ESQUEDA

Interim Decision #3226




                        MATTER OF ESQUEDA

                          In Deportation Proceedings

                                   A-28964484

                    Decided by Board August 15, 1994

(1) Section 241(a)(11) of the Immigration and. Nationality Act, 

(a)(11)
  (1988), which provides for the deportability of any alien "convicted of a violation of
   ... any law or regulation ... relating to a controlled substance," encompasses laws
  proscribing the use or being under the influence of a controlled substance. Matter of
  Hernandez-Ponce, 

 (BIA 1988), reaffirmed.
(2) The element of guilty knowledge, or mens rea, is not irrelevant to a conviction
  pursuant to section 11550 of the California Health and Safety Code for use or being
  under the influence of a controlled substance.
(3) Since the language of the exclusion and deportation grounds of the Act relating to
  drug cnnvictions was significantly broadened by the Anti-Drug Abuse Act of 1986,
  

 Stat. 3207, immigration consequences may now result from a
  conviction under a law relating to a controlled substance that contains no element of
 mens rea. Lennon v. INS, 

 (2d Cir. 1975), distinguished. Matter of Davis,
 

 (BIA 1979); Matter of Wolf; 

 (BIA 1977); and
 Matter of Lennon, 

 (BIA 1974), vacated, 

 (2d Cir. 1975),
 overruled. Matter of Poon, 

 (BIA 1980), affd, 

 (6th Cir.
 1983); Matter of Pritchard, 

 (ETA 1977); Matter of Awadh, 15 I&N
 Dec_ 775 (131A 1976); and Matter of Pasquini, 

 (BIA 1976), affd, 

 (5th Cir. 1977), modified.
CHARGE:
Order: Act of 1952—Sec. 241(a)(11) [

(a)(11)j—Convicted of controlled
                     substance violation

ON BEHALF OF RESPONDENT:                             ON BEHALF OF SERVICE:
 David Neumeister, Esquire                             Jane Thompson
  1351 Santa Monica Mall, Suite 301                    Appellate Counsel
  Santa Monica, California 90401

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members. Concurring
     Opinion: Holmes, Alternate Board Member.



   In a decision dated April 7, 1989, the immigration judge found the
respondent deportable under section 241(a)(11) of the Immigration

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                                                            Interim Decision #3226

and Nationality- Act, 

(a)(11) (1988),' and ordered him
deported from the United States. The respondent has appealed front
that decision. -The appeal will be dismissed.
   The respondent is a 33 year old native and citizen of Mexico who
                                 -     -


entered the United States in March 1988. The record reflects that he
was convicted on October 25, 1988, in the Ventura County Municipal
Court, State of California, of using and being under the influence of a
controlled substance, namely opiates, cocaine, metharnphetamines, or
a combination thereof, in violation of section 11550 of the California
Health and Safety Code.
   At his deportation hearing, the respondent admitted that he was
convicted of the crime of use and being under the influence of a
controlled substance, but argued that his conviction did not subject
him to deportation. The crux of his contention was that Congress did
not intend to imclude convictions for use and being under the influence
of drugs within the meaning of section 241(a)(11) of the Act when it
revised that ground of deportability by the passage of the Anti-Drug
Abuse Act of 1986, 

 Stat. 3207. The
immigration jmdge rejected the respondent's argument and found him
deportable as charged. The respondent has reiterated his contentions
on appeal.
   We note at the outset that the fact of the respondent's conviction,
which supports his deportability in this case, has been established by
clear, unequivocal, and convincing evidence. See Woodby v. INS, 

 (1966); 

(a) (1994). Although the factual
basis for the respondent's deportability is undisputed, the following
legal issues must be addressed: (I) whether Congress intended to
include the crimes of use and being under the influence of drugs as
deportable offenses under section 241(a)(11) of the Act; (2) assuming
that the decision in Lennon v. INS, 

 (2d Cir. 1975), is
controlling precedent, whether the California law under which the
respondent was convicted is a strict liability statute that requires no
element of nuns rea for conviction and therefore falls within the ambit
of Lennon; and (3) whether Lennon v. INS is applicable law in light of
the subsequent revision of the statute and the language of the decision
limiting it tio foreign convictions.


