Interim Decision #2576 

MATTER OF RICO 

In Exclusion Proceedings 

A-21421850 

Decided by Board April 15, 1977 

(1) Applicant was admitted to the United States for permanent residence September 26, 

1966. He subsequently assumed commuter status and had commuted from his residence 

in Mexico to his employment in the United States for a period of two and one-half years 

prior to September 19, 1975, when he was stopped at the border driving a vehicle found 

to contain 162 pounds of marihuana. He was detained for an exclusion hearing under 

section 212(a)(23) of the Immigration and Nationality Act on the ground that he had 

attempted to smuggle 162 pounds of marihuana into the United States in violation of 

law. He was subsequently paroled into the United States pending criminal prosecution 

for violation of 21 U.S.C. 952(a) and 960(a)(1), and his exclusion hearing. 

(2) Applicant is excludable under section 212(a)(23) of the Act notwithstanding the subsequent dismissal of the criminal complaint against him because section 212(a)(23) 

provides that an alien may be excluded if an immigration officer knows or has reason to 

believe the alien is or has been an illicit trafficker in drugs. Conviction of a particular 

offense or violation is not necessary to establish the ground of excludability under this 

section. 

(3) One attempt at smuggling by applicant who was found to be a knowing and conscious 

participant in the attempt to smuggle marihuana into the United States is sufficient to 

render the applicant an illicit trafficker in drugs. By virtue of section 9 of the Act of 

September 14, 1960 (74 Stat. 504), if the immigration officer knows or has reason to 

believe the applicant is or has been an illicit trafficker in marihuana, the applicant is 

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

EXCLUDABLE: 

Act of 1952—Section 212(a)(23) [8 U.S.C. 1182(a)(23)1—Illicit trafficker in marihuana 

ON BEHALF OF APPLICANT: Ramon R. Alvarez, Esquire 

541 Tenth Street 

P. O. Box Drawer V 

Douglas, Arizona 85607 

BY: Idilhollan, Chairman; Wilson, Maniatia, and Applcman, Board Members 

This is an appeal from an order of the immigration judge, dated 

February 11, 1976, finding the applicant inadmissible under section 

212(a)(23) of the Immigration and Nationality Act. The immigration 

judge ordered the applicant's exclusion and deportation from the United 

StaLes. The appeal will be dismissed. 

The applicant is a 26-year-old married male alien who is a native and 

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citizen of Mexico. He was originally admitted to the United States for 

permanent residence on September 26, 1966. On September 19, 1975, 

the applicant applied for admission to the United States as a returning 

resident alien (commuter). The applicant was detained for an exclusion 

hearing on the ground that on September 19, 1975, he attempted to 

smuggle 162 pounds' of marihuana into the United States in violation of 

law. On October 15, 1975, the applicant was served with an official 

notice (Form 1-122) which informed him that he appeared to come 

within the exclusion provisions of section 212(a)(23) of the Act. He 

received three subsequent hearing notices dated October 17 and 30 and 

November 19, 1975. A copy of a Service Form 1-94 (parole edition) is of 

record. That document shows that the applicant was paroled into the 

United States pending his criminal prosecution and exclusion hearing. 

The first hearing was conducted by Immigration Judge Jay Segal on 

December 8, 1975. A continued hearing was conducted by Immigration 

Judge Reece B. Robertson on February 11, 1976. Upon reviewing the 

transcript of the second hearing, we are satisfied that the immigration 

judge complied with the procedural requirements of 8 C.F.R. 242.8(b) 

which pertain to the substitution of immigration judges. See Matter of 

POW°, Interim Decision 2326 (BIA 1974). 

The record reveals that the applicant is a permanent resident alien 

who commuted from his residence in Agua Prieta, Mexico, to his place of 

employment in Sierra Vista, Arizona, for a period of about two and 

one-half years prior to September 19, 1975. On that date, he attempted 

to enter the United States at the port of entry in Douglas, Arizona. He 

was stopped by a motor vehicle inspection team composed of Fred D. 

