KHOURN

                                                                     Interim Decision #3330




                     In re Thay KHOURN, Respondent

                              File A22 483 512 - El Paso

                              Decided October 31, 1997

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals

   A conviction for distribution of cocaine under 21 U.S.C.§ 841(a)(1) (1988), is a conviction
for a crime involving moral turpitude within the meaning of section 241(a)(2)(A)(ii) of the
Immigration and Nationality Act, 

(a)(2)(A)(ii) (1994), where knowledge or
intent is an element of the offense. Matter of Serna, 

 (BIA 1992), modified.

FOR THE RESPONDENT: Monty B. Roberson, Esquire, El Paso, Texas

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Amy L. Brice, Assistant
District Counsel

BEFORE: Board Panel: HOLMES, FILPPU, GUENDELSBERGER, Board Members.

HOLMES, Board Member:

   In a decision dated January 16, 1996, the Immigration Judge found that the
Immigration and Naturalization Service failed to establish that the respondent was deportable as charged and terminated the proceedings. The Immigration and Naturalization Service has appealed. The issue raised by the
Service is whether the offense of distribution of cocaine in violation of 

(a)(1) (1988), constitutes a crime involving moral turpitude for
purposes of section 241(a)(2)(A)(ii) of the Immigration and Nationality Act,

(a)(2)(A)(ii) (1994).1 We hold that it does. Therefore, the
appeal will be sustained. The record will be remanded to the Immigration
Judge to continue with the respondent’s deportation hearing.
  1 Section 241(a)(2)(A)(ii) of the Act was amended by section 308(f)(l)(N) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C of 

 Stat. 3009-546, 3009-621 (“IIRIRA”), and redesignated as section 237(a)(2)
(A)(ii) of the Act by section 305(a)(2) of the IIRIRA, 110 Stat. at 3009-597, applicable to cases
initiated on or after April 1, 1997. Thus, the respondent is not subject to the amended ground of
deportability.

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        I. FACTUAL AND PROCEDURAL BACKGROUND
    The respondent is a native and citizen of Cambodia who entered the
United States on or about February 22, 1977. The record reflects that as a
result of a guilty plea, the respondent was convicted on April 27, 1990, in the
United States District Court for the Northern District of Texas, on one count
of possession with the intent to distribute and distribution of cocaine in violation of 

(a)(1) (1988). The respondent was sentenced to 33
months’ imprisonment.
    On July 22, 1992, the Service issued an Order to Show Cause and Notice
of Hearing (Form I-221) charging the respondent with deportability under
section 241(a)(2)(B)(i) of the Act, as an alien convicted of violating a law
relating to a controlled substance, and under section 241(a)(2)(A)(iii) of the
Act, for an aggravated felony conviction. The respondent was subsequently
granted a waiver of these grounds of deportability under section 212(c) of the
Act, 

(c) (Supp. V 1993), and his deportation proceedings
were terminated.
    The record further reflects that on February 2, 1995, the respondent was
convicted in the Criminal District Court in Dallas, Texas, of theft of property
and was sentenced to 10 years’ imprisonment.2 On October 11, 1995, the Service issued another Order to Show Cause charging the respondent with
deportability under section 241(a)(2)(A)(ii) of the Act, for conviction of two
or more crimes involving moral turpitude.
    At his deportation hearing, the respondent admitted the factual allegations
in the Order to Show Cause but denied deportability. He argued that his conviction for possession with intent to distribute and distribution of cocaine
under 

(a)(1) was not for a crime involving moral turpitude.
The Service argued to the contrary.
    The Immigration Judge relied on Matter of Serna, 

 (BIA
1992), to determine whether the conviction for possession with intent to distribute and distribution of cocaine was for a crime involving moral turpitude.
Although the Federal statute required proof that the perpetrator “knowingly
or intentionally” committed the offense, the Immigration Judge found that
the respondent’s conviction was not for a crime involving moral turpitude
because the underlying behavior was not “inherently base and vile so as to
shock the conscience of the community.” Therefore, the Immigration Judge
found that the Service had not met its burden of proving by clear, unequivocal, and convincing evidence that the respondent had been convicted of two
crimes involving moral turpitude in violation of section 241(a)(2)(A)(ii) of
the Act.

