MARTINEZ-GOMEZ

interim Decision #2138

MATTER OF MARTINEZ-GOMEZ

In Deportation Proceedings

A-18564855

Decided by Board March 23, 1972

Conviction of a violation of section 11557 of the California Health and Safety

Code, which provides it is unlawful to "maintain any place for the purpose of

unlawfully selling, giving away or using any narcotic," is a conviction of a law

relating to "illicit traffic in narcotic drugs or marijuana" within the meaning

of section 241(a)(11) of the Immigration and Nationality Act.

CHARGE:

Order: Act of 1952—Section 241(a)(11) [8 U.S.C. 1251(a)(11)}—Convicted of law

relating to illicit traffic in narcotics.

ON BEHALF OF SERVICE: Jay Segal

Trial Attorney

(Brief filed)

The special inquiry officer certifies his order terminating the

above-captioned proceedings. The trial attorney has submitted a

brief in support of his argument that the respondent is deportable

under section 241(aX11) of the Immigration and Nationality Act as

an alien who has been convicted of a law relating to the illicit

traffic in narcotic drugs or marijuana. We will reverse the special

inquiry officer.

The respondent, a native and citizen of Mexico, was admitted to

the United States as an immigrant on June 18, 1967. He was

convicted on September 29, 1967 in the Superior Court of Califor-

nia in and for the County of Santa Clara for violation of section

11557 of the California Health and Safety Code.' Originally, the

respondent was charged under section 11530 of the Health and

Section 11557, California Health and Safety Code provides as follows: "Main-

tenance of Place for Unlawful Disposal of Narcotics. ... Every person who opens

or maintains any place for the purpose of unlawfully selling, giving away or using

any narcotic shall be punished by imprisonment in the county jail for not more

than one year, or in the State prison for not more than ten years..."

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Interim Decision #2138

Safety Code for possession of marijuana. He pled not guilty to this

charge. He was granted permission on September 5, 1967 to

withdraw his plea of not guilty and to enter a plea of guilty to a

violation of section 11557, a "lesser included offense" (Ex. 2).

Imposition of sentence was suspended for a period of two years

and the respondent was placed on probation, conditioned upon the

payment of a fine of $150 phis penalty assessment of $16.00 (Ex. 2).

The issue before us is whether section 11557 is a law relating to

illicit trafficking in narcotic drugs or marijuana. Relying on our

decision in Matter of Sum, 13 I. & N. Dec. 569 (BIA, 1970), the

special inquiry officer held that it was not such a law. However,

Matter of Sum dealt with a quite different question, namely the

question whether a conviction for unlawful use of proscribed drugs

rendered an alien deportable as a person convicted for unlawful

possession. of such drugs. This respondent was convicted for

violation of a statute which does not at all require, for conviction,

the unlawful use or possession of proscribed drugs by the accused

person. Section 11557 of the California Health and Safety Code

under which this respondent was convicted was clearly designed to

eliminate the illegal traffic in narcotic drugs by making it a crime

for a person to provide a place for the unlawful disposal of

narcotics.

We are of the opinion that the statute taken at its minimum

involves a law "relating to ... illicit traffic in narcotic drugs or

marijuana." The primary purpose of section 11557 is to eliminate

or control traffic in narcotics by making it a crime to "maintain

any place" for the "selling, giving away or using" any narcotic.

The determining factor is the maintenance of the place and not

the selling, giving away or using narcotics, People v. Cannon, 148

C.A. 2d 163, 306 P.2d 589 (C.A. Cal., 1957).

The case will be remanded to the special inquiry officer for a

reopened hearing and for the entry of an order of deportation

pursuant to section 243(a) of the Immigration and Nationality Act.

An appropriate order will be entered.

ORDER: It is ordered that the case be remanded to the special

inquiry officer for futher proceedings consistent with the foregoing

opinion.