   I This section of the Act has been revised and redesignated as section 241(a)(2)(B) of
the Act, 

(a)(2)(13) (Sapp. V 1993), by section 602(a) of the Immigration
Act of 1990, Pub. 1,. No. 101-649, 

, 5080, but that amendment does not
apply to deportation proceedings for which notice has been provided to the alien before
March 1. 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.

                                           R51
Interim Decision #3226

  CONVICTION FOR USE OF DRUGS AS A DEPORTABLE
                              OFFENSE
  Prior to the amendments of the Anti-Drug Abuse Act of 1986,
section 241(a)(11) of the Act provided for the deportability of an alien
who 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,or who has been
   convicted of a violation of, or a conspiracy to violate, any law or regulation
   governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the
   possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium,
   coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca
   leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.
Section 241(a)(11) of the Act, 

(a)(11) (1982) (emphasis
added).
  Interpreting that version of the law, we held in Matter of Sum, 

 (BIA 1970), that an alien's conviction for use of a
narcotic drug could not be equated with a conviction for unlawful
possession of the drug so as to bring the alien within the "illicit
possession" provisions of section 241(a)(11) of the Act, or the similar
exclusion provisions of section 212(a)(23) of the Act, 

(a)(23) (1970). In reaching that conclusion, we followed Varga
v. Rosenberg, 

 (S.D. Cal. 1964), which rejected the
position that use of a drug necessarily includes its possession, and we
overruled our prior contrary decisions in Matter of Fong, 

 (BIA 1964), and Matter of H--U-, 

 (BIA 1957),
where we had held that the unlawful use of drugs presupposes their
illicit possession.
    Following the passage of section 1751 of the Anti-Drug Abuse Act of
1986, 100 Stat. at 3247-48, section 241(a)(11) of the Act was amended
to provide for the deportability of an alien who at any time has been
   convicted of a violation of, or a conspiracy to violate, any law or regulation of a
   State, the United States, or a foreign country relating to a controlled substance (as
   defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
Section 241(a)(11) of the Act, 

(a)(11) (1988). 2 In light
  2 As we noted previously, section 241(a)(11) of the Act was revised and redesignated as
section 241(a)(2)(B) of the Act by section 602(a) of the Immigration Act of 1990, 104
Stat. at 5080. The current statute now provides as follows:
     CONTROLLED SUBSTANCES.—
      (i) CONVICTION. —Any alien who at any time after entry has been convicted of
    a violation of (or a conspiracy or attempt to violate) any law or regulation of a State,
    the United States, or a foreign country relating to a controlled substance (as defined
    in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single

                                           852
                                                           Interim Decision #3226

of the changes to this section of the Act, we again addressed the
question raised in Matter of Sum, supra, in our decision in Matter of
Hernandez-Ponce, 

 (BIA 1988). We noted that the
revised language of the statute no longer contained any limitation
regarding the kind of conviction within its scope. Concluding that it
was now broad enough to include convictions for use and being under
the influence of drugs, we determined that Matter of Sum had been
superseded by the amendment to the Act.
   The respondent argues that our interpretation of the revised
language of section 241(a)(11) of the Act is too broad. He asserts that
the amendment was aimed at the problem of drug trafficking by aliens
and did not envision the inclusion of convictions for use of drugs,
which had not previously been grounds for deportability. According to
the respondent, the intent of Congress was only to include "designer"
drugs within the scope of the statute and to simplify it by eliminating
the list of prohibited drugs, making reference to the Controlled
Substances Act instead. Consonant with this position, the respondent
contends that Varga v. 

 which held that use of drugs
was not a deportable offense, remains controlling law on this issue.
Thus, he argues that Matter of Hernandez-Ponce, supra, should be
overruled as too harsh an interpretation of the statute. We decline to
alter the position taken in that case.
   We note first that it is well recognized that Congress has historically
exhibited a strong national policy to deport aliens convicted of drug
offenses from our country. See, e.g, Ayala-Chavez v. United States
INS, 

