SUM

                                               Interim Decision #2045




                             MATTER OP SUM

                      In Deportation Proceedings

                                A-4713047

                    Decided by Board May 22, 1970

Respondent'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 possession of such narcotic drugs
 so as to bring him within the "illicit possession" provisions of sections
 212(a) (23) and 241(a) (11) of the Immigration and Nationality Act
  (Varga v. Rosenberg, 

 (S.D. Calif., 1964), followed).
 [Matter of H—U—, 7 I. & N. Dec: 533, and Matter of Fong, 

, overruled.]

CHARGES :
  Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excludable at time of entry—immigrant, no visa (section
                       212(a) (20) of Act).
  Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1—Excludable at time of entry—immigrant, no visa section 13 (a), Act of 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 Francisco, California 94111          (Brief filed)


   The special inquiry officer certified his order denying respondent's application under section 249 of the Act. The application
will be granted.
   The question is whether the Board should continue to follow its
precedents holding that a conviction for unlawful use of proscribed drugs makes an alien deportable as one who has been convicted for unlawful possession of such drugs. We shall overrule
the precedents.
  The facts have been fully stated by the special inquiry officer.
He found the respondent deportable on the lodged charge. Respondent 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 of eligibility is

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Interim Decision #2045
 that the applicant not be excludable under provisions excluding
 "violators of the narcotic 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 relating to the illicit possession of or traffic in narcotic drugs or
 marihuana …." 1 Respondent has been convicted in 1941 for
 taking or using narcotics. 2 The special inquiry officer did not personally believe that the conviction for taking or using narcotics
 made respondent inadmissible under section 212 (a) (23) which
 speaks of possession of the proscribed drugs. However, since
 Board precedents equate a conviction 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, 

 (S.D. Calif., 1964). Varga was convicted under section 11721 of the California Code which punishes
 a person who illegally used or came under the influence of a proscribed 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 law or regulation relating to illicit possession of or traffic 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 intended to attack traffic in rather than use of narcotics. 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 only published court decision on the issue. The position of the court in that case is based on legal precedents which
hold that "use" does not necessarily include "possession." A con-
   1 It is unnecessary to comment on the significance, if any, of the section
249 reference to narcotics and the section 212(a) (23) reference to this, but
also to marihuana.
   2 Respondent was convicted on July 25, 1941 of violating then section
11720 of the California Health and Safety Code which required the criminal
punishment of a "narcotic addict"—a term defined as relating to one who illegally "takes or otherwise uses any narcotics". Respondent testified he used
narcotics on or off before his conviction and did not use it thereafter. He
does not appear to have been an "addict" as that term is defined under immigration laws, Matter of F—S—C—, 

 (BIA, 1958) .
   3 Matter of Fong, 

 (BIA, 1964) ; Matter of H—U—, '

 (BIA, 1957).

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trary view had previously been 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 appealed. 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 Service follows Varga in that it does not institute a deportation proceeding if the conviction is such as is found in that case (pp.
10-11). Insofar as 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 ordered that the special inquiry officer's denial of
respondent's application under section 249 of the Act he withdrawn.
  It is further ordered that respondent's application under section 249 of the Act he granted.




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