Interim Decision #2561
MATTER OF WIDT.P
In Deportation Proceedings
A-20535964
Decided by Board March 2, 1977
(1) Respondent conceded deportability under section 241(a)(2) of the Immigration and
Nationality Act as a nonimmigrant who remained beyond the authorized period of
admission. The only issue on appeal involves respondent's application for adjustment of
status under section 245 of the Immigration and Mationality Act which was opposed by
the Service on the ground that respondent was inadmissible to the United States under
section 212(a)(23) of the Act by reason of his conviction in England for illicit possession
of marihuana.
(2) Respondent was convicted of having a dangerous drug, cannabis resin, in his possession without being duly authorized, in violation of Regulation 3, Dangerous Drugs (No.
2) Regulations 1964, and Section 12 Dangerous Drugs Act of 1965, a statute which
makes lack of knowledge that a prohibited substance is in one's possession irrelevant to
the offense. See Lennon v. INS,
(2 Cir. 1975).
(3) Since Congress did not intend to impose the harsh consequences of exclusion upon an
individual convicted of possession of drugs under a foreign law that made guilty
knowledge irrelevant to the offense, the decision of the immigration judge granting
respondent's section 245 application was correct.
CHARGE:
Order. Act of 1952 —Section 241(a)(2) f8 U.S.C. 1251(a)(2)j —Nonimmigrant—remained
longer
ON BEHALF OF RESPONDENT: Dennis M. Mokai, Esquire
5680 Wilshire Boulevard, Suite 1800
Los Angeles, California 90036
BY: Ifilhollan, Chairman; Wilson, Torrington, Maniatis, and Applernan, Board Members
In a decision dated February 18, 1978, after finding the respondent
deportable as charged, the immigration judge ordered that the respondent's application for adjustment of status under section 245 of the
Imniigration and Nationality Act be granted subject to the condition
that no derogatory information be revealed in the administrative processing of the application. The Service has appealed from that decision.
The appeal will be dismissed.
The respondent, a native and citizen of Great Britian, admitted the
truth of the allegations contained in the Order to Show Cause and has
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Interim Decision #2561
conceded deportability under section 241(a)(2) of the Act as a nonimmigrant who remained beyond the authorized period of admission. The
only issue on appeal involves the respondent's application for adjustment of status under section 245 of the Act.
The immigration judge found that the respondent was statutorily
eligible for section 245 relief and merited a favorable exercise of discretion. The Service, however, opposed the grant on the ground that the
respondent is inadmissible to the United States under section 212(a)(23)
of the Act by reason of a conviction in England for the illicit possession
of marihuana.
The respondent admits that he was in fact convicted of illicit possession of marihuana. The immigration judge, however, concluded that the
conviction involved in the present case did not subject the respondent to
the exclusion provisions of the Act. In so holding, the immigration judge
relied on the decision of the United States Court of Appeals for the
Second Circuit in Lennon v. INS,
(2 Cir. 1975).
In Lennon the court held, as did we in Matter of Lennon, Interim
Decision 2304 (BIA 1974), rev'd, Lennon v. INS, supra, that Congress
did not intend to impose the harsh consequences of exclusion upon an
individual convicted of possession of drugs under a foreign law that
made guilty knowledge irrelevant. However, in its analysis of the
British statute involved, the court reached a conclusion different from
ours: it held that the particular statute imposed absolute liability for
' unauthorized possession of drugs, and it vacated the order of deportation.
The record of conviction in the present case indicates that the respondent was convicted of having a dangerous drug, cannabis resin, in his
possession without being duly authorized in violation of Regulation 3,
Dangerous Drugs (No. 2) Regulations 1964, and Section 12 Dangerous
Drugs Act 1965, the statutory provisions involved in. the Lennon case
(Ex. 3). We have decided to follow the Second Circuit's interpretation of
the statute involved, specifically, that lack of knowledge that a prohibited substance is in use's possession is irrelevant to the offense as set
out in the British statute.
In so holding, we note that, after the Notice of Appeal was filed in the
present easy, the Service decided to adopt the court's decision in Lennon with respect to convictions for "innocent" possession under the
United Kingdom's Dangerous Drugs Act of 1965. See Memorandum to
Regional Commissioners from Deputy Commissioner, October 29, 1976.
We conclude that the immigration judge's decision granting the application for adjustment of status under section 245 of the Act was correct.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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