 (9th Cir. 1991); Mason v. Brooks, 

 (9th
Cir. 1988); Blackwood v. INS, 

 (11th Cir. 1986); Kolios v.
INS, 

 (1st Cir.), cert. denied, 

 (1976); Kelly v.
INS, 

 (9th Cir.), cert. denied, 

 (1965); Garcia-Gonzales v. INS, 

 (9th Cir.), cert. denied, 

(1965); Matter of U-M-, 

 (BIA 1991), affil, 

 (9th Cir. 1993); Matter of Ozkok, 

 (BIA 1988);
Matter of Favela, 161&N Dec. 753 (BIA 1979); Matter of A-F-, 

 (BIA, A.G. 1959). In recent years Congress has been active in
passing legislation that even more clearly manifests its intention to
limit the ability of drug offenders to remain in the United States. See,
e.g., Immigration Act of 1990, 

 Stat. 4978;
Anti-Drug Abuse Act of 1988, 

 Stat. 4181; see
also Matter of K-, 

 (BIA 1991); Matter of U-M-, supra;
    offense involving possession for one's own use of 3t) grams or less of marijuana, is
    deportable.
Section 241(a)(2)(B)(i) of the Act. Thus, in the current, revised version of statute,
congress retained the phrase. "any law ... relating to a controlled substance." Id.

                                          0 CI
Interim Decision #3226

Matter of Roberts, 

 (BIA 1991); Matter of Meza, 

 (BIA 1991); Matter of Eden, 

 (BIA
 1990); Matter of Barrett, 

 (BIA 1990). It is apparent
from this legislation that Congress has intensified its interest in
preventing drug offenders from avoiding deportation. 3 Moreover,
while passing laws more stringent to alien drug offenders subsequent to
our decision in Matter offlernandez-Ponce, supra, Congress showed no
disagreement with our position by including an exception for those
convicted of use or being under the influence of controlled substances.
This was so even though Congress did create an ameliorative provision
by ma1dng an exception for those convicted of "a single offense
involving possession for one's own use of 30 grams or less of
marijuana."4 Section 241(a)(2)(B) of the Act, S U.S.C. § 1251(a)(2)(B)
(Supp. V 1993).
   In a recent case addressing the issue now before us, the United
States Court of Appeals for the Ninth Circuit recognized an incongruity in the inclusion of this exception for a single conviction involving
possession of a personal-use quantity of marijuana, but the omission of
a similar exclusion for actual use of marijuana. Flores-Arellano v. INS,

 (9th Cir. 1993). 5 Nevertheless, the court determined that
the plain language of the phrase "any law ... relating to a controlled
substance" is unambiguous and that its ordinary meaning encompasses laws proscribing use or being under the influence of a controlled
substance. Examining the legislative history of the Anti-Drug Abuse
Act of 1986, the court found that it was inconclusive and lacked the
clear indication of a contrary intention necessary to overcome the
plain language of the statute. Furthermore, the court rejected the
alien's reliance on Varga v. 

 and Matter of Sum,
supra. In so doing, the court distinguished the previous version of the
  3 Thc legislative history of the Immigration Act of 1990 states that the provisions
relating to criminal aliens were designed to assist the Service in the apprehension and
deportation of such aliens. See H.R. Cod. Rep. No. 955, 101st Cong. 2d Sen. 132,
reprinted in 1990 U.S.C.C.A.N. 6784, 6797. See also Statement by President George
Bush upon signing 3.358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), reprinted in
1990 U.S.C.c.A.N. 6801 1 (stating that the Immigration Act of 1990 met several
                          -


objectives of the Bush administration's war on drugs and violent crime).
  4 Previously, this exception was available only by means of a discretionary waiver
which required an eligible alien to be the spouse or child of a United. States citizen or a
lawful permanent resident or to be the parent of such a child. Section 241(0(2) of the
Act, 

(0(2) (1988).
   5 The court created a solution to this perceived paradox by fashioning its own
exception for a single conviction of actual personal use of marijuana, finding it implicit
in the statute. The court emphasized, however, that its interpretation would have no
effect on aliens, such as the respondent, who have been convicted of use or being under
the influence of controlled substances other than marijuana.

