IN THE MATTER OF L---- G---- L----, 2 IN Dec. 473 (BIA 1946)
IN THE MATTER OF L---- G---- L----. In DEPORTATION Proceedings.
A-5057126.Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of Justice
Decided by Board February 21, 1946.
Narcotic Conviction — Ground of deportation — Act of February 18, 1931, as amended — Exception — Addict — Dealer — Evidence.
1. If, in execution of sentence after conviction for a narcotic violation, an alien is sent to a narcotic farm or hospital for treatment, in accordance with the provisions of the act of January 19, 1929, he must be deemed a drug addict at the time of such conviction, within the meaning of the act of February 18, 1931, as amended.
2. In determining whether such an alien is a "dealer" within the meaning of the act of February 18, 1931, as amended, where he denies any unauthorized sales of narcotic drugs, it is necessary to evaluate all the evidence of record as to whether he made such sales, and such evidence includes the pleas of guilty to particular indictments contained in the narcotic conviction record.
CHARGE:
Warrant: Act of Feb. 18, 1931, as amended. (Convicted of narcotic violation; Harrison Narcotic Act; Narcotic Drugs Import and Export Act.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: The respondent is a 49-year-old native and citizen of China, and of the Chinese race, who last entered the United States at Seattle, Wash., on April 28, 1924. In 1943, two indictments were returned against him in the United States District Court for the District of Columbia. Each of the indictments charged him with violations of those portions of the Harrison Narcotic Act found in 26 U.S.C. 2553 (a) and 2554, and also with the violation of the Narcotic Drugs Import and Export Act (21 U.S.C. 174). The respondent was represented by counsel at the trial on these indictments and on March 31, 1944, he pleaded guilty to each indictment. He was sentenced on each indictment to imprisonment for a period of 1 to 3 years and to pay a fine of 1 dollar. The sentences were to run concurrently. Apparently because the respondent was then deemed to be a drug addict, he was sent, instead of to a penal institution, to the United States Public Health Service Hospital at Lexington, Kentucky. He is still confined in that institution.
There is no question that the offenses of which the respondent was convicted fall within the scope of the act of February 18, 1931, as amended. The issues raised by this record are, (1) whether the respondent was an addict at the time of his conviction, and if so, (2)Page 474
whether he was then a "dealer" in or a "peddler" of narcotics as those terms are used in the 1931 act, supra. With respect to the first issue, the Presiding Inspector found that the respondent was not an addict, a finding with which the Commissioner disagreed in his memorandum of December 18, 1945. We shall first consider this issue.
At the hearing the respondent testified that he had used narcotic drugs since 1930, a fact which was corroborated to some extent by the report of the Federal Bureau of Investigation which showed that he had been arrested and convicted since 1930 on at least 15 occasions for violations of various narcotic laws. In addition, the Clinical Director of the United States Public Health Service Hospital at Lexington, Ky., wrote:
"The above-mentioned individual was admitted to this institution April 15, 1944, and a diagnosis of drug addiction was made. He became addicted to heroin in 1932, his last dose was August 1, 1943. During this period of time he was abstinent occasionally for periods of 60 days or less but always relapsed."
