Interim Decision #3226 

MATTER OF ESQUEDA 

In Deportation Proceedings 

A-28964484 

Decided by Board August 15, 1994 

(1) Section 241(a)(11) of the Immigration and. Nationality Act, 8 U.S.C. § 1251(a)(11) 

(1988), which provides for the deportability of any alien "convicted of a violation of 

... any law or regulation ... relating to a controlled substance," encompasses laws 

proscribing the use or being under the influence of a controlled substance. Matter of 

Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988), reaffirmed. 

(2) The element of guilty knowledge, or mens rea, is not irrelevant to a conviction 

pursuant to section 11550 of the California Health and Safety Code for use or being 

under the influence of a controlled substance. 

(3) Since the language of the exclusion and deportation grounds of the Act relating to 

drug cnnvictions was significantly broadened by the Anti-Drug Abuse Act of 1986, 

Pub. L. No. 99-570, 100 Stat. 3207, immigration consequences may now result from a 

conviction under a law relating to a controlled substance that contains no element of 

mens rea. Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), distinguished. Matter of Davis, 

16 I&N Dec. 748 (BIA 1979); Matter of Wolf; 16 I&N Dec. 125 (BIA 1977); and 

Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), vacated, 527 F.2d 187 (2d Cir. 1975), 

overruled. Matter of Poon, 17 I&N Dec. 350 (BIA 1980), affd, 707 F.2d 258 (6th Cir. 

1983); Matter of Pritchard, 16 I&N Dec. 340 (ETA 1977); Matter of Awadh, 15 I&N 

Dec_ 775 (131A 1976); and Matter of Pasquini, 15 I&N Dec. 683 (BIA 1976), affd, 557 

F.2d 536 (5th Cir. 1977), modified. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)j—Convicted of controlled 

substance violation 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

David Neumeister, Esquire Jane Thompson 

1351 Santa Monica Mall, Suite 301 Appellate Counsel 

Santa Monica, California 90401 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members. Concurring 

Opinion: Holmes, Alternate Board Member. 

In a decision dated April 7, 1989, the immigration judge found the 

respondent deportable under section 241(a)(11) of the Immigration 

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Interim Decision #3226 

and Nationality- Act, 8 U.S.C. § 1251(a)(11) (1988),' and ordered him 

deported from the United States. The respondent has appealed front 

that decision. -The appeal will be dismissed. 

The respondent is a 33-year-old native and citizen of Mexico who 

entered the United States in March 1988. The record reflects that he 

was convicted on October 25, 1988, in the Ventura County Municipal 

Court, State of California, of using and being under the influence of a 

controlled substance, namely opiates, cocaine, metharnphetamines, or 

a combination thereof, in violation of section 11550 of the California 

Health and Safety Code. 

At his deportation hearing, the respondent admitted that he was 

convicted of the crime of use and being under the influence of a 

controlled substance, but argued that his conviction did not subject 

him to deportation. The crux of his contention was that Congress did 

not intend to imclude convictions for use and being under the influence 

of drugs within the meaning of section 241(a)(11) of the Act when it 

revised that ground of deportability by the passage of the Anti-Drug 

Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. The 

immigration jmdge rejected the respondent's argument and found him 

deportable as charged. The respondent has reiterated his contentions 

on appeal. 

We note at the outset that the fact of the respondent's conviction, 

which supports his deportability in this case, has been established by 

clear, unequivocal, and convincing evidence. See Woodby v. INS, 385 

U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1994). Although the factual 

basis for the respondent's deportability is undisputed, the following 

legal issues must be addressed: (I) whether Congress intended to 

include the crimes of use and being under the influence of drugs as 

deportable offenses under section 241(a)(11) of the Act; (2) assuming 

that the decision in Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), is 

controlling precedent, whether the California law under which the 

respondent was convicted is a strict liability statute that requires no 

element of nuns rea for conviction and therefore falls within the ambit 

of Lennon; and (3) whether Lennon v. INS is applicable law in light of 

the subsequent revision of the statute and the language of the decision 

limiting it tio foreign convictions. 

I This section of the Act has been revised and redesignated as section 241(a)(2)(B) of 

the Act, 8 U.S.C. § 1251(a)(2)(13) (Sapp. V 1993), by section 602(a) of the Immigration 

Act of 1990, Pub. 1,. No. 101-649, 104 Stat. 4978, 5080, but that amendment does not 

apply to deportation proceedings for which notice has been provided to the alien before 

March 1. 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082. 