                                           854
                                                  Interim Decision #3226

statute interpreted by those cases, which limited deportability to
convictions for drug trafficking and possession, from the current,
broader language of the statute. We agree with this reasoning of the
Ninth Circuit and reject the respondent's contention that Matter of
Hernandez-Ponce, supra, should be overruled as contrary to the
legislative history of the Anti-Drug Abuse Act of 1986 and Varga v.
Rosenberg.
   MENS REA REQUIREMENT UNDER CALIFORNIA LAW
   Our analysis of the statute does not end here, however, because the
respondent has also argued that Matter of Hernandez-Ponce, supra, is
improper since it implicitly overrules Lennon v. INS, supra, as well as
Matter of Wolf, 

 (BIA 1977), in which the Board
adopted the Lennon decision. The aliens in those cases had been
convicted of possession of marijuana under a British statute which was
found to impose absolute liability. In Lennon, the Second Circuit
determined that in light of the "deeply rooted requirement of
knowledge and intent in our legal system," Congress did not intend to
subject an alien "convicted under a foreign law that made guilty
knowledge irrelevant" to the harsh immigration consequences of a
drug conviction. Lennon v. INS, supra, at 193-94. We stated in Wolf
that we would follow the court's interpretation of the statute in
question, agreeing that a person's lack of knowledge that a prohibited
substance was in his possession was irrelevant to the offense defined
by the British law. The respondent asserts that section 11550 of the
California Health and Safety Code, under which he was convicted,
similarly requires no proof of guilty knowledge. Thus, he argues that
the rationale stated in Lennon should apply to him.
   We have reviewed our decisions dealing with so-called "strict
liability" statutes and conclude that they do not require us to overrule
Matter ofHernandez-Ponce, supra, as the respondent urges. See Matter
of Poon, 

 (BIA 1980), affd, 

 (6th Cir.
1983); Matter of Davis, 

 (BIA 1979); Matter of
Pritchard, 161&N Dec. 340 (BIA 1977); Matter of Wolf, supra; Matter
of wadh, 

 (BIA 1976); Matter of Pasquini, 

 (BIA 1976), air d, 

 (5th Cir. 1977); Matter of
Lennon, 

 (BIA 1974), vacated, 

 (2d Cir.
1975). We note that in all but one of these cases we found that either
the statute or the case law interpreting it provided for some defense
permitting the defendant to prove his lack of knowledge. We therefore
concluded that the statute was not one of strict liability and did not fall
within the ambit of the Second Circuit's holding in Lennon. Matter of

 (Hong Kong statute containing rebuttable presumption of
knowledge); Matter of Pritchard, supra (British law revised to permit

                                   R Si
Interim Decision #3226

proof of lack of knowledge); Matter of Awadh, supra (Canadian case
law interpreting scienter requirement); Matter of 

(Bahamian statute providing defense of lack of knowledge). Only in
Matter of Davis, supra, did we find that strict liability existed where
the alien's conviction for sale of hemp was obtained under a provision
of the Australian Poisons Act that was devoid of any element of
knowledge or mens rea. In the absence of any indication in the statute
or case law of an available defense, we concluded that the Immigration
and Naturalization Service had failed to establish deportability.
  The respondent in this case was convicted under section 11550(a) of
the California Health and Safety Code. That statute provides in
pertinent part as follows:
   No person shall use, or be under the influence of any controlled substance ... except
   when administered by or under the direction of a person licensed by the state to
   dispense, prescribe, or administer controlled substances. It shall be the burden of the
   defense to show that it comes within the exception.
Cal. Health and Safety Code § 11550(a) (West 1993).
  The respondent has presented nu evidence indicating the intent of
the California legislature, nor any interpretation by the state courts
regarding the requirement of an element of mens rea in this statute.
We note, however, that the California Penal Code contains the
following provision: "In every crime or public offense there must exist
a union, or joint operation of act and intent ... " 

 (West 1993).
   Construing this statutory provision in People v. Gory, 

(Cal. 1946), a case involving possession of drugs, the California
Supreme Court stated the following:
  But this does not mean that a positive, willful intent to violate the law is an essential
  ingredient of every offense. Sometimes an act is expressly prohibited by statute, in
  which case the intentional doing of the act, regardless of good motive or ignorance of
  its criminal character, constitutes the offense denounced by law. Instances illustrating this principle may be found= in statutes enacted for the protection of public
  morals, public health, and the public peace and safety. If a specific intent is not made
  an ingredient of the statutory offense, it is not necessary to prove such specific intent
  in order to justify a conviction.

