Case Information
*1
Matter of Mena
In Deporłation Proceedingis
A-34033024
Decided by Board July 12, 1979
Abstract
Trаnscript from court proceedings which resulted in conviction for possession of controlled substances under section 11350 of the California Health and Safety Code, and at which the respondent, under questioning by judge as part of the arraigament prior to acceptance of a guilty plea, admitted possession of heroin, with knowledge that the substance was heroin, can be considered as part of the "record of conviction," and a finding of deportability under section 241(a)(11) оf the Immigration and Nationality Act, 8 U.S.C. 1251(a)(11), can thus be based on it. Matter of Paulus, 11 I&;N Dec. 274 (BIA 1965), and Matter of Cassisi, 10 I&;N Dec. 136 (BIA 1963), distinguished.
Charge:
Order: Asd of 1932-Dec. 241(a)(11) [8 U.G.C. 1251(a)(11)]-Convisted of law relating to illicit рossession of a controlled substance, to wit, heroin, in violation of section 11350 of the California Health and Safety Codе
On Behaly of Respondent:
Pre se
On Behali of Service:
Ingrid K. Hrycenko
Trial Attorney
By: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The Immigration and Naturalization Service has appеaled from a decision of the immigration judge, dated October 17, 1977, [1] terminating deportation proceedings brought against the respondent. The appeal will be sustained.
The respondent is a native and citizen of Mexico who was admitted to the Unitеd States as an immigrant on December 11, 1972, when he was 14 years old. On April 1, 1977, the respondent pleaded guilty to unlawful possession of "controlled substances," in violation of section 11350 of the California Health and Safety Code. Based on this conviction, an Order to Show Cause was issued against the respondent on
*2 September 6, 1977, charging him with deportability under section 241(a)(11) of the Immigration аnd Nationality Act, 8 U.S.C. 1251(a)(11). At a deportation hearing held on October 17, 1977, the respondent admitted the allegations in the Order to Show Cause, and conceded deportability. The immigration judge nevertheless terminated the deportation proceеdings. The termination was based on his finding that the respondent's conviction record contained no reference to herоin, or to any other specific drug. The immigration judge therefore determined that the Service had failed to meet its burden of shоwing, by clear, convincing, and unequivocal evidence, that the respondent had been convicted of a violation оf a law relating to narcotic drugs or marijuana.
The Service, in its brief on appeal, argues that the transcript from the сourt proceeding at which the respondent was convicted should be considered part of the "record of cоnviction." That transcript contains a colloquy between the judge and respondent at the latter's arraignment, wherein, befоre accepting a guilty plea, the judge asked the respondent what he had done that made him believe he was guilty of possession of a controlled substance, and the respondent answered that he had had in his pocket a balloon containing heroin, and that he had known it was heroin; if considered as part of the conviction record, this transcript would clearly support a finding of deportability under section 241(a)(11). As pointed out by the immigration judge in his decision, the "record of conviсtion" has generally been held to consist of the charge, the indictment, the plea, the verdict, and the sentence. Hirsch v. INS,
Two prior Board decisions, Matter of Paulus, supra, and Matter оf Cassisi, 10 I&;N Dec. 136 (BIA 1963), need to be distinguished from the present eace. In Paulus, it was charged that the respondent, in violation of California law, "did offer unlawfully to sell and furnish a narcotic to a person and did then sell and deliver to such person a substance аnd material in lieu of such narcotic." The respondent was
*3
Interim Decision #2719
convicted on this charge. We upheld the immigration judge's decision terminating deportation proceedings, on the ground that the record was silent as to what narcotic was involved, and it could have been a substance considered to be a narcotic under California law, but not under federal law. Giving the resрondent the benefit of the doubt, the conviction was found not to be one relating to narcotic drugs for immigration purposеs. In that case, however, there was no evidence to indicate precisely what narcotic was involved. In the present case, the respondent admitted, both at his arraignment and at his deportation hearing, that the drug he had possessed wаs heroin.
In Cassisi, supra, we held that recourse could not be had to the remarks made by the State's Attorney to the court at the time of sentencing in order to determine whether or not the crime for which the respondent had been convicted involved moral turpitude. The law under which the respondent was convicted was a broad, divisible statute enumerating several acts, whiсh may or may not have involved moral turpitude. Our decision in the instant case is in no way contrary to that in Cassisi. The consideratiоn of admissions freely made by the respondent himself is far different from the consideration of remarks made by a prosecutоr.
The respondent is clearly deportable as an alien convicted of a law relating to narcotic drugs or marijuana. The Service's appeal will accordingly be sustained.
ORDER: The appeal is sustained, and the record is remanded to the immigration judge for further proceedings consistent with this opinion.
NOTES
Notes
The record file in this case was not received by the Board until February 15, 1979, some 16 months after the immigration judge rendered his decision. We consider such a delay in forwarding the record to be unacceptable.