Interim Decision #2719
MATTER OF MENA
In Deportation Proceedings
.A-34033024
Decided by Board July 12, 1979
Transcript from court proceedings which resulted in conviction for possession of controlled substances under section 11350 of the California Health and Safety Code, and
at which the respondent, under questioning by judge as part of the arraignment prior
to acceptance of a guilty plea, admitted possession of heroin, with knowledge that the
substance was heroin, can be considered as part of the "record of conviction," and a
finding of deportability under section 241(a)(11) of the Immigration and Nationality
Act, 8 U.S.C. 1251(a)(11), can thus be based on it. Matter of Paulus,11 1&N Dec. 274
(BIA 1965), and Matter of Cassisi, 10 I&N Dec. 136 (BIA 1963), distinguished.
.CHARGE:
Order. Act of 1952-9ec. 241(a)(11) [8 U.S.C. 1261(a)(11)] Convicted of law relating
—
to illicit possession of a controlled substance, to wit, heroin,
in violation of section 11350 of the California Health and
Safety Code
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE
Pro se Ingrid K. Hrycenko
Trial Attorney
BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
The Immigration and Naturalization Service has appealed from a
decision of the immigration judge, dated October 17, 1977,' terminating deportation proceedings brought against the respondent. The appeal will be sustained.
The respondent is a native and citizen of Mexico who was admitted
to the United States as an immigrant on December 11, 1972, when he
was 14 years old. On April 1, 1977, the respondent pleaded guilty to
unlawful possession of "controlled substances," in violation of section
11350 of the California Health and Safety Code. Based on this conviction, an Order to Show Cause was issued against the respondent on
' The record file in this case was not received by the Board until February 15, 1979,
some 16 months after the immigration judge rendered his decision. We consider such a
delay in forwarding the record to be unacceptable.
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Interim Decision #2719
September 6, 1977, charging him with deportability under section
241(a)(11) of the Immigration and Nationality Act, 8 U.S.C.
1251(a)(11). At a deportation hearing held on October 17, 1977, the
respondent admitted the allegations in the Order to Show Cause, and
conceded deportability. The immigration judge nevertheless terminated the deportation proceedings. The termination was based on his
finding that the respondent's conviction record contained no reference
to heroin, or to any other specific drug. The immigration judge therefore determined that the Service had failed to meet its burden of
showing, by clear, convincing, and unequivocal evidence, that the
respondent had been convicted of a violation of a law relating to
narcotic drugs or marijuana.
The Service, in its brief on appeal, argues that the transcript from
the court proceeding at which the respondent was convicted should be
considered part of the "record of conviction." That transcript contains
a colloquy between the judge and respondent at the latter's arraignment, wherein, before accepting a guilty plea, the judge asked the
respondent what he had done that made him believe he was guilty of
possession of a controlled substance, and the respondent answered
that he had had in his pocket a balloon containing heroin, and that he
had known it was heroin; if considered as part of the conviction record,
this transcript would clearly support a finding of deportability under
section 241(a)(11). As pointed out by the immigration judge in his
decision, the "record of conviction" has generally been held to consist
of the charge, the indictment, the plea, the verdict, and the sentence.
Hirsch v. INS, 308 F.2d 562 (9 Cir. 1962); Robinson v. Day,
51 F.2d 1002
(2 Cir. 1931); Matter of Paulus,
11 I&N Dec. 274 (BIA 1965); Matter of
S ,
4 I&N Dec. 509 (C.O. 1951; BIA 1952). However, we agree that
—
reference can be made in this case to the court transcript dated April 1,
1977, and headed, "Proceedings on Entering a Plea of Guilty." At this
proceeding, the respondent was fully and carefully advised of his
rights, and of the consequences of a guilty plea (including probable loss
of his immigrant status), prior to the judge's acceptance of that plea.
We hold that this transcript is part of the record of conviction. As the
transcript reveals beyond doubt that the "controlled substance" the
respondent had in his possession was heroin, the 241(a)(11) charge of
deportability has been proven by clear, convincing, and unequivocal
evidence.
Two prior Board decisions, Matter of Paulus, supra, and Matter of
Cassis. i,
10 I&N Dec. 136 (BIA 1963), need to be distinguished from the
present ease. In Paulus, it was Charged that the respondent, in violation of California law, "did offer unlawfully to sell and furnish a
narcotic to a person and did then sell and deliver to such person a
substance and material in lieu of such narcotic." The respondent was
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Interim Decision #2719
convicted on this charge. We upheld the immigration judge's decision
terminating deportation proceedings, on the ground that the record
was silent as to what narcotic was involved, and it could have been a
substance considered to be a narcotic under California law, but not
under federal law. Giving the respondent the benefit of the doubt, the
conviction was found not to be one relating to narcotic drugs for
immigration purposes. In that case, however, there was no evidence to
indicate precisely what narcotic was involved. In the present case, the
respondent admitted, both at his arraignment and at his deportation
hearing, that the drug he had possessed was heroin.
In Cassisi, supra, we held that recourse could not be had to the
remarks made by the State's Attorney to the court at the time of
sentencing in order to determine whether or not the crime for which
the respondent had been convicted involved moral turpitude. The law
under which the respondent was convicted was a broad, divisible
statute enumerating several acts, which may or may not have involved
moral turpitude. Our decision in the instant case is in no way contrary
to that in Cassisi. The consideration of admissions freely made by the
respondent himself is far different from the consideration of remarks
made by a prosecutor.
The respondent is clearly deportable as an alien convicted of a law
relating to narcotic drugs or marijuana. The Service's appeal will
accordingly be sustained.
ORDERS The appeal is sustained, and the record is remanded to the
immigration judge for further proceedings consistent with this
opinion.
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