 (citation omitted). The court went on to conclude that
neither intent nor knowledge was a required element under the statute
defining the offense of possession of drugs. 

.
   The decision in Gory was subsequently given conflicting interpretations by the lower appellate courts of California, however, some
holding that knowledge of the presence of the substance alone was
necessary for conviction, while others required proof that the defendant also knew the physical character of the article. See People v.
Teller, 

 (Cal. Ct. App. 1991), for the historical
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                                                  Interim Decision #3226

 development of the issue and citation of the relevant cases. This
 disagreement was settled by the Supreme Court of California in People
 v. Gorg, 

 (Cal. 1955), where it quoted with approval but
 without explanation the following rule from two lower court cases: "In
 order to sustain a conviction of possession of narcotics it must be
shown that the defendant had either physical or constructive possession, and that he was aware that the substance of which he had
possession was a narcotic." 

 at 471 (quoting People v. Can diotto,
 

 (Cal. Dist. Ct. App. 1954), and People v. Walker, 

 (Cal. Dist. Ct. App. 1953). The court finally clarified its
position in People v. Winston, 

 (Cal. 1956), stating that the
requirement of knowledge of the nature of the substance possessed was
"implicit in the discussion of the basic principles involved" in Gory.

. Thus the court explained that while "specific intent to violate
the law is immaterial to a conviction for the unlawful possession of a
narcotic, knowledge of the object's narcotic character ... is required."

.
    This knowledge requirement was subsequently extended to prosecutions for sale of controlled substances in People v. Daniels, 

 (Cal. 1975). In that case the Supreme Court again found, as in
Gory, that the statutory offense required only proof of a general
criminal intent to commit the prohibited act and that no specific
intent to violate the law was necessary for conviction. However, the
court noted that the element of knowledge of the character of the
substance sold had been judicially added as another prerequisite to
conviction. See also People v. 

 (stating that awareness of the
narcotic nature of a plant must be shown to sustain a conviction for
cultivating marijuana); People v. Carrasco, 

 (Cal_ Ct.
App. 1981) (requiring proof of the dual knowledge elements of
presence and nature of the substance for conviction for possession of
drugs in a penal institution).
    Thus, we find that the underlying presumption in California law
that every crime contains an element of intent has been recognized
through judicial interpretation as having applicability to drug offenses.
By adding a knowledge requirement, the California courts have made
evidence of an offender's guilty mind essential for a conviction in
various contexts. Cf. Tart v. Massachusetts, 

 (1st Cir.
1991) (noting that absent clear evidence of contrary legislative intent,
criminal statutes are generally presumed to require the state to
establish defendant's culpable state of mind); United States v. Singleton, 

 (5th Cir. 1991) (stating that a presumption exists that
statutes include an element of mental culpability), cert. denied, 

, (1992). But cf. People v. 

 (requiring no proof of
knowledge of the physical character of the substance being manufac-

                                   0C1
Interim Decision #3226

Lured in prosecution for manufacture of a controlled substance due to
the danger to the public health and safety and the remote likelihood
that manufacture of the drug was innocent).
   Moreover, we note that in this case, as in others involving
convictions under the California use statute, the complaint charges
that the use of drugs was "willful." See, e.g., Sallas v. Municipal Court,

 (Cal. Ct. App. 1978); In re Becerra, 

 (Cal. Dist. Ct. App. 1963). The word "willful" has generally been
stated to mean that "a person acts knowingly with respect to the
material elements of the offense, unless a purpose to impose further
requirements appears." United States v. Hoyland, 

 (9th
Cir. 1990) (quoting American Law Institute, Model Penal Code
§ 2.02, p.249) (emphasis added); see also Hirsch v. INS, 

 (9th Cir. 1962) (quoting Neely v. United States, 

(9th Cir.), cert. denied, 

 (1962) (upholding a jury
instruction that the word "willful" means that the act is done
deliberately and with knowledge)); American Surety Co. v. Sullivan, 

