PAULUS

11 I. & N. Dec. 274

• Court: Board of Immigration Appeals
• Decided: July 1, 1965
• Docket: 1495
• Status: Published

Opinion

Interim Decision 4t1495

MATTER OF PAULUS

In Deportation Proceedings

A 117'T3984 -

Decided by Board May 25, 1965

Vhere the record of conviction is silent as to the narcotic involved, an alien's conviction of violation of section 11508, Health and Safety Code of Cali- fornia, for selling and delivering a substance and material In lien of a nar- cotic after having offered to sell and furnish a narcotic, does not constitute a ground of deportability under section 241(a) (11), Immigration and Na- tionality Act, as amended, since the conviction could have involved a sub- stance which though a narcotic under California law Is not a narcotic drug within •the meaning of the immigatIon laws. CHARGES : Order: Act of 1952—Section 241(a) (11) [S U.S.C. 1251(a) (11)1—Con- victed of violation of any law governing or control- ling the taxing, sale, etc., of narcotic drugs, to wit, section 11508, Health and Safety Code of California (1963). Lodged: Act of 1952—Section 241(a) (11) [8 17.S.C. 1251(a) (11)]—Con- vieted of violation of any law relating to the illicit traffic in narcotic drugs, to wit, section 11503, Health and Safety Code of California.

- The special inquiry officer terminated proceedings. The Service appeals fiom the order of the special inquiry officer terminating pro- • ceedings. Only the lodged charge is in issue; the Service withdrew the charge in the order to show cause. - 'The special inquiry officer has written an extensive and well rea- soned order; briefly, respondent, a 30-year-old married male alien, • native and last a national of Germany, was admitted to the United States for permanent residence on February 21, 1958. He was con- victed in a California state court•on August 12, 1963 for violating . tiegi 11503 of tha Health and Safety Code of California;' the see 274 Interim Decision *1495 information charged that respondent "did offer unlawfully to sell and furnish a narcotic to a person and did then Sell and deliver to such person a substance and material in lieu of such narcotic." There is nothing iil the record of conviction to identify the narcotic which respondent offered to sell. The California law relates to a nar- cotic or marihuana violation rather than to larcenies or frauds (Ha.s- trot v. United States, 321 F.2d 582 (9th Cir., '1963) ; the question is whether every conviction under the section can serve as the basis for deporting an alien as one who: hag been convicted of a violation of, • * 'I' any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana • * * (section 241(a) (11) of the Act (8 U.S.C. 1251)). The special inquiry officer's reason for terminating proceedings is that the record being silent as to the narcotic involved in the convic- tion it is possible that the conviction involved a substance (such as - -peyot)whicsanrudeClifoawbtsndeia. ' -

a narcotic drug under federal law: since a doubt is thus created, and since the respondent must be given the benefit of the doubt, it can- not be said for immigration purposes, that he has been convicted of a law relating to narcotic drags. • The Service contends that the conviction is sufficient because, the California statute is recognized as one relating to narcotics (no case interpreting it so in the context of a deportation proceeding is cited), because Congress used the term "narcotic drugs" in u generic senses and because Congress' -failure to provide a federal standard leaves room for state interpretation. At oral argument, the Service repre- sentative (=premed the belief that the issue presented was whether the substitution of a nonnarcotic at the time of sale prevents the law from being one concerning narcotic drugs. He also pointed out that the history of the law reveals that it was enacted tz; snake possible convictions of sellers of narcotics who, having arranged for-the sale of a narcotic but becoming suspicious of the bona fides of the buyer, Section 11503. Unlawful sale, furnishing, transportation, etc., of narcotic, or any other liquid, substance, or material in lieu of narcotic: Punishment. Every person who agrees, consentst or in any manner offers to unlawfully sell, furnish, transport, administer, or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or giv- en to any person any other liquid, substance, or material in lieu of any nar- cotic shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years.

275 Interim Zebision *1495 substituted ht . nonnarcotic ,to avoid . possible arrest on .a narcotic charge. Counsel' mikes a distinction between the sale of a narcotic, and the sale of-narcotic drugs. -Ile contends that one.who offers to. ell a. me- . cotic and delivers a nonnarcotic has not, engaged in "illicit traffic", that a federaldefinition must be used to determine -whether a convic- tion falls within the terms of the federal law (Mendoza Rivera v. Del -

-Guereio, 161 F. -Supp. 473 (So.D. CaL,1958), affirmed Zicky v. Men- doza Rivera, 267 F.2d 451 (9th Cir., 1559), and that procedural error -

was committed when respondent was prevented from explaining the circumste-ares concerning his c,onviction. ' The California law was meant to discourage anyone from engaging or appearing to engage in narcotics traffic (Peo. v. Shephard„ 337 P.2d 214) ; however, we do not believe that the present conviction comes within the provisions of the inunigtation laws under which "narcotic drugs" have a definite meaning and under which there must be a, conviction of a law relating to narcotic drugs. At most, the Serv- ice he's shown that respondent was convicted of a law which may or may not relate to narcotic drugs. In Mendoza Rivera, supra, the question was whether an alien con- -

victed under California law of possessing marihuana has been con- victed of a violation of a law relating to narcotic drugs. Under Cali- .fornia law marihuana is classified as a narcotic drug. The court determined that Congress treated narcotic drugs and marihuana in separate categories and ruled therefore that marihuana was not included. in the term "narcotic drugs" for purposes of the immigra- tion laws. It would thits appear that only a conviction for illicit possession of or traffic in a substance which is defined as a narcotic drug under federal laws can be the basis for deportation proceedings under section 241(a) (11) of the Act. Since the conviction here could have been for an offer to sell a substance which though a narcotic under California law is not a narcotic drug under federal laws, we cannot say- that the Service has borne its burden of establishing that respondent has been convicted of a violation of a law relating to narcotic drugs. The fact that for some purposes, the California sta- tute is considered a narcotic law violation does not bring a conviction within the immigration laws : it is well recognized that a law may be considered a conviction for some purpose and not others (Matter of G , 9 I. & N. Dec. 159, 166) ; furthermore, the name the state gives —

a crime does not necessarily control (United States v. Flora Rodri- -

gues, 237 F.2d 405, 2nd Cir., 1956). ORDER: It is ordered that the Service appeal be and the same is hereby dismissed.

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