Interim Decision #1355 

MASTER OF FONG 

In DEPORTATION Proceedings 

A-314'7586 

Decided by Board July 16,1964 

An alien convicted in 1058 of violation Of section 855 of Title 35, Pardon's 

Pennsylvania Statutes, Annotated, for unlawful use of a drug as defined in 

section 851 thereof is deportable under section 241(a) (11), Immigration and 

Nationality Act, as amended, since every drug enumerated in section 851 is a 

narcotic drug or marijuana within the scope of section 241(a) (11) of the Act 

and a conviction for unlawful use is equivalent to a conviction relating to Illicit 

possession of a narcotic drug or marijuanaCHARGE : 

Order : Act of 1952—Section 241 (a) (11) [8 U.S.C. 1251(a) (11)1—Convicted of 

possession of narcotic drugs or marijuana. 

The case comes forward on appeal from the order of the special 

inquiry officer dated April 30, 1964, ordering the respondent deported 

to the Republic of China on Formosa on the charge contained in the 

order to show cause. 

The record relates to a native and citizen of China, 52 years old, 

male, single, who entered the United States at Seattle, Washington, 

on or about September 20, 1932. He was convicted on October 24, 

1958, in the Court of Quarter Sessions of the Peace of the County of 

Philadelphia, Pennsylvania, in violation of section 855 of Title 35, 

Purdon's Pennsylvania Statutes, Annotated, to wit: use of drugs as 

defined by sections 851 and 852 of Title 35, Purdon's Pennsylvania 

Statutes, Annotated. The respondent is charged with deportability 

under the second part of section 241(a) (11) of the Immigration and 

Nationality Act because of conviction of a violation of any law or 

regulation: relating to the illicit possession of narcotic drugs or marijuana, as defined by sections 851 and 852 of Title 35, Purdon's Pennsylvania Statutes, Annotated, in violation of section 855 of Title 35, 

P.S.A. 

Counsel for the respondent in his brief urges that inasmuch as the 

respondent was convicted of use of a certain drug in violation of the 

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aforementioned Pennsylvania Statutes, he could not be convicted of 

illicit possession of a narcotic drug or marijuana nor can he be charged 

with being deportable because of illicit possession of a narcotic drug 

or marijuana. It is believed that this contention of counsel has been 

disposed of in Natter of H— U—, 7 I. & N. Dec. 533. That case 

involved a conviction for violation of section 11721 of the Health and 

Safety Code of California which provided that no person shall unlawfully use narcotics. The Board held that a statute which punishes 

the unlawful use of narcotics is included within the scope of section 

241 (a) (11) of the Immigration and Nationality Act as a law "relating 

to" the illicit possession of narcotic drugs and that the quoted phraseology is broad enough to embrace illicit possession as an incident to a 

conviction for unlawful use. This construction was upheld in the 

unreported case of Bukaroff v. Rosenberg, No. 212-61-TC (S.D.Cal, 

C.D., April 17, 1961) in which: the court held that unlawful use necessarily presupposes illicit possession of narcotics and that the California, 

Statute involves a law relating to the illicit possession of narcotic 

drugs within the meaning of section 241(a) (11) of the Immigration 

and Nationality Act (8 TJ.S.C. 1251(a) (11 ) ) 

The indictment upon which respondent was convicted charged that 

on or about July 9, 1958, the respondent did feloniously use, take, 

administer and cause to be administered to his person a certain drug, 

contrary to the form of the Act of the General Assembly in such case 

made and provided. The statute, Title 35, Purdon's Pennsylvania 

Statutes, Annotated, section 855, which was then in effect, reads that 

no person shall use, take or administer to his person, or cause to be 

administered to his person, or administer to any other person, or cause 

to be administered to any other person any of the aforesaid drugs 

except under the advice and direction, and with the consent of a regularly practicing and duly licensed physician or dentist. It would 

appear that the Pennsylvania statute is similar to the California 

statute and that the illicit use of the described drug necessarily 

presupposes and includes illicit possession of proscribed drugs. 