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Interim Decision #3226 

CONVICTION FOR USE OF DRUGS AS A DEPORTABLE 

OFFENSE 

Prior to the amendments of the Anti-Drug Abuse Act of 1986, 

section 241(a)(11) of the Act provided for the deportability of an alien 

who at any time 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, any salt derivative or preparation of opium or coca 

leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate. 

Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1982) (emphasis 

added). 

Interpreting that version of the law, we held in Matter of Sum, 13 

I&N Dec. 569 (BIA 1970), that an alien's conviction for use of a 

narcotic drug could not be equated with a conviction for unlawful 

possession of the drug so as to bring the alien within the "illicit 

possession" provisions of section 241(a)(11) of the Act, or the similar 

exclusion provisions of section 212(a)(23) of the Act, 8 U.S.C. 

§ 1182(a)(23) (1970). In reaching that conclusion, we followed Varga 

v. Rosenberg, 237 F. Supp. 282 (S.D. Cal. 1964), which rejected the 

position that use of a drug necessarily includes its possession, and we 

overruled our prior contrary decisions in Matter of Fong, 10 I&N Dec. 

616 (BIA 1964), and Matter of H--U-, 7 I&N Dec. 533 (BIA 1957), 

where we had held that the unlawful use of drugs presupposes their 

illicit possession. 

Following the passage of section 1751 of the Anti-Drug Abuse Act of 

1986, 100 Stat. at 3247-48, section 241(a)(11) of the Act was amended 

to provide for the deportability of an alien 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 102 of the Controlled Substances Act (21 U.S.C. 802)). 

Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1988). 2In light 

2 As we noted previously, section 241(a)(11) of the Act was revised and redesignated as 

section 241(a)(2)(B) of the Act by section 602(a) of the Immigration Act of 1990, 104 

Stat. at 5080. The current statute now provides as follows: 

CONTROLLED SUBSTANCES.— 

(i) CONVICTION.—Any alien who at any time after entry has been convicted of 

a violation of (or a conspiracy or attempt 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 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single 

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Interim Decision #3226 

of the changes to this section of the Act, we again addressed the 

question raised in Matter of Sum, supra, in our decision in Matter of 

Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). We noted that the 

revised language of the statute no longer contained any limitation 

regarding the kind of conviction within its scope. Concluding that it 

was now broad enough to include convictions for use and being under 

the influence of drugs, we determined that Matter of Sum had been 

superseded by the amendment to the Act. 

The respondent argues that our interpretation of the revised 

language of section 241(a)(11) of the Act is too broad. He asserts that 

the amendment was aimed at the problem of drug trafficking by aliens 

and did not envision the inclusion of convictions for use of drugs, 

which had not previously been grounds for deportability. According to 

the respondent, the intent of Congress was only to include "designer" 

drugs within the scope of the statute and to simplify it by eliminating 

the list of prohibited drugs, making reference to the Controlled 

Substances Act instead. Consonant with this position, the respondent 

contends that Varga v. Rosenberg, supra, which held that use of drugs 

was not a deportable offense, remains controlling law on this issue. 

Thus, he argues that Matter of Hernandez-Ponce, supra, should be 

overruled as too harsh an interpretation of the statute. We decline to 

alter the position taken in that case. 

We note first that it is well recognized that Congress has historically 

exhibited a strong national policy to deport aliens convicted of drug 

offenses from our country. See, e.g, Ayala-Chavez v. United States 

INS, 944 F.2d 638 (9th Cir. 1991); Mason v. Brooks, 862 F.2d 190 (9th 

Cir. 1988); Blackwood v. INS, 803 F.2d 1165 (11th Cir. 1986); Kolios v. 

INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884 (1976); Kelly v. 

INS, 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932 (1965); GarciaGonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840 

(1965); Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), affil, 989 F.2d 

1085 (9th Cir. 1993); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988); 

Matter of Favela, 161&N Dec. 753 (BIA 1979); Matter of A-F-, 8 I&N 

Dec. 429 (BIA, A.G. 1959). In recent years Congress has been active in 

passing legislation that even more clearly manifests its intention to 

limit the ability of drug offenders to remain in the United States. See, 

e.g., Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978; 

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181; see 

also Matter of K-, 20 I&N Dec. 418 (BIA 1991); Matter of U-M-, supra; 

offense involving possession for one's own use of 3t) grams or less of marijuana, is 

deportable. 