Powell, a United States Customs Inspector, and Arthur R. Waddell, a 

Border Patrol Agent. The applicant's vehicle, a 1965 Ford Ranchero, 

was inspected and was found to contain 77 bricks (162 pounds) of 

marihuana in concealed compartments. A subsequent laboratory 

analysis performed by the Drug Enforcement Administration laboratory in Dallas, Texas, confirmed that the bricks were marihuana. At the 

time of his apprehension, the applicant was in possession of an Alien 

Registration Receipt Card (Form 1-151) and Commuter Status Card 

(Form 1-178). 

On September 19, 1975, the Border Patrol officials contacted the 

special agents of the Drug Enforcement Administration located in Douglas, Arizona, and advised them of the seizure of the marihuana in the 

possession of the applicant. Several special agents of the Drug Enforcement Administration investigated the seizure, took custody of the 

marihuana and the applicant, and transported the applicant to their 

office in Douglas for interrogation. The applicant was advised of his 

rights and was requested to make a statement concerning the marihuana 

that was found in his automobile. The applicant initially told the special 

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agents that he did not know that the vehicle contained marihuana; that 

the vehicle that he drove to the border did not belong to him; that the 

vehicle was loaned to him by a person in Mexico that he only knew as 

"Chava"; that his own vehicle was damaged by Chava's vehicle in an 

accident in Mexico; that the person known as "Chava" lent him the 1965 

Ford Ranchero so that he would be able to go to work while his own 

vehicle was being repaired; and that he was only in possession of the 

Ford Ranchero for one day. 

At the hearing, a special agent of the Drug Enforcement Administration testified that during the applicant's interrogation he was advised by 

the special agents that they did not believe his explanation and that if he 

was lying they would not talk to him further. The special agent further 

testified that following their advice to the applicant, he told the special 

agents that he would tell the truth. In his second story, he told them 

that he was offered $200 to drive the Ford Ranchero from Mexico to a 

particular place in Douglas, Arizona; and that he knew something was in 

the truck, but did not know exactly what it was. The applicant offered to 

provide information concerning other persons who traffic in drugs in 

that border area. However, he stated to the special agents that he 

would not give them information concerning his arrangement to drive 

the Ford Ranchero across the border because he feared that such a 

revelation would jeopardize his life. 

Another special agent of the Drug Enforcement Administration also 

testified that he was present during the interrogation when the applicant changed his story and revealed that he was offered $200 to drive 

the Ford Ranchero across the border. Border Patrol Agent Waddell and 

Customs Inspector Powell testified that they had observed the applicant 

crossing the border in a Ford Ranchero on a number of days prior to 

September 19, 1975, the date of the marihuana seizure. 

The applicant testified at his hearing as to his innocent involvement in 

the attempted marihuana smuggling and maintained his initial position 

that the Ford Ranchero was lent to him following an automobile accident in which his own automobile was damaged. He denied changing* 

story during his interrogation by special agents of the Drug Enforcement Administration. Several witnesses, including his wife, testified in 

his behalf. 

We note that on September 19, 1975, a criminal complaint was filed in 

the United States District Court for the District of Arizona alleging that 

the applicant imported 162 pounds of marihuana into the United States 

on September 19, 1975, in violation of 21 U.S.C. 952(a) and 960(a)(1). 

copy of an Order for Dismissal issued by the same court on October 9, 

1975, is of record. That document indicates that the criminal complaint 

against the applicant was dismissed. The reason for the dismissal is not 

shown in the record. 

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Interim Decision #2576 

Section 212(a)(23) of the Act provides that an alien shall be ineligible 

for a visa and excluded from admission into the United States if he 

". . . has been convicted of a violation of, or a conspiracy to violate, any 

law or regulation relating to the illicit p ossession of or traffic in narcotic 

drugs or marihuana, or who has been convicted of a violation of, or a 

conspiracy to violate, any law or regulation governing or controlling the 

taxing, manufacture, production, compounding, transportation, sale, 

exchange, dispensing, giving away, importation, exportation, or the 

possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, or any 

salt derivative or preparation of opium or coca leaves, or isonipecaine or 

any addiction-forming or addiction-sustaining opiate; 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." 

