A-7222237
Decided by Board March 6, 1958
Exclusion grounds — Section 212 (a) (23), 1952 act, narcotic violators — Illicit trafficker — Personal gain or profit not an essential element.
An alien who knowingly and consciously acts as a conduit in the transfer of marijuana between a dealer and customers of the dealer is excludable under section 212 (a) (23) of the Immigration and Nationality Act as an "illicit trafficker" in narcotic drugs, even though he derives no personal gain or profit from the transaction.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (23) [ 8 U.S.C. 1182 (a) (23)] — Illicit trafficker in narcotics, marijuana.
BEFORE THE BOARD
Discussion: The case comes forward on appeal by the Acting District Director, El Paso District, from a decision entered by the special inquiry officer on December 4, 1957, ordering that the applicant be admitted for permanent residence.
The applicant is a native and citizen of Mexico, 33 years old, male, married, who arrived at the port of El Paso, Texas, on November 29, 1957, from Mexico and applied for admission for permanent residence. He was in possession of an unexpired nonquota visa and passport requirements were waived under 22 CFR 42.36 (b) (5) as the husband of a United States citizen. The applicant was detained for a hearing in exclusion proceedings before a special inquiry officer inasmuch as it appeared that he might be excludable under section 212 (a) (23) of the Immigration and Nationality Act as one who the immigration officer knew or had reason to believe is or has been an illicit trafficker in narcotic drugs.
The only evidence adduced at the hearing was the testimony of the applicant. It appears that the applicant was arrested in Hanford, California, on suspicion of violating the narcotics law but has never been convicted of any narcotic violations. He testified, however, that while working as the operator of a poolroom in Corcoran, California, for a period of 2 or 3 months in 1950 he received on approximately 3 occasions from a dealer in narcotics about 15 or 20 marijuana cigarettes which the dealer left with him on each occasion to deliver to the dealer's customers who came to the poolroom. Some of these customers would pay $4 or $5 which was owing on the cigarettes and others had already paid the dealer in advance. The applicant testified that he received no pay or reward but did it solely as a favor to the dealer, although occasionally the dealer would treat him to drinks or dinner. The applicant testified that at first he did not give it much thought but later realized that he was running a great risk by doing the favor of delivering the cigarettes for the dealer to the customers.
The special inquiry officer terminated proceedings on the basis of the decision in Bouvier's Law Dictionary defining traffic as "Commerce; trade; sale or exchange of merchandise, bills, money, and the like. The passing of goods or commodities from one person to another for an equivalent in goods or money; and a trafficker is one who traffics or a trader, a merchant." Since the applicant did not receive any gain or benefit for his action on the 3 occasions where he acted as an intermediary on the transfer of the marijuana from the seller to the users, the special inquiry officer concluded that the applicant was not a trafficker within the purview of the fourth part of section 212 (a) (23).
Excludability of the applicant is predicated upon the emphasized portion of section 212 (a) (23) of the Immigration and Nationality Act:
Any alien who has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs, 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, marijuana, 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 * * *.
An analysis of section 212 (a) (23), as amended, discloses that the first clause relates to aliens convicted of violations or conspiracy to violate a law or regulation relating to illicit possession or traffic in narcotic drugs; the second clause refers to aliens convicted of violations of or conspiracy to violate any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, etc., of specified narcotic drugs; the third clause refers to possession for the purpose of manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away etc., of specified narcotic drugs; and the fourth clause concerns the exclusion of those who the consular or immigration officers know or have reason to believe are or have been illicit traffickers in any of the aforementioned drugs. The phrase "illicit trafficker" in the specified narcotic drugs must be read in context with the other provisions of that section and in a similar manner the first phrase relating to convictions of or conspiracy to violate laws relating to the illicit possession of or traffic in narcotic drugs must be read in the light of the words following. Thus, an illicit trafficker in the specified narcotic drugs is one whose activities would be violative of the various provisions set forth relating to those drugs.
The element of profit is not necessarily a factor since section 212 (a) (23) proscribes the giving away of narcotics. This is further exemplified by 26 U.S.C. 4751, Internal Revenue Code, 1954, which provides for imposition of tax on every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, prescribes, administers, or gives away marijuana; and 26 U.S.C. 4755 (a) which relates to trafficking and provides it shall be unlawful for any person required to register and pay the special tax under the provisions of section 4751 to import, manufacture, produce, compound, sell, deal in, dispense, distribute, prescribe, administer, or give away marijuana without having so registered and paid such tax. (Similar provisions were contained in the 1939 Internal Revenue Code.)
While it is no doubt true that there may be technical, inadvertent and insignificant violations of the laws relating to narcotics, there can be nothing more depraved or morally indefensible than conscious participation in the illicit drug traffic; the evils which result from dealing with narcotic drugs are a matter of common knowledge ( United States ex rel. De Luca v. O'Rourke, 213 F. (2d) 759, 762). Section 212 (a) (23) of the Immigration and Nationality Act, supra, was amended by section 301 (a) of the Narcotic Control Act of July 18, 1956, with the avowed purpose of providing a more effective control of narcotic drugs and marijuana and insofar as related to deportation of aliens, was intended to eliminate loopholes and ambiguities in the immigration act so that the deportation of undesirable aliens could be more certain and free from technical evasion (1956 United States Code Congressional and Administrative News, 84th Congress, Second Session, pp. 3274, 3321). The Narcotic Control Act of 1956 increased the penalty provisions of the Internal Revenue Code of 1954 applicable to narcotic drugs and marijuana and drew a distinction in severity of penalty for the trafficker as distinguished from the possessor ( Idem, p. 3275). In the case of Nani v. Brownell, 153 F. Supp. 679, aff'd. 247 F. (2d) 103, the court held that a person convicted of a conspiracy directed toward the violation of the statutes in relation to narcotic drugs was guilty of a violation of law relating to illicit traffic in the same.
In the instant case it is clear from the applicant's own testimony that he was a knowing and conscious participant or conduit in the transfer of what he knew to be marijuana cigarettes from a person whom he knew to be a dealer therein to customers of the dealer. Such activity is sufficient to bring him within a proscription of the prohibition of the law relating to the illicit trafficking of narcotic drugs. The fact that he derived no personal gain or reward would not appear to be a defense in view of the finding that he was a knowing and conscious participant in the illicit traffic in narcotic drugs. His activities, therefore, bring him within the scope of the fourth clause of section 212 (a) (23) of the Immigration and Nationality Act, as amended, as disclosed by his own testimony, as one who immigration officers have reason to believe has been an illicit trafficker in the narcotic drugs specified in the statute. It is concluded that he is excludable on the ground set forth in the caption.
Order: It is ordered that the appeal of the Acting District Director be sustained and that the applicant be excluded under the provisions of section 212 (a) (23) of the Immigration and Nationality Act as one who immigration officers know or have reason to believe is or has been an illicit trafficker in narcotic drugs, to wit, marijuana.