Interim Decision #2045 

MATTER OP SUM 

In Deportation Proceedings 

A-4713047 

Decided by Board May 22, 1970 

Respondent's conviction under section 11720 of the California Health and 

Safety Code for unlawful use of proscribed narcotic drugs may not be 

equated with a conviction for unlawful possession of such narcotic drugs 

so as to bring him within the "illicit possession" provisions of sections 

212(a) (23) and 241(a) (11) of the Immigration and Nationality Act 

(Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964), followed). 

[Matter of H—U—, 7 I. & N. Dec: 533, and Matter of Fong, 10 I. & N. 

Dec. 616, overruled.] 

CHARGES : 

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251 (a) (1) ]—Excludable at time of entry—immigrant, no visa (section 

212(a) (20) of Act). 

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251 (a) (1)1—Excludable at time of entry—immigrant, no visa section 13 (a), Act of May 26, 1924). 

ON BEHALF OF RESPONDENT: 

Robert S. Bixby, Esquire 

30 Hotaling Place 

San Francisco, California 94111 

ON BEHALF OF SERVICE: 

Sam T. Feldman 

Acting Appellate Trial Attorney 

(Brief filed) 

The special inquiry officer certified his order denying respondent's application under section 249 of the Act. The application 

will be granted. 

The question is whether the Board should continue to follow its 

precedents holding that a conviction for unlawful use of proscribed drugs makes an alien deportable as one who has been convicted for unlawful possession of such drugs. We shall overrule 

the precedents. 

The facts have been fully stated by the special inquiry officer. 

He found the respondent deportable on the lodged charge. Respondent applied to the special inquiry officer, under section 249 

of the Act, for the administrative creation of a record of lawful 

admission for permanent residence. One condition of eligibility is 

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Interim Decision #2045 

that the applicant not be excludable under provisions excluding 

"violators of the narcotic laws". The pertinent portion of section 

212 (a) (23) of the Act requires exclusion of, "Any alien who has 

been convicted of a violation of * * * any law or regulation relating to the illicit possession of or traffic in narcotic drugs or 

marihuana * * *." 1Respondent has been convicted in 1941 for 

taking or using narcotics. 2The special inquiry officer did not personally believe that the conviction for taking or using narcotics 

made respondent inadmissible under section 212 (a) (23) which 

speaks of possession of the proscribed drugs. However, since 

Board precedents equate a conviction for unlaful use with a 

conviction for unlawful possession, he held that the respondent 

was inadmissible under section 212 (a) (23) . 3 

An issue similar to that before us was considered in Varga v. 

Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964). Varga was convicted under section 11721 of the California Code which punishes 

a person who illegally used or came under the influence of a proscribed drug. The Service sought to deport him under that portion 

of section 241 (a) (11) of the Act which requires the deportation 

of an alien "who at any time has been convicted of a violation of, 

* * * any law or regulation relating to illicit possession of or traffic in narcotic drugs or marihuana * * *". (Emphasis supplied.) 

The court held that the respondent was not deportable. The court 

pointed out that the legislative history indicated that Congress intended to attack traffic in rather than use of narcotics. The court 

found that Varga's conviction was for use. The court concluded 

that the drug had been in his system, and that it followed he had 

not been in the possession which would have given him the power 

to traffic in the drug. 

Varga is the only published court decision on the issue. The position of the court in that case is based on legal precedents which 

hold that "use" does not necessarily include "possession." A con1It is unnecessary to comment on the significance, if any, of the section 

249 reference to narcotics and the section 212(a) (23) reference to this, but 

also to marihuana. 

2Respondent was convicted on July 25, 1941 of violating then section 

11720 of the California Health and Safety Code which required the criminal 

punishment of a "narcotic addict"—a term defined as relating to one who illegally "takes or otherwise uses any narcotics". Respondent testified he used 

narcotics on or off before his conviction and did not use it thereafter. He 

does not appear to have been an "addict" as that term is defined under immigration laws, Matter of F—S—C—, 8 I. & N. Dec. 108 (BIA, 1958) . 

3 Matter of Fong, 10 I. & N. Dec. 616 (BIA, 1964) ; Matter of H—U—, '7 

I. & N. Dec. 533 (BIA, 1957). 

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trary view had previously been expressed by another judge of the 

same court in an unreported decision, Rukaroff v. Rosenberg, 

No. 212-61–TC, April 17, 1961, which was apparently never appealed. The Solicitor General of the United States, although 

aware of the cleavage, declined to authorize an appeal in Varga. 

The Service's trial attorney stated at the hearing that the Service follows Varga in that it does not institute a deportation proceeding if the conviction is such as is found in that case (pp. 

10-11). Insofar as concerns the "illicit possession" portions of 

sections 212(a) (23) and 241(a) (11) of the Act, we believe that 

Varga should be followed rather than Bukaroff and the Board 

precedents to the contrary. We, therefore, overrule Matter of 

Fong, supra, and Matter of H—U---, supra, which hold to the 

contrary. 

ORDER: It is ordered that the special inquiry officer's denial of 

respondent's application under section 249 of the Act he withdrawn. 

It is further ordered that respondent's application under section 249 of the Act he granted. 

571