M

                   In DEPORTATION Proceedings
                                  .r.utt OF M—

                                A-4511502
                  Decided by Board February 10,1967
Deportability—Section 241(a)(11), 1952 act—Conviction for growing opium
 poppy without license.
Conviction under the Opium Poppy Control Act of 1942, 21 U.S.C. 188-188n,
 for growing opium poppies without a license, constitutes a violation of a
 s tatute governing or controlling the production of opium within the purview
 of section 241(a) (11) of the Immigration and Nationality Act.
CHARGES :
  Warrant: Act of 1924—Ineligible to citizenship at time of entry.
  Lodged : Act of 1924—No immigration visa.
            Act of 1952—Section 241(a) (11) [S U.S.C. 1251(a) (11)]—Drug
              laws, etc., conviction: producing opium poppies without license
              in violation of 21 U.S.C. 188-188n.

                          BEFORE THE BOARD
   DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated September 11, 1960, directing
that the respondent be deported on the charges lodged during the
course of the hearing.
   The record relates to a native of India, citizen of Pakistan, who
last entered the United States during the month of December 1926
at Calexico, California, intending to remain permanently although
not in possession of an unexpired immigration visa. Deportability
on the documentary charge based upon the Immigration Act of
1924 is conceded. Deportation proceedings were begun in 1943, and
a number of orders and reopenings have been granted. Finally, on
SepLembei 21, 199, this Board directed that the deportation of tho
alien be suspended under the provisions of section 19(c) (2) (b) of
the Immigration Act of February 5, 1917, as amended. However,
on May 11, 1960, we granted the Service motiffn to reopen the proceedings to afford the Service an opportunity to lodge a charge
under section 241(a) (11) of the Immigration and Nationality Act
for consideration of whether respondent's conviction for violation
of the Opium Poppy Control Act of 1942 supported a charge under
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that section and brought the respondent within tine bar of sectiofs
19(d) of the Immigration Act of February 5, 1917.
   The lodged charge under section 241(a) (11) of the Immigration
and Nationality Act of 1952 is predicated upon the respondent's
conviction on March 22, 1955, in the United States District Court
for the Northern District of California, Northern Division, on three
counts of violations of sections 188-188n of Title 21, U.S.C.A., producing opium poppies without a license in June 1954. On appeal,
conviction on but two of the counts was affirmed: (1) knowingly
produced and attempted to produce the opium poppy, and (2)
knowingly permitted the production of the opium poppy on property under his control.' Respondent was sentenced to three years'
imprisonment, to he served ennourrently, and fined $500 on each
count. The issue is whether such a conviction of violation of 21
U.S.C. 188-188n supports the charge laid under section 241(a) (11)
of the Immigration and Nationality Act.
  Section 241(a) (11), 8 U.S.C. 1251(a) (11), as amended by section
9 of the Act of July 14, 1960 (

), provides:
   Any alien in the United States … • shall • • • be deported who— ■ • •
[1] is, or hereafter at any time after entry has been, a narcotic drug addict,
or [2] 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 [3] who has been convicted of a violation
of or n conspiracy to violate, any law or regulation governing or controlling
the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or [4] 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. (Bracket-enclosed enumeration of clauses added.)
   Counsel in his brief and at oral argument contends that the respondent's conviction for violation of 21 U.S.C.A. 188-188n, otherwise known as the Opium Poppy Control Act of 1942 does not
come within the purview of section 241(a) (11) of the Immigration
and Nationality Act of 1952, as amended, which provides for deportation of an alien who at any time has been convicted of a violation of a law governing or controlling the production of opium.
Counsel for the respondent seizes upon the difference between
"opium poppy" in 21 U.S.C. 188-188n of which respondent was convicted and the term "opium" used in 8 U.S.C. 1251(a) (11) as a
defense against deportability on the narcotic charge.
  After careful consideration of the arguments put forward by
counsel, we affirm the conclusion reached by the special inquiry
officer that respondent's conviction under the Opium Poppy Control
  a Az Din v. United States, 

 (C.A. 9, 1956), cert. den, 

.

