MATTER OF 

In DEPORTATION Proceedings 

A-3409248 

Decided by Board August 11, 1958 

Narcotic drug addict—Section 241(a)(11) of 1952 act—Sufficiency of evidence—

Distinction between addict and user. 

Alien's pre-hearing statement, later repudiated, held insufficient to establish 

deportability as narcotic drug addict under section 241(a) (11) of act where 

2 doctors expressed opinions that alien was not a confirmed drug addict and 

evidence was otherwise lacking to show that he was an "addict" as distinguished from a mere "user." 

CHARGE: 

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

time after entry has boon a nar.otio drug edd irt 

BEFORE THE BOARD 

Discussion: The case comes forward on appeal from the order 

of a special inquiry officer dated March 31, 1958, directing that the 

respondent be deported on the ground set forth in the order to 

show cause. 

The facts are fully set forth in the decision of the special inquiry officer. The record relates to a native and citizen of China, 

approximately 58 years old, male, who testified that he first entered 

the United States at the port of San Francisco, California, in May 

1922 as a student. He last entered the United States at the port of 

Seattle, Washington, ex SS. President Jefferson, on December 15, 

1931, and was admitted upon presentation of a reentry permit after 

an absence from the United States since December 1930. 

The case for deportation is mainly predicated upon a sworn 

statement made by the respondent on September 10, 1957, before 

a Service investigator. Counsel has strenuously objected to the 

admission of this statement in evidence. However, there is no 

doubt that the statement is admissible under the regulations (8 

CFR 212.14(e) ). There is no requirement that the alien be advised 

of his right to refuse to answer and to have counsel during the 

course of a preliminary interrogation nor to be advised concerning 

his right to claim protection of the Fifth Amendment (United States 

108 
ex rel. Bilokumsky v. Tod, 263 U.S. 149; Thompson v. United 

States, 10 F.2d 781; Plane v. Carr, 19 F.2d 470, cert. den. 275 U.S. 

545; Ex parte Callan, 42 F.2d 664, cert. den. 283 U.S. 862; Matter 

of B B A-4g90755, 4 T. R. N. Dec. 760, 763). 

In the sworn statement the respondent stated that he had been 

a user of morphine for about 5 years and on several occasions tried 

to get away from this habit, seeking the assistance of several doctors, and that subsequently he went to a small town to attempt to 

break the habit but being unsuccessful turned himself over to the 

Lexington Hospital for narcotic users where he remained for about 

2 weeks. He stated that he was a voluntary patient at Leaingtou; 

that he had been a drug addict for about 5 or 6 years prior thereto; 

and that he had inserted morphine mixed with sugar in his arm, 

displaying old scars. He stated that ho used the drug upon arising 

in the morning and before he would go to sleep at night. He was 

asked whether he bought the morphine from a prescription that 

was given him by a physician because of some ailment and replied 

in the negative, that he had bought it through illegitimate sources. 

He claims not to have used any narcotic drugs since April 15, 

1957, and that he has enjoyed good health since his release from 

the hospital at Lexington. He also stated that he had been steadily 

employed as a chef prior to going to Lexington. 

At the deportation hearing, upon examination by his attorney, 

the respondent again testified that he had been steadily employed 

as a restaurant cook and that he had never been a narcotic addict. 

He claimed that he had never even been a steady user of morphine 

nor an habitual drug user but that he used drugs in connection 

with an illness in the nature of piles to relieve a painful burning 

sensation. He stated that he received prescriptions for the narcotic 

drugs from 2 doctors, whose names he could not at first remember 

but then later named the doctors, one in Indianapolis and one in 

Chicago, the latter being deceased. He was not able to further 

identify the first doctor. His attention was called to the fact that 

in the sworn statement he did not mention that he had a prescription from a doctor and he explained that he thought the investigator was asking about the occasions he bought through illegitimate 

sources. He further stated that he was following instructions from 

the doctor when administering the morphine to himself. He also 

explained that he thought the questioning regarding the use of 

morphine in eumiection with an injury or oickness and the need of 

this drug to relieve pain, which he had answered in the negative, 

referred to whether he had an order on his person at that time 

but that when he first started he did have an order from a doctor. 

The respondent admitted that he was a voluntary patient at the 

Lexington Hospital as indicated in his sworn statement. 