 (2d Cir. 1925) (defining "willful" as meaning that the
person charged with the duty knows what he is doing). This inclusion
of the term "willful" in the respondent's complaint reinforces our
opinion that a person could not he convicted of use of drugs under
California law in the absence of some finding of guilty knowledge on
the part of the user.
   Finally, the offense defined by this statute, to "use, or be under the
influence" of a controlled substance, itself implies an active and
purposeful participation on the part of the offender. The definitions of
the verb to "use" include the following: "to consume or take (as liquor
or drugs) regularly"; "to carry out a purpose or action by means of';
"to put into service esp. to attain an end." Webster's New Collegiate
Dictionary 1288 (1977). These terms suggest that use of a controlled
substance inherently involves a conscious, voluntary act on the part of
the user and, consequently a lack of innocence. 6 Cf. United States v.
Freed, 

 (1971) (noting the obviousness of the fact
that possession of handguns, which are as dangerous as narcotics, is
not an innocent act). See generally United States v. Erne, 

,

  6 See generally Robinson v. California, 

 (1962), where, due to the
involuntary nature of addiction, the Supreme Court found unconstitutional as cruel and
unusual punishment that part of the precursor statute to section 11550 which prohibited
being addicted to the use of narcotics. In its decision, the Court distinguished penalizing
a person under the California statute for an addiction, which could be contracted
innocently or involuntarily, from imposing punishment under statutes prohibiting the
use of drugs or their possession, sale, or purchase, or for antisocial or disorderly
behavior resulting from their administration, acts which were apparently considered to
be volitional. Id at 666-67.

                                           858
                                                             Interim Decision #3226

 215 (9th Cir_ 1978) (stating that the court's concern about not
requiring criminal intent for a conviction under the Internal Revenue
Code was ameliorated by the fact that the crime could not be
committed unknowingly); United States v. Delahoussaye, 

 (5th Cir. 1978) (approving of a magistrate's imposition of a
"should have known" standard of scienter). We note in this regard that
the respondent has made no claim that he contested the allegations
against him on grounds that his use of drugs was innocent or that he
was placed under their influence involuntarily.
   On the basis of the following factors, we conclude that the
respondent's conviction under the California statute prohibiting the
use of controlled substances was not rendered without regard to his
mental culpability: the nature of the crime of use of a controlled
substance, the principle underlying the California penal laws that the
element of intent is a prerequisite to crime, the California case law
requiring guilty knowledge for a conviction for possession or sale of
drugs, the fact that willfulness was alleged in this and other use cases,
and the absence of any assertion by the respondent that his use of
drugs was innocent or that he was placed under their influence
involuntarily. We also note that the respondent has submitted no
support for his premise that a person could be convicted of using or
being under the influence of a controlled substance in California in
circumstances where it was established that he or she was mistaken as
to the nature of the drug or was tricked or forced into taking it7
   Having considered the above factors, we reject the respondent's
assertions that guilty knowledge was irrelevant to his conviction under
California law and that a finding of deportability would be in
contradiction to Lennon v. INS, supra. Moreover, as we have
previously pointed out, the Ninth Circuit recently reviewed a conviction under the same California statute at issue here and found the
convicted alien deportable because the plain language of the deportation statute clearly "encompasses laws proscribing use or being under
the influence of a controlled substance." Flores-Arellano v. INS, supra,

  7 In similar cases the criminal courts have found a requirement of mental culpability
implicit in the statute or have allowed an affirmative defense to be made. Cf. State v.
Cleppe, 

 (Wash. 1981) (stating that an affirmative defense has been
permitted for unwitting possession of drugs in order to ameliorate the harshness of the
almost strict liability of the statute); Matter of Awadh, supra, and cases cited therein
(describing Canadian cases in which lack of knowledge prevented conviction for
possession of drugs despite strict liability of the statute). See generally Morissette v.
United States, 

 (1952) (noting the unanimity with which courts
have adhered to the idea that wrongdoing must be conscious to be criminal and have
found knowledge or intent implicit in statutes defining common-law offenses, but also
recognizing that exceptions have been made for "public welfare offenses").