The applicant argues that he is not within that class of aliens who are 

excludable from the United States under the provisions of section 

212(a)(23) of the Act. The pertinent part of this section is that part 

which provides. 

... 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. 

A criminal conviction is unnecessary to establish a basis for exclusion 

under this provision. The applicant contends the "illicit trafficker" provision of section 212(a)(23) does not include marihuana as one of the 

specified illicit drugs, and that, therefore, that provision is inapplicable 

to the applicant. 

Prior to July 14, 1960, sections 212(a)(23) and 241(a)(11) of the Act set 

forth grounds for the exclusion or deportation from the United States of 

aliens convicted of narcotic law violations. Since marihuana is not a 

narcotic drug, the courts held in various decisions that convictions for 

illicit possession of or traffic in marihuana did not bring the alien within 

the immigration law which required the exclusion or deportation of one 

convicted of illicit possession of or traffic in narcotic drugs. To overcome 

the effect of these decisions, Congress amended the immigration law in 

1960 to provide for the deportation of All alien convicted of illicit possession of or traffic in narcotic drugs or marihuana.' The legislative history 

of this amendment clearly establishes that the concern that Congress 

had with marihuana violations was as great as its concern with violations 

of law relating to narcotic drugs. Congress expressed the view that 

violation of laws relating to marihuana are but the forerunners of violations of other laws relating to dangerous and more addiction-forming 

I See Act of July 14, 1960, P.L. 86 -648, 74 Stat. 504, sec. 9. 

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narcotics. Congress also pointed out that the ease with which marihuana 

could be obtained is undoubtedly one of the leading causes of increased 

incidence of juvenile delinquency and it stressed the urgent necessity 

for the enactment of this legislation. 2See generally Matter ofAmiet, 14 

I. & N. Dec. 146 (BIA 1972). 

In 21 U.S.C. 812(b), marihuana is listed as a controlled substance 

(Section (c) of Schedule I). Marihuana is also defined 21 U.S.C. 802(15) 

under the general heading of Drug Abuse-Prevention, Control (Chapter 

13). Further, in S U.S.C. 252(d), marihuana is listed as one of the drugs 

that shall be deemed to be misbranded under the Food, Drug, and 

Cosmetic Act unless the label includes the statement "Warring—May 

be Habit Forming." 

In a recent decision of the Court of Appeals for the Ninth Circuit, the 

court affirmed this Board's decision excluding an alien for illegal trafficking in hashish under section 212(a)(23) of the Act. The court pointed ont 

in its decision that the pertinent language clearly refers back to the 

earlier inclusion of marihuana as one of the drugs subject to the section. 

The court also held that marihuana and hashish are derivatives of a 

common snnrce and that marihuana is sufficiently general int scope to 

include hashish in the context of applying section 212(a)(23) of the Act. 

See Harnid v. INS, No. 75-1110 (9 Cir. July 14, 1976). In light of the 

legislative history reflecting the position of Congress with regard to 

marijuana, and in view of the aforementioned 'interpretation of the 

Court of Appeals for the Ninth Circuit, we conclude that an illicit 

trafficker of marihuana comes within the exclusion provisions of section 

212 of the Act. 

In his appeal, the applicant brings to our attention the dismissal of the 

criminal complaint against the respondent for importation of marihuana. 

He submits that the criminal charge was made upon the same facts 

which form the basis for these proceedings; that the criminal charge was 

dismissed in the United States District Court because of insufficient 

evidence; and that the exclusion order against the applicant should be 

"reversed" in view of these events. We point out that the reason for the 

dismissal of the criminal complaint against the applicant is not contained 

in any official document in the record. Further, the criminal action 

against the applicant was a separate judicial matter, and that our 

administrative decision in these exclusion proceedings shall be predicated upon a review of the evidence of record and the application of the 

appropriate immigration law. Unlike the criminal judicial proceeding 

where a defendant must be found guilty beyond a reasonable doubt, an 

administrative finding of excludability must be based upon reasonable, 

substantial, and probative evidence. See Mason v. Tillinghast, 27 F.2d 

'See U.S. Code Cong. & Ad. News, 86th Cong., Second Session 1960, pro. 3134, 3135. 