In determining whether the respondent was an addict within the meaning of the 1931 act, we may, as we have previously held, employ the definition of that term as set forth in section 1 (b) of the act of January 19, 1929 (45 Stat. 1085).[fn1] Matterof C---- B----, 56155/751 (September 14, 1945). This definition reads:
"The term `addict' means any person who habitually uses any habit-forming narcotic drug as defined in this act so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to this addiction."[fn2]
In the C---- B---- case we pointed out that sections 7 and 8 of the act of January 19, 1929 (the substance of which sections were reenacted in sections 341 and 343 of the Public Health Service Act (42 U.S.C. 257, 259)) provided that convicted addicts were to be confined in narcotic farms in order to receive treatment and care and that the prosecuting officers were under a duty to report to the proper officials the names of all persons convicted of offenses who were believed to be drug addicts. We there stated that if an alien convict had been sent, or hospital for treatment in execution of his sentence we would feel in accordance with the provisions of the 1929 act, to a narcotic farm bound to say that he was a drug addict within the meaning of the act of February 18, 1931, as amended. It is clear that the respondentPage 475
was so confined in this case. For that reason alone we now find him to have been an addict at the time of his conviction in 1944.[fn3]
The issue as to whether the respondent was a "dealer" in or "peddler" of drugs was apparently not considered by the Presiding Inspector because of his finding that the respondent was an addict. The Commissioner, however, in his decision resolved the matter against the respondent. In reaching his conclusion that the alien was a "dealer" (apparently no question was raised that he was not a peddler), the Commissioner relied upon the holding in Nicoli v. Briggs, 83 F. (2d) 375 (C.C.A. 9, 1940). In that case the court held that one unauthorized sale of a narcotic drug established the seller as a dealer within the meaning of the 1931 act. It is noted that in the Nicoli case the alien concerned admitted at the deportation hearing that he had violated the law by trafficking in narcotics. Accordingly, there was no need there to pass upon the credibility or the weight of evidence in regard to the factual question as to whether or not the alien had made any sale of narcotic drugs. Where there is evidence to indicate that the alien did not make an unauthorized sale, then it is the function and the duty of the fact-finding tribunal to evaluate all the record evidence, including such records of convictions as there might be, to determine whether such a sale was in fact made.
In the instant case the respondent emphatically denied that he had made any unauthorized sales of narcotic drugs. He claimed that the narcotics which had been found in his possession at the time of his last arrest were intended solely for his personal use. As against this, what might be deemed self-serving testimony, is the fact that the respondent pleaded guilty to the indictments some of whose counts charged in part that he: "unlawfully * * * did sell, barter, exchange, and give away", did * * * unlawfully * * * purchase, sell, dispense and distribute", and "did * * * unlawfully * * * receive, conceal, buy, sell and facilitate the transportation and concealment after importation" of certain drugs.
We believe that the respondent's conviction on his pleas of guilty to the particular indictments before us is entitled to a great deal of weight in determining whether he had in fact made a sale. He offered no explanation at the hearing as to why he pleaded guilty and submitted no corroboratory evidence in support of his self-serving testimony as to the circumstances surrounding his arrest. In the light of these omissions, we believe a finding that he was a dealer in narcotics is justified.Page 476
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 at Seattle, Wash., on April 28, 1924;
(3) That the respondent was convicted in the United States District Court for the District of Columbia of violating 26 U.S.C. 2553 (a) and 2554 and 21 U.S.C. 174, laws which relate to narcotics;
(4) That the respondent, after his convictions, was sent to the United States Public Health Service Hospital at Lexington, Ky., to receive treatment for drug addiction;
(5) That the respondent has used narcotic drugs since 1930;
(6) That the respondent has made unauthorized sales of narcotic drugs.
Conclusions 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 subject to deportation on the ground that on or after June 28, 1940, he has been convicted of the violation of a law relating to traffic in narcotics, to wit: 26 U.S.C. 2553 (a) and 2554 and 21 U.S.C. 174;
(2) That under section 20 of the Immigration Act of February 5, 1917, respondent is deportable to China at Government expense.
Order: It is ordered that the alien be deported to China at Government expense upon the charge contained in the warrant of arrest.
[fn1] This act was repealed by the act of July 1, 1944, but its provisions were in substance reenacted in the Public Health Service Act (42 U.S.C. 201-286) which constitutes titles I — V of the act of July 1, 1944.
[fn2] The substance of this definition now appears in sec. 2 (k) of the Public Health Service Act (42 U.S.C. 201 (k)).
[fn3] The other record evidence summarized above would also lead to the same conclusion on the ground that the respondent was a person "who habitually uses any habit-forming narcotic * * * so as to endanger the public morals. health, safety, or welfare." See Matter of C---- B----, supra.Page 477