WEBB

11 I. & N. Dec. 498

• Court: Board of Immigration Appeals
• Decided: July 1, 1966
• Docket: 1555
• Status: Published

Opinion

Interim Decision #1555

MATTER OF WEBB In Deportation Proceedings A-10042157 Decided by Board February 16, 1966

Respondent, whose cultivation or growing of marihuana plants resulted in his conviction .under section 19-248 (Coupled with section 19-285), Connecticut General Statute's, Annotated, for possession and having under his control a narcotic drug, has been convicted of a law relating to the production of a narcotic, drug and since his conviction was not timely appealed, it has achieved finality and can properly support a deportation charge under sec- tion 242(a) (11), Immigration and Nationality Act, as amended, notwith- standing a civil action to set aside the verdict and for a new trial Sled by him after the period for a timely appeal had passed was pending at the time of the deportaton proceedings, no showing having been made that the right to appeal is revived or continued by the filing of the civil action or that the case continues under the control of the trial court. CliABGES: Order: Act of 1952 Section 241(a) (11) [8 U.S.C. 1251(a) (11)3 — — Con- " Were°. of violation of law relating to illicit nooses- .. sion of,marihuana. Lodged: Act of 1952—Section 241(a) (11) [s U.S.C. 1251(a) (11)3—Convicted of a laiv relating to manufacture, production, or pusaessluu of a narcotic drug:• possession, having under control, administering or 'dispensing of a narcotic drug: marihuana. •

Respondent, a 47-year-old divorced male alien, a 'native and citizen of Jamaica, was admitted to the United States for permanent resi- dence on August 17, 1956. The Service seeks to deport him because of his conviction for violation of a narcotic law. Counsel contends the conviction is lacking in finality and therefore cannot serve as the basis for an order of deportation. On November 25, 1984, respondent was convicted under section 19-246 Connecticut General Statutes, Annotated, which broadly. speaking 'defines two types of violation: one concerns possession of u narcotic drug, the other addiction. Whether a conviction is for '498 Interim Decision 4t1555 possession rather than addiction is dependent upon. whether prose- cution under section 19-246 is coupled with section 19-265 General - Statutes Annotated, (1964 Supp.) which provides the penalty for illegal possession or whether it is coupled with section 19 265a Gen- -

eral Statutes .Annotated (1964 Supp.) which provides the penalty for addiction (United States ex rel. Swanson v. Reinke,- 344' F_ 2d 260 "(2d Cir., 1965) ; State v. DaTila, 183 A.2d 152' (1962) ).1. In respondent's case . the .convictiOn. was for possession or control.' The information 'coupled section 19-246 with section 19-26a, and charged that respondent and another "did possess, have under their control, administer or dispense a narcotic drug, to wit: marihuana * * "." The section under which respondent was convicted is similar to section 2 of the 'Uniform .Narcotic Drug Act; while no decisions as to whether guilty knowledge. is an essential ingredient of the crime' of possession has been found for 'Coniiectient,,hu interpretation_ of e; similar provision elsewhere states that guilty" knowledge 'is an essen- tial ingredient of the crime (State -v. Joknioni 82 So.24., 24 (La., 1955)). , The special inquiry officer did riot r- ule on the charge in the order to show cause; he sustained the . lodged .• charge. The conviction- ap-. 'Connecticut General Statutes .Anietated § 19-246. Acts prohibited. Noperson shall manufacture, possess, have under his control, sell, preberibe,' dispense, compound, administer to himself or to another person or be addicted to the use of any narcotic drug, except as authorized in this chapter. (1949 § 5562; 1959, RA. 485 I I.) Connecticut General Statutes Annotated § 19-265 (1964 Stipp.). Penalty • for Illegal possession or dispensing. Any person who violates any provision of this chapter, other than by administering to himself or by-being addicted to the use of narcotic drugs, for the first offense, shall be fined not less than nve hundred collars nor inure than three thousand dollars and imprisoned not less than five years nor more than ten years; or be both tined and imprisoned; and for a second offense, shall be fined not less than two thousand dollars nor more than five thousand dollars or imprisoned in the State Prison not less than ten nor more than fifteen years, or be both fined and imprisoned; and for any subsequent offense shall be imprisoned in the State Prison not less than fifteen not more than.. twenty-five years. (1961, P.A. 246; 1963, P.A. 642, § 20.) Connecticut General Statutes Annotated § 19-265a (1964 Sum). Penalty for self-administration or addiction. Any person who _administers to himself or is addicted_ to the use of any narcotic drug, except when such drug is administered by or under the direc- tion of a perSon authorized by this chapter to prescribe and administer ° be narcotis.dmeunrthpovisfecn17-85,hal imprisoned not more than five years, provided the court -may commit the accused to the custody of the commissioner of mental health in accordance with the provisions of chapter 344b. The provisions of section 54-116 shall not apply to convictions under this section. (lass, P.A. 64T, § 11.)

. 499 Interiin Decision #1555 .. parently grew out of the fact that the respondent mil. tivited or grew marihuana plants found at the rear •Of a plant at which he was ap- parently emplOyed. The, spezial inquiry officer, in the belief that -there might be a question as to whether possession of marihuana can be said to have existed when the drug wee still in the plant form, preferred to sustain the lodged charge on the theory that it is min• cerned with the production of narcotic drugs and the cultivation of marihuana is a step in the production of marihuana. The lodged charge is clearly sustained (Matter of P—G--, 5 I. & N. Dee. 809). We need not pass on the charge in the order to show cause. Having found that the law violated is one for which conviction makes an alien deportable, we may now consider cotmsePs contention that respondent's conviction lacks finality. The conviction was not appealed within the time provided by law; however, after the period for timely appeal had passed, respondent filed a civil action (Decem- ber 51, Mt) to set aside the verdict and fora new trial. This action, was pending at the time of the deportation proceedings. Counsel contends that while the action seeking review is pending, thi3 con- viction lacks finality. The contention must be dismissed. Counsel failed to show that the right to appeal is revived or continued by the filing of the civil action or that the case continues under the con- trol of the trial court. The conviction has therefore achieved final- ity and can properly support a deportation -.charge (Matter of John- son, A-6012667, November 8, 1965, Int. Dec. No. 1528). ORDER: It is ordered that the appeal be and the same is hereby dismissed.