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  Act of 1942, 21 U.S.C. 188 188n, is a. violation of a statute con•
 trolling the production of opium. The reasons underlying that
 conclusion are fully set forth in Appendix "A" hereto, unreported
  Matter of L—R—, A-5480711 (B.IIA., May 11, 1955), in which a
 conviction for violation of the same section received extended consideration. The rationale of that decision is hereby incorporated
 herein.
    It is believed that cases cited by counsel 2 are inapposito to the
 situation presented in this case. We do not believe that there is
 involved in section 241(a) (11) of the Immigration and Nationality
 Act, as amended, the same problem of statutory construction which
 arose in the cases cited by counsel. The language of the statute is
 clear. There is no dispute by counsel that opium is produced from
 the opium poppy as found by the court in the case 3 which resulted
 in sustaining the conviction of this respondent by the Court of
 Appeals for the Ninth Circuit. Opium is the dried or inspissated
 juice of the opium poppy, and the cultivation of the opium poppy
 is necesm.ry to the production of opium.
    It may he o'iserved from the legislative history that deportation
laws involving narcotics have been made more stringent in recent
 years. Thus, the Act of February 18, 1931 (

) which
required a conviction and sentence for deportation for violation of
 any law regulating traffic in narcotics was amended by the Act of
June 28, 1940 (

) which eliminated the requirement of
a sentence and made a conviction alone sufficient for deportation.
Similarly, deportability was extended to include an alien convicted
of a State as well as a Federal narcotic law. In like fashion, section 241(a) (11) of the Immigration and Nationality Act was
amended by section 9 of the Act of July 14, 1960 (

) to
add marihuana to the list of narcotic drugs, thereby exemplifying
the swift concern of Congress in remedying the construction placed
upon section 241 (a) (11) by the Ninth Circuit that marihuana was
not included within the term "narcotic drugs." 4
    Since the respondent is deportable on a ground that brings him
within section 19(d) of the Act of 1917, he is ineligible for suspension of deportation. The appeal will be dismissed.
    ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
  2 Fong Haw Tan v. Phelan, 

; Hoy v. Mendoza-Rivera, 

 (CA. 9, 1959), and Hoy v. Rojas-Gutierrez, 

 (CA. 9, 1959);
Matter of L—, 5 L & N. Dec. 169.
 3 Az Din v. United mates, 232 14'.2d 283.
  4 Hoy v. Mendoza-Rivera, 

 (C.A. 9, 1959), and Hoy v. Rojas-Gutierrez, 

 (C.A. 9, 1959).




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                              APPENDIX "A"
                         BEF ORE THE BOARD
                             (May 11, 1955)
                                In re : L—R-
                                  A 5480711
                                    -




  DISCUSSION: The case comes forward on appeal from the order
of the special inquiry officer dated April 6, 1955, ordering respondent deported on the charge stated in the warrant of arrest.
  Deportation of the respondent is sought under the provisions of
section 241(a) (11) of the Immigration and Nationality Act of
1952 which provides in pertinent part for the deportation of any
alien:
   • … who at any time has been convicted of a violation of any law or
regulation relating to the illicit traffic In narcotic drugs, or who has been
convicted of a violation of any law or regulation governing or controlling the
… production … or the possession for the purpose of … production
• … of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isouipecaine or any addiction-forming or
addiction-sustaining opiate.
   On August 3, 1953, in the United States District Court for the
 Northern District of California the respondent was convicted on
his plea of guilty for violation of sections 188-188n of Title 21,
United States Code, and was sentenced to pay a fine of $500 and
placed on probation for a period of two years. The indictment
charged that the defendant on or about June 11, 1953, willfully,
unlawfully and knowingly produced the opium poppy without having first obtained a license from the Secretary of the Treasury in
accordance with the provisions of sections 188-188n of Title 21,
United States Code Annotated. The applicable portion of this
statute reads as follows:
  188b. It shall be unlawful for any person who is not the holder of a license authorizing him to produce the opium poppy, duly issued to him by the
Secretary of the Treasury in accordance with the provisions of sections 188-
188n of this title, to produce or attempt to produce the opium poppy, or to
permit the production of the opium poppy In or upon any place owned, occupiod, need, or controlled by him. (Dec. 11, 1942, ch. 720, 5 3, 

.)