The indictment upon which the respondent was convicted states 

that the word "drug" in each and every count of this indictment is 

used as defined by the Act of July 11,1917, P.L. 758, sec. 1, as amended 

by the Acts of April 20, 1921, P.L. 152, sec. 1; May 22, 1933, P.L. 905, 

sec. 1; April 12, 1945, P.L. 225, sec. 1; 1955, P.L. 849, sec. 1; 1956, 

P.L. (1955)—, No. 601, see. 1. The definition of the word "drug" 

referred to in the indictment, which was in effect when the respondent 

was convicted, is found in Title 35, Purdon's Pennsylvania Statutes, 

section 851, and reads as follows: 

Except as limited in section two of this let, the word "drug" as used in this 

act, shall be construed to include: (a) opium ; or (b) coca leaves; or (e) marl617 
Interim Decision #1355 

juana; (d) any compound or derivative of opium, coca leaves or marijuana ; or 

(e) any substance or preparation containing opium, coca leaves, or marijuana; 

or (f) any substance or preparation containing any compounds or derivative of 

opium, coca leaves, or marijuana and any substance identified chemically as 1- 

methyl-4-phenylpiperidine-1-carboxylic acid ethyl ester, or any salt or derivative 

thereof, by whatever trade names designated, or any preparation containing such 

substance or its salts or derivatives or any substance or preparation containing 

any drug found by the United States Secretary of the Treasury, after due notice 

and opportunity for public hearing, to have an addiction-forming or addictionsustaining liability similar to morphine or cocaine and proclaimed by the 

President to have been so found by the Secretary:- 

The indictment in this case did not name the drug used by the 

respondent but recited. that the indictment was for the illicit use of a 

drug as defined by the law as set out in 35 P.S.A. 851, referred to 

above. The record of conviction is binding and therefore each of the 

drags mentioned in the definition must be a. narcotic drug or marijuana as charged in section 241(a) (11) if the respondent is to be found 

deportable. 

Turning to the definition contained in 35 P.S. 351 the drugs listed 

in clauses (a) to (e) which include opium, coca leaves, marijuana, any 

compound or derivative thereof or any substance or preparation containing opium, coca leaves, or marijuana are clearly narcotic drugs 

as contemplated by the second part of section 241(a) (11) of the Immigration and Nationality Act, as amended. Marijuana was inserted 

into section 241(a) (11) by the Act of July 14, 1960 (74 Stat. 505) 

and was specifically inserted into the law to overcome the effect of the 

case of Hoy v. Meridow-Rivera, 267 F. 2d 451 (9th Cir., 1959), which 

held that mere possession of marijuana was not a ground for deportation under the second part of section 241(a) (11). Conviction of 

unlawful possession of marijuana in violation of law renders an alien 

deportable from the United States whether the conviction took place 

prior to the enactment of the amendment. 2Thus, the effect of the 

case of Hoy v. Mendoza-Rivera, which has been referred to by counsel 

in his brief, has been overcome by this amendment. 

The definition further specifies any substance identified chemically 

as 1-methyl-4-phenylpipmidine-4-carboxylic acid ethyl ester or any 

salt or derivative thereof, by whatever trade name designated or any 

preparation containing such substance or its salts or derivatives. 

This substance is otherwise known as isonipecaine and is specifically 

mentioned in the enumeration of narcotic drugs in the third part of 

section 241(a) (11). It is also defined by 26 U.S.C. 4731 (a) and (f), 

1 Section 2 is contained in section 852 of Title 35 and merely defines what is 

not included in the word "drug". 

`matter of Clardoe, Int. Dec. No. 1281 (1082), aff'd Gard** v. I. & 1U 2. 324 

F. 2d 179 (9th Cir., 1963).] 

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section 1(a), Narcotic Drugs Import and Export Act, as amended, 

and 21 U.S.C. 502(g) (20) as a narcotic drug. It must be concluded 

that isonipecaine is a narcotic drug as contemplated by the second 

section of section 241(a) (11) of the Immigration and Nationality 

Act. 

The last part of 35 P.S. 851 refers to any substance or preparation 

containing any drug found by the United States Secretary of the Treasury after due notice and opportunity for public hearing, to have an 

.addiction-forming or an addiction-sustaining liability similar to morphine or cocaine and proclaimed by the President to have been so 

found by the Secretary. It is noted that this part of the definition is 

similar to the definition of an opiate contained in 26 U.S.C.A. 4731(g) 

-which is listed among the definitions of narcotic drugs. The term 

"opiate" is further defined in 21 CFR 305.2 in similar language. It is 

concluded that the last part of 35 P.S. 851 refers to a narcotic drug. 

Since the conviction of the respondent was for violation of a statute 

proscribing the use of a drug which has been held to be equivalent to 

"relating to" possession of a drug and since every drug enumerated in 

the Pennsylvania law is found to be a narcotic drug or marijuana 

within the meaning of section 241(a) (11) of the Immigration and 

Nationality Act, as amended, the respondent is deportable on the 

charge contained in the order to show cause. In view of the nature of 

the conviction which occurred in 1958 and the ground of deportability, 

the respondent does not appear to be eligible for discretionary relief. 

The appeal will be dismissed. 

ORDER It is ordered that the appeal be and the same is hereby 

dismissed. 

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