Section 241(a)(2)(B)(i) of the Act. Thus, in the current, revised version of statute, 

congress retained the phrase. "any law ... relating to a controlled substance." Id. 

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Interim Decision #3226 

Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Meza, 20 

I&N Dec. 257 (BIA 1991); Matter of Eden, 20 I&N Dec. 209 (BIA 

1990); Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). It is apparent 

from this legislation that Congress has intensified its interest in 

preventing drug offenders from avoiding deportation. 3Moreover, 

while passing laws more stringent to alien drug offenders subsequent to 

our decision in Matter offlernandez-Ponce, supra, Congress showed no 

disagreement with our position by including an exception for those 

convicted of use or being under the influence of controlled substances. 

This was so even though Congress did create an ameliorative provision 

by ma1dng an exception for those convicted of "a single offense 

involving possession for one's own use of 30 grams or less of 

marijuana."4Section 241(a)(2)(B) of the Act, S U.S.C. § 1251(a)(2)(B) 

(Supp. V 1993). 

In a recent case addressing the issue now before us, the United 

States Court of Appeals for the Ninth Circuit recognized an incongruity in the inclusion of this exception for a single conviction involving 

possession of a personal-use quantity of marijuana, but the omission of 

a similar exclusion for actual use of marijuana. Flores-Arellano v. INS, 

5 F.3d 360 (9th Cir. 1993). 5Nevertheless, the court determined that 

the plain language of the phrase "any law ... relating to a controlled 

substance" is unambiguous and that its ordinary meaning encompasses laws proscribing use or being under the influence of a controlled 

substance. Examining the legislative history of the Anti-Drug Abuse 

Act of 1986, the court found that it was inconclusive and lacked the 

clear indication of a contrary intention necessary to overcome the 

plain language of the statute. Furthermore, the court rejected the 

alien's reliance on Varga v. Rosenberg, supra, and Matter of Sum, 

supra. In so doing, the court distinguished the previous version of the 

3Thc legislative history of the Immigration Act of 1990 states that the provisions 

relating to criminal aliens were designed to assist the Service in the apprehension and 

deportation of such aliens. See H.R. Cod. Rep. No. 955, 101st Cong. 2d Sen. 132, 

reprinted in 1990 U.S.C.C.A.N. 6784, 6797. See also Statement by President George 

Bush upon signing 3.358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), reprinted in 

1990 U.S.C.c.A.N. 6801 -1 (stating that the Immigration Act of 1990 met several 

objectives of the Bush administration's war on drugs and violent crime). 

4Previously, this exception was available only by means of a discretionary waiver 

which required an eligible alien to be the spouse or child of a United. States citizen or a 

lawful permanent resident or to be the parent of such a child. Section 241(0(2) of the 

Act, 8 U.S.C. § 1251(0(2) (1988). 

5The court created a solution to this perceived paradox by fashioning its own 

exception for a single conviction of actual personal use of marijuana, finding it implicit 

in the statute. The court emphasized, however, that its interpretation would have no 

effect on aliens, such as the respondent, who have been convicted of use or being under 

the influence of controlled substances other than marijuana. 

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Interim Decision #3226 

statute interpreted by those cases, which limited deportability to 

convictions for drug trafficking and possession, from the current, 

broader language of the statute. We agree with this reasoning of the 

Ninth Circuit and reject the respondent's contention that Matter of 

Hernandez-Ponce, supra, should be overruled as contrary to the 

legislative history of the Anti-Drug Abuse Act of 1986 and Varga v. 

Rosenberg. 

