Interim Decision #2706 

MATTER OF DAVIS 

In Deportation Proceedings 

.A.-20489522 

Decided by Board May 31, 1979 

(1) For a marihuana conviction to fall within section 241(a)(11) of the Immigration and 

Nationality Act, 8 U.S.C. 1251(a)(11), the conviction must be for illicit possession or 

sale, and a conviction under a statute imposing strict liability for sale of marihuana is not 

sufficient. Lennon v. INS, 527 F.2d 187 (2 Cir. 1975). 

(2) Where a statute by its terms does not provide for a defense based on lack of guilty 

knowledge, and no judicial interpretations are offered showing that the statute has been 

interpreted to require guilty knowledge, the Service has not established illicit sale 

within section 741(a)(11) of the Art Matter of Posquiri, Interim Decision 2496 ($1A 

1976); Matter of Awadh, Interim Decision 2519 (BIA 1976), distinguished. 

(8) The Service's contention that Lennon v. INS, 527 F.2d 187 (2 Cir. 1975), which involved 

possession of marihuana, is distinguishable from a case involving the sale of marihuana, is 

rejected, became under section 21(I)(a) of the Poieene Act of Australia, the result would 

be the same in that conviction may be had for the sale of marihuana regardless of guilty 

knowledge. 

(4) Section 21(1)(a) of the Poisons Act of Australia, Act Number 31 of 1966, imposes strict 

liability for the sale of prepared opium or Indian hemp, and conviction under this section 

does not result in a conviction for illicit sale under section 241(a)(11) of the Act. 

Charge: 

Orden Act of 1952—Section 241(a)(12) [8 U.S.C. 1251(a)(11))—Convicted of violation of 

law or regulation relating to illicit traffic in marihuana 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Ronald H. Bonaparte, Esquire George W. Masterton 

3600 Wilshire Boulevard Appellate Trial Attorney 

Los Angeles, California 90010 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Momb.erg 

In a decision dated November 23, 1976, an immigration judge found 

the respondent deportable as charged, denied his application for voluntary departure, and ordered him deported. The respondent appeals frctro 

this decision. The appeal will be sustained. 

The respondent is a 82-year-old native and citizen of Australia. I-3e 

last entered the United States on June 16, 1973, as a visitor for pleasur -e, 

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Interim Decision #2706 

authorized to remain for six months. On November 7, 1974, an Order to 

Show Cause was issued charging him with deportability under section 

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

one convicted of a violation of a law relating to illicit traffic in marihuana 

This charge was based on a conviction on November 14, 1969, in New 

South Wales, Australia, under The Poisons Act of Australia, Act 

Number 31 of 1966, Section 21(1)(a), involving the sale of Indian hemp. 

A deportation hearing was held on March 14, 1975, and June 2, 1976, 

before an immigration judge. The respondent was represented by counsel. The immigration judge found that the respondent had been convicted for the sale of Indian hemp, which he found to be marihuana 

within the meaning of section 241(a)(11) of the Act. The respondent's 

contentions that Indian hemp was not marihuana and that he had been 

convicted under a statute which imposed strict liability, in violation of 

the holding of Lennon. v. INS, 527 F .2d 187 (2 Cir. 1975), were rejected. 

He also denied the respondent's application for voluntary departure 

under section 244(e) of the Act on the ground that a finding of good 

moral character was statutorily barred under section 101(f)(3) of the 

Act_ 

On appeal, the respondent raises the same points that he raised at the 

deportation hearing: that he was not convicted for a marihuana law 

violation and that the statute under which he was convicted imposes 

strict liability. 

After reviewing the record, briefs submitted, and points raised at oral 

argument before the Board, we have concluded that the respondent is 

not deportable under section 241(a)(11) of the Act. Our conclusion follows from the finding that Section 21(1)(a) of the Poisons Act of Australia, under which the respondent was convicted, does not by its 

terms require knowledge as an element for conviction. Section 21(1)(a) 

states: 

(1) If any person— 

(a) manufactures, sells, or otherwise deals in prepared opium or Indian hemp; 

he shall be guilty of an offense against this Division. 

By its clear terms, the provision is singularly devoid of any element of 

knowledge or mens rea. By contrast, Sections 21(1)(c) and (d) of the 

Poisons Act state in part that if any person: 

(e) being the occupier of any premises permits those premises to be used for the impose 

of the preparation of opium or Indian hemp; .. . 

[or] 

(d) being the owner or lessee of any premises knowingly permits . . . (Emphasis 

supplied.) 

he Is guilty of an offense under that division. These provisions contain an 

element of knowledge, implicit or express. This indicates that innocent 

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Interim Decision #2706 

ownership or occupation of a building would not result in a finding of 

guilt under these provisions. 

Other sections of the Poisons Act, such as Sections 22 and 23, also 

require a knowing violation. It is perhaps also significant that other 

sections which do assign strict liability for possession or distribution of 

defined substances do provide for statutory defenses. Sectiom 21(2) 

states: 

(2) If any person has in his possession any drug of addiction other than prepared 

opium or Indian hemp, he shall be guilty of an offence against this Division 7.inless- 

(a) he is licensed or otherwise authorized under the regulations to manufacture, sell, 

distribute or supply the drug; 

(b) he is otherwise authorized under the regulations to be in possession of the drug; or 

(c) the drug was supplied or requested to be supplied, for the use of that person, by a 

medical practitioner or veterinary surgeon, or on and in accordance with a 'prescription complying with the regulations. (Emphasis supplied.) 