  The question presented is whether respondent's conviction of unlawfully and knowingly producing the opium poppy without having first obtained a licence in accordance with the provisions of
sections 188-188n of Title 21, United States Code, brings him within
the deportable provisions of section 241(a) (11) of the Immigration
alid. Nationality Act, supra. The law under which respondent was
convicted is the Act of December 11, 1942, known as the Opium
Poppy Control Act of 1942 (21 U.S.C. 188-188n). Section 188
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declares that the plirpnae. of the Act is to discharge more effectively
 the obligations of the United States under the International Opium
 Convention of 1912, and the Convention for Limiting the Manufacture and Regulating the Distribution of Narcotic Drugs of
 1931; (2) to promote the public health and the general welfare;
  (3) to regulate interstate and foreign commerce in opium poppies;
 and (4) to safeguard the revenue derived from taxation of opium
 and opium products. Section 188a(b) defines the term "produce"
 or "production" to include the planting, cultivation, growth, harvesting, and any other activity which facilitates the growth of the
 opium poppy. Section 188a(c) defines the term "opium poppy"
 as including the plant Papaver Somniferum, any other plant which
 is the source of opium or opium products, and any part of any such
 plant. Section 188a(d) defines the term "opium" to include the
 inspissated juice of the opium poppy, in crude or refined form; and
 section 188a(e) defines the term "opium products" to include opium
 and all substances obtainable from opium or the opium poppy, except the seed thereof. A Government witness, Chief Chemist of the
 United States Internal Revenue Service, likewise testified that the
opium poppy is the primary source of opium and that raw opium
 consists of the coagulated juice that is obtained from cutting the
pod of the opium poppy.
    The Opium Poppy Control Act of 1942 received extended consideration in the case of Stutz v. Bureau of Narcotics,' which involved a suit by plaintiffs who were growers of the blue seeded
poppy (Papaver Somniferum) for its seed, an edible food product,
to enjoin federal government officials from interfering in any way
with the growing and production of their crop of poppies. The
court stated that the Opium Poppy Control Act does not purport to
regulate the production of an agricultural crop but is directed to
the growth of opium-yielding poppy plants within the United
States as the source, not of an edible food product, but rather of
raw opium; its effect upon the production of the poppy seed is
incidental only to its operation on a plant which produces both
narcotic drug and edible seed. The court noted that the primary
derivation of Congressional authority to exercise control by federal
legislation over the cultivation of the opium poppy is stated in the
declared purpose of the Opium Poppy Control Act, which is to discharge more effectively the obligations of the United States under
the International Opium Convention of 1912, and the Convention
for Limiting the Manufacture and Regulating the Distribution of
Narcotic Drugs of 1931. The preamble to the International Opium
Convention of 1912 (Treaty Series No. 612; 

, 1930),
to which the United States was a signatory, expresses the objec-
 1 

 (N.D. Calif., N.D., 1944).



                                    185
  tives sought to be attained by that treaty in stating that the participating powers resolved to pursue progressive suppression of the
  abuse of opium, morphine, cocaine, as well as drugs prepared or
  derived from these substances which may give rise to analogous
 abuses. One of the methods agreed upon by the International
 Opium Convention of 1912 to accomplish the eradication of the
 opium evil was through the exercise of control over the production
 and distribution of raw opium. The later Convention for Limiting
 the Manufacture and Regulating the Distribution of Narcotic Drugs
 of 1931 (Treaty Series No. 863; 

), to which the United
 States was signatory, was in furtherance of the same objective as
 the International Opium Convention of 1912—the eradication of
the drug evil by rendering effective by international agreement the
  limitation of the manufacture of narcotic drugs to the world's
 legitimate requirements for medical and scientific purposes and by
 regulating their distribution. The court observed that by the terms
 of the International Opium Convention of 1912, the United States
 obligated itself to control the production and distribution of raw
 opium and that the provisions of the Opium Poppy Control Act
 expressed the determination of Congress that effective control of
 opium production and distribution necessitates legislation limiting
 the proximate source of yield of the raw opium—the opium poppy
 — whatever the purpose for which its cultivation is undertaken.
     The court made it apparent that efficacious control over the production and distribution of raw opium could well depend upon
 limitation of the cultivation of the opium poppy within. the United
 States to legitimate medical and scientific needs only; that the
 opium poppy was the immediate source from which the raw opium
 was obtained; its cultivation might be undertaken without difficulty,
 without detection, and for illicit purposes, even under the guise of
legitimate pretenses; the process of extracting the raw opium from
the opium poppy was a simple one; the growth of the opium poppy,
wherever undertaken, could reasonably be said to afford attractiveness to those seeking a source of opium supply either for the satisfaction of their own cravings or for the profits offered by the
contraband market; and this attractiveness could be expected to increase as suppression of the drug evil became progressively more
effective and other sources of drug supply became more scarce. The
court expressed itself as fully satisfied with the appropriate relativity of measures limiting the cultivation of the opium poppy to
the objectives of the treaty stipulation to control the production and
distribution of raw opium.
    In view of the consideration set forth above, it is concluded that
respondent's conviction of 21 U.S.C. 188-188n is a violation of a
law governing or controlling the production of the narcotic drug,
                                186
opium, al its very source, namely, the opium poppy . 2 It is concluded that the ground of deportability is sustained.
   ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
  2 See Matter of P—G--, 5-309, involving planting and cultivating loco weed
or cannabis saliva in violation of section 11530 of the Health and Safety Code
of California.




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