Interim Decision #1760
MA'FTER OF LEE
In Deportation Proceedings
A-10773765
Decided by Board July 31 1 1967
Notwithstanding respondent's full and unoonditional pardon by the Governor
of the State of California for his narcotics conviction, motion to reopen to apply
for the benefits of section 249, Imnilgration and Nationality Act, as amended,
is denied since the pardon is ineffective under section 241(b) of the Act to
immunise him from deportation on the ground of his narcotics violation (and
once admitted, he would be subject to immediate deportation under section
241(a) (11)), nor does it remove the narcotics ground of inadmissibility under
section 212(a) (23).
OHAI1DE:
Order: Act of 1952—Section 241(a) (11) 18 U.S.C. 1251(a) (11)7—Narcotics
possession, conviction : possession of opium, violation
of section 11500, California Health and Safety Code.
ON BEHALF or RESPONDENT: Joseph S. Hertogs, Esquire
Jackson & Hertogs
580 Washington Street
San Francisco, California 94111
. (Brief filed)
The respondent, a native of the mainland of China and a citizen of
the Republic of China on Formosa, has been found deportable as one
convicted of a narcotic violation pursuant to section 241(a) (11) of the
Immigration and Nationality Act (8 U.S.C. 1251(a) (11)). An order
providing for the respondent's deportation to the Republic of China
on Formosa was issued by the special inquiry officer on January 9,
1963. There was no appeal from this decision.
The respondent now moves for a reopening of the proceedings to
afford him an opportunity to apply for the creation of a record of lawful admission for permanent residence under section 249 of the Immigration and Nationality Act (8 U.S.C. 1259). The special inquiry
officer, in an order dated June 14, 1967, denied the motion. The respondent appeals from this order.
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Interim Decision #1730
The respondent is a married male alien, 54 years of age, who last
entered the United States through the port of San Francisco, California on July 21, 1939. He was admitted as a citizen on this occasion.
He revealed his true identity and citizenship in 1960.
The respondent, on June 3, 1955, was convicted in the Superior
Court of the State of California in and for the County of San
Joaquin, of unlawful possession of opium in violation of section
11500 of the California Health and Safety Code. He served 90 days
in the county jail for the narcotic conviction.
The respondent, on December 23, 1962, was granted a full and unconditional pardon by the Governor of the State of California for
the narcotic offense. The special inquiry officer denied the motion on
the ground that the respondent is ineligible for relief under section 249 of the Immigration and Nationality Act because of the provisions of section 241(b) and section 212(a) (23) of the same Act.
The special inquiry officer reasons that notwithstanding the fact that
there is no expressed provision of the Immigration and Nationality
Act rendering a pardon ineffective to prevent excludability, the respondent would immediately upon reentry be deportable under section 241(a) (11) as section 241 (b) renders his pardon unavailable
as a waiver of deportability.
Counsel urges error in the conclusion reached by the special inquiry officer. He argues that the respondent is not inadmissible under section 212(a) (23) of the Act because the restriction found in
section 241(b) has no application in an exclusion proceeding. Counsel maintains that our decision in Matter of R—G---, 8 I. & N. Dec.
128 (B.I.A., September 2, 1958) is distinguishable from the respondent's case. We held in Matter of R—
G (supra) that notwithstanding
the lack of a specific statutory ground of exclusion, an alien who upon
entry would immediately become subject to deportation should be
found excludable. Counsel refers to a statement in Matter of R—
G
(supra) which said that our holding in Matter of V—,
7 I. & N. Dec.
565, was merely that the language of the exclusion provision governs in exclusion proceedings and not the language of some related
deportation provision.
Counsel, on the basis of the foregoing reasons that the inadmissibility required under section 249 must be determined under section
212 of the Act since section 212(a) (23) contains a provision relating
to a narcotic violation. Counsel argues that the special inquiry officer
is in error when he relied on section 241 (b) of the Act as a sufficient
basis to conclude that the respondent is excludable under section
212(a) (23) of the same Act and that this conclusion is contrary to
the precedent decisions of this Board.
Interim Decision #1760
Section 249 provides, inter alia, "a record of lawful admission for
permanent residence may . . . be made in the case of any alien . . .
if . . . such alien shall satisfy the Attorney General that he is not
inadmissible under section 212 (a) insofar as it relates to . . . violators of the narcotic laws . ." Accordingly, a record of lawful admission cannot be created in behalf of the respondent unless the
pardon granted him by the Governor of California removes the ground
of inadmissibility set forth in section 212(a) (23) of the Act.
We believe that the respondent's ineligibility for relief under section
249 is controlled by the last sentence of section 241(b) which renders
a pardon ineffective in the case of any alien who has been convicted of
a narcotic violation. A grant of permanent residence under section 249
would not make the respondent immune from deportation because his
pardon does not waive a narcotic conviction. Since the respondent
would be subject to immediate deportation under section 241(a) (11)
of the Act once he was admitted and since there is a provision of section 241 ( a) which renders an alien deportable if he was excludable
by law at the time of entry, we find no logical reason to support a
conclusion that the pardoning provisions of section 241(b) apply to
a narcotic ground of excludability without the limitation which denies
the waiver to an alien "who is charged with being deportable" as a
narcotic -riolator. Under the circumstances, we find that the respondent
is ineligible for the creation of a record of lawful admission under
section 249 of the Immigration and Nationality Act. Regardless of the
pardon which sets aside the respondent's conviction, nevertheless he is
a "violator" as that term is used in section 249 (supra).
Counsel also urges that that portion of section 241(b) (supra) which
limits the pardoning power of the executive branch of the Government
is unconstitutional and not properly the subject of legislative control.
Counsel relies upon a case decided by the Supreme Court wherein it
was stated that "a pardon reaches both the punishment prescribed for
the offense and the guilt of the offender; and when the par.don is full,
it releases the punishment and blots out of existence the guilt, so that
in the eye of the law the offender is as innocent as if he never committed
the offense." Eat parts Garland,71 U.S. 366, 377 (1867).
This Board has consistently held that it is nat within our province
to pass upon the constitutionality of the statutes we administer. Matter
of L—,
4 I. & N. Dec. 556 (B.I.A. November 21, 1951) . We affirm the
order entered by the special inquiry officer denying the respondent's
motion to reopen the proceedings and will dismiss the appeal.
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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