Interim Decision #2353 

MATTER OF MCDoNALD AND BREWSTER 

In Exclusion Proceedings 

A-13461595 

A-20655555 

Decided by Board March 13, 1975 

(1) Applicants who entered this country in possession of six marijuana cigarettes brought 

for personal use were not excludable under section 212(a)(23) of the Immigration and 

Nationality Act because there had been no conviction for illegal possession of marijuana 

and because the evidence did not sustain a finding of excludability on that basis. 

(2) Applicants were not excludable under section 212(a)(2'?) of the Act on the basis of the 

possession of the marijuana cigarettes because while the importation of the marijuana 

cigarettes may be prohibited by law, it is not an activity which is inimical to the internal 

security of the United States, and thus section 212(a)(2'7) is inapplicable. 

(3) Mitigated forfeiture pursuant to 19 U.S.C. 1595a and 21 U.S.C. 952 is a civil, not a 

criminal penalty and thus does not invoke the provisions of section 212(a)(23) of the Act. 

EXCLUDABLE: Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(a)(23)j—Illicit traffic in 

marijuana. 

Act of 1952—Section 212 (a)(27) [8 U. S,C. 1182(a)(27)3—An alien seeking to enter the United States to engage in activities 

prejudicial to the public interest or welfare, safety, or 

security of the United States (both applicants). 

ON BEHALF OF APPLICANTS: ON BEHALF Or SEnvrae• 

Pro se Adolph F. Angelilli 

Trial Attorney 

The female applicant appeals from the December 5, 1973 decision of 

the immigration judge finding her excludable under section 212(a)(27) of 

the Immigration and Nationality Act. The male applicant was found 

excludable by the same immigration judge on the same ground in a 

separate hearing on the same date but waived his right to appeal. The 

immigration judge certified his case to this Board for review pursuant to 

8 CFR 3.1(c). The appeal of the female applicant will be sustained, and 

the decision of the immigration judge in the case of the male applicant 

will be reversed. 

The two applicants are natives and citizens of Canada. The female 

applicant is a commuter, employed in Detroit, Michigan. On November 

203 
Interim Decision #2353 

30, 1973 the applicants attempted to enter the United States together 

by automobile just to spend the evening. They were held for secondary 

inspection, at which time the inspector found six marijuana cigarettes 

belonging •:o the male applicant in the possession of the female applicant. The male applicant paid $100 in mitigated forfeiture pursuant to 19 

U.S.C. §1595a(1965) 1 for violation of 21 MS_ §952 (1972), a provision 

prohibiting the importation of controlled substances, including 

marijuana. This was a civil sanction and not a criminal conviction. 2 

United States v. One (1) 1969 Buick Riviera. Automobile, 493 F.2d 553 

(C.A. 5, 1974). Both applicants were held in exclusion proceedings. 

Each applicant was originally charged under section 212(a)(23) of the 

Act on suspicion that he was or had been an illegal trafficker in 

marijuana. However, in each case the immigration judge concluded that 

the applicant was not excludable under that subsection of the statute, as 

there had I een no conviction, and the charge of illicit traffic in marijuana 

was not sustained by evidence of record. We agree with those conclusions. 

Each applicant was subsequently charged with being excludable 

under section 212(a)(27). That subsection provides for the exclusion of 

"[a]liens who the consular officer or the Attorney General knows or has 

reason to believe seek to enter the United States solely, principally, or 

incidentally to engage in activities which would be prejudicial to the 

public interest, or endanger the welfare, safety, or security of the 

United States." The immigration judge found them to be excludable 

under that subsection. We disagree. 

The Service position is that the language of subsection 212(a)(27) is 

very similar to that of 21 U.S.C. 801(2), in which Congress made the 

following fi nding and declaration: "The illegal importation, manufacture, 

distribution, and possession and improper use of controlled substances 

[marijuana among them] have a substantial and detrimental effect on 

the health and general welfare of the American people." Section 952 of 

Title 21, under which the male applicant was fined, makes 

reference to the subchapter in which the above declaration is contained_ 

We see a difference, between the "health and general welfare of the 

American people" 3 and the "welfare, safety, or security of the United 

States." ' The latter language, coming from the Immigration and Nationality Aet, refers not to the personal health and welfare of individuals or groups of persons but to the welfare and security of the United 

States. Tha Senate and House Committees which recommended the 

Tariff Act of 1930, as amended. 

The crimiial penalties for violation of 21 U.S.C. §952 (1972) are set forth in 21 U.S.C. 

§960(a) and (b) (1972). 

21 U.S.O. 801(2) 

4 Section 212(a)(27), Immigration and Nationality Act 

204 
Interim Decision #2353 

passage of the bill incorporating section 212(a)(27) considered that subsection as one relating to subversives. S. Rept. No. 1137, 82d Cong., 2d 

Sess. 10 (1952); H.R. Rept. No. 1365, 82d Cong., 2d Sess. (1952). We 

have previously stated that the language of this subsection is broad 

enough to apply to others than subversives, Matter of M—, 5 I. & N. 

Dec. 248, 253 (BIA 1953), but we have held that it is not meant to 

exclude pacifists, id. or aliens who have conspired with others in assisting other aliens to enter the United States unlawfully, Matter of Zamora, A-10550431, unreported (BIA March 11, 1958). 

In Zamora we stated that section 212(a)(27) was designed to exclude 

aliens who seek to enter solely, principally, or incidentally to engage in 

activities inimical to the internal security of the United States. We still 

hold that view. While the importation for personal use of several 

marijuana cigarettes may be prohibited by law, it is not an activity 

which is inimical to the internal security of the United States. 

The applicants were held in exclusion proceedings because several 

marijuana cigarettes had been found in their possession. The provision 

for excluding aliens on account of activity involving narcotics and 

marijuana is section 212(a)(23). The immigration judge correctly found 

that the possession of a few cigarettes for personal use did not bring the 

applicants within the subsection of the Immigration and Nationality 

Act. Under the circumstances of these cases section 212(a)(27) is inapposite. 

ORDER: The appeal of the female applicant is sustained and the 

decision of the immigration judge,in the case of the male applicant is 

reversed. 

205