Interim Decision #8055
MATTER OF HERNANDEZ-PONCE
In Deportation Proceedings
A-38834427
Decided by Board March 9, 1988
(1) The Anti-Drug Abuse Act of 1986, Pub. L No. 99-570, 100 Stat. 3207, amended sections 241(aX11) and 212(aX23) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(11) and 1182(aX23) (1982), and significantly broadened the types of drug offenses which render an alien deportable or excludable. (2) Section 241(aX11) of the Act, which previously rendered deportable only those aliens convicted of illicit possession of or traffic in narcotic drugs or marihuana, now refers to "any law or regulation" relating to a controlled substance; and therefore, the immigration judge properly found deportable an alien twice convict- ed of the crime of use and being under the influence of phencyclidine ("PCP"), a controlled substance. (3) The Board's construction of the former statute, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful posses- sion, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. Matter of Sum, 13 I&N Dec. 569 (BIA 1970), superseded. CHARGE: Order: Act of 1952—Sec. 241(aX11) [8 U.S.C. § 1251(aX11)]--Convicted of controlled substance violation ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Pro se Joseph M. Ragusa General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated August 4, 1987, the immigration judge found the respondent deportable pursuant to section 241(a)(11) of the Im- migration and Nationality Act, 8 U.S.C. § 1251(aX11) (Supp. W 1986), denied his application for voluntary departure, and ordered him deported to Mexico_ The respondent has appealed. Additional- ly, the 'Immigration and Naturalization Service has raised the issue of the respondent's deportability. Pursuant to our authority under 8 C.F.R. § 3.1(c) (1988), we will consider that issue on certification. Al Interim Decision #3055
The respondent's appeal will be dismissed and his request for oral argument before the Board is denied. The decision of the immigra- tion judge will be affirmed. The respondent is a 23-year-old male, native and citizen of Mexico, who was admitted to the United States as a lawful perma- nent resident in 1984. On September 29, 1986, the respondent was convicted in the State of California Municipal Court, County of Santa Clara, of the crime of use and being under the influence of phencyclidine ("PCP") in -violation of section 11550(b) of the Califor- nia Health and Safety Code. On January 14, 1987, the respondent was convicted of the same crime before the same court. On April 24, 1987, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against the respond- ent charging him with being deportable on the basis of these two convictions. At his deportation hearing on August 4, 1987, the re- spondent admitted to all of the factual allegations contained in the Order to Show Cause but denied that he was deportable based on his record. The immigration judge found the respondent to be de. portable as charged. On appeal, the respondent argues that he was without legal rep- resentation at his deportation hearing and, because of his own lack of familiarity with immigration law and procedure, that he was not adequately represented. The respondent asserts that the immigra- tion judge abused his discretion by proceeding with the hearing before the respondent was able to obtain counsel. From our review of the record we note that the immigration judge took scrupulous care to inform the respondent of his right to be represented by counsel while also informing him of Legal Aid counsel which might be available at no charge. The respondent first appeared before the immigration judge on May 7, 1987, at which time his hearing was postponed until June 25, 1987, in order to provide him with the opportunity to obtain counsel. On June 25, 1987, the respondent again appeared before the immigration judge without counsel. At this time, the attorney for the Service lodged a new factual allegation relating to the respondent's January 14, 1987, drug conviction. The judge postponed the respondent's depor- tation hearing until August 4, 1987, thereby affording him a fur- ther opportunity to obtain legal representation and to prepare his defense on the new factual allegation. On August 4, 1987, the re- spondent again appeared before the immigration judge without counsel. At this hearing, the immigration judge elected to proceed with the deportation hearing, having the respondent represent himself. We find that the immigration judge fully informed the re- spondent of his right to be represented by counsel and reasonably 614 Interim Decision #3055