MENS REA REQUIREMENT UNDER CALIFORNIA LAW 

Our analysis of the statute does not end here, however, because the 

respondent has also argued that Matter of Hernandez-Ponce, supra, is 

improper since it implicitly overrules Lennon v. INS, supra, as well as 

Matter of Wolf, 16 I&N Dec. 125 (BIA 1977), in which the Board 

adopted the Lennon decision. The aliens in those cases had been 

convicted of possession of marijuana under a British statute which was 

found to impose absolute liability. In Lennon, the Second Circuit 

determined that in light of the "deeply rooted requirement of 

knowledge and intent in our legal system," Congress did not intend to 

subject an alien "convicted under a foreign law that made guilty 

knowledge irrelevant" to the harsh immigration consequences of a 

drug conviction. Lennon v. INS, supra, at 193-94. We stated in Wolf 

that we would follow the court's interpretation of the statute in 

question, agreeing that a person's lack of knowledge that a prohibited 

substance was in his possession was irrelevant to the offense defined 

by the British law. The respondent asserts that section 11550 of the 

California Health and Safety Code, under which he was convicted, 

similarly requires no proof of guilty knowledge. Thus, he argues that 

the rationale stated in Lennon should apply to him. 

We have reviewed our decisions dealing with so-called "strict 

liability" statutes and conclude that they do not require us to overrule 

Matter ofHernandez-Ponce, supra, as the respondent urges. See Matter 

of Poon, 17 I&N Dec. 350 (BIA 1980), affd, 707 F.2d 258 (6th Cir. 

1983); Matter of Davis, 16 I&N Dec. 748 (BIA 1979); Matter of 

Pritchard, 161&N Dec. 340 (BIA 1977); Matter of Wolf, supra; Matter 

of wadh, 15 I&N Dec. 775 (BIA 1976); Matter of Pasquini, 15 I&N 

Dec. 683 (BIA 1976), air d, 557 F.2d 536 (5th Cir. 1977); Matter of 

Lennon, 15 I&N Dec. 9 (BIA 1974), vacated, 527 F.2d 187 (2d Cir. 

1975). We note that in all but one of these cases we found that either 

the statute or the case law interpreting it provided for some defense 

permitting the defendant to prove his lack of knowledge. We therefore 

concluded that the statute was not one of strict liability and did not fall 

within the ambit of the Second Circuit's holding in Lennon. Matter of 

Poon, supra (Hong Kong statute containing rebuttable presumption of 

knowledge); Matter of Pritchard, supra (British law revised to permit 

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Interim Decision #3226 

proof of lack of knowledge); Matter of Awadh, supra (Canadian case 

law interpreting scienter requirement); Matter of Pasquini, supra 

(Bahamian statute providing defense of lack of knowledge). Only in 

Matter of Davis, supra, did we find that strict liability existed where 

the alien's conviction for sale of hemp was obtained under a provision 

of the Australian Poisons Act that was devoid of any element of 

knowledge or mens rea. In the absence of any indication in the statute 

or case law of an available defense, we concluded that the Immigration 

and Naturalization Service had failed to establish deportability. 

The respondent in this case was convicted under section 11550(a) of 

the California Health and Safety Code. That statute provides in 

pertinent part as follows: 

No person shall use, or be under the influence of any controlled substance ... except 

when administered by or under the direction of a person licensed by the state to 

dispense, prescribe, or administer controlled substances. It shall be the burden of the 

defense to show that it comes within the exception. 

Cal. Health and Safety Code § 11550(a) (West 1993). 

The respondent has presented nu evidence indicating the intent of 

the California legislature, nor any interpretation by the state courts 

regarding the requirement of an element of mens rea in this statute. 

We note, however, that the California Penal Code contains the 

following provision: "In every crime or public offense there must exist 

a union, or joint operation of act and intent ... " Cal. Penal Code 

§ 20 (West 1993). 

Construing this statutory provision in People v. Gory, 170 P.2d 433 

(Cal. 1946), a case involving possession of drugs, the California 

Supreme Court stated the following: 

But this does not mean that a positive, willful intent to violate the law is an essential 

ingredient of every offense. Sometimes an act is expressly prohibited by statute, in 

which case the intentional doing of the act, regardless of good motive or ignorance of 

its criminal character, constitutes the offense denounced by law. Instances illustrating this principle may be found= in statutes enacted for the protection of public 

morals, public health, and the public peace and safety. If a specific intent is not made 

an ingredient of the statutory offense, it is not necessary to prove such specific intent 

in order to justify a conviction. 

Id. at 435 (citation omitted). The court went on to conclude that 

neither intent nor knowledge was a required element under the statute 

defining the offense of possession of drugs. Id. at 436. 

The decision in Gory was subsequently given conflicting interpretations by the lower appellate courts of California, however, some 

holding that knowledge of the presence of the substance alone was 

necessary for conviction, while others required proof that the defendant also knew the physical character of the article. See People v. 