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580 (1 Cir. 1928); O'Connell v. Ward, 126 F.2d 615 (1 Cir. 1942). In this 

connection, we note that section 212(a)(23) of the Act provides that a 

ground for exclusion exists if an . . . immigration officer knows or has 

reason to believe . . . that an alien_ is an illicit trafficker. 

We find that the applicant attempted to cross the border with a large 

quantity of marihuana concealed in his motor vehicle. We also find that 

his testimony as to why he happened to be driving the motor vehicle 

which contained marihuana on September 19, 1975, is not plausible. We 

further find that he did not tell the truth at his hearing when he testified 

that he had only driven the Ford Ranchero for one day preceding his 

apprehension. The testimony of the Border Patrol Agent and the Customs Inspector establish that the applicant had driven the Ford Ranchero back and forth across the border on several occasions prior to 

September 19, 1975, the date of his apprehension. The applicant 

changed his story under interrogation by authorities and admitted being 

offered $200 to drive the Ford Ranchero across the border and knowing 

that "something" was in that vehicle. These prehearing admissions 

contradict his original prehearing explanation and his testimony at this 

hearing. Under the aforementioned circumstances, we find that the 

applicant's testimony was not credible. In light of his lack of credibility, 

his offer to furnish information concerning drug traffickers, and his 

prehearing admission that he was offered money to drive his automobile 

across the border, we find that there is sufficient reason to believe that 

the applicant knew or had reason to know that marihuana was concealed 

in his automobile. 

We further find that the applicant was a knowing and conscious 

participant or conduit in an attempt to smuggle marihuana into the 

United States. This activity brings him within the provisions' of section 

212(a)(23) of the Act relating to "illicit trafficker." Cf. Matter of 

7 I. & N. Dec. 675 (BIA 1958). It is no defense that the 

applicant has only committed one transgression. The statutory reference to an illegal trafficker does not necessarily entail proof of organized 

continuous trade in marihuana. In Matter of P—, 5 L & N. Dec. 190 

{BIA 1953), an alien who on a single occasion bought narcotics for resale 

in the United States was deemed an illicit trafficker within the meaning 

of section 212(a)(22) of the Act_ In this case, the applicant attempted to 

smuggle 162 pounds of marihuana ate the United States. In view of such 

a large quantity of marihuana, we infer that it was not intended for 

personal use. We conclude, therefore, that the marihuana was to be used 

in "traffic" and that the applicant is an illicit trafficker as contemplated 

by the statute. 

Inasmuch as the applicant is an alien commuter, he does make a 

imeaningful departure when he leaves the United States. Hence, the 

applicant does not come within the ambit of Rosenberg v. Fleuti, 374 

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U.S. 449 (1963), and is subject to exclusion proceedings upon his return 

to the United States. Matter of Diaz, Interim Decision 2443 (BIA 1975); 

Matter of Hoffman-Arvayo, 13 I. & N. Dee. 750 (BIA 1971); Matter of 

Moore, 13 I. & N. Dec. 711 (BIA 1971). We also note that, even if the 

respondent was not an alien commuter, the Fleuti doctrine would not 

apply to him because of his marihuana smuggling activity. See Matter of 

Leal, Interim Decision 2439 (BIA 1975); Matter of Valdovinos, 14 I. & 

N. Dec. 438 (BIA 1973); Matter of Valenalfa-Barajas, 13 I. & N. Dec. 

369 (BIA 1969); and Matter of Alvarez-Ver4litzeo, 11 1. & N. Dee. 625 

(BIA 1966). 

The immigration judge properly found the applicant inadmissible 

under section 212(a)(23) of the Act. Accordingly, the appeal will be 

dismissed. 

ORDER: The appeal is dismissed. 

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