granted several continuances of the hearing for the purpose of al- lowing the respondent to obtain representation. See 8 C.F.R. § 242.13 (1987). The respondent's failure to obtain counsel after a rather lengthy period of time and several continuances makes ap- parent that he simply was unable to secure counsel at his own ex- pense. Consequently, the immigration judge had no option but to proceed with the hearing. See Vides-Vides v. INS, 783 F.2d 1463 (9th Cir. 1986). We are convinced that the respondent's hearing was full, fair, and thorough. Thus, we find no merit in the respondent's claims on appeal, which will therefore be dismissed. The Service asks us to consider and affirm the decision of the im- migration judge, finding the respondent deportable under section 241(a)(11) of the Act based upon his two convictions for use and being under the influence of PCP. In his decision, the immigration judge noted that, prior to Octo- ber of 1986, section 241(a)(11) of the Act rendered deportable only those aliens who had been convicted of an offense "relating to the illicit possession of or traffic in narcotic drugs nr marihuana." This Board has previously held that an alien convicted of an offense of use of a narcotic substance, as opposed to its possession, was not excludable under the stat'iite. 1 See Matter of Sum, 13 I&N Dec. 569 (13IA 1970). However, the immigration judge noted that the recent- ly amended version of section 241(a)(11) of the Act rendered inap- plicable our holding in Matter of Sum. We must agree. On October 27, 1986, President Reagan signed into law the Anti- Drug Abuse Act of 1986. Pub. L. No. 99-570, 100 Stet. 3207. This act amended the immigration laws to render deportable any alien who is, or hereafter at any time after entry has been, a narcotic drug addict, or 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 con- trolled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). Section 241(a)(11) of the Act, 8 U.S.C. § 1251
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Interim Decision #8055
MATTER OF HERNANDEZ-PONCE
In Deportation Proceedings
A-38834427
Decided by Board March 9, 1988
(1) The Anti-Drug Abuse Act of 1986, Pub. L No. 99-570, 100 Stat. 3207, amended sections 241(aX11) and 212(aX23) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(11) and 1182(aX23) (1982), and significantly broadened the types of drug offenses which render an alien deportable or excludable. (2) Section 241(aX11) of the Act, which previously rendered deportable only those aliens convicted of illicit possession of or traffic in narcotic drugs or marihuana, now refers to "any law or regulation" relating to a controlled substance; and therefore, the immigration judge properly found deportable an alien twice convict- ed of the crime of use and being under the influence of phencyclidine ("PCP"), a controlled substance. (3) The Board's construction of the former statute, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful posses- sion, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. Matter of Sum, 13 I&N Dec. 569 (BIA 1970), superseded. CHARGE: Order: Act of 1952—Sec. 241(aX11) [8 U.S.C. § 1251(aX11)]--Convicted of controlled substance violation ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Pro se Joseph M. Ragusa General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated August 4, 1987, the immigration judge found the respondent deportable pursuant to section 241(a)(11) of the Im- migration and Nationality Act, 8 U.S.C. § 1251(aX11) (Supp. W 1986), denied his application for voluntary departure, and ordered him deported to Mexico_ The respondent has appealed. Additional- ly, the 'Immigration and Naturalization Service has raised the issue of the respondent's deportability. Pursuant to our authority under 8 C.F.R. § 3.1(c) (1988), we will consider that issue on certification. Al Interim Decision #3055
The respondent's appeal will be dismissed and his request for oral argument before the Board is denied. The decision of the immigra- tion judge will be affirmed. The respondent is a 23-year-old male, native and citizen of Mexico, who was admitted to the United States as a lawful perma- nent resident in 1984. On September 29, 1986, the respondent was convicted in the State of California Municipal Court, County of Santa Clara, of the crime of use and being under the influence of phencyclidine ("PCP") in -violation of section 11550(b) of the Califor- nia Health and Safety Code. On January 14, 1987, the respondent was convicted of the same crime before the same court. On April 24, 1987, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against the respond- ent charging him with being deportable on the basis of these two convictions. At his deportation hearing on August 4, 1987, the re- spondent admitted to all of the factual allegations contained in the Order to Show Cause but denied that he was deportable based on his record. The immigration judge found the respondent to be de. portable as charged. On appeal, the respondent argues that he was without legal rep- resentation at his deportation hearing and, because of his own lack of familiarity with immigration law and procedure, that he was not adequately represented. The respondent asserts that the immigra- tion judge abused his discretion by proceeding with the hearing before the respondent was able to obtain counsel. From our review of the record we note that the immigration judge took scrupulous care to inform the respondent of his right to be represented by counsel while also informing him of Legal Aid counsel which might be available at no charge. The respondent first appeared before the immigration judge on May 7, 1987, at which time his hearing was postponed until June 25, 1987, in order to provide him with the opportunity to obtain counsel. On June 25, 1987, the respondent again appeared before the immigration judge without counsel. At this time, the attorney for the Service lodged a new factual allegation relating to the respondent's January 14, 1987, drug conviction. The judge postponed the respondent's depor- tation hearing until August 4, 1987, thereby affording him a fur- ther opportunity to obtain legal representation and to prepare his defense on the new factual allegation. On August 4, 1987, the re- spondent again appeared before the immigration judge without counsel. At this hearing, the immigration judge elected to proceed with the deportation hearing, having the respondent represent himself. We find that the immigration judge fully informed the re- spondent of his right to be represented by counsel and reasonably 614 Interim Decision #3055
