Matter of Paulus

• Decision Date: 25 May 1965
• Docket Number: Interim Decision Number 1495,A-11773984
• Parties: MATTER OF PAULUS In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 274

MATTER OF PAULUS

In Deportation Proceedings

Interim Decision Number 1495

A-11773984

Board of Immigration Appeals

Decided by Board May 25, 1965

Where the record of conviction is silent as to the narcotic involved, an alien's conviction of violation of section 11503, Health and Safety Code of California, for selling and delivering a substance and material in lieu of a narcotic after having offered to sell and furnish a narcotic, does not constitute a ground of deportability under section 241(a) (11), Immigration and Nationality Act, as amended, since the conviction could have involved a substance 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) [8 U.S.C. 1251(a) (11) ]—Convicted of violation of any law governing or controlling the taxing, sale, etc., of narcotic drugs, to wit, section 11503, Health and Safety Code of California (1963).

Lodged: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11) ]—Convicted 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 from the order of the special inquiry officer terminating proceedings. 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 reasoned 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 convicted in a California state court on August 12, 1963 for violating section 11503 of the Health and Safety Code of California;¹ the 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 in the record of conviction to identify the narcotic which respondent offered to sell. The California law relates to a narcotic or marihuana violation rather than to larcenies or frauds (Haserot 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:

has been convicted of a violation of, * * * 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 conviction it is possible that the conviction involved a substance (such as peyote) which is a narcotic under California law but is not defined as 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 cannot be said for immigration purposes, that he has been convicted of a law relating to narcotic drugs.

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...