Interim Decision #1281
Mamma or GARDOS
In DEPORTATION Proceedings
A-11845805
Decided by Board May 7, 1983
An alien convicted in 1956 of unlawful possession of marihuana in violation of
section 4, paragraph 1, of the Opium and Narcotic Drug Act of Canada, is
deportable under section 241(a) (11) of the Immigration and Nationality Act,
as amended by the Act of July 14,1960.*
CHARGES :
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable
at entry, section 212(a) (23)—Convicted of violation of law relating
to illicit possession of narcotic drugs—Section 4, paragraph 1, of the
Opium and Narcotic Drug Act, R.S.O. 1952, C. 201 and amend-
' ments—Canabis saliva (marihuana).
Lodged: Aet of 1052—Soetion 241(a) ( 11 ) Eg II-S.C. 1251(a) ( ) 3—Convicted
at any time of violation of law or regulation relating to illicit
possession of marihuana—Section 4, paragraph 1, of Opium and
Narcotic Drug Act of Canada, R.S.C. 1952, O. 201 and amendments.
The case comes forward on appeal from the order of the special inquiry officer dated February 8, 1963 ordering that the respondent be
deported to Canada on the lodged charge.
The record relates to a native of Hungary, a citizen of Canada, who
last entered the United States at Highgate Springs, Vermont on or
about August 4, 1959_ On August 1, 1956 he was convicted in the
District of Montreal, Province of Quebec, Canada of the crime of
unlawful possession of a narcotic drug, marihuana, otherwise known
as canabis sativa, in violation of section 4, Paragraph 1 of the Opium
and Narcotic Drug Act, R.S.C. 1952, C. 201, and amendments, and
was sentenced to serve a term of imprisonment for six months.
Deportability is sought under section 241(a) (11) of the Immigration and Nationality Act as amended by section 9 of the Act of
July 14, 1960 which amended the Act to include illicit possession of
*Order of deportation affirmed, Gardos v. Immigration and Naturalization
Service, 324 P.20 179 (C.A. 2, 1963).
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Interim Decision #1281
marihuana and to provide specifically for the deportation from the
United States of a person who had been convicted under any law or
regulation relating to the illicit possession of marihuana. The record
establishes that the respondent has been convicted of a law relating
to the illicit possession of marihuana. Counsel, however, argues that
the law is an ex post facto law and therefore unconstitutional and
urges that the proceedings be terminated because Congress in enacting
the law intended to render deportable a person only if he had been
convicted of violation of such law after July 14, 1960. Since the
respondent had been convicted on August 1, 1956, and not after entry,
counsel contends that the charge must fail.
Section 241(a) (11) of the Immigration and Nationality Act as
amended by the Act of July 14, 1060 provides for the deportation
of any alien in the United States who "is, or hereafter at any time
after entry has been, a narcotic drug addict, or who at any time 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 …". The Report of the Senate to accompany
House Joint Resolution 397, of which the amended statute was a part,
shows that the purpose of the Joint Resolution was to clarify the
legislative intent expressed in sections 212(a) (23) and 241(a) (11)
of the Immigration and Nationality Act providing, respectively, for
the exclusion and deportation from the United States of aliens convicted of a violation of narcotic laws. 1
The comment of the Acting Secretary of the Treasury dated January 13, 1960 was to the effect that there can be no valid distinction
for the deportation or exclusion of an alien who has been convicted
of the illicit possession of narcotic drugs (which is now the law) and
not such a provision for an alien who has been convicted of the illicit
possession of marihuana; aliens who are convicted of violation of
narcotic or marihuana laws should be excluded or subject to deportation. A letter from the Deputy Attorney General dated January 13,
1960, expressing the views of the Department of Justice, refers to
the decisions of the United States District Court for the Southern
District of California in Mendoza Rivera v. Del guereio, 160 F. Supp.
-
473 and Rojas Gutierrez v_ Hoy,161 F. Sapp. 448, approved 260 F. 2d
-
457 and 260 F.2d 490 respectively, stated that the bill would amend
existing laws, sections 212(a) (23) and 241(a) (11), to the end that a
conviction of an alien for a violation of any law relating to illicit
possession of marihuana. shall render him excludable or deportable.
In a subsequent analysis of the Joint Resolution it was pointed out
that sections 8 and 9 of the Joint Resolution as amended would amend
Senate Report No. 1651 (86th Cong., 2d Sess.) p. 3.
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Interim Decision #1281
section 212(a) (23) and section 241(a) (11) of the Immigration and
Nationality Act to make it certain that a conviction of an alien for
violation of any law relating to illicit possession of marihuana shall
render him excludable or deportable.'
The Statement of the Managers on the part of the House refers
to the fact that House Joint Resolution 397, as amended, also includes
the provisions of the House Bill strengthening our antinarcotics laws
in providing for mandatory exclusion and deportation of aliens who
engage or have engaged in trafficking of marihuana.'
The punctuation of the statute clearly shows an intent on the part of
the Congress to confine the reference to the phrase "after entry" to the
narcotic drug addict but there - is no reference to the phrase "after
entry" in that portion of the statute wherein the Congress is concerned
with a person who has been convicted "at any time" of certain violations. Both the statutory language and the legislative history clearly
manifest an intention on the part of the Congress to render deportable
an alien who at any time had been convicted of violation of the law relating to illegal possession of marihuana, whether that conviction had
occurred before, on or after the alien's entry into the. United States.
In omitting any reference to a conviction after July 14, 1960, there was
clearly manifested an intention to render deportable an alien whose
conviction had occurred prior to July 14, 1960. The respondent's
conviction falls squarely within the terms of section 941(a) (11) of the
Immigration and Nationality Act and the respondent is deportable as
charged.
Counsel's argument that conviction must occur subsequent to the
date of the amendment is accordingly rejected. This is not the proper
forum to contest the constitutionality of the law. The respondent declined to apply for discretionary relief. The appeal will be dismissed.
ORDER; It is ordered that the appeal be and the seine is hereby
dismissed.
Idem pp. 21-22,27.
'House of Representatives Report No. 2088 (86th Cong., 2d Sees.) p. 2.
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