Matter of Esqueda
| Decision Date | 15 August 1994 |
| Docket Number | A-28964484.,Interim Decision Number 3226 |
| Citation | 20 I&N Dec. 850 |
| Parties | MATTER OF ESQUEDA. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated April 7, 1989, the immigration judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1988),1 and ordered him deported from the United States. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a 33-year-old native and citizen of Mexico who entered the United States in March 1988. The record reflects that he was convicted on October 25, 1988, in the Ventura County Municipal Court, State of California, of using and being under the influence of a controlled substance, namely opiates, cocaine, methamphetamines, or a combination thereof, in violation of section 11550 of the California Health and Safety Code.
At his deportation hearing, the respondent admitted that he was convicted of the crime of use and being under the influence of a controlled substance, but argued that his conviction did not subject him to deportation. The crux of his contention was that Congress did not intend to include convictions for use and being under the influence of drugs within the meaning of section 241(a)(11) of the Act when it revised that ground of deportability by the passage of the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. The immigration judge rejected the respondent's argument and found him deportable as charged. The respondent has reiterated his contentions on appeal.
We note at the outset that the fact of the respondent's conviction, which supports his deportability in this case, has been established by clear, unequivocal, and convincing evidence. See Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1994). Although the factual basis for the respondent's deportability is undisputed, the following legal issues must be addressed: (1) whether Congress intended to include the crimes of use and being under the influence of drugs as deportable offenses under section 241(a)(11) of the Act; (2) assuming that the decision in Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), is controlling precedent, whether the California law under which the respondent was convicted is a strict liability statute that requires no element of mens rea for conviction and therefore falls within the ambit of Lennon; and (3) whether Lennon v. INS is applicable law in light of the subsequent revision of the statute and the language of the decision limiting it to foreign convictions.
CONVICTION FOR USE OF DRUGS AS A DEPORTABLE OFFENSE
Prior to the amendments of the Anti-Drug Abuse Act of 1986, section 241(a)(11) of the Act provided for the deportability of an alien 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 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, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.
Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1982) (emphasis added).
Interpreting that version of the law, we held in Matter of Sum, 13 I&N Dec. 569 (BIA 1970), that an alien's conviction for use of a narcotic drug could not be equated with a conviction for unlawful possession of the drug so as to bring the alien within the "illicit possession" provisions of section 241(a)(11) of the Act, or the similar exclusion provisions of section 212(a)(23) of the Act, 8 U.S.C. § 1182(a)(23) (1970). In reaching that conclusion, we followed Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Cal. 1964), which rejected the position that use of a drug necessarily includes its possession, and we overruled our prior contrary decisions in Matter of Fong, 10 I&N Dec. 616 (BIA 1964), and Matter of H---- U----, 7 I&N Dec. 533 (BIA 1957), where we had held that the unlawful use of drugs presupposes their illicit possession.
Following the passage of section 1751 of the Anti-Drug Abuse Act of 1986, 100 Stat. at 3247-48, section 241(a)(11) of the Act was amended to provide for the deportability of an alien 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 controlled 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) (1988).2 In light of the changes to this section of the Act, we again addressed the question raised in Matter of Sum, supra, in our decision in Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). We noted that the revised language of the statute no longer contained any limitation regarding the kind of conviction within its scope. Concluding that it was now broad enough to include convictions for use and being under the influence of drugs, we determined that Matter of Sum had been superseded by the amendment to the Act.
The respondent argues that our interpretation of the revised language of section 241(a)(11) of the Act is too broad. He asserts that the amendment was aimed at the problem of drug trafficking by aliens and did not envision the inclusion of convictions for use of drugs, which had not previously been grounds for deportability. According to the respondent, the intent of Congress was only to include "designer" drugs within the scope of the statute and to simplify it by eliminating the list of prohibited drugs, making reference to the Controlled Substances Act instead. Consonant with this position, the respondent contends that Varga v. Rosenberg, supra, which held that use of drugs was not a deportable offense, remains controlling law on this issue. Thus, he argues that Matter of Hernandez-Ponce, supra, should be overruled as too harsh an interpretation of the statute. We decline to alter the position taken in that case.
We note first that it is well recognized that Congress has historically exhibited a strong national policy to deport aliens convicted of drug offenses from our country. See, e.g., Ayala-Chavez v. United States INS, 944 F.2d 638 (9th Cir. 1991); Mason v. Brooks, 862 F.2d 190 (9th Cir. 1988); Blackwood v. INS, 803 F.2d 1165 (11th Cir. 1986); Kolios v. INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884 (1976); Kelly v. INS, 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932 (1965); Garcia-Gonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840 (1965); Matter of U---- M----, 20 I&N Dec. 327 (BIA 1991), aff'd, 989 F.2d 1085 (9th Cir. 1993); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988); Matter of Favela, 16 I&N Dec. 753 (BIA 1979); Matter of A---- F----, 8 I&N Dec. 429 (BIA, A.G. 1959). In recent years Congress has been active in passing legislation that even more clearly manifests its intention to limit the ability of drug offenders to remain in the United States. See, e.g., Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978; Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181; see also Matter of K----, 20 I&N Dec. 418 (BIA 1991); Matter of U---- M----, supra; Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Meza, 20 I&N Dec. 257 (BIA 1991); Matter of Eden, 20 I&N Dec. 209 (BIA 1990); Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). It is apparent from this legislation that Congress has intensified its interest in preventing drug offenders from avoiding deportation.3 Moreover, while passing laws more stringent to alien drug offenders subsequent to our decision in Matter of...
To continue reading
Request your trial