  2 Pursuant to section 321(b) of the IIRIRA, 110 Stat. at 3009-628, the respondent’s theft

conviction is now for an aggravated felony under section 101(a)(43)(G) of the Act (to be
codified at 

(a)(43)(G)).

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                       II. CONTENTIONS ON APPEAL
   On appeal, the Service contends that the respondent’s violation of 

(a)(1), for knowing or intentional distribution of a controlled
substance and possession with intent to distribute, is a crime involving moral
turpitude because it is knowing or intentional participation in the distribution
of drugs. The Service cites Federal and State cases where the courts have
found convictions for possession with intent to sell and distribution of illicit
drugs to involve moral turpitude. The Service argues that the respondent’s
conviction is distinguishable from those in Matter of Abreu-Semino, 

 (BIA 1968), where the Board held that convictions for unlawful
possession and sale of LSD under 

(q)(2) and (3)3 were not
convictions for crimes involving moral turpitude because intent was nowhere
mentioned in defining the prohibited acts.
   The respondent argues that Matter of Abreu-Semino, supra, and Matter of
Serna, supra, clearly establish that a conviction for the sale and delivery of
drugs is not a conviction for a crime involving moral turpitude. However, the
respondent did not address the Service’s argument that the respondent’s conviction under 

(a)(1) is distinguishable from the convictions
under 

(q)(2) and (3) in Matter of Abreu-Semino, supra. Nor
did the respondent address the Service’s contention that the respondent’s
conviction under 

(a)(1) met the requirement of “evil intent”
set forth in Matter of Serna, supra.
   Neither party challenges the Immigration Judge’s conclusion that the
respondent has committed at least one crime involving moral turpitude, to
wit, theft of property. In addition, it is clear that the respondent’s conviction
under 

(a)(1) may be alleged as one of the “two crimes involving moral turpitude” in this proceeding, even though he was previously
granted a discretionary waiver of deportation under section 212(c) of the Act
for this offense. Matter of Balderas, 

 (BIA 1991); Matter of
Mascorro-Perales, 

 (BIA 1967).

                                         III. ISSUE
   The only issue on appeal is whether the respondent’s conviction for possession with intent to distribute and distribution of cocaine under 

(a)(1) constitutes a second conviction for a crime involving moral

  3 The statute at 

(q)(2) and (3) provided as follows:

      The following acts and the causing thereof are prohibited:
     (q) . . . (2) the sale, delivery, or other disposition of a drug in violation of section 511(b);
   (3) the possession of a drug in violation of section 511(c) . . . .
See Drug Abuse Control Amendments of 1965, 

, 

, 232,
repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, 

(a), 

, 1281.

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turpitude. This question seldom arises as an issue of significance because a
conviction for drug distribution in and of itself renders the alien inadmissible,
deportable, and ineligible for relief in circumstances at least as restrictive as
where an alien has a conviction for a crime involving moral turpitude. See
sections 101(a)(43), (f), 212(a)(2)(C), 241(a)(2)(B), 244(a), (e) of the Act, 

(a)(43), (f), 1182(a)(2)(C), 1251(a)(2)(B), 1254(a), (e)
(1994).

                                   IV. ANALYSIS
                                 A. Moral Turpitude
   The term “moral turpitude” has deep roots in the law. For example, the
presence of moral turpitude has been used as a standard in legislation governing the disbarment of attorneys and the revocation of medical licenses. Jordan v. De George, 

 (1951). Moral turpitude also has found
judicial employment as a criterion in disqualifying and impeaching witnesses
and in determining the measure of contribution owed between joint tortfeasors. 

   In a determination whether a crime involves moral turpitude, the statute
under which the conviction occurred is controlling. Matter of Franklin, 

 (BIA 1989), aff’d, 

 (8th Cir. 1995), cert. denied,

 (1996); Matter of Short, 

 (BIA 1989). If the
statute defines a crime in which turpitude necessarily inheres, then for immigration purposes, the conviction is for a crime involving moral turpitude.
Matter of Short, supra, at 137. The first step, therefore, in determining
whether a crime involves moral turpitude is to determine from the record of
conviction what law, or portion of law, was violated. Matter of Esfandiary,

 (BIA 1979).
   The respondent was convicted on one count of violating 

(a)(1)4 which provides:
       Except as authorized by this subchapter, it shall be unlawful for any person knowingly
   or intentionally—
       (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.

