¹ Originally, the respondent was charged under section 11530 of the Health and¹ Safety Code for possession of marijuana. He pled not guilty to this charge. He was granted permission on September 5, 1967 to withdraw his plea of not guilty and to enter a plea of guilty to a violation of section 11557, a “lesser included offense” (Ex. 2). Imposition of sentence was suspended for a period of two years and the respondent was placed on probation, conditioned upon the payment of a fine of $150 plus penalty assessment of $16.00 (Ex. 2).

The issue before us is whether section 11557 is a law relating to illicit trafficking in narcotic drugs or marijuana. Relying on our decision in Matter of Sum, 13 I. & N. Dec. 569 (BIA, 1970), the special inquiry officer held that it was not such a law. However, Matter of Sum dealt with a quite different question, namely the question whether a conviction for unlawful use of proscribed drugs rendered an alien deportable as a person convicted for unlawful possession of such drugs. This respondent was convicted for violation of a statute which does not at all require, for conviction, the unlawful use or possession of proscribed drugs by the accused person. Section 11557 of the California Health and Safety Code under which this respondent was convicted was clearly designed to eliminate the illegal traffic in narcotic drugs by making it a crime for a person to provide a place for the unlawful disposal of narcotics.

We are of the opinion that the statute taken at its minimum involves a law “relating to ... illicit traffic in narcotic drugs or marijuana.” The primary purpose of section 11557 is to eliminate or control traffic in narcotics by making it a crime to “maintain any place” for the “selling, giving away or using” any narcotic. The determining factor is the maintenance of the place and not the selling, giving away or using narcotics, People v. Cannon, 148 C.A. 2d 163, 306 P.2d 589 (C.A. Cal., 1957).

The case will be remanded to the special inquiry officer for a reopened hearing and for the entry of an order of deportation pursuant to section 243(a) of the Immigration and Nationality Act. An appropriate order will be entered.

ORDER: It is ordered that the case be remanded to the special inquiry officer for futher proceedings consistent with the foregoing opinion.

Notes

Section 11557, California Health and Safety Code provides as follows: ”Maintenance of Place for Unlawful Disposal of Narcotics. ... Every person who opens or maintains any place for the purpose of unlawfully selling, giving away or using any narcotic shall be punished by imprisonment in the county jail for not more than one year, or in the State prison for not more than ten years...”