VELASCO

                                                             Interim Decision #2601




                               MATTER OF VELASCO
                            In Deportation Proceedings

                                       A-1070560

                         Decided by Board July 25, 1977
Conviction for misprision of a felony to wit, possession of marihuana with intent to
 distribute, is not a conviction of a law "relating to the illicit possession of or traffic in
 narcotic drugs or marihuana," and does not subject respondent to deportability under
 section 241(a)(11) of the Immigration and Nationality Act.
CHARGE:
  Order: Act of 1952—Section 241(a)(11)18 U.S.C. 1251(a)(11)1—Convicted of a violation
                       of law relating to illicit possession of marihuana
ON BEHALF OF RESPONDENT: Joseph Abraham, Esquire
                         Charles Louis Roberts, Esquire
                         505 Caples Building
                         El Paso, Tams 79901
BY: Wilson, Acting Chairman; Maniatis, Appleman, and Maguire, Board Members


   In a decision dated February 3, 1976, the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration and
Nationality Act and ordered his deportation. The respondent has appealed from that decision. The appeal will be sustained and the proceedings will be terminated.
   The respondent, a native and citizen of Mexico, was admitted to the
United States for permanent residence on September 14, 1956. On
March 14, 1975, the respondent pled guilty in the United States District
Court for the Western District of Texas to misprision of a felony, to wit,
Possession of marihuana with intent to distribute, in violation of 

 which provides as follows:
  4.. Misprision of felony.—Whoever, having knowledge of the actual commission of a
      felony cognizable by a court of the United States, conceals and does not as soon as
      possible make known the same to some judge or other person in civil or military
      authority under the United States, shall be fined not more than 000 or imprisoned
      not more than three years, or both.
   These deportation proceedings were subsequently instituted against
the respondent under section 241(a)(11) of the Act which provides in
p ertinent part:

                                            281
    Interim Decision #2601
     (a) Any alien in the United States. . . shall, upon the order of the Attorney General,
       be deported who—.. .
     (11) . . . at any time has been convicted of a violation of, or a conspiracy to violate, any
       law or regulation relating to the illicit possession of or traffic in narcotic drugs or
       marihuana. . . .

     At the hearing before the immigration judge on December 17, 1975,
 the respondent made a claim to United States citizenship on the basis of
 evidence that his adoptive father is a United States citizen. The immigration judge rejected the claim on the ground that, having admitted
 birth in Mexico, the respondent is presumed to be an alien. He further
 concluded that the respondent hail failed to sustain his burden of going
 forward with the evidence to show otherwise. We agree with the immigration judge's holding. Matter of Leyva, Interim Decision 2559
 (BIA January 18, 1977); Matter of Vergara, Interim Decision 2408 (B IA
 1975); Matter of Ponco, Interim Decision 2326 (BIA 1974); Matter of
 Tijerina-Villarreal, 

 (BIA 1969).
     The respondent also argues that a conviction for misprision of a
 felony, to wit, possession of marihuana with intent to distribute, is not a
 conviction of a violation of a law 'relating to . . . marihilana." Accordingly, he denies that his conviction subjects him to deportation under
 section 241(a)(11) of the Act.
     The immigration judge, however, concluded that the phrase "relating
 to . . .marilmane was broad enough to encompass convictions for misprision of a felony provided the felony concealed is a crime "relating to
 . . .marihuana." In so hqlding he relied on the Attorney General's decision in Matter of N—, 6 I. & N.. Dec. 557 (A.G. 1955). The alien in
 Matter of N had been convicted of a conspiracy to sell, dispense and
 distribute heroin. Section 241(a)(11) of the 1952 Act had not yet been
 amended to specifically include convictions for conspiracy.' The Attorney General, however, held that the phrase "relating to" was broad
 enough to encompass convictions for conspiracy to violate the narcotic
laws.
     The question presented in the instant case was recently answered by
the United States Court of Appeals for the Sixth Circuit in Castaneda
 1e Esper v. INS, No. 76-1237 (6 Cir. June 15, 1977). Reversing a
decision of this Board (Matter of Esper, A30 241 082, December 22,
 1975) the court held that a conviction for misprision of a felony is not a
conviction for a violation of a law "relating to . . . marihuana" even
though the felony concealed is a crime for which a conviction would
clearly fall within the provisions od section 241(a)(11) of the Act. In its
opinion the court stated that the crime of misprision of a felony is a
criminal offense separate and distinct from the particular felony con-
,




     1 The phrase "or a conspiracy to violate" 'was added by the Narcotic Control Act of 1966,
1't.113, L. No. 84-728, 

.

                                              282
                                                  Interim Decision #2601

cealed. It declined to adopt an interpretati on of section 241(0(11) which
would incorporate the conviction for misprision of a felony into the
underlying offense concealed by the alien.
   We shall follow the court's decision inEsper, specifically that a conviction for misprision of a felony, to wit, p osspssion of marihuana with
intent to distribute, is not a conviction of a law "relating to .. .
marihuana." Consequently, the appeal will be sustained and the proceedings against the respondent will be terminated.
   ORDER: The appeal is sustained; the deportation proceedings are
terminated.




                                    283