56130/973
Decided by the Board March 25, 1944.
Narcotic Violation — Drug Addict — Evidence.
In determining whether an alien is a narcotic addict, the matters to be ascertained are, how often he used the drug, how long he used it, and where he has ceased to use it, what were the circumstances of his giving it up.
CHARGE:
Warrant: Act of February 18, 1931, as amended — Convicted for violation of a narcotics statute (21 U.S.C. 174).
BEFORE THE BOARD
Discussion: The respondent is a native and citizen of China, 45 years old. He last entered the United States on December 1, 1921, at San Francisco, Calif., and was admitted as a returning merchant. He was first admitted to the United States in 1913 as the son of a merchant.
The respondent was sentenced to 6 months' imprisonment and a $100 fine on October 8, 1942, in the United States District Court for the Northern District of California for violation of section 174, 21 U.S.C., in that on or about August 9, 1942, he concealed and facilitated the concealment of opium preparations which he knew to have been unlawfully imported into the United States. Section 174 has been held to be a statute prohibiting or regulating the importation of opium within the purview of the act of February 18, 1931, making aliens convicted for such offenses subject to deportation Mow v. McGrath, 101 F. (2d) 982 (C.C.A. 9th, 1939).
The act of February 18, 1931, excepts from deportation for a conviction for a violation of a narcotics statute an alien who is "an addict who is not a dealer in or peddler of, any of the narcotic drugs mentioned in this act." Respondent testified that he has never been a dealer in or peddler of narcotics, and the record supports the Presiding Inspector's statement that there is no evidence to the contrary. The issue of the case, however, is whether or not the respondent is a drug addict. The Presiding Inspector finds that he is not and consequently, is subject to deportation. Respondent's attorney contends that the record establishes that the respondent is a drug addict and, therefore, is not subject to deportation. The Central Office of the Immigration and Naturalization Service recommends cancellation of the warrant of arrest on the ground that the respondent is a drug addict. The pertinent testimony on this issue has been quoted at length, both by the Presiding Inspector and respondent's attorney. Because the Presiding Inspector regarded respondent's statements at the preliminary investigation as different from those made at the hearing, the earlier statements were introduced in evidence in accordance with the provisions of section 150.6 (i), 8 C.F.R. In his preliminary statement made on October 18, 1942, respondent stated:
Q. Do you use narcotics habitually?
A. Yes, I have little.
Q. About how often do you use narcotics?
A. About once a day.
Q. In what form do you use narcotics?
A. Just only swallow him, or eat it.
Q. Is opium the only form of narcotics that you use?
A. Yes, opium is all I use.
Q. Are you an addict?
A. I'm not a real addict, but on account of sickness that I have to get by.
Q. What kind of sickness do you have?
A. My heart trouble.
Q. Are you under doctor's care for this heart trouble?
A. No, I haven't.
Q. Has any doctor ever prescribed narcotic drugs to you for the purpose of treating your heart trouble?
A. No, there is no prescription was issued to me, but when I was young in China the old timers told me it would steady my heart.
Q. Do you crave for narcotics?
A. No, I don't crave for it, if I haven't got it I can get by.
Q. You mean by that you use narcotics only as a form of pleasure and not necessarily because you have to have it in connection with any illness?
A. Yes.
Q. And I ask you again, are you an addict?
A. No.
Before discussing further the question of whether the respondent is or is not a drug addict, it might be well to consider the meaning of the word "addict." Webster's New International Dictionary (2d ed., unabridged) defines addict and addicted as follows:
Addict — One who is addicted to a habit, esp. the habit of taking some drug as opium, cocaine, etc.
Addicted — Syn. accustomed, habituated, inclined, prone, attached. Often used in a bad sense (as, addicted to wine, to stealing), refers to one who is given up or strongly disposed to some taste, practice, or pursuit.
As the definition of the word addict indicates, it is used most frequently to apply to one who has the drug habit. The next question is how frequently must one use the drugs in order for it to become a habit. No hard and fast arithmetical rule can be set up. How frequently a person must do something for it to be regarded as habitual depends on the nature of the act. For example, one might not be regarded as a habitual smoker who smoked one cigarette a day. Whether a person is a habitual drinker who was accustomed to taking one drink of an intoxicant daily is open to question. When it comes to taking of drugs, however, the use of opium daily would certainly seem to indicate that the person was "given up or strongly disposed" to the practice, that he had the drug habit.
One criterion of whether a person is a drug addict would seem to be the ease with which he can stop using the drug. Individuals differ in regard to mental and physical make-up, however, and where one person feeling a very strong desire for a drug could not resist it without medical assistance, another person whose desire for the drug was just as strong, might, by sheer exercise of will power, be able to break himself of the habit. The mere fact then that a person ceased to use a drug without medical treatment would not establish that he had not been an addict. In the present case, the respondent was arrested on the narcotic charge on August 10, 1942 and was released on bond the same day. He was again put in jail on October 8, 1942 and was confined until he served his 6 months' sentence. It is conceded that at no time during his incarceration did he request medical attention. Respondent testified, however, that he stopped using drugs when he was arrested in August 1942, and later when specifically asked, he stated that for about 20 days thereafter he did not "feel very good."
