Interim Decision #2519 

MATTER OF AWADH 

In Deportation Proceedings 

A-81145551 

Decided by Board August 23, 1976 

(1) Respondent was convicted, on a guilty plea, of possession of marijuana in violation of 

section 3(1) of the Canadian Narcotic Control Act, R.S.C. 1970, c. N-1 and is thus 

amendable to deportation under section 241(a)(11) of the Immigration and Nationality 

Act. Case law interpreting the Canadian Narcotic Control Act indicates that scienter or, 

guilty knowledge is required for conviction. Thus the Canadian statute is distinguishable from the British statute which is similarly worded. Matter of Lennon, 15 I. & N. 

Dec. 9 distinguished. 

(2) Respondent's claim of lack of procedural due process in the Canadian proceeding is 

without merit in the Instant proceeding because there is no requirement in the immigration laws which requires that a foreign conviction conform to United States constitutional guarantees. 

(3) Respondent's allegation of selective, arbitrary and discriminatory enforcement of 

section 241(a)(11) of the Act is unsubstantiated. 

(4) Board of Immigration Appeals does not entertain Constitutional challenges to the 

statutes it administers. See Matter of Ramos, 15 I. & N. Dec. 671 (BIA 1976), and 

Matter of 4 I. & N. Dec. 556, 557 (BIA 1951). 

CHARGE: 

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of a violation of law or regulation relating to the illicit possession of 

marijuana 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Abdeen M. Jabara, Esquire George Indelicato 

658 Pallister Avenue Appellate Trial Attorney 

Detroit, Michigan 48202 

The respondent appeals from the January 7, 1976 denial by the immigration judge of his motion to reopen and reconsider and his motion for a 

stay of deportation. The appeal will be dismissed. 

At the original deportation proceeding the respondent admitted all of 

the allegations in the order to show cause and requested no discretion - 

ary relief. The immigration judge found him deportable as charged. The 

respondent waived his right to appeal. Deportability is predicated upon 

a conviction in Canada, oh a guilty. plea, of possession of marijuana 

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Interim Decision #2519 

in violation of section 3(1) of the Narcotic Control Act, R.S.C. 1970, 

c. N-1. 

In his motion to reopen and reconsider, the respondent urged the 

immigration judge, and this Board on appeal, to follow Lennon v. INS, 

527 F.2d 187 (C.A. 2, 1975), and to find, as in that case, that the 

respondent was convicted of possession of marijuana under a statute 

which made guilty knowledge irrelevant. In addition, he contends that 

the respondent was denied procedural due process in the Canadian 

proceeding, where he was not represented by counsel and where the 

translator, the brother of the respondent's codefendant, was biased. For 

these reasons he states that deportability should not be based on the 

Canadian conviction. 

The respondent further contends that enforcement of section 

241(a)(11) of -lie Immigration and Nationality Act against him by the 

Immigration and Naturalization Service is arbitrary and discriminatory 

and that he has been improperly singled out for deportation. Lastly, the 

respondent asserts that section 241(a)(11) is unconstitutional in that it 

imposes cruel and unusual punishment for an act which in some places is 

not even conxidered criminal. We shall consider each of these arguments 

in turn. 

InLennon v. INS; supra, the court considered not just the wording of 

the British statute 1but also the case law interpreting that statute. The 

result was a finding that a person could be convicted under the British 

statute without guilty knowledge. 

The respondent contends that the Canadian statute a is almost identical with the British one, and that therefore it should be interpreted in 

the same way. However, an examination of recent Canadian cases 

interpreting section 3(1) of the Narcotic Control Act reveals that guilty 

knowledge is required for a conviction under this provision. In Regina 

v. Kobiershi [1975], 18 C.C.C.2d 419 (Br. Col. S.Ct. 1974), the defendant was charged with possession of a narcotic on the basis of the fact 

that traces of morphine were found in his urine. Because he did not 

know that his urine contained morphine, he was acquitted. In Regina v. 

Douglas [1975], 18 C.C.C.2d 189 (Ont. C.A. 1974), the driver of a truck 

in which marijuana was found under the floor mat was acquitted because 

there was no evidence that he had knowledge of the presence of the 

marijuana. He was not the owner of the truck, and it was not proven 

that he had ever driven it before. In Beaver v. Regina [1957], S.C.R. 

531, 118 C.C. D. 129 (1957), under a similar provision, it was held that a 

defendant in possession of a package containing a substance he believes 

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

Drugs Aet 1965, Sec. 3, 'C. 15. 

2"Except as authorized by this Act or the regulations, 110 person shall have a narcotic in 

his possession." .garcotie Control Act, §3(1), R.S.C. 1970, c .N-1. 

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Interim Decision #2519 

is harmless but which in fact is a narcotic, cannot be convicted of 

possession of a narcotic. Consequently, we find the present case 

distinguishable from Lennon in that the respondent here was convicted 

of a violation of a statute which has been interpreted to require seienter 

for conviction. 

With regard to the respondent's claim that he was denied procedural 

due process in the Canadian proceeding, there is no provision in the 

immigration laws to the effect that a foreign conviction must conform to 

the constitutional guarantees of the United States. Matter of Gutierrez, 

14 L & N. Dec. 457 (BIA 1972); Matter.of M—, 9 1. & N. Dec. 132 (BIA. 

1960). This view has been judicially upheld. Brice v. Pickett, 515 F.2d 

153 (C.A. 9, 1975). 

The respondent's assertion that he has been singled out for selective, 

arbitrary, and discriminatory enforcement of section 241(a)(11) of the 

Act is totally unsubstantiated, and, so far as we can tell, has no merit. 

Regarding the alleged unconstitutionality of section 241(a)(11), we do 

not entertain constitutional challenges to the statutes we administer. 

Matter of Ramos, 15 I. & N. Dec. 671 (BIA 1976); Matter of L—, 4 I. 

& N. Dec. 556, 557 (BIA 1951). 

For these reasons, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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