Interim Decision #2519
MATTER OF AWADH
In Deportation Proceedings
A-81145551
Decided by Board August 23, 1976
(1) Respondent was convicted, on a guilty plea, of possession of marijuana in violation of
section 3(1) of the Canadian Narcotic Control Act, R.S.C. 1970, c. N-1 and is thus
amendable to deportation under section 241(a)(11) of the Immigration and Nationality
Act. Case law interpreting the Canadian Narcotic Control Act indicates that scienter or,
guilty knowledge is required for conviction. Thus the Canadian statute is distinguishable from the British statute which is similarly worded. Matter of Lennon, 15 I. & N.
Dec. 9 distinguished.
(2) Respondent's claim of lack of procedural due process in the Canadian proceeding is
without merit in the Instant proceeding because there is no requirement in the immigration laws which requires that a foreign conviction conform to United States constitutional guarantees.
(3) Respondent's allegation of selective, arbitrary and discriminatory enforcement of
section 241(a)(11) of the Act is unsubstantiated.
(4) Board of Immigration Appeals does not entertain Constitutional challenges to the
statutes it administers. See Matter of Ramos,
15 I. & N. Dec. 671 (BIA 1976), and
Matter of
4 I. & N. Dec. 556, 557 (BIA 1951).
CHARGE:
Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of a violation of law or regulation relating to the illicit possession of
marijuana
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Abdeen M. Jabara, Esquire George Indelicato
658 Pallister Avenue Appellate Trial Attorney
Detroit, Michigan 48202
The respondent appeals from the January 7, 1976 denial by the immigration judge of his motion to reopen and reconsider and his motion for a
stay of deportation. The appeal will be dismissed.
At the original deportation proceeding the respondent admitted all of
the allegations in the order to show cause and requested no discretion --
ary relief. The immigration judge found him deportable as charged. The
respondent waived his right to appeal. Deportability is predicated upon
a conviction in Canada, oh a guilty. plea, of possession of marijuana
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Interim Decision #2519
in violation of section 3(1) of the Narcotic Control Act, R.S.C. 1970,
c. N-1.
In his motion to reopen and reconsider, the respondent urged the
immigration judge, and this Board on appeal, to follow Lennon v. INS,
527 F.2d 187 (C.A. 2, 1975), and to find, as in that case, that the
respondent was convicted of possession of marijuana under a statute
which made guilty knowledge irrelevant. In addition, he contends that
the respondent was denied procedural due process in the Canadian
proceeding, where he was not represented by counsel and where the
translator, the brother of the respondent's codefendant, was biased. For
these reasons he states that deportability should not be based on the
Canadian conviction.
The respondent further contends that enforcement of section
241(a)(11) of -lie Immigration and Nationality Act against him by the
Immigration and Naturalization Service is arbitrary and discriminatory
and that he has been improperly singled out for deportation. Lastly, the
respondent asserts that section 241(a)(11) is unconstitutional in that it
imposes cruel and unusual punishment for an act which in some places is
not even conxidered criminal. We shall consider each of these arguments
in turn.
InLennon v. INS; supra, the court considered not just the wording of
the British statute 1 but also the case law interpreting that statute. The
result was a finding that a person could be convicted under the British
statute without guilty knowledge.
The respondent contends that the Canadian statute a is almost identical with the British one, and that therefore it should be interpreted in
the same way. However, an examination of recent Canadian cases
interpreting section 3(1) of the Narcotic Control Act reveals that guilty
knowledge is required for a conviction under this provision. In Regina
v. Kobiershi [1975], 18 C.C.C.2d 419 (Br. Col. S.Ct. 1974), the defendant was charged with possession of a narcotic on the basis of the fact
that traces of morphine were found in his urine. Because he did not
know that his urine contained morphine, he was acquitted. In Regina v.
Douglas [1975], 18 C.C.C.2d 189 (Ont. C.A. 1974), the driver of a truck
in which marijuana was found under the floor mat was acquitted because
there was no evidence that he had knowledge of the presence of the
marijuana. He was not the owner of the truck, and it was not proven
that he had ever driven it before. In Beaver v. Regina [1957], S.C.R.
531, 118 C.C. D. 129 (1957), under a similar provision, it was held that a
defendant in possession of a package containing a substance he believes
1 "A person shall not be in possession of a drug unless . . . authorized . . . ." Dangerous
Drugs Aet 1965, Sec. 3, 'C. 15.
2 "Except as authorized by this Act or the regulations, 110 person shall have a narcotic in
his possession." .garcotie Control Act, §3(1), R.S.C. 1970, c .N-1.
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Interim Decision #2519
is harmless but which in fact is a narcotic, cannot be convicted of
possession of a narcotic. Consequently, we find the present case
distinguishable from Lennon in that the respondent here was convicted
of a violation of a statute which has been interpreted to require seienter
for conviction.
With regard to the respondent's claim that he was denied procedural
due process in the Canadian proceeding, there is no provision in the
immigration laws to the effect that a foreign conviction must conform to
the constitutional guarantees of the United States. Matter of Gutierrez,
14 L & N. Dec. 457 (BIA 1972); Matter. of M , 9 1. & N. Dec. 132 (BIA.
—
1960). This view has been judicially upheld. Brice v. Pickett, 515 F.2d
153 (C.A. 9, 1975).
The respondent's assertion that he has been singled out for selective,
arbitrary, and discriminatory enforcement of section 241(a)(11) of the
Act is totally unsubstantiated, and, so far as we can tell, has no merit.
Regarding the alleged unconstitutionality of section 241(a)(11), we do
not entertain constitutional challenges to the statutes we administer.
Matter of Ramos,
15 I. & N. Dec. 671 (BIA 1976); Matter of L—,
4 I.
& N. Dec. 556, 557 (BIA 1951).
For these reasons, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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