The Presiding Inspector has emphasized the difference between respondent's statement at the preliminary investigation and those made during the hearing. The inspector has cited a case where the court attached little weight to an alien's statement that he was a drug addict when he had stated earlier that he was not an addict ( Ow Tai Jung v. Haff, 89 F. (2d) 329 (C.C.A. 9th, 1937)). The inspector has quoted from an opinion of this Board wherein it was stated that where an alien's testimony at the hearing contradicted her earlier statements, weight should be given to the fact that the Presiding Inspector believed her earlier statements. The following are extracts from respondent's testimony at the hearing:
Q. Do you use narcotics?
A. Yes, use to use them.
Q. Can you tell me approximately when you commenced using narcotics?
A. More than ten years ago. I cannot remember exact dates.
Q. How often have you used narcotics since you first commenced using them?
A. I use it little every day.
Q. In what form did you use narcotics?
A. At first I smoke the opium, then I eat the opium.
Q. Is opium the only form of narcotics that you used?
A. Yes.
Q. How long has it been since you used narcotics?
A. Almost a year, I haven's used it since I was arrested.
* * * * * * *
Q. What was your purpose in using narcotics?
A. My heart is in trouble and don't feel right so I use opium.
Q. Were you ever under a doctor's care for this heart trouble?
A. No.
Q. Has any doctor ever prescribed narcotics to you for the purpose of treating your heart trouble?
A. No.
Q. Do you now, or did you ever crave for narcotics?
A. No, I'm not crave for opium, but on account of my sickness I have to use it.
Q. Were you ever a narcotic addict?
A. Yes, I do have the habit of using opium.
Q. You mean you do have the habit now, or you did have the habit in the past?
A. I did.
Q. When do you consider that you were last an addict?
A. Since the date of my last arrest on August 8, 1942.
Q. I ask you at this time did you ever crave for narcotics?
A. Only the time when I need it, necessary my feeling. Only the time when I need it it is necessary for my heart trouble.
Examination of respondent's testimony at the preliminary investigation and his testimony at the hearing just quoted reveals that, contrary to the contentions of the Presiding Inspector, one does not contradict the other. On both occasions respondent testified that he had been taking opium once a day. At the preliminary investigation he was not asked how long he had been doing this. At the hearing it developed that he had been taking it for about 10 years. On both occasions he sought to avoid saying that he craved the drug, seeking to explain that he took it because of a heart condition, about which he has apparently never consulted a physician. The Presiding Inspector has emphasized that at the preliminary investigation, respondent made "an unqualified admission" that he was not a drug addict. Whether or not respondent is an addict is a conclusion of fact which, even assuming he understood the interpreter, he is hardly qualified to make. Everyone knows that it is neither an exemplary nor enviable thing to be a drug addict. When a person seeks to avoid describing himself that way, that is not an admission. Generally the alien does not know that special leniency is provided for addicts, and he is naturally reluctant to call himself one. Later, it is true, counsel may advise him that something is to be gained by saying he is an addict so in either event his conclusion as to whether he is or is not an addict is of dubious probative value. The matters to be ascertained are, how often the person used the drug, how long he used it, and where he has ceased to use it, what were the circumstances of his giving it up. It is true that in the present case respondent appears to have stopped using the drug without medical assistance, but we believe that anyone who took opium once a day for 10 years was a drug addict.
It may be observed that the present case is different from the case of Ow Tai Jung v. Haff, supra, cited by the Presiding Inspector, in that there the alien first stated that taking the drug was "just like going to theater once in a while," and that once or twice a week he would get together with gamblers and "take a smoke." Later he claimed that he took the drug two or three times a day. The disparity between earlier and later statements is clear there. In the present case there is no such contradiction in respondent's testimony.
Considering all the evidence and the respective arguments of the Presiding Inspector and the respondent's attorney, we agree with the Central Office of the Immigration and Naturalization Service that the respondent was a drug addict.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native and citizen of China;
(2) That the respondent last entered the United States on December 1, 1921 at San Francisco, Calif.;
(3) That the respondent was convicted in federal court in California of concealing and facilitating the concealment of opium on or about August 9, 1942, in violation of section 174, 21 U.S.C.;
(4) That on or about August 9, 1942, the respondent was a drug addict.
(5) That the respondent has never been a dealer in or peddler of narcotics.Conclusion of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the act of February 18, 1931, as amended, the respondent is not subject to deportation on the ground that he was convicted for a violation of a law relating to traffic in narcotics.Order: It is directed that the warrant of arrest be cancelled and the proceedings closed.