Hamid v. U.S. Immigration and Naturalization Service, 75-1110

• Citation: 538 F.2d 1389
• Decision Date: 14 July 1976
• Docket Number: No. 75-1110,75-1110
• Parties: TARIQ HAMID, Petitioner, v. U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1389

538 F.2d 1389

TARIQ HAMID, Petitioner, v. U. S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 75-1110.

United States Court of Appeals Ninth Circuit.

July 14, 1976.

Rehearing Denied Aug. 16, 1976.

Donald L. Ungar, San Francisco, Cal., for petitioner.

George W. Masterton, Jr., Atty., Dept. of Justice, Washington, D.C. for respondent.

Before WRIGHT and SNEED, Circuit Judges, and LUCAS, District Judge. ^*

PER CURIAM:

Hamid appeals from an order of the Board of Immigration Appeals affirming the decision of an immigration judge who denied his application for adjustment of status to permanent resident and found that petitioner was excludable pursuant to 8 U.S.C. § 1182(a)(23). We affirm the order of the Board.

Petitioner, a citizen of Pakistan, initially entered the United States in 1956 as a student and remained until 1966 when he returned to Pakistan. In 1968 he reentered this country and shortly thereafter married an American citizen. Subsequently, he applied for an adjustment of status to permanent resident in light of his marriage. It is the denial of this application which petitioner appeals.

An alien seeking to adjust his status from non-immigrant to that of permanent resident is assimilated to the position of an applicant for entry. Campos v. I. N. S., 402 F.2d 758, 760 (9th Cir. 1968). Under the circumstances, the INS determined that the petitioner was excludable pursuant to the provisions of 8 U.S.C. § 1182 which reads in pertinent part:

(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(23) Any alien who 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 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, dispensing, giving away, importation, exportation, or 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, or any salt derivative or preparation of opium or coca leaves, or isonipecaine or any addiction-forming or addiction-sustaining opiate, or any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs;

The determination that the petitioner had been "an illicit trafficker" in drugs was based primarily on the statements of one Smith who had met petitioner in Pakistan during 1968. Smith, an employee at the American Embassy in Karachi, stated that the petitioner, upon learning that Smith was to return to the United States, asked him to transport a package containing what he said were cloth samples. Smith agreed. After his return and the arrival of his belongings, Smith noticed a strange smell emanating from the package. Becoming suspicious, he notified the police and the parcel was found to contain 3,700 grams of hashish. Smith identified a photograph of petitioner as the one who provided it.

Although petitioner was criminally charged as a result of these events, for reasons unknown he was never formally prosecuted. At petitioner's hearing before the...