                                          OCA
Interim Decision #3226

at 362. That court, whose law is controlling in this case, noted no
exceptions.

                       APPLICABILITY OF LENNON

   In light of the aforementioned changes in the immigration laws
effected by the Anti Drug Abuse Act of 1986, we now find it
                            -


appropriate to question whether Lennon v. INS, supra, remains
applicable to the current statute at all. In this regard we note that the
immigration law reviewed by the Second Circuit in its 1975 opinion
addressed violations of laws proscribing the "illicit" possession of
drugs, a term which carries with it the connotation of an intentional
violation.8 In 1986, however, Congress eliminated the words "illicit
possession" from the statute, broadening the language of the law to
render deportable aliens convicted of violating "any law ... relating
to a controlled substance." See sections 212(a)(23) and 241(a)(11) of
the Act, 

(a)(23), 241(a)(11) (1988). Consequently,
there no longer exists any statutory limitation on the types of drug
offenses which subject an alien to exclusion or deportation. We find
nothing in the legislative history of the Anti-Drug Abuse Act of 1986
to indicate that Congress meant to restrict its expansive language by
allowing an exception to be made for statutes lacking a mens rea
component. See Flores-Arellano v. INS, supra. See generally De Osorio
v. United States INS, 

, 1043 (4th Cir. 1993) (relying on
Congress' unquestionably restrictive intent to reject the argument that
the principle of leniency to aliens should be applied in interpreting the
statute regarding the availability of section 212(c) waivers). In fact, by
progressively enacting more stringent immigration provisions relating
to drug offenders, Congress has shown that it takes the matter of drug
abuse and its concomitant crime in this country very seriously and that
it has a diminishing tolerance for those aliens who violate statutes
aimed at drug enforcement. In view of Congress' clear shift to enlarge
the scope of the statute, we believe that the rationale of the Second
Circuit's Lennon decision, which was based largely on an interpreta-

  8 The significance of the term "illicit" was emphasized in the Lennon decision by the
Second Circuit, which noted that if the word merely meant "unlawful," it would be
redundant. Lennon v. INS, supra, at 193 n.11. The fact that this restrictive language
might be interpreted as limiting the scope of the exclusion ground to aliens convicted
under statutes where guilty knowledge was required was also acknowledged by the Fifth
Circuit in Pasguini v. United States INS, 

 (5th Cir. 1977). However, in
that case the court specifically declined to decide whether to follow the Second Circuit's
holding, finding it unnecessary because the Bahamian statute before it could not "be
read so as to render intent or knowledge irrelevant in a prosecution for possession of
marijuana." 

                                          ago
                                                             Interim Decision #3226

tion of the congressional intent underlying a version of the statute that
is no longer in effect, has been severely undermined.           '
   We acknowledge that the Second Circuit's perception of the intent
of Congress resulted in. part from its reliance on the following
statement made by the Board in Matter of 

 "Mt is fair
to state that in enacting section 212(a)(23), Congress did not intend to
exclude persons who were entirely unaware that a prohibited substance
was in their possession?' Id. at 18. We reached this conclusion based
solely on the fact that elements of knowledge or intent had been
included in statutes prohibiting the possession of drugs under both
federal law and the law of the District of Columbia. However, we note
that a number of state statutes currently in force in this country that
prohibit the use or possession of drugs do not specifically include any
element of mental culpability for conviction. 9 Thus, although, as the
Second Circuit observed, the concept of mens rea is a basic tenet of
our system of criminal jurisprudence, it is not without limitations. See
United States v. 

 (1971); Morissette v. United
States, 

, 250 52 (1952); United States v. 

                                    -


at 1129; United States v. 

; Lennon v. INS, supra, at
193; see also Anthony A. Cuomo, Mens Rea and Status Criminality, 

, 473 74 (1967). The courts have recognized that
                                -


"the authority of the State in the exercise of its police power to regulate
the administration, sale, prescription and use of dangerous and habitforming drugs" is unquestioned. Minnesota ex reL Whipple v. Martinson, 

 (1921) (emphasis added); see also Robinson v.
California, 

 (1962). Consequently, exceptions to the
general requirement of guilty knowledge in criminal statutes have been
carved out to permit the passage of laws to protect the public health,
safety, and welfare, particularly in the area of drug enforcement. See
United States v. Dotterweich, 

 (1943); United States v.
Behrman, 

 (1922); United States v. Balint, 

(1922); see also United States v. 

