Matter of Del Risco
| Decision Date | 25 May 1989 |
| Docket Number | A-27087870,Interim Decision Number 3119 |
| Citation | 20 I&N Dec. 109 |
| Parties | MATTER OF DEL RISCO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 22, 1985, an immigration judge terminated the respondent's deportation proceedings on the basis that he was not deportable under section 241 (a)(11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11) (1982). The Immigration and Naturalization Service appealed from that decision. Subsequent to the immigration judge's decision, the respondent was served with another Order to Show Cause and Notice of Hearing (Form I-221), charging him with deportability under sections 241(a)(2) and (9) of the Act. The immigration judge found the respondent deportable on these charges and denied his request for voluntary departure. The respondent has appealed from that decision. The Service appeal concerning the issue of deportability under section 241(a)(11) of the Act will be sustained. The respondent's appeal will be dismissed.
The respondent is a native and citizen of Colombia. At his hearing he admitted that he entered the United States on August 1, 1984, as a nonimmigrant visitor for pleasure and that he was authorized to remain in the United States until January 31, 1985. Therefore we find that deportability under section 241(a)(2) of the Act has been established by clear, unequivocal, and convincing evidence as required by 8 C.F.R. § 242.14(a) (1988) and Woodby v. INS, 385 U.S. 276 (1966). See Matter of Teberen, 15 I&N Dec. 689 (BIA 1976).
Section 241(a)(11) of the Act currently provides as follows:1
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who —
is, or hereafter at any time after entry has been, a narcotic drug addict, or 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 101 of the Controlled Substances Act (21 U.S.C. 802)). (Emphasis added.)
The amended statute significantly broadens the drug-related criminal activities which warrant the expulsion or deportation of an alien. See Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). The respondent admitted that he was convicted on April 9, 1985, in the Superior Court of Arizona of facilitation of the unlawful sale of cocaine. Section 13-1004.A of the Arizona Revised Statutes Annotated states as follows:
A person, other than a peace officer acting in his official capacity within the scope of his authority and in the line of duty, commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, such person knowingly provides such other person with means or opportunity for the commission of the offense and which in fact aids such person to commit the offense. (Emphasis added.)
We find that the offense of facilitation of the sale of cocaine is a crime which relates to a controlled substance. Although facilitation may not be a lesser included offense of selling cocaine, the respondent's actions, as defined by the Arizona statute, aided the commission of the crime. Therefore, we find the offense to be similar in nature to aiding and abetting. Aiding and abetting the sale of cocaine is a violation of a law relating to a controlled substance. See Londono-Gomez v. INS, 699 F.2d 475 (9th Cir. 1983). Further, the intent of the amendment of section 241(a)(11) was to expand the power of the Government to control drug use through the immigration laws. See Matter of Hernandez-Ponce, supra. Consequently, we find that the respondent is deportable under section 241(a)(11) of the Act. Accordingly, the Service appeal on this issue will be sustained. Since we find the respondent...
To continue reading
Request your trial