                       B. Criminal Nature of The Statute
   We first note that 

(a)(1) was enacted as section 401(a)(1)
of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 

 Stat. 1236, reprinted in 1970 U.S.C.C.A.N. 1437, 1466.
  4 The three-count indictment alleges that the respondent

      knowingly and intentionally did possess with the intent to distribute and did distribute a
      controlled substance, to wit: cocaine, a schedule II controlled substance, . . . [e]ach in
      violation of Title 

(a)(1).

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The criminal penalties, procedures, and sentencing guidelines for violations
of the Comprehensive Drug Abuse Prevention and Control Act of 1970 are
described in titles 18 and 28 of the United States Code, entitled Crimes and
Criminal Procedure and Judiciary and Judicial Procedure, respectively. See,
e.g., 

(a)(3), 3553(f), 3559(c)(2)(H), 3582(d), 3592(c)(12),
3663(a)(1)(A), (c)(1) (1994); 

(h)(1)(B), (2)(B) (1994); see
also 18 U.S.S.G. §§ 2D1.1(a)(1), (2), 2D1.11(b)(2), 5C1.2 (sentencing
guidelines). The statute under which the respondent was convicted, 

(a)(1), is therefore a criminal statute.
   The legislative history further suggests that the statute is criminal rather
than regulatory legislation. The Senate Report indicates that one of the goals
of the statute was to “collect the diverse drug control and enforcement laws
under one piece of legislation to facilitate law enforcement, drug research,
educational and related control activities.” S. Rep. No. 91-613, at 3 (1969).
The House Report indicates that the principal purpose of the bill was as
follows:
   The legislation is designed to deal in a comprehensive fashion with the growing menace of
   drug abuse in the United States (1) through providing authority for increased efforts in drug
   abuse prevention and rehabilitation of users, (2) through providing more effective means
   for law enforcement aspects of drug abuse prevention and control, and (3) by providing for
   an overall balanced scheme of criminal penalties for offenses involving drugs.

H.R. Rep. No. 91-1444, at 2 (1970), reprinted in 1970 U.S.C.C.A.N. 4566,
4567 (emphasis added); see also H.R. Conf. Rep. No. 91-1603, at 1 (1970),
reprinted in 1970 U.S.C.C.A.N. 4566, 4657.
   In Matter of Y-, 

 (BIA 1946), we reviewed a Canadian statute which had been judicially interpreted as being principally criminal rather
than licensing legislation. As a result, we held that the illegal sale and distribution of narcotics in violation of section 4(1)(f) of the Dominion Opium and
Narcotic Drug Act of 1923 was a crime of moral turpitude. Cf. United States
ex rel. Andreacchi v. Curran, 

 (2d Cir. 1926) (holding that a conviction for failing to register and pay a tax in violation of the Harrison
Anti-Narcotic Act of 1917 is not a crime involving moral turpitude because
the statute is regulatory in nature); Matter of G-Y-G-, 

,
212-13 (BIA 1950) (finding that knowing and willful sale and distribution of
opium in violation of regulatory statutes, the Harrison Anti-Narcotic Act of
1917 and the Jones-Miller Act of 1922, was not a crime involving moral turpitude); Matter of V-, 

 (BIA 1941) (finding that transferring
marihuana in violation of a tax act is not a crime involving moral turpitude).

                                    C. Mental State
   We find that the crime in the present case is distinguishable from the
offense committed in Matter of Abreu-Semino, supra. The respondent in
Matter of Abreu-Semino was convicted under a statute that was regulatory in

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nature and did not require a knowing or intentional state of mind. See also
Matter of R-, 

 (BIA 1952) (finding that conviction for unlawfully dispensing narcotic drugs is not a crime involving moral turpitude
because no element of intent, motive, or knowledge is required for a conviction). In the instant case, the respondent was convicted under a criminal statute which clearly requires a mental state of knowledge or intent. Such
knowledge or intent has been deemed essential for a finding of moral turpitude. See, e.g., Matter of Danesh, 

 (BIA 1988); cf. Matter of
Serna, supra (requiring not only knowledge that an immigration document
was altered, but also an intent to use it unlawfully.)

