Case Information
MATTER OP SUM In Deportation Proceedings A-4713047 Decided by Board May 22, 1970 Rеspondent's conviction under section 11720 of the California Health and Safety Code for unlawful use of proscribed narcotic drugs may not be equated with a conviction for unlawful of such narcоtic drugs so as to bring him within the "illicit possession" provisions of sections 212(a) (23) and 241(a) (11) of the Immigration and Nаtionality Act (Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964), followed).
[Matter of H—U—, 7 I. & N. Dec: 533, and Matter of Fong, 10 I. & N. Dec. 616, overruled.]
CHARGES :
Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excluda- ble at time of entry—immigrant, no visa (section 212(a) (20) оf Act). Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1—Exclud- able at time of entry—immigrant, no visa sec- tion 13 (a), Act оf May 26, 1924). ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Robert S. Bixby, Esquire Sam T. Feldman 30 Hotaling Place Acting Appellate Trial Attorney San Franciscо, California 94111 (Brief filed)
The special inquiry officer certified his order denying respond- ent's application under section 249 of the Act. The application will be granted.
The question is whether thе Board should continue to follow its precedents holding that a conviction for unlawful use of prоs- cribed drugs makes an alien deportable as one who has been con- victed for unlawful of such drugs. We shall overrule the precedents.
The facts have been fully stated by the speciаl inquiry officer. He found the respondent deportable on the lodged charge. Re- spondent applied to the special inquiry officer, under section 249 of the Act, for the administrative creation of a record of lawful admission for permanent residence. One condition оf eligibility is
gg0 that the applicant not be excludable under provisions excluding "violators of the nаrcotic laws". The pertinent portion of section 212 (a) (23) of the Act requires exclusion of, "Any alien who has been convicted of a violation of * * * any law or regulation relat- ing to the illiсit possession of or traffic in narcotic drugs or marihuana * * *." 1 Respondent has been conviсted in 1941 for taking or using narcotics. 2 The special inquiry officer did not per- sonally believe that thе conviction for taking or using narcotics made respondent inadmissible under section 212 (a) (23) which speаks of of the proscribed drugs. However, since Board precedents equate a conviсtion for unlaful use with a conviction for unlawful possession, he held that the respondent was inadmissible under section 212 (a) (23) . 3
An issue similar to that before us was considered in
Varga v.
Rosenberg,
Varga is the оnly published court decision on the issue. The po- sition of the court in that case is based on legal precedents which hold that "use" does not necessarily include "possession." A con- 249 reference to narcotics and the section 212(a) (23) reference to this, but also to marihuаna. [1] It is unnecessary to comment on the significance, if any, of the section narcotics on or off before his conviction and did not use it thereafter. He migration laws, Matter of F—S—C—, 8 I. & N. Dec. 108 (BIA, 1958) . 11720 of the Califоrnia Health and Safety Code which required the criminal punishment of a "narcotic addict"—a tеrm defined as relating to one who il- legally "takes or otherwise uses any narcotics". Respоndent testified he used does not appear to have been an "addict" as that term is definеd under im- [2] Respondent was convicted on July 25, 1941 of violating then section I. & N. Dec. 533 (BIA, 1957). [3] Matter of Fong, 10 I. & N. Dec. 616 (BIA, 1964) ; Matter of H—U—, '7 trary view had previously beеn expressed by another judge of the same court in an unreported decision, Rukaroff v. Rosenberg, No. 212-61–TC, April 17, 1961, which was apparently never ap- pealed. The Solicitor General of the United States, although aware of the cleavage, declined to authorize an appeal in Varga.
The Service's trial attorney stated at the hearing that the Serv- ice follows Varga in that it does not institute a dеportation pro- ceeding if the conviction is such as is found in that case (pp. 10-11). Insofar аs concerns the "illicit possession" portions of sections 212(a) (23) and 241(a) (11) of the Act, we believe that Varga should be followed rather than Bukaroff and the Board precedents to the contrary. We, therefore, overrule Matter of Fong, supra, and Matter of H—U---, supra, which hold to the contrary.
ORDER: It is ordеred that the special inquiry officer's denial of respondent's application under section 249 of the Act he with- drawn. It is further ordered that respondent's application under sec- tion 249 of the Act he granted.