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Interim Decision #2139

MATTER. OF PONCE DE LEON

In Visa Petition Proceedings

A-18257676

Decided by Board March 30, 1972

Despite birth in an independent country of the Western Hemisphere, an alien

who meets the conditions of section 202(b)(2) of the Immigration and National-

ity Act may be alternately charged to the foreign state of his accompanying

spouse, and within such alternate chargeability may be accorded any classifi-

cation under section 203(a) of the Act for which eligible (in the instant case,

beneficiary accorded second preference classification as the spouse of an alien

lawfully admitted for permanent residence). [See also, Matter of Chatterton,

Interim Decision No. 2133, and Matter of Ascher, Interim Decision No. 1282.]

ON BEHALF OF PETITIONER: ON BEHALF OF Sravron:

James J. Orlow, Esquire Irving A. Appleman

824 Bankers Securities Bldg. Appellate Trial Attorney

Philadelphia, Pa. 19107

The district director, in an order dated December 7, 1971,

granted the lawful permanent resident alien petitioner's applica-

tion for preference status for the beneficiary as her spouse under

section 203(a)(2) of the Immigration and Nationality Act. The

district director held that the beneficiary was entitled to alternate

chargeability to the country of the petitioner's birth, despite the

fact that the beneficiary is a special immigrant by virtue of his

birth in an independent country of the Western Hemisphere. The

district director recognized that his decision seemingly conflicted

with our prior precedent decision in Matter of Tiszai, 12 I. & N.

Dec. 425 (BIA, 1967), which he felt should no longer be applicable

because of intervening changes in law and regulations. Because

there was an appearance of conflict, the district director certified

his decision to this Board. His decision will be affirmed.

The petitioner is a native of Germany. She was admitted to the

United States for permanent residence on October 26, 1964. The

beneficiary, her spouse, is a native of Mexico. The record is silent

as to the birthplace or residence of the beneficiary's parents.

The general rule is that an alien is chargeable to the foreign

state of his birth. In the beneficiary's case, this would be Mexico,

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Interim Decision #2139

but no visas are available to natives of Mexico, who are special

immigrants by virtue of their birth in the Western Hemisphere,

unless they have a priority date of November 22, 1970 or earlier.

The beneficiary evidently does not have an early enough priority

date to qualify for a special immigrant visa. Therefore, the issue in

the case is whether he qualifies for one of the exceptions to the

general rule contained in section 202(b) of the Act. If he so

qualifies, then he may properly be accorded a preference status

under section 203(a) of the Act, assuming he is otherwise qualified.

Our prior precedent decision in Matter of Tiszai, supra, formerly

served to bar access to the alternate chargeability provisions

contained in section 202(b) to natives of the Western Hemisphere

on the ground that they were special immigrants. That decision

was held by us to be no longer applicable due to substantial

changes in law and regulations since it was decided, Matter of

Chatterton, A-19942340, Interim Decision No. 2133 (BIA, March 21,

1972). Consequently, Matter of Tiszai no longer serves as an

obstacle to the beneficiary qualifying for an exception under

section 202(b).

Section 202(b) of the Immigration and Nationality Act, which

contains the provisions relating to alternate chargeability to the

country of birth of a parent or spouse reads, in relevant part, as

follows:

... For the purposes of this Act the foreign state to which an immigrant is

chargeable shall be determined by birth within such foreign state except that

(1) ...; (2) if an alien is chargeable to a different foreign state from that of his

accompanying spouse, the foreign state to which such alien is chargeable may,

if necessary to prevent the separation of husband and wife, be determined by

the foreign state of the accompanying spouse, if such spouse has received or

would be qualified for an immigrant visa and if the foreign state to which such

spouse would be chargeable has not exceeded the numerical limitation set

forth in the proviso to subsection (a) of this section for that fiscal year; (3)...;

(4) an alien born within any foreign state in which neither of his parents was

born and in which neither of his parents had a residence at the time of such

alien's birth may be charged to the foreign state of either parent.

For the sake of simplicity, we shall refer to the exception from

the general rule for chargeability contained in section 202(bX2) as

the "second exception" and that contained in section 202(bX4) as

the "fourth exception."

