Interim Decision #2707 

MATTER OF FAVELA 

In Exclusion Proceedings 

A-13577232 

Decided by Board May 31, 1979 

(1) Where an applicant in exclusion prOceedings first entered the United States in 1963 as 

a lawful permanent resident at the age of four, and returned to Mexico with his parents 

two years later because the father bad decided not to live in the United States, the loss 

of permanent resident status could be imputed to the applicant as he was under the 

custody and control of his parents. Matter of Winkens, Interim Decision 2429 (BLA 

1975). 

(2) An alien convicted for entry of goods by false statements under the Federal Youth 

Corrections Act can still be excluded under section 212(a)(23) of the Act, 8 U.S.C. 

1182(a)(23), on evidence establishing that a Service officer had reason to believe that he 

was a trafficker in marihuana- 

(3) The provision in section 212(a)(23) respecting exclusion based on a Service official's 

belief that an alien has been a drug trafficker is distinct from that part of section 

212(a)(23) requiring a conviction, and exclusion or deportation proceedings brought 

under this part are not within the Service Operations Instruction requiring a deferment 

of deportation proceedings where there is a possibility an expungement certification will 

issue under the Federal Youth Corrections Act. 

(4) The Congressional intent behind the Federal Youth Corrections Act is not violated by 

bringing charges under section 212(a)(23) of the Immigration and Nationality Aet, 

which is one of several provisions in the Act disclosing a strong Congressional intent to 

combat marihuana trafficking by excluding traffickers, regardless of age. 

EXCLUDABLE: Act of 1952—Section 212(a)(20) U.S.C. 1182(n)(20)1--Immigrant 

without valid visa 

Section 212(a)(23) [8 U.S.C. 1182(a)(23))—Narcotics 

trafficker—marihuana 

ON BEHALF OF APPLICANT: Timothy S. Barker, Esquire 

Legal Aid Society of 

San Diego, Inc. 

1144 N. Euclid Avenue 

San Diego, California 92105 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated November 17, 1978, an immigration judge found 

the applicant excludable as charged and ordered him deported. The 

applicant appeals from this decision. The appeal will be diemseeed. 

The applicant is a 20-year-old native and citizen of Mexico. He was 

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Interim Decision #2707 

admitted into the United States as a lawful permanent resident on 

February 14, 1963, with his parents and brothers and sisters. He was 

about four years old at that time. He remained in the United States for 

approximately-two years, at the end of which time he returned to 

Mexico with his family, where he attended school. He returned to the 

United States with his father on several occasions following the family's 

departure from the United States. In 1975, the applicant returned to 

the United States and obtained employment in a restaurant in California for the net two years. On October 5, 1977, as he was attempting to 

enter the United States after a trip to Mexico, he was stopped at the 

port of entry at San Ysidro, and arrested. He subsequently was paroled 

into the United States to stand trial. On November 14, 1977, he was 

convicted of a, violation of 18 U.S.C. 542, entry of goods by means of 

false statements. On January 19, 1978, a Notice to Applicant For Admission Detained For Hearing Before Immigration Judge was issued, 

informing the applicant that he was detained for an exclusion hearing 

before an immigration judge because he appeared to the immigration 

officer to be excludable under sections 212(a)(9) and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9) and (20). A further notice 

was issued on October 13, 1978, informing the applicant of his apparent 

excludability under section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), 

as an illicit trafficker in marihuana. An exclusion hearing was held on 

February 9, 1078, October 27, 1978, and November 3, 1978. The immigration judge found that the applicant was excludable under both section 212(a)(20) and section 212(a)(23) of the Act. The basis of the first 

finding was that the applicant's father and Mother had both abandoned 

their lawful permanent resident status in 1965 or 1966, and that this 

abandonment was imputed to the applicant. The basis of the second 

finding was that the applicant had admitted his conscious participation 

in an attempt to smuggle a kilogram of marihuana into the United 

States. He also concluded that the 'fact that the applicant had been 

convicted under the Federal Youth Corrections Act did not foreclose a 

finding of excludability under section 212(a)(23) of the Act, as it pertained to traffickers, and that a conviction was not required to sustain a 

finding of excludability. 

The applicant on appeal simply contends that the immigration judge's 

decision was incorrect. 

After reviewing the record, we have concluded that the immigration 

judge correctly found that the applicant had abandoned his permanent 

resident status when he returned to Mexico with his parents. The 

testimony amply showed that the applicant's father had decided not to 

live in the United States, and that when he returned to Mexico he 

bought land there and was employed in Tijuana (Tr_ pp. 12, 13, .80). 

Matter of Sias, 11 I. & N. Dec. 171 (BIA 1965). 

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The record also shows that the applicant's mother abandoned her 

permanent resident status. The testimony established that although she 

had returned with her husband to Mexico, she made no attempt to 

return to the United States even after the husband had abandoned the 

family. This occurred in 1970, although the husband had been living 

with someone else in Tijuana for five years_ She testified that she could 

not return without documents, but apparently made no attempt to find 

the ones the family had, or obtain any, although she was in a border 

town (Tr. pp. 36-47). The immigration judge found her testimony to be 

implausible and not worthy of belief. As the trier of fact, his judgment in 

this regard cannot lightly be set aside. Vasquez-Mondragon v. INS, 560 

F.2d 1225, 1226 (5 Cir. 1977). We are satisfied that given both the 

mother's version of events and the immigration judge's evaluation of her 

testimony, that she did in fact abandon her permanent resident status. 