There are thus provisions which do free a person from strict liability 

forpossession. Even in these cases, however, an exception is made for 

prepared opium or Indian hemp. 

When such language is used in certain sections and not in others, it is 

fair to conclude that a purpose is served by this. In this case, the 

purpose would appear to be ti) hold persons strictly liable under Sections 21(1)(a) and (b) for the prohibited actions. 

The terminology used in the Act therefore indicates that either 

through design or inadvertence Australia did not create a statute that 

requires guilty knowledge. This can be seen both from the terms used in 

Section 21(1)(a) and the fact that other provisions do require either 

knowing possession or allow certain statutory defenses to be interposed. 

The absence of such qualifying language in Section 21(1)(a) can only lead 

to one conclusion: that strict liability may ensue under this section. 

An Australian case, cited by the respondent, in which Section 9(1)(b) 

of the Poisons Act is interpreted, also supports this conclusion. Regina, 

v. McGrath, New South Wales Law Reports (1971) Vol. 2, p. 181; (1971) 

2 N.S.W:L.R. 1St While the case interprets a section of the Act 

applicable to the supplying or sale of any restricted substance, the 

phrasing of the section is similar to Section 21(1)(a) in that it contains no 

element of knowledge. Section 9(1)(b) states: 

no person other than a medical practitioner, dentist or veterinary surgeon, in the lawful 

practice of his profession as suck'shall supply or sell to another person any restricted 

substance. 

In construing this section, the court in McGrath, id., concluded that 

the section imposed strict liability and it was not necessary for the 

prosecution to establish that the defendant had knowledge of the fact 

that he was dealing with a restricted substance. McGrath, id., at 188. hi 

reaching this conclusion, the court noted that the legislature had, in 

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Interim Decision #2706 

other parts of the Poisons Act, made it plain that knowledge was 

required. Taking into account the subject matter and clear policy disclosed by the Act, and the absence of anything in Section (9)(1Xb) to 

indicate that mens rea was required, the court concluded that absolute 

liability resulted from selling or supplying a restricted substance without the authorization specifically delineated in the Act. This case, 

analogous to the present one, is therefore strong evidence that Section 

21(1)(b) under which the respondent was convicted, does not require 

guilty knowledge. Several prior Board decisions in-which narcotics laws 

were interpreted also point to this conclusion. 

In Lennon, supra, the statute under which he was convicted read in 

part: 

A person shall not be in possession of a drug unless ... authorized. . . . 

The court found that he was therefore ". . . convicted under a law which 

in effect makes guilty knowledge irrelevant and that (B) a foreign 

conviction under such a law does not render the convicted alien excludable." Lennon, supra, at 191. 

In a later case in which the Board applied Lennon we found that 

Chapter 223, Section 25(5), of the Statute Law of the Bahama Islands did 

require guilty knowledge and we distinguished that case from Lennon. 

Matter of Pasquini, Interim Decision 2496 (BIA 1976); affirmed, PasTani v. INS, 557 F. 2d 536 (5 Cir. 1977). The Bahamian law contained a 

provision that illegal possession would be found unless the person could 

"prove the same was deposited there without his knowledge or consent. . . ." In the present case, the Australian law provides for no such 

defense. 

In another case involving a conviction under Section 3(1) of the Narcotics Control Act of Canada, R.S. C. 1970 c. N-1, we found that conviction under that section required guilty knowledge. Matter of Awadh, 

Interim Decision 2519 (BIA 1976). Although the statute there was 

almost identical to the British statute in Lennon an important distinction was that Canadian courts had interpreted the statute to require 

guilty knowledge before a conviction could be rendered. In this case, the 

Service has presented no case law on this point. This leaves only the 

words of the statute to be construed. 

The final point to be considered is the Service's contention that Lennon is distinguishable because conviction here was for sale while conviction in Lennon was for possession. We do not, however, find that a 

different result necessarily follows. Under the Poisons Act, an unknowing sale of Indian hemp could lead to conviction. While this is probably 

nrilikely, it is not inconceivable on the face of the statute. A' product. 

could be sold containing any of the various parts of the Indian hemp, 

 plant whose sale is forbidden while the seller believed it to be a perfectly 

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Interim Decision #2706 

innocuous product. Given these circumstance; and the fact that the 

Service has provided no evidence of the fact that the Poisons Act 

requires mens Yea for conviction, it cannot be said that his deportability 

was established by clear, convincing, and unequivocal evidence. groodby 

v. INS, 385 U.S. 276 (1966). 

We can only conclude that the respondent's conviction was not for 

illicit sale of Indian hemp within the meaning of the Act. 2The respondent's conviction does not therefore bring him within section 241(a)(11) 

of the Act. The appeal will accordingly be sustained. 

ORDER: The appeal is sustained and the deportation proceedings are 

terminated. 

2 Although it was not necessary to reach the respondent's claim that "Indian hemp" is 

hot marihuana within the meaning of section 241(a)(11) of the Act, it is evident to us that 

this contention is without substance. Section 20 of the Poisons Act defines Indian Hemp as 

the "plant known as Cannabis Sativa L." All species and varieties of Cannabis are included 

the statutory proscription against marihuana. United States v. Kelly, 527 P..2d 961 (9 

Cir. 1976). 

752