Cited by 2 later decisions — most recently November 1977
1 federal appellate ·
Key passage — most relied on by later courts
“InPeople v. Perez, 33 Cal. Rptr. 398 , 219 C.A.2d 760 (1963), the court held that in determining whether there has been a violation of section 11556, there must be proof that narcotics”
Interim Decision #2137
MATTER OF &HUNCH
In Deportation Proceedings
A-13120444
Decided by Board March 2S, 1972
Conviction of a violation of section 11556 of the California Health and Safety
Code, which provides "it is unlawful to visit or to be in any room or place
where any narcotics are being unlawfully smoked or used with knowledge that
such activities are occurring," is not a conviction of a law "relating to the
illicit possession of or traffic in narcotic drugs or marijuana" within the
meaning of section 241(a)(11)' of the Immigration and Nationality Act.
CHARGES:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of law
relating to illicit possession of marijuana.
Lodged: Act of 1952 —Section 241(aX11) U.S.C. 1251(aX11)]--Conviotod of law
relating to illicit traffic in narcotics.
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Charles J. Wong, Esquire Stephen M. Suffin
755 Commercial Street Trial Attorney
San Francisco, California 94108 (Brief filed)
(Brief filed)
The special inquiry officer certifies his decision and order of
October 20, 1970 terminating the above-captioned proceedings.
Counsel for the respondent and the trial attorney have submitted
briefs in support of their respective positions. The issue before us
involves a determination of whether the respondent is deportable
under section 241(a)(11) of the Immigration and Nationality Act as
an alien who has been convicted of a law relating to the illicit
traffic in narcotics or marijuana. We shall affirm the special
inquiry officer's decision.
The facts of the case are stated in the decision of the special
inquiry officer and are incorporated herein by reference. The
respondent is a native of Indonesia and a citizen of the Netherlands whn was convicted in the Municipal Court of the City of San
Francisco, California on September 4, 1970 upon a plea of guilty for
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Interim Decision #2137
violation of section 11556 of the Health and Safety Code of the
State of California'
We must determine whether 11556 is a law relating to the illicit
trafficking in narcotic drugs or marijuana. The special inquiry
officer states in his opinion that section 11556 "was enacted to aid
in eliminating or controlling traffic in narcotics," citing People v.
Lee, 260 C.A. 2, 836 (1968) (p. 3, special inquiry officer's opinion). He
reasons, fiowever, that section 11556 is broad enough to encompass
a conviction where the defendant was not himself involved in
trafficking in marijuana or narcotic drugs. He relies on the rule of
construction set forth in Fang Haw Tan v. Phelan, 333 U.S_ 6
(1948).
Section 241(a)(11) of the Immigration and Nationality Act requires the deportation of an alien who is convicted of a violation of
"any law or regulation relating to the illicit possession of or traffic
in, narcotic drugs or marijuana...." (Emphasis supplied.) The trial
attorney takes the position that the controlling phrase in section
241(aX11) is "relating to." He relies on the Attorney General's
decision in Matter of N—,
6 I. & N. Dec. 557
, 561 (BIA, 1955)2. The
Attorney General in Matter of N—, supra, reversed the Board of
Immigration Appeals and held that the phrase "relating to" is
broad enough to cover a conviction for conspiracy to violate the
narcotic laws. The trial attorney reasons that the special inquiry
officer's decision limiting the scope of section 241(a)(11) is directly
contrary to Matter of N—, supra. The Attorney General in Matter
of N- 7 supra, was confronted with a conviction for violation of 18
U.S.C. 371 in that the alien did conspire with others to sell,
dispense and distribute heroin. The substantive offense involved
in the conspiracy is clearly encompassed within section 241(aX11).
The court in People v. Wilson, 271 A.C.A. 83,
(1669), held that the offense defined by section 11556 is not
included in the offense defined by section 11530 of the Health and
Welfare Code, which forbids possession of marijuana. In People v.
Perez, 219 C.A. 2d 760 (1963), the court held that in determining
whether there has been a violation of section 11556, there must be
proof that narcotics "are being unlawfully smoked or used ... with
knowledge that such activity is occurring" at the time of the
visitation or presence.
The fact that an alien "visits" or is in "any room or place" where
1 Section 11556 of the California Health and Safety Code provides: "Visitation
or Presence in Resorts Prohibited. It is unlawful to visit or to be in any room or
place where any narcotics are being unlawfully smoked or used with knowledge
that such activities are occurring."
9 Affirmed Naafi v. Brahma!,
.
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Interim Decision #2137
the proscribed "activity is occurring" with his knowledge does not
ipso facto establish that he is engaged in "the illicit possession of
or traffic in narcotic drugs or marijuana." Section 241(a)(11) cannot
be interpreted to include the conviction of a nonparticipating
bystander under a statute which seeks to discourage visits to
places where narcotics are unlawfully used. It was the intent of
Congress to deport the alien who is convicted of "any law ...
relating to the illicit possession of or traffic in narcotic drugs or
marijuana" and not the alien who may find himself in a place
where marijuana or narcotics are unlawfully "smoked or used." Cf.
U.S. Code Cong. and Adm. News, 86th Cong., 2d Sess., p. 2125. An
appropriate order will be entered.
ORDER: The decision and order entered by the special inquiry
officer on October 20, 1970, terminating the proceedings, is hereby
affirme d.
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