                                      D. Evil Intent
    The Board has held that “evil intent” is a requisite element for a crime
involving moral turpitude. Matter of Serna, supra, at 582; Matter of R-,
supra. A review of recent and historical Federal and State court precedents
indicates that evil intent has been found to be inherent in the sale and distribution of controlled substances. See, e.g., United States ex rel. DeLuca v.
O’Rourke, 

 (8th Cir. 1954) (stating that “there can be nothing more depraved or morally indefensible than conscious participation in
the illicit drug traffic”); Portaluppi v. Shell Oil Co., 

(E.D. Va. 1988) (stating that cocaine offense is profoundly offensive to contemporary moral and ethical values), aff’d, 

 (4th Cir. 1989);
Matter of Marquardt, 

 (Ariz. 1989) (holding that sale of
illicit drugs involves the intent to corrupt others); People v. Castro, 

 (Cal. 1985) (same); Matter of Chase, 

, 1090 (Or. 1985)
(finding that one who sells prohibited substances directly contributes to the
physical harm of the purchaser).
    Congress has also recognized the evils involved in drug trafficking. In
1956, Congress explained in legislative history that “[t]here are few criminal
acts that are more reprehensible than the act of abetting drug addiction by
engaging in the illicit narcotic and marihuana traffic.” H.R. Rep. No. 84-2388
(1956), reprinted in 1956 U.S.C.C.A.N. 3274, 3285. Narcotics trafficking
was also described as “murder on the installment plan.” Id. at 3304.
    Although courts disagree whether mere possession of controlled substances is a crime involving moral turpitude,5 both Federal and State courts
   5 Hampton v. Wong Ging, 

 (9th Cir. 1924) (holding that a possession

conviction under the Narcotic Act was not of itself a crime of “moral turpitude”); Alexander v.
Exxon Co., 

 (M.D.N.C. 1996). But see Portaluppi v. Shell Oil Co., supra
(holding that mere possession of cocaine was a crime involving moral turpitude); Muniz v. State
of Texas, 

 (Tex. Civ. App. 1978) (finding that a conviction for conspiring to
possess with intent to distribute 1,100 pounds of a controlled substance is a felony involving
moral turpitude). We need not reach the issue of whether a conviction for possession with intent
to distribute is a crime involving moral turpitude, as the respondent was convicted of both
possession and distribution of cocaine.

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concur that participation in illicit drug trafficking is a crime involving moral
turpitude. Atlantic Richfield Co. v. Guerami, 

 (9th Cir. 1987)
(holding that possession with intent to distribute is a crime involving moral
turpitude); Matter of Gorman, 

 (Ind. 1978) (holding
that conviction under 

(a)(1) for possession with intent to distribute, conspiracy, and distribution of cocaine is a crime involving moral
turpitude); Muniz v. State of Texas, 

 (Tex. Civ. App. 1978)
(holding that conviction for willfully, knowingly, and unlawfully conspiring
to import a controlled substance is for a crime involving moral turpitude and
is grounds for disbarment).
    We find that an evil intent is inherent in the crime of distribution of a controlled substance under 

(a)(1). Consequently, we conclude
that the respondent’s conviction under that statute is for a crime involving
moral turpitude. To the extent that Matter of Serna, supra, is inconsistent
with this holding, it is hereby modified.

           E. Judicial Recommendations Against Deportation
   The history of judicial recommendations against deportation also supports
the view that distribution of a controlled substance is a crime involving moral
turpitude. The Immigration Act of 1917 provided for judicial recommendations against deportation for crimes involving moral turpitude as follows:
   [T]he provision of this section respecting the deportation of aliens convicted of a crime
   involving moral turpitude shall not apply to one who has been pardoned, nor shall such
   deportation be made or directed if the court, or judge thereof, sentencing such alien for such
   crime shall, at the time of imposing judgment or passing sentence or within thirty days
   thereafter, due notice having first been given to the representatives of the State, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of
   this Act . . . .
Immigration Act of 1917, ch. 29, § 19, 