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The respondent submitted letters from 2 physicians expressing 

the opinion that respondent was not a drug addict. One of the 

doctors, a surgeon for the Chicago Police Department handling 

cases of the narcotic unit, expressed the opinion based upon the 

writer's experience that the respondent is not a confirmed narcotic 

addict but only an occasional user. The respondent Testified that 

he had seen this doctor on 8 or 10 occasions as a personal physician. 

A second doctor, who treated the respondent in March 1957 and 

again in January 1958, sets forth that he had occasion to observe 

respondent quite a few times during those 9. periods, that in his 

opinion the respondent was not addicted to narcotic drugs and 

that at the present time he finds no evidence of narcotic addiction. 

Dapnrtatinn of the respondent is sought under section 211(a) (11) 

of the Immigration and Nationality Act on the ground that after 

entry he has been a narcotic drug addict. The term "narcotic 

drug addict" is not defined in the act but recourse has been had to 

the definition of the term "addict" as used in 4'2 U.S.C.A. 201(k) 

which reads as follows: 

The term "addict" means any person who habitually uses say habit-forming 

narcotic drugs so as to endanger me poetic morale, health, ,,afeLy, m. welfare, 

or who is or has been so far addicted to the use of such habit-forming narcotic 

drugs as to have lost the power of self-control with reference to his addiction. 

This definition was quoted with approval in Matter of IC , A 5462239, 6 I. & N. Dec. 374, which noted that the 

definition appeared to be in accord with judicial decisions which 

recognized that one may be a -user without being an addict.' 

Under the prior Act of February 18, 1931, as amended by sections 

21 and 22 of the Alien Registration Act of 1940 (8 U.S.C. 156a), 

relating to deportation for a narcotic conviction, the addict was an 

exception to the proscription of the deportation statute and the 

burden of proving that he was within the exception as an addict 

who was not a dealer or peddler was upon the alien' However, 

under the present statute, section 241(a) (11) of the Immigration 

and Nationality Act (8 U.S.C. 1251(a) (11) ), a narcotic drug addict falls within the scope of the deportation statute and the burden 

of proof is upon the Service to establish deportability by a preponderance of reasonable, substantial and probative evidence. 

In the present case the only evidence against the respondent is 

the admissions he made in the sworn statement to a Service investigator of September 10, 1957. At the hearing under questioning by 

counsel he has repudiated or explained some of the statements 

'Matter of B—, A-6815221, 3 1. & N. Dec. 620; Mow v. McGrath, 101 F. 2d 

982; Ex parts Bag, 77 F. Supp. 74. 

'Matter of V—, 56073J670, 1 L & N. Dec. 160; Wong Hang Jim v, Carmichael, 115 F.2d 529; :Nicoll v. Briggs, 83 F.2d 375. 

110 
made by him and has claimed that his original use of narcotic drugs 

was upon prescription issued by 2 doctors to relieve rectal pains 

and that his method of administering the drug was in accordance 

with the prescription. In the sworn statement he stated he was a 

voluntary patient in the Lexington Hospital in April 1957 but that 

he was discharged after 2 weeks. The hospital record or history 

was not made a part of the evidence of record and, indeed, under 

the provisions of 42 U.S.C.A. 260(d), the record of such voluntary 

commitment is confidential and is not to be divulged. The respondent has not consented to the release of such hospital record. In 

view of the fact that, the respondent was discharged after 2 weeks, 

it is not believed that any conclusion as to addiction can be drawn 

from his 2 weeks' stay at the hospital at Lexington, particularly 

in the absence of the hospital history. 

The respondent has also submitted letters from 2 physician, who 

have treated him; while one categorizes him as a narcotic user, 

both doctors rule out addiction to narcotic drugs. It is true that 

these letters do not include any case history but they do represent 

the opinion of 2 physicians who have been in contact with the 

respondent on a number of occasions. The respondent claims not 

to have used narcotics since April 1957 and there does not appear to 

be any evidence of withdrawal symptoms. In addition, in view of 

the technical definition of addiction in 42 U.S.C.A. 201(k), it is 

not believed that the respondent's admission that he was an addict 

is a sufficient basis upon which to predicate a determination of 

narcotic drug addict so as to warrant a finding of deportability 

thereon. 

After a careful review of all the evidence of record, it is believed that the present evidence of record leaves us in doubt on the 

matter of addiction and does not constitute a preponderance of 

evidence which is maaonablo, substantial and probative upon which 

to base a finding of addiction so as to render the respondent deportable under the provisions of section 241(a) (11) as a narcotic 

drug addict. Accordingly, the proceedings will be terminated. 

Order: It is ordered that the proceedings be and the same are 

hereby terminated. 

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