Teller, 284 Cal. Rptr. 913 (Cal. Ct. App. 1991), for the historical 

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Interim Decision #3226 

development of the issue and citation of the relevant cases. This 

disagreement was settled by the Supreme Court of California in People 

v. Gorg, 291 P.2d 469 (Cal. 1955), where it quoted with approval but 

without explanation the following rule from two lower court cases: "In 

order to sustain a conviction of possession of narcotics it must be 

shown that the defendant had either physical or constructive possession, and that he was aware that the substance of which he had 

possession was a narcotic." Id. at 471 (quoting People v. Can diotto, 

275 P.2d 500 (Cal. Dist. Ct. App. 1954), and People v. Walker, 262 

P.2d 640 (Cal. Dist. Ct. App. 1953). The court finally clarified its 

position in People v. Winston, 293 P.2d 40 (Cal. 1956), stating that the 

requirement of knowledge of the nature of the substance possessed was 

"implicit in the discussion of the basic principles involved" in Gory. 

Id. at 45. Thus the court explained that while "specific intent to violate 

the law is immaterial to a conviction for the unlawful possession of a 

narcotic, knowledge of the object's narcotic character ... is required." 

Id. at 44. 

This knowledge requirement was subsequently extended to prosecutions for sale of controlled substances in People v. Daniels, 537 P.2d 

1232 (Cal. 1975). In that case the Supreme Court again found, as in 

Gory, that the statutory offense required only proof of a general 

criminal intent to commit the prohibited act and that no specific 

intent to violate the law was necessary for conviction. However, the 

court noted that the element of knowledge of the character of the 

substance sold had been judicially added as another prerequisite to 

conviction. See also People v. Gorg, supra (stating that awareness of the 

narcotic nature of a plant must be shown to sustain a conviction for 

cultivating marijuana); People v. Carrasco, 173 Cal. Rptr. 688 (Cal_ Ct. 

App. 1981) (requiring proof of the dual knowledge elements of 

presence and nature of the substance for conviction for possession of 

drugs in a penal institution). 

Thus, we find that the underlying presumption in California law 

that every crime contains an element of intent has been recognized 

through judicial interpretation as having applicability to drug offenses. 

By adding a knowledge requirement, the California courts have made 

evidence of an offender's guilty mind essential for a conviction in 

various contexts. Cf. Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 

1991) (noting that absent clear evidence of contrary legislative intent, 

criminal statutes are generally presumed to require the state to 

establish defendant's culpable state of mind); United States v. Singleton, 946 F.2d 23 (5th Cir. 1991) (stating that a presumption exists that 

statutes include an element of mental culpability), cert. denied, 502 

U.S. 1117, (1992). But cf. People v. Telfer, supra (requiring no proof of 

knowledge of the physical character of the substance being manufac0C1 
Interim Decision #3226 

Lured in prosecution for manufacture of a controlled substance due to 

the danger to the public health and safety and the remote likelihood 

that manufacture of the drug was innocent). 

Moreover, we note that in this case, as in others involving 

convictions under the California use statute, the complaint charges 

that the use of drugs was "willful." See, e.g., Sallas v. Municipal Court, 

150 Cal. Rptr. 543 (Cal. Ct. App. 1978); In re Becerra, 32 Cal. Rptr. 

910 (Cal. Dist. Ct. App. 1963). The word "willful" has generally been 

stated to mean that "a person acts knowingly with respect to the 

material elements of the offense, unless a purpose to impose further 

requirements appears." United States v. Hoyland, 914 F.2d 1125 (9th 

Cir. 1990) (quoting American Law Institute, Model Penal Code 

§ 2.02, p.249) (emphasis added); see also Hirsch v. INS, 308 F.2d 562, 

567 (9th Cir. 1962) (quoting Neely v. United States, 300 F.2d 67, 72 

(9th Cir.), cert. denied, 369 U.S. 864 (1962) (upholding a jury 

instruction that the word "willful" means that the act is done 

deliberately and with knowledge)); American Surety Co. v. Sullivan, 7 

F.2d 605, 606 (2d Cir. 1925) (defining "willful" as meaning that the 

person charged with the duty knows what he is doing). This inclusion 

of the term "willful" in the respondent's complaint reinforces our 

opinion that a person could not he convicted of use of drugs under 

California law in the absence of some finding of guilty knowledge on 

the part of the user. 

