Interim Decision #3119 

MATTER OF DEL RISCO 

In Deportation Proceedings 

A-27087870 

Decided by Board May 25, 1989 

A conviction in the Superior Court of Arizona for facilitation of the unlawful sale of 

cocaine renders an alien deportable under section 241(a)(I 1) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(11) (Supp. IV 1986), as an alien convicted of a 

violation of a law relating to a controlled substance. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Nonimmigrant—remained 

longer than permitted 

Sec. 241(a)(9) [8 U.S.C. § 1251(a)(9)]—Nonimmigrant—failed to 

comply with conditions of status 

Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)]—Convicted of narcotics 

violation 

ON BEHALF OF RESPONDENT: 

Peter E. Keller, Esquire 

Law Offices of Keller & Postero 

115 West Washington Street 

Tucson, Arizona 85701 

ON BEHALF OF SERVICE: 

John Holya 

General Attorney 

BY: Morris, Acting Chairman; Vacca, Board Member, Arrowsmith, Temporary Board 

Member 

In a decision dated October 22, 1985, an immigration judge 

terminated the respondent's deportation proceedings on the basis that 

he was not deportable under section 241(a)(11) of the Immigration and 

Nationality Act, 8 U.S.C. § 1251(a)(11) (1982). The Immigration and 

Naturalization Service appealed from that decision. Subsequent to the 

immigration judge's decision, the respondent was served with another 

Order to Show Cause and Notice of Hearing (Form I-221), charging 

him with deportability under sections 241(a)(2) and (9) of the Act. The 

immigration judge found the respondent deportable on these charges 

and denied his request for voluntary departure. The respondent has 

appealed from that decision. The Service appeal concerning the issue 

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of deportability under section 241(a)(11) of the Act will be sustained. 

The respondent's appeal will be dismissed. 

The respondent is a native and citizen of Colombia. At his hearing 

he admitted that he entered the United States on August 1, 1984, as a 

nonimmigrant visitor for pleasure and that he was authorized to 

remain in the United States until January 31, 1985. Therefore we find 

that deportability under section 241(a)(2) of the Act has been 

established by clear, unequivocal, and convincing evidence as required 

by 8 C.F.R. § 242.14(a) (1988) and Woodby v. INS, 385 U.S. 276 

(1966). See Matter of Teberen, 15 I&N Dec. 689 (BIA 1976). 

Section 241(a)(11) of the Act currently provides as follows:' 

Any alien in the United States (including an alien crewman) shall, upon the order of 

the Attorney General, be deported who— 

is, or hereafter at any time after entry has been, a narcotic drug addict, or 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 101 of the Controlled Substances Act (21 U.S.C. 

802)). (Emphasis added.) 

The amended statute significantly broadens the drug-related criminal activities which warrant the expulsion or deportation of an alien. 

See Matter of Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). The 

respondent admitted that he was convicted on April 9, 1985, in the 

Superior Court of Arizona of facilitation of the unlawful sale of 

cocaine. Section 13-1004.A of the Arizona Revised Statutes Annotated 

states as follows: 

A person, other than a peace officer acting in his official capacity within the scope 

of his authority and in the line of duty, commits facilitation if, acting with knowledge 

that another person is committing or intends to commit an offense, such person 

knowingly provides such other person with means or opportunity for the commission 

of the offense and which in fact aids such person to commit the offense. (Emphasis 

added.) 

We find that the offense of facilitation of the sale of cocaine is a 

crime which relates to a controlled substance. Although facilitation 

may not be a lesser included offense of selling cocaine, the respondent's actions, as defined by the Arizona statute, aided the commission 

of the crime. Therefore, we find the offense to be similar in nature to 

aiding and abetting. Aiding and abetting the sale of cocaine is a 

violation of a law relating to a controlled substance. See LondonoGomez v. INS, 699 F.2d 475 (9th Cir. 1983). Further, the intent of the 

amendment of section 241(a)(11) was to expand the power of the 

Government to control drug use through the immigration laws. See 

Subsequent to the immigration judge's decision, this section was amended by the 

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

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Matter of Hernandez-Ponce, supra. Consequently, we find that the 

respondent is deportable under section 241(a)(11) of the Act. Accordingly, the Service appeal on this issue will be sustained. Since we find 

the respondent deportable under sections 241(a)(2) and (11) of the Act, 

we need not determine whether he is also deportable under section 

241(a)(9) of the Act. 

The respondent also appeals from the denial of his request for 

voluntary departure. By the express terms of section 244(e) of the Act, 

8 U.S.C. § 1254(e) (1982), an alien deportable under section 

241(a)(11) of the Act is ineligible for voluntary departure unless he 

separately qualifies under the provisions of section 244(a)(2) of the 

Act, which in the case of criminal offenders requires, inter a[ia, that 

the alien have been physically present in this country for a continuous 

period of not less than 10 years following his conviction. See generally 

Matter of P-, 6 I&N Dec. 788 (BIA 1955). The 10-year period is 

measured from the date of conviction, as it is the conviction that 

renders the alien deportable. In the instant case, the record reflects that 

the respondent was convicted of facilitation of the sale of cocaine on 

April 9, 1985: Since 10 years from the date of the conviction 

constituting the ground of deportability have not yet elapsed, the 

respondent is not eligible for voluntary departure. 

Accordingly, the Service appeal concerning the issue of the respondent's deportability under section 241(a)(11) of the Act will be 

sustained. The respondent's appeal will be dismissed. 2 

ORDER: The Service appeal from the immigration judge's 

decision dated October 22, 1985, is sustained. 

FURTHER ORDER: The respondent's appeal is dismissed. 

2We note that the record of the deportation proceedings erroneously includes some of 

the documents pertaining to a Service appeal from the immigration judge's October 23, 

1985, decision ordering a bond in the amount of $10,000 to be reduced' to $2,000. The 

records and information pertaining to the bond, including the immigration judge's 

written memorandum giving reasons for the decision, have not been forwarded to the 

Board for adjudication of the bond appeal. Sec 8 C.F.R. § 242.2(c) (1988). Li view of 

the disposition of the appeals concerning the deportation proceedings, the bond matters 

in issue in 1985 may be moot. 

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