Since the parents' abandoment occurred when the applicant was about 

six years of age, and under their control and custody, this abandonment 

can be imputed to the applicant in turn. Matter of Winkerts, Interim 

Decision 2429 (BIA 1975). His testimony that he, when he was so young, 

intended to return and work in the United States is not credible. 

The second finding of excludability is grounded on a violation of 

section 212(a)(23) of the Act. The immigration judge concluded that the 

applicant was a trafficker in marihuana. We agree with , the immigration 

judge that the applicant was a conscious participant in an attempt to 

smuggle a kilogram of marihuana into the United Sties (Tr. pp. 53-57). 

The quantity was sufficient to find that the applicant was a trafficker, 

although he appears to have made a single attempt to smuggle 

marihuana into the United States. Matter of Rico, Interim Decision 2576 

(BIA 1977); Matter of P—, 5 I. & N. Dec. 190 (BIA 1953). 

We also do not agree with the applicant that this finding subverts the 

Congressional intent behind the Federal Youth Corrections Act. The 

theory behind the applicant's contention is basically that when a person 

is brought within this Act, not only the conviction but the underlying acts are incorporated into any possible expungement under 18 

U.S.C. 5021(b) and that such expungement destroys the conviction as a 

basis for deportation or exclusion. He contends that since this is the 

ease, the exclusion proceedings should have been deferred under Operations Instruction 242.1(a)(26) while the possibility of expungement still 

existed (Tr. pp. 49-50). This Operations Instruction states in part: 

When the district director determines that there is a probability that an expungement 

certification will be issued under the Federal Youth Corrections Act .... he shall, for 

the period during which the expungement certificate may be issued, defer institution of 

deportation proceedings based on the conviction for which expungement is being sought 

in Anticipation that the certification will issue. 

It is clear from this that if the conviction is the basis of the charge of 

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deportability, proceedings may be deferred. In this instance, the conviction, which was for violation of 18 U.S.C. 542, entry of goods by 

means of false statements, did not constitute the basis for the charge 

under section 212(a)(23) of the Act. This section classifies as excludable a 

person convicted of narcotics violations or ". . . any alien who the consular officer or immigration officers know or have reason to believe is or 

has been an illicit trafficker in any of the aforementioned drugs." It was 

under this latter provision that the applicant was found excludable. This 

provision by its clear terms is entirely distinct from the provision 

requiring conviction for deportability to be established. 

While the applicant has expressed the view that the enactment of the 

Federal Youth Corrections Act showed Congressional interest in not 

branding youthful offenders for life, it is equally apparent that Congress 

has shown a strong intent to combat marihuana and narcotics traffic and 

has imposed harsh sanctions in the immigration law against aliens 

convicted for, or believed to have been engaged in, this activity. Sections 

212(a)(23), (a)(11), 241(b), 244(a) and 244(e) of the Act. While this policy 

has been attacked as unduly harsh, it has been upheld in the deportation 

context as not without rational justification_ Guan Chow Tok v. INS, 

538 F.2d 36, 38 (2 Cir. 1976). Given the apparent purpose behind these 

provisions—which nowhere include provisions for different treatment 

depending on the age of the alien—this Board has held that even where 

a criminal complaint has subsequently been dismissed, an alien could be 

excluded under section 212(a)(23) of the Act as a trafficker when the 

immigration officer had reason to believe that the alien was a trafficker. 

Matter of Rico, supra. As we pointed out there, the criminal action 

against the applicant was a separate judicial matter and the administrative decision in an exclusion proceeding is predicated upon a review of 

the evidence of record and the application of the appropriate immigration law. 

We do not find the present situation substantially distinguishable. In 

Rico, supra, prosecution was dropped. In this case prosecution and 

conviction were had for an offense not necessarily including a finding of 

illicit trafficking in marihuana, but simply entering goods by false statements. We found that the lack of a conviction in Rico did not foreclose a 

finding that the alien was a trafficker, in keeping with the purpose of the 

immigration law sections dealing with the control of narcotics and 

marilipana. In this case, the conviction was for an offense not related to 

marihuana per se. To require the Service to forego proceedings because 

the conviction exists would be inconsistent with the purpose of the 

trafficking provision. We find that the trafficking provision of section 

212(a)(23) was meant to forestall any such result through its ploin 

language, although the consequences are severe. See Jay v. Boyd, 051 

U.S. 345, 357 (1956). 

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We consequently conclude that the applicant is excludable under 

section 212(a)(23) of the Act on the evidence presented in the record, as 

the immigration officer could reasonably believe that the applicant was 

an illicit trafficker in marihuana. Hamid v. INS, 538 F.2d 1389, 1391 (9 

Cir. 1976). The appeal will accordingly be dismiSsed. 

ORDER: The appeal is dismissed. 

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