Matter of Rico
| Decision Date | 15 April 1977 |
| Docket Number | A-21421850,Interim Decision #2576 |
| Parties | MATTER OF RICO In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Applicant was admitted to the United States for permanent residence September 26, 1966. He subsequently assumed commuter status and had commuted from his residence in Mexico to his employment in the United States for a period of two and one-half years prior to September 19, 1975, when he was stopped at the border driving a vehicle found to contain 162 pounds of marihuana. He was detained for an exclusion hearing under section 212(a)(23) of the Immigration and Nationality Act on the ground that he had attempted to smuggle 162 pounds of marihuana into the United States in violation of law. He was subsequently paroled into the United States pending criminal prosecution for violation of 21 U.S.C. 952(a) and 960(a)(1), and his exclusion hearing.
(2) Applicant is excludable under section 212(a)(23) of the Act notwithstanding the subsequent dismissal of the criminal complaint against him because section 212(a)(23) provides that an alien may be excluded if an immigration officer knows or has reason to believe the alien is or has been an illicit trafficker in drugs. Conviction of a particular offense or violation is not necessary to establish the ground of excludability under this section.
(3) One attempt at smuggling by applicant who was found to be a knowing and conscious participant in the attempt to smuggle marihuana into the United States is sufficient to render the applicant an illicit trafficker in drugs. By virtue of section 9 of the Act of September 14, 1960 (74 Stat. 504), if the immigration officer knows or has reason to believe the applicant is or has been an illicit trafficker in marihuana, the applicant is excludable under section 212(a)(23) of the Act.
This is an appeal from an order of the immigration judge, dated February 11, 1976, finding the applicant inadmissible under section 212(a)(23) of the Immigration and Nationality Act. The immigration judge ordered the applicant's exclusion and deportation from the United States. The appeal will be dismissed.
The applicant is a 26-year-old married male alien who is a native and citizen of Mexico. He was originally admitted to the United States for permanent residence on September 26, 1966. On September 19, 1975, the applicant applied for admission to the United States as a returning resident alien (commuter). The applicant was detained for an exclusion hearing on the ground that on September 19, 1975, he attempted to smuggle 162 pounds of marihuana into the United States in violation of law. On October 15, 1975, the applicant was served with an official notice (Form I-122) which informed him that he appeared to come within the exclusion provisions of section 212(a)(23) of the Act. He received three subsequent hearing notices dated October 17 and 30 and November 19, 1975. A copy of a Service Form I-94 (parole edition) is of record. That document shows that the applicant was paroled into the United States pending his criminal prosecution and exclusion hearing.
The first hearing was conducted by Immigration Judge Jay Segal on December 8, 1975. A continued hearing was conducted by Immigration Judge Reece B. Robertson on February 11, 1976. Upon reviewing the transcript of the second hearing, we are satisfied that the immigration judge complied with the procedural requirements of 8 C.F.R. 242.8(b) which pertain to the substitution of immigration judges. See Matter of Ponco, Interim Decision 2326 (BIA 1974).
The record reveals that the applicant is a permanent resident alien who commuted from his residence in Agua Prieta, Mexico, to his place of employment in Sierra Vista, Arizona, for a period of about two and one-half years prior to September 19, 1975. On that date, he attempted to enter the United States at the port of entry in Douglas, Arizona. He was stopped by a motor vehicle inspection team composed of Fred D. Powell, a United States Customs Inspector, and Arthur R. Waddell, a Border Patrol Agent. The applicant's vehicle, a 1965 Ford Ranchero, was inspected and was found to contain 77 bricks (162 pounds) of marihuana in concealed compartments. A subsequent laboratory analysis performed by the Drug Enforcement Administration laboratory in Dallas, Texas, confirmed that the bricks were marihuana. At the time of his apprehension, the applicant was in possession of an Alien Registration Receipt Card (Form I-151) and Commuter Status Card (Form I-178).
On September 19, 1975, the Border Patrol officials contacted the special agents of the Drug Enforcement Administration located in Douglas, Arizona, and advised them of the seizure of the marihuana in the possession of the applicant. Several special agents of the Drug Enforcement Administration investigated the seizure, took custody of the marihuana and the applicant, and transported the applicant to their office in Douglas for interrogation. The applicant was advised of his rights and was requested to make a statement concerning the marihuana that was found in his automobile. The applicant initially told the special agents that he did not know that the vehicle contained marihuana; that the vehicle that he drove to the border did not belong to him; that the vehicle was loaned to him by a person in Mexico that he only knew as "Chava"; that his own vehicle was damaged by Chava's vehicle in an accident in Mexico; that the person known as "Chava" lent him the 1965 Ford Ranchero so that he would be able to go to work while his own vehicle was being repaired; and that he was only in possession of the Ford Ranchero for one day.
At the hearing, a special agent of the Drug Enforcement Administration testified that during the applicant's interrogation he was advised by the special agents that they did not believe his explanation and that if he was lying they would not talk to him further. The special agent further testified that following their advice to the applicant, he told the special agents that he would tell the truth. In his second story, he told them that he was offered $200 to drive the Ford Ranchero from Mexico to a particular place in Douglas, Arizona; and that he knew something was in the truck, but did not know exactly what it was. The applicant offered to provide information concerning other persons who traffic in drugs in that border area. However, he stated to the special agents that he would not give them information concerning his arrangement to drive the Ford Ranchero across the border because he feared that such a revelation would jeopardize his life.
Another special agent of the Drug Enforcement Administration also testified that he was present during the interrogation when the applicant changed his story and revealed that he was offered $200 to drive the Ford Ranchero across the border. Border Patrol Agent Waddell and Customs Inspector Powell testified that they had observed the applicant crossing the border in a Ford Ranchero on a number of days prior to September 19, 1975, the date of the marihuana seizure.
The applicant testified at his hearing as to his innocent involvement in the attempted marihuana smuggling and maintained his initial position that the Ford Ranchero was lent to him following an automobile accident in which his own automobile was damaged. He denied changing his story during his interrogation by special agents of the Drug Enforcement Administration. Several witnesses, including his wife, testified in his behalf.
We note that on September 19, 1975, a criminal complaint was filed in the United States District Court for the District of Arizona alleging that the applicant imported 162 pounds of marihuana into the United States on September 19, 1975, in violation of 21 U.S.C. 952(a) and 960(a)(1). A copy of an Order for Dismissal issued by the same court on October 9, 1975, is of record. That document indicates that the criminal complaint against the applicant was dismissed. The reason for the dismissal is not shown in the record.
Section 212(a)(23) of the Act provides that an alien shall be ineligible for a visa and excluded from admission into the United States if he ". . . 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 applicant argues that he is not within that class of aliens who are excludable from the United States under the provisions of section 212(a)(23) of the Act. The pertinent part of this section is that part which provides:
. . . or any alien who the consular officer or immigration...
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