R-M

                            MA TER OF R
                   In DEPORTATION Proceedings
                                 A-7500998
                       Decided by Board Jane 19, 1959

Deportability—Section 241(a)(11) of 1952 act—Mere possession of   marihuana
  not deportation ground.

Conviction of simple possession of marihuana held not to be deportable offense under section 241 (a) (11) of the 1952 act. (Follows Hoy v. MendozaRiTera,, C.A. 9, April 3, 1959, and modifies Matter of 

.)

CHARGE :
  Order : Act of 1952—Section 241(a) (11) [8 U.S.C. 1251 (a) (11)1—Convicted
             of illegal possession of marihuana.

                             BEFORE THE BOARD

   Discussion: This case is before us on appeal from a special inquiry
officer's order of January 22, 1959, directing that the respondent be
deported from the United States in the manner provided by law on
the charge contained in the order to show cause.
  The record relates to a 41-year-old married male who last entered
the United States on January 7, 1958, as a returning resident alien.
However, he now claims birth in Amargosa, Arizona, on November
30, 1917. But, upon careful consideration of the evidence of record,
which has been fully discussed in the special inquiry officer's opinion,
we find that the Government has met the burden resting on it in this
proceeding of establishing alienage. We will summarize that evidence briefly.
   A baptismal certificate issued on February 8, 1918. as well as one
issued in 1958, reflects birth in Mexico; the godmother has testified
that respondent's father furnished the information reflected therein;
and the respondent has admitted that his father told him his baptismal certificate showed birth in Mexico. Forms 1-104—A, certificate
of admission of respondent's parents on March 2, 1923, shows that
respondent, then aged five, was born in Mexico; and Forms I-404—A
relating to his admissions in 1940 and 1941, show respondent's birthplace as Mexico. Alien Registration Forms executed by respondent
under oath in 1940 and 1953 contain statements by him that he was
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  born in Mexico. He also claimed birth in Mexico in a sworn statement to an immigration officer on February 2, 1958, and he then
 ,presented an Alien Registration Receipt Card (Form 1-151).
     The evidentiary value of the documents submitted by the respond-
 'ent is strictly limited by their nature in relation to the issue involved
 .here. His army discharge reflects birth in the United States, but the
 record reveals that said recitation therein is based on respondent's
  unsupported claim and United States citizenship is not a requirement for military service. (See Matter of M , 

.) The same is true of the certificate of respondent's school attendance in Arizona in 1928-1929.
     The weight to be accorded the testimony of respondent's sister,
 his senior by 18 years, is affected by the relationship. The same is
 true of the testimony of his aunt, his mother's sister, who was also
 his godmother; and her testimony was also hearsay. The testimony
 of his father's -Friend and former employer was also hearsay
     The only remaining issue is that of deportability, which is predicated on respondent's conviction in the Superior Court, Pinal County,
 Arizona, for the offense of illegally having marihuana in his possession on or about January 8, 1958. Imposition of sentence was
 suspended for a term of two years; respondent was placed on probation for that period; and the court reserved the right to impose
 service of the sentence. within the probationary period, if respondent
 should violate the conditions of probation.
    It has been judicially determined that, insofar as marihuana is
involved, deportability under section 241(a) (11) of the Immigration
and Nationality Act depends upon a conviction for possession for
 the purpose of manufacture, production, etc. (Hoy v. Mendoza-Rivera, C.A. 9, April 3, 1959, :t16,170). This record, however,
establishes that the respondent was only convicted of illegal possession of marihuana. Therefore, in the light of the cited decision he
does not fall in the ambit of the statute.
    In Matter of M         V      , 

, we considered
whether the amendment to section 241(a) (11) of the Immigration
and Nationality Act (8 U.S.C. 1251) by the Narcotic Control Act
of 1950 was retroactive. We held that it was. Involved was a conviction for unlawful possession of marihuana. The issue in the
Mendoza-Rivera case, supra, was not raised in Matter of M
V       , supra. The latter decision must. 11P. read in the, light, of our
holding in the instant case.
    Order : It is ordered that the proceeding be terminated.




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