Matter of Sum
- Reporters:
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, 237 F. Supp. 282 (S.D. Calif., 1964). Varga was con- victed under section 11721 of the California Code which punishes a person who illegally used or came under the influence of a pro- scribed drug. The Service sought to deport him under that portion of section 241 (a) (11) of the Act which requires the deportation of an alien “who at any time has been convicted of a violation of, * * * any lаw or regulation relating to illicit of or traf- fic in narcotic drugs or marihuana * * *“. (Emphasis supplied.) The court held that the respondent was not deportable. The court pointed out that the legislative history indicated that Congress in- tended to attack traffic in rather than use of narcotiсs. The court found that Varga‘s conviction was for use. The court concluded that the drug had been in his system, and that it followed he had not been in the possession which would have given him the power to traffic in the drug.
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.