A-6059835 E-062136
Decided by the Board October 13, 1953
Narcotics — Conviction for acquisition of under 26 U.S.C. 2593 (a) — Deportability under section 241 (a) (11) of the Immigration and Nationality Act.
Conviction for violation of the Marihuana Tax Act of 1937 (26 U.S.C. 2593 (a)) based on a charge of acquisition as a transferee of marihuana without having paid the transfer tax imposed thereon by law is a conviction for a violation of a statute taxing such narcotics and consequently an alien so convicted is deportable under section 241 (a) (11) of the Immigration and Nationality Act. (Note: Matter of V----, 56073/670, 1 IN Dec. 160, and Matter of D---- S----, A-7645761, 3 ID Dec. 502, held that conviction under the Marihuana Tax Act as a transferee did not render an alien deportable under the act of February 18, 1931, as amended.) It now makes no difference that a conviction is based solely upon acquisition or possession so long as there is involved a violation of a statute taxing narcotic drugs.
CHARGE:
Warrant: Immigration and Nationality Act of 1952 — Narcotic conviction: Marihuana Tax Act (26 U.S.C. 2593 (a)).
BEFORE THE BOARD
Discussion: The case comes forward pursuant to certification under 8 C.F.R. 6.1 (c) of the order of the Assistant Commissioner dated June 22, 1953, finding the respondent deportable on the charge stated in the warrant of arrest.
The ground of deportability is predicated upon the respondent's convictions in the United States District Court of San Antonio, Tex., on November 25, 1946, and February 19, 1951, upon his plea of guilty, of violation of section 2593 (a), title 26 U.S.C. (Marihuana Tax Act of 1937). In the first case the respondent was charged with acquisition of 981 grains of marihuana without having paid the transfer tax imposed thereon by law; and in the second case was charged with acquisition of 185 grains of marihuana without having paid the transfer tax imposed thereon by law, the respondent being designated as a transferee in each case required by law to pay such tax. The respondent identified these records of conviction as relating to him. Previous consideration under the act approved February 18, 1931, as amended concerning possession or acquisition of narcotic drugs without paying transfer tax in violation of 26 U.S.C. 2593 (a), resulted in the observation that the 1931 deportation statute was directed at the seller, distributor, or transferer and not at the transferee of the narcotic drug and the conclusion was reached that such a person was not subject to deportation under the act of February 18, 1931, as amended. That statute provided as follows:
Sec. 21, act of June 28, 1940; 54 Stat. 673; 8 U.S.C. 156a.
Matter of V----, 56073/670, 1 IN Dec. 160; Matter of D---- S----, A-7645761, 3 IN Dec. 502.
That any alien (except an addict who is not a dealer in, or peddler of, any of the narcotic drugs mentioned in this act) who, after the enactment of this act, shall be convicted for a violation of or conspiracy to violate any statute of the United States or of any State, Territory, possession, or of the District of Columbia, taxing, prohibiting, or regulating 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, shall be taken into custody and deported in manner provided in sections 19 and 20 of the act of February 5, 1917, entitled "An act to regulate the immigration of aliens to, and the residence of aliens in, the United States."
However, the charge in the instant case is laid under section 241 (a) (11) of the Immigration and Nationality Act of 1952 which provides for the deportation of any alien who:
(11) 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 any law or regulation relating to the illicit traffic in narcotic drugs, or who has been convicted of a violation of 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;
A careful scrutiny and comparison of the provisions of the 1931 Narcotic Act and the narcotic section of the 1952 act discloses a significant difference in the wording of the two statutes. The 1931 act refers to a conviction for violation of any statute " taxing, prohibiting or regulating the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation or exportation" of narcotic drugs. Section 241 (a) (11) of the Immigration and Nationality Act of 1952 refers to a conviction of a violation of any law or regulation governing or controlling the " taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation" of narcotic drugs. A comparison of the underlined words set out from the portions of the respective acts makes it clear that an alien who has been convicted of a violation of a law or regulation governing or controlling the taxing of narcotic drugs comes within the proscription of the present act notwithstanding the fact that he obtained the narcotics for his own use. The change in language was designed to overcome objections to the previous law that persons who were convicted of possession only of large amounts of narcotics drugs were not subject to deportation even though a person convicted of the sale of a single marihuana cigarette was deportable.
S. Rept. 1515, Report of the Committee on the Judiciary pursuant to S. Res. 137 (81st Cong, 2d sess.) p. 410
It now makes no difference that a conviction is based solely upon acquisition or possession by transfer as long as there is involved a violation of a statute taxing narcotic drugs.
In the instant case respondent has been convicted of violation of the Marihuana Tax Act of 1937 (26 U.S.C. 2593 (a)), charging acquisition of marihuana without having paid the transfer tax imposed thereon by law. The respondent accordingly falls squarely within the prohibition of section 241 (a) (11) of the Immigration and Nationality Act rendering deportable one who has been convicted of violation of a statute taxing such narcotics. It is therefore concluded that the respondent is subject to deportation on the charge stated in the warrant of arrest.
Order: It is ordered that the appeal be and the same is hereby dismissed.