Finally, the offense defined by this statute, to "use, or be under the 

influence" of a controlled substance, itself implies an active and 

purposeful participation on the part of the offender. The definitions of 

the verb to "use" include the following: "to consume or take (as liquor 

or drugs) regularly"; "to carry out a purpose or action by means of'; 

"to put into service esp. to attain an end." Webster's New Collegiate 

Dictionary 1288 (1977). These terms suggest that use of a controlled 

substance inherently involves a conscious, voluntary act on the part of 

the user and, consequently a lack of innocence. 6 Cf. United States v. 

Freed, 401 U.S. 601, 609 (1971) (noting the obviousness of the fact 

that possession of handguns, which are as dangerous as narcotics, is 

not an innocent act). See generally United States v. Erne, 576 F.2d 212, 

6See generally Robinson v. California, 370 U.S. 660 (1962), where, due to the 

involuntary nature of addiction, the Supreme Court found unconstitutional as cruel and 

unusual punishment that part of the precursor statute to section 11550 which prohibited 

being addicted to the use of narcotics. In its decision, the Court distinguished penalizing 

a person under the California statute for an addiction, which could be contracted 

innocently or involuntarily, from imposing punishment under statutes prohibiting the 

use of drugs or their possession, sale, or purchase, or for antisocial or disorderly 

behavior resulting from their administration, acts which were apparently considered to 

be volitional. Id at 666-67. 

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Interim Decision #3226 

215 (9th Cir_ 1978) (stating that the court's concern about not 

requiring criminal intent for a conviction under the Internal Revenue 

Code was ameliorated by the fact that the crime could not be 

committed unknowingly); United States v. Delahoussaye, 573 F.2d 

910, 913 (5th Cir. 1978) (approving of a magistrate's imposition of a 

"should have known" standard of scienter). We note in this regard that 

the respondent has made no claim that he contested the allegations 

against him on grounds that his use of drugs was innocent or that he 

was placed under their influence involuntarily. 

On the basis of the following factors, we conclude that the 

respondent's conviction under the California statute prohibiting the 

use of controlled substances was not rendered without regard to his 

mental culpability: the nature of the crime of use of a controlled 

substance, the principle underlying the California penal laws that the 

element of intent is a prerequisite to crime, the California case law 

requiring guilty knowledge for a conviction for possession or sale of 

drugs, the fact that willfulness was alleged in this and other use cases, 

and the absence of any assertion by the respondent that his use of 

drugs was innocent or that he was placed under their influence 

involuntarily. We also note that the respondent has submitted no 

support for his premise that a person could be convicted of using or 

being under the influence of a controlled substance in California in 

circumstances where it was established that he or she was mistaken as 

to the nature of the drug or was tricked or forced into taking it7 

Having considered the above factors, we reject the respondent's 

assertions that guilty knowledge was irrelevant to his conviction under 

California law and that a finding of deportability would be in 

contradiction to Lennon v. INS, supra. Moreover, as we have 

previously pointed out, the Ninth Circuit recently reviewed a conviction under the same California statute at issue here and found the 

convicted alien deportable because the plain language of the deportation statute clearly "encompasses laws proscribing use or being under 

the influence of a controlled substance." Flores-Arellano v. INS, supra, 

7 In similar cases the criminal courts have found a requirement of mental culpability 

implicit in the statute or have allowed an affirmative defense to be made. Cf. State v. 

Cleppe, 96 P.2d 435 (Wash. 1981) (stating that an affirmative defense has been 

permitted for unwitting possession of drugs in order to ameliorate the harshness of the 

almost strict liability of the statute); Matter of Awadh, supra, and cases cited therein 

(describing Canadian cases in which lack of knowledge prevented conviction for 

possession of drugs despite strict liability of the statute). See generally Morissette v. 

United States, 342 U.S. 246, 25256 (1952) (noting the unanimity with which courts 

have adhered to the idea that wrongdoing must be conscious to be criminal and have 

found knowledge or intent implicit in statutes defining common-law offenses, but also 

recognizing that exceptions have been made for "public welfare offenses"). 

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Interim Decision #3226 

at 362. That court, whose law is controlling in this case, noted no 

exceptions. 