; Morissette v.
United States, supra, at 250-60; United States v. 

; Stepniewski v. Gagnon, 

 (7th Cit.. 1984).
Therefore, the concept of applying absolute liability in cases involving

  9 Several state statutes which, on their face, have no mens rea requirement include the
following Section 11.71.060(a)(1) of the Alaska Statutes (use or display); section 11350
of the California Health and Safety Code (possession); section 18-18-404(1) of the
Colorado Revised Statutes (use); section 333.7404(1) of the Michigan Compiled Laws
(use); section 213-417(g) of the Nebraska Revised Statutes (under the influence); section
2C:35-10(b) of the New Jersey Statutes (use and under the influence); section 2-405(A)
of the Oklahoma Statutes (use); and section 69.50.401(d) of the Revised Code of
Washington (possession).

                                          861
Interim Decision #3226

drug violations is not foreign to our system of criminal justice. See,
e.g., United States v. 

 United States v. 

   In this regard we note the Second Circuit's questionable comment
that a person convicted under the British law at issue would be "quite
innocent under our system of criminal justice." Lennon v. INS, supra,
at 194 n.16. The court further stated that its holding would "not, of
course, give any comfort to those convicted in the United States of
drug violations." Id at 194. Thus, the ruling in Lennon was
specifically limited to convictions under foreign statutes and does not
constrain us in this case.
   Inasmuch as the immigration laws that were the basis for the
Second Circuit's interpretation in Lennon have been changed to
significantly broaden the scope of the statute regarding drug violations,
we conclude that Lennon v. INS no longer remains controlling law.
Furthermore, since the court's ruling was specifically limited to
convictions under foreign laws, we find that the Lennon decision is, in
any case, inapplicable in cases such as that now before us, where the
alien was convicted in this country under the laws of the United States.
   In light of the foregoing conclusions, the validity of our own
decision in Matter of 

 must also be reexamined. As we
noted in our previous discussion, Congress has intensified its efforts to
prevent drug offenders from avoiding deportation by passing increasingly more stringent laws in the 20 years since Matter of Lennon was
written. By using the inclusive words, "any law or regulation ...
relating to a controlled substance," Congress has exhibited its intent to
expand the reach of the exclusion and deportation grounds to all drug
offenders, setting virtually no limits beyond the exception provided for
those convicted of a single possession offense involving 30 grams or
less of marijuana. See Flores-Arellano v. INS, supra. Inasmuch as the
statute underlying our decision in Matter of ennon has been amended
to include this comprehensive language, we no longer consider the
basic premise for our conclusion regarding congressional intent in that
case to be tenable. Accordingly, we now find it appropriate to overrule
Matter of Lennon_ In addition, Matter of Wog supra, and Matter of
Davis, supra, which followed Matter of Lennon, must be overruled as
well. Finally, we also withdraw from Matter of 

 Matter of
Pritchard, supra, Matter of ifwadlz, supra, and Matter of 

 to the extent they indicate that aliens convicted under a statute
without any element of scienter are not subject to exclusion or
deportation.
   Inasmuch as we reject the respondent's contention on appeal that
his conviction does not render him deportable, the appeal will be
dismissed.
                                  862
                                                Interim Decision #3226

  ORDER:         The appeal is dismissed.
CONCURRING OPINION: David B. Holmes, Alternate Board
Member

   I respectfully concur.
   I concur in the finding that Congress intended to include the crimes
of use and being under the influence of drugs as deportable offenses
under section 241(a)(11) of the Immigration and Nationality Act, 8
U.S.0 § 1251(a)(11) (1988). I also agree that, even if one assumes that
Lennon v. INS, 

 (2d Cir. 1975), is controlling precedent,
the California law under which this respondent was convicted does not
fall within the ambit of Lennon. This being the case, I do not find it
necessary and would not reexamine on this record the validity of
Lennon v. INS, supra, and its progeny.