The term "accompanied by" is not defined in the Immigration

and Nationality Act but is defined in 22 CFR 42.1 as follows:

"Accompanying" or "accompanied by" means, in addition to an alien in the

physical company of a principal alien, an alien who is issued an immigrant

visa within 4 months of the date of issuance of a visa to the principal alien,

within 4 months of the adjustment of status in the United States of the

principal alien, or within 4 months from the date of the departure of the

principal alien from the country in which his dependents are applying for

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Interim Decision #2139

visas if he has traveled abroad to confer his foreign state chargeability upon

them. An "accompanying" relative may not precede the principal alien to the

United States.

The term "foreign state" is defined in 22 CFR 42.1 as follows:

For the purpose of according alternate chargeability pursuant to section

202(b) of the Act, the term "foreign state" is not restricted to those areas to

which the numerical limitation prescribed by section 202(a) of the Act applies

but includes dependent areas, as defined in this section, and independent

countries of the Western Hemisphere and the Canal Zone.

As a spouse, the beneficiary could conceivably strive to qualify

for either the second or the fourth exception. However, the fourth

exception is available only to an alien born in a foreign state in

which neither of his parents was born and in which neither of his

parents had a residence at the time of his birth. In the present

case we have insufficient information upon which to base either of

these required findings. Hence, we must rule out the fourth

exception upon the record before us.

The question then becomes: Does the beneficiary qualify for the

second exception under section 202(bX2)? In order to qualify, it

must be established (1) that he is an alien spouse, (2) that he will

be "accompanied by" his spouse within the meaning of that term's

definition found in 22 CFR 42.1, (3) that the accompanying spouse

was born in a "foreign state" as defined in 22 CFR 42.1, (4) that the

accompanying spouse either has received or would be qualified for

an immigrant visa, and (5) that there would be a visa available if

the beneficiary be charged to the foreign state of birth of the

petitioner.

The district director found the beneficiary qualified for an

exception under section 202(bX2). He noted that the beneficiary

was therefore entitled to alternate chargeability to the foreign

state of birth of the petitioner (Germany) if a consular' officer

found the beneficiary "otherwise qualified." Inasmuch as the

beneficiary quales for an exception under section 202(bX2) he is

alternately chargeable to the numerical limitation of 170,000

provided for in section 201(a) of the Act. Section 203(a) provides

that aliens who are subject to the numerical limitations in section

201(a) shall be allotted visas in the manner prescribed in subpara-

graphs 1 through 9 of section 203(a). The beneficiary, then, may be

accorded any classification under section 203(a) for which he is

eligible. The district director approved the petitioner's application

and accorded the beneficiary preference status under section

203(aX2) as the spouse of an alien lawfully admitted for permanent

residence. This was correct and we shall affirm the district direc-

tor's order.

Both the appellate trial attorney and petitioner's counsel sug-

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Interim Decision #2139

Bested at oral argument that the Board enter an order containing

a condition that the beneficiary must meet the definition of

"accompanied by" found in 22 CFR 42.1 at the time he is issued an

immigrant visa. We reject this suggestion because we do not

believe it necessary to enter a conditional order in this case. The

petitioner is already physically present within the United States.

Therefore, the only way the beneficiary might qualify under 22

CFR 42.1 as an alien "accompanied by" his spouse would be if he

were to be issued an immigrant visa "within 4 months from the

date of departure of the principal alien from the country in which

his dependents are applying for visas if he has traveled abroad to

confer his foreign state chargeability upon them." The consular

official to whom the beneficiary makes application for an immi-

grant visa will have no trouble deciding upon the facts before him

at that time whether the beneficiary then qualifies as an alien

"accompanied by" his spouse.

The district director's decision is affirmed and the following

order shall be entered.

ORDER: It is ordered that the order of the district director,

dated December '7, 1971, approving the petitioner's petition to

accord the beneficiary preference status as provided in section

203(aX2) of the Immigration and Nationality Act be and the same

is hereby affirmed.

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