APPLICABILITY OF LENNON 

In light of the aforementioned changes in the immigration laws 

effected by the Anti -Drug Abuse Act of 1986, we now find it 

appropriate to question whether Lennon v. INS, supra, remains 

applicable to the current statute at all. In this regard we note that the 

immigration law reviewed by the Second Circuit in its 1975 opinion 

addressed violations of laws proscribing the "illicit" possession of 

drugs, a term which carries with it the connotation of an intentional 

violation.8In 1986, however, Congress eliminated the words "illicit 

possession" from the statute, broadening the language of the law to 

render deportable aliens convicted of violating "any law ... relating 

to a controlled substance." See sections 212(a)(23) and 241(a)(11) of 

the Act, 8 U.S.C. §§ 1182(a)(23), 241(a)(11) (1988). Consequently, 

there no longer exists any statutory limitation on the types of drug 

offenses which subject an alien to exclusion or deportation. We find 

nothing in the legislative history of the Anti-Drug Abuse Act of 1986 

to indicate that Congress meant to restrict its expansive language by 

allowing an exception to be made for statutes lacking a mens rea 

component. See Flores-Arellano v. INS, supra. See generally De Osorio 

v. United States INS, 10 F.3d 1034, 1043 (4th Cir. 1993) (relying on 

Congress' unquestionably restrictive intent to reject the argument that 

the principle of leniency to aliens should be applied in interpreting the 

statute regarding the availability of section 212(c) waivers). In fact, by 

progressively enacting more stringent immigration provisions relating 

to drug offenders, Congress has shown that it takes the matter of drug 

abuse and its concomitant crime in this country very seriously and that 

it has a diminishing tolerance for those aliens who violate statutes 

aimed at drug enforcement. In view of Congress' clear shift to enlarge 

the scope of the statute, we believe that the rationale of the Second 

Circuit's Lennon decision, which was based largely on an interpreta8The significance of the term "illicit" was emphasized in the Lennon decision by the 

Second Circuit, which noted that if the word merely meant "unlawful," it would be 

redundant. Lennon v. INS, supra, at 193 n.11. The fact that this restrictive language 

might be interpreted as limiting the scope of the exclusion ground to aliens convicted 

under statutes where guilty knowledge was required was also acknowledged by the Fifth 

Circuit in Pasguini v. United States INS, 557 F.2d 536, 539 (5th Cir. 1977). However, in 

that case the court specifically declined to decide whether to follow the Second Circuit's 

holding, finding it unnecessary because the Bahamian statute before it could not "be 

read so as to render intent or knowledge irrelevant in a prosecution for possession of 

marijuana." Id. 

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Interim Decision #3226 

tion of the congressional intent underlying a version of the statute that 

is no longer in effect, has been severely undermined. ' 

We acknowledge that the Second Circuit's perception of the intent 

of Congress resulted in. part from its reliance on the following 

statement made by the Board in Matter of Lennon, supra: "Mt is fair 

to state that in enacting section 212(a)(23), Congress did not intend to 

exclude persons who were entirely unaware that a prohibited substance 

was in their possession?' Id. at 18. We reached this conclusion based 

solely on the fact that elements of knowledge or intent had been 

included in statutes prohibiting the possession of drugs under both 

federal law and the law of the District of Columbia. However, we note 

that a number of state statutes currently in force in this country that 

prohibit the use or possession of drugs do not specifically include any 

element of mental culpability for conviction. 9Thus, although, as the 

Second Circuit observed, the concept of mens rea is a basic tenet of 

our system of criminal jurisprudence, it is not without limitations. See 

United States v. Freed, supra, at 607 (1971); Morissette v. United 

States, 342 U.S. 246, 250-52 (1952); United States v. Hoyland, supra, 

at 1129; United States v. Erne, supra, at 214; Lennon v. INS, supra, at 

193; see also Anthony A. Cuomo, Mens Rea and Status Criminality, 40 

S. Cal. L. Rev. 463, 473-74 (1967). The courts have recognized that 

"the authority of the State in the exercise of its police power to regulate 

the administration, sale, prescription and use of dangerous and habitforming drugs" is unquestioned. Minnesota ex reL Whipple v. Martinson, 256 U.S. 41, 45 (1921) (emphasis added); see also Robinson v. 

California, 370 U.S. 660, 664 (1962). Consequently, exceptions to the 

general requirement of guilty knowledge in criminal statutes have been 

carved out to permit the passage of laws to protect the public health, 

safety, and welfare, particularly in the area of drug enforcement. See 

United States v. Dotterweich, 320 U.S. 277 (1943); United States v. 