, 889, repealed by Immigration and Nationality Act of 1952, 

(a)(13), 

, 279; see also former section 241(b) of the Act, 

(b)
(1988), repealed by Immigration Act of 1990, 

(b),

, 5081.
   In 1922, the Narcotic Drugs Import and Export Act created a ground of
deportability for narcotics offenses, which did not previously exist as a separate deportable offense. Act of May 26, 1922, 

(e), 

, 597; see also section 241(a)(2)(B) of the Act. However, the Federal
courts issued judicial recommendations against deportability for aliens
convicted of narcotics offenses, finding that they were crimes involving
moral turpitude. For example, in United States ex rel. DeLuca v. O’

 the United States Court of Appeals for the Eighth Circuit found that an
alien convicted of illicit trafficking in narcotic drugs under 

(1940) was eligible for a judicial recommendation against deportation. See
also Dang Nam v. Bryan, 

 (9th Cir. 1934) (upholding judicial

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recommendation against deportation for possession of imported smoking
opium, a crime involving moral turpitude); United States v. Wing, 

(9th Cir. 1925) (finding that deportability of an alien convicted of a narcotics
offense is subject to judicial recommendation against deportation); Hampton
v. Wong Ging, 

 (9th Cir. 1924) (holding that sections 19 and
20 of the Immigration Act of 1917 authorized recommendations against
deportation for an alien convicted of narcotics offenses if the offense
involved moral turpitude).
   In reaction to the growing number of judicial recommendations against
deportation granted to aliens deportable for narcotics offenses, the Narcotic
Control Act of 1956 prohibited judicial recommendations against deportation in cases involving narcotics offenses. Narcotic Control Act of 1956, ch.
629, § 301(c), 

, 575, reprinted in 1956 U.S.C.C.A.N. 651, 662,
amending 

(b), repealed by Immigration Act of 1990, 

(b), 

, 5081. Section 301(c) of the Narcotic
Control Act of 1956 provided:
   The provisions of this subsection shall not apply in the case of any alien who is charged with
   being deportable from the United States under subsection (a)(11) of this section [which was
   codified as amended at 

(a)(2)(B)].

   The Conference Report to the 1956 Act indicated that section 241(b) was
amended to clearly state that “this provision does not permit judicial recommendation against deportation of an alien convicted of a narcotic offense.
Clarification of this provision has been made desirable by reason of the decisions [granting judicial recommendations against deportation for narcotic
offenses.]” H.R. Conf. Rep. No. 84-2546 (1956), reprinted in 1956
U.S.C.C.A.N. 3315, 3321; see also S. Rep. No. 84-3760 (1956) (letter from
William P. Rogers, Deputy Attorney General, indicating that the amendment
would make judicial recommendations against deportation “inapplicable to
any alien charged with being deportable under section 241(a)(11)”).
   Congress did not dispute the judicial findings that narcotics offenses were
crimes involving moral turpitude, but rather prohibited judicial recommendations against deportation for narcotic offenses in light of the “evils” and
“social malignancy” caused by illicit trafficking. The fact that Congress
eliminated judicial recommendations against deportation for narcotics
offenses thus illustrates that it also considered controlled substance offenses
to be crimes involving moral turpitude that were so destructive to society that
the perpetrators should not be exempt from deportation.

                                  V. CONCLUSION
   We find that the instant case is distinguishable from Matter of
Abreu-Semino, supra, and the cases it relied on, where the statutes violated
were regulatory in nature and did not contain an element of criminal intent. It
is more akin to Matter of Y-, supra, where we found that the crime of illegal

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sale of narcotics was one involving moral turpitude. The respondent was convicted of an inherently evil act under a criminal statute that requires a knowing or intentional state of mind. We therefore find that the Service has
established that the law under which this respondent was convicted defines a
crime to which moral turpitude necessarily inheres. Consequently, we conclude that the respondent has been convicted of two crimes involving moral
turpitude and is deportable as charged under section 241(a)(2)(A)(ii) of the
Act.
   ORDER:           The appeal is sustained.
   FURTHER ORDER:                  The record is remanded to the Immigration
Judge for further proceedings consistent with the foregoing opinion and the
entry of a new decision.




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