granted several continuances of the hearing for the purpose of al- lowing the respondent to obtain representation. See 8 C.F.R. § 242.13 (1987). The respondent's failure to obtain counsel after a rather lengthy period of time and several continuances makes ap- parent that he simply was unable to secure counsel at his own ex- pense. Consequently, the immigration judge had no option but to proceed with the hearing. See Vides-Vides v. INS, 783 F.2d 1463 (9th Cir. 1986). We are convinced that the respondent's hearing was full, fair, and thorough. Thus, we find no merit in the respondent's claims on appeal, which will therefore be dismissed. The Service asks us to consider and affirm the decision of the im- migration judge, finding the respondent deportable under section 241(a)(11) of the Act based upon his two convictions for use and being under the influence of PCP. In his decision, the immigration judge noted that, prior to Octo- ber of 1986, section 241(a)(11) of the Act rendered deportable only those aliens who had been convicted of an offense "relating to the illicit possession of or traffic in narcotic drugs nr marihuana." This Board has previously held that an alien convicted of an offense of use of a narcotic substance, as opposed to its possession, was not excludable under the stat'iite. 1 See Matter of Sum, 13 I&N Dec. 569 (13IA 1970). However, the immigration judge noted that the recent- ly amended version of section 241(a)(11) of the Act rendered inap- plicable our holding in Matter of Sum. We must agree. On October 27, 1986, President Reagan signed into law the Anti- Drug Abuse Act of 1986. Pub. L. No. 99-570, 100 Stet. 3207. This act amended the immigration laws to render deportable any alien who is, or hereafter at any time after entry has been, a narcotic drug addict, or 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 con- trolled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)). Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (Supp. IV 1986) (amending 8 U.S.C. §1251(a)(11) (1982)). This amendment significantly broadened the language used to describe the types of offenses which have traditionally jeopardized an alien's status. Under the immigration law as it existed prior to its amendment by the Anti-Drug Abuse Act, the following aliens were deportable under section 241(a)(11) of the Act for drug-related conduct:
I Both the deportation and exclusion grounds employ essentially identical lan- guage regarding the types of drug convictions which would jeopardize an alien's stair's
gl g Interim Decision #3055
[ajny alien ... who at any time has been convicted of a violation of, or a conspira- cy 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, dispens- ing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispens- ing, giving away, importation, or exportation of opium, coca leaves, heroin, mari- huana, any salt derivative or preparation of opium or coca leaves or insonipecaine or any addiction-forming or addiction-sustqining opiate. 8 U.S.C. § 1251(a)(11) (1982), amended by 8 U.S.C. § 1251(a)(11) (Supp. IV 1986) (emphasis added). The Service, in its written brief, asserts that, by enacting the Anti-Drug Abuse Act, Congress so enhanced the national drug en- forcement law and policy that the amendment to the deportation statute now renders deportable any alien convicted of any law re- lating to controlled substances, including being "under the influ- ence" of a controlled substance. It is evident to us, according to the plain words of the amended statute, that Congress intended to expand rather than limit the power of the Government to curtail drug abuse through the immi- gration laws. Prior to the recent amendments, section 241(a)(11) listed the specific drug-related criminal activities which Congress considered sufficient to warrant the exclusion or deportation of aliens. The amended statute refers to "any law or regulation" re- lating to a controlled substance. These are words which, according to our construction, clearly contain no limitation. Thus, our con- struction of the former statute set forth in Matter of Sum, supra, which distinguished a conviction for unlawful use of a proscribed drug from a conviction for its unlawful possession, was based on the clearly different language of the former statute and is clearly incompatible with the plain meaning of the amended statute. In the case before us, the respondent has admitted to being twice convicted for the crime of use and being under the influence of phencyclidine. Phencyclidine is listed as a controlled substance under the Controlled Substances Act. See 21 U.S.C. § 812 (1982). We must conclude that the respondent falls within the purview of the amended language of section 241(a)(11) of the Act, which refers to convictions "relating to a controlled substance." Accordingly, the decision of the immigration judge relating to the respondent's de- portability will be affirmed. ORDER: The appeal is dismissed and the decision of the immi- gration judge is affirmed.