Behrman, 258 U.S. 280 (1922); United States v. Balint, 258 U.S. 250 

(1922); see also United States v. Freed, supra, at 607, 609; Morissette v. 

United States, supra, at 250-60; United States v. Hoyland, supra, at 

1128; Stepniewski v. Gagnon, 732 F.2d 567, 571 (7th Cit.. 1984). 

Therefore, the concept of applying absolute liability in cases involving 

9Several state statutes which, on their face, have no mens rea requirement include the 

following Section 11.71.060(a)(1) of the Alaska Statutes (use or display); section 11350 

of the California Health and Safety Code (possession); section 18-18-404(1) of the 

Colorado Revised Statutes (use); section 333.7404(1) of the Michigan Compiled Laws 

(use); section 213-417(g) of the Nebraska Revised Statutes (under the influence); section 

2C:35-10(b) of the New Jersey Statutes (use and under the influence); section 2-405(A) 

of the Oklahoma Statutes (use); and section 69.50.401(d) of the Revised Code of 

Washington (possession). 

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drug violations is not foreign to our system of criminal justice. See, 

e.g., United States v. Behrman, supra; United States v. Balint, supra. 

In this regard we note the Second Circuit's questionable comment 

that a person convicted under the British law at issue would be "quite 

innocent under our system of criminal justice." Lennon v. INS, supra, 

at 194 n.16. The court further stated that its holding would "not, of 

course, give any comfort to those convicted in the United States of 

drug violations." Id at 194. Thus, the ruling in Lennon was 

specifically limited to convictions under foreign statutes and does not 

constrain us in this case. 

Inasmuch as the immigration laws that were the basis for the 

Second Circuit's interpretation in Lennon have been changed to 

significantly broaden the scope of the statute regarding drug violations, 

we conclude that Lennon v. INS no longer remains controlling law. 

Furthermore, since the court's ruling was specifically limited to 

convictions under foreign laws, we find that the Lennon decision is, in 

any case, inapplicable in cases such as that now before us, where the 

alien was convicted in this country under the laws of the United States. 

In light of the foregoing conclusions, the validity of our own 

decision in Matter of Lennon, supra, must also be reexamined. As we 

noted in our previous discussion, Congress has intensified its efforts to 

prevent drug offenders from avoiding deportation by passing increasingly more stringent laws in the 20 years since Matter of Lennon was 

written. By using the inclusive words, "any law or regulation ... 

relating to a controlled substance," Congress has exhibited its intent to 

expand the reach of the exclusion and deportation grounds to all drug 

offenders, setting virtually no limits beyond the exception provided for 

those convicted of a single possession offense involving 30 grams or 

less of marijuana. See Flores-Arellano v. INS, supra. Inasmuch as the 

statute underlying our decision in Matter of ennon has been amended 

to include this comprehensive language, we no longer consider the 

basic premise for our conclusion regarding congressional intent in that 

case to be tenable. Accordingly, we now find it appropriate to overrule 

Matter of Lennon_ In addition, Matter of Wog supra, and Matter of 

Davis, supra, which followed Matter of Lennon, must be overruled as 

well. Finally, we also withdraw from Matter of Poon, supra, Matter of 

Pritchard, supra, Matter of ifwadlz, supra, and Matter of Pasquini, 

supra, to the extent they indicate that aliens convicted under a statute 

without any element of scienter are not subject to exclusion or 

deportation. 

Inasmuch as we reject the respondent's contention on appeal that 

his conviction does not render him deportable, the appeal will be 

dismissed. 

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ORDER: The appeal is dismissed. 

CONCURRING OPINION: David B. Holmes, Alternate Board 

Member 

I respectfully concur. 

I concur in the finding that Congress intended to include the crimes 

of use and being under the influence of drugs as deportable offenses 

under section 241(a)(11) of the Immigration and Nationality Act, 8 

U.S.0 § 1251(a)(11) (1988). I also agree that, even if one assumes that 

Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), is controlling precedent, 

the California law under which this respondent was convicted does not 

fall within the ambit of Lennon. This being the case, I do not find it 

necessary and would not reexamine on this record the validity of 

Lennon v. INS, supra, and its progeny.