Interim Decision #3226

Interim Decision #3226

MATTER OF ESQUEDA

In Deportation Proceedings

A-28964484

Decided by Board August 15, 1994

(1) Section 241(a)(11) of the Immigration and. Nationality Act, 8 U.S.C. § 1251(a)(11)

(1988), which provides for the deportability of any alien "convicted of a violation of

... any law or regulation ... relating to a controlled substance," encompasses laws

proscribing the use or being under the influence of a controlled substance. Matter of

Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988), reaffirmed.

(2) The element of guilty knowledge, or mens rea, is not irrelevant to a conviction

pursuant to section 11550 of the California Health and Safety Code for use or being

under the influence of a controlled substance.

(3) Since the language of the exclusion and deportation grounds of the Act relating to

drug cnnvictions was significantly broadened by the Anti-Drug Abuse Act of 1986,

Pub. L. No. 99-570, 100 Stat. 3207, immigration consequences may now result from a

conviction under a law relating to a controlled substance that contains no element of

mens rea. Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), distinguished. Matter of Davis,

16 I&N Dec. 748 (BIA 1979); Matter of Wolf; 16 I&N Dec. 125 (BIA 1977); and

Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), vacated, 527 F.2d 187 (2d Cir. 1975),

overruled. Matter of Poon, 17 I&N Dec. 350 (BIA 1980), affd, 707 F.2d 258 (6th Cir.

1983); Matter of Pritchard, 16 I&N Dec. 340 (ETA 1977); Matter of Awadh, 15 I&N

Dec_ 775 (131A 1976); and Matter of Pasquini, 15 I&N Dec. 683 (BIA 1976), affd, 557

F.2d 536 (5th Cir. 1977), modified.

CHARGE:

Order: Act of 1952—Sec. 241(a)(11) [8 U.S.C. § 1251(a)(11)j—Convicted of controlled

substance violation

ON BEHALF OF SERVICE:

ON BEHALF OF RESPONDENT:

David Neumeister, Esquire

1351 Santa Monica Mall, Suite 301

Jane Thompson

Appellate Counsel

Santa Monica, California 90401

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members. Concurring

Opinion: Holmes, Alternate Board Member.

In a decision dated April 7, 1989, the immigration judge found the

respondent deportable under section 241(a)(11) of the Immigration

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and Nationality- Act, 8 U.S.C. § 1251(a)(11) (1988),' and ordered him

deported from the United States. The respondent has appealed front

that decision. -The appeal will be dismissed.

The respondent is a 33 year old native and citizen of Mexico who

entered the United States in March 1988. The record reflects that he

was convicted on October 25, 1988, in the Ventura County Municipal

Court, State of California, of using and being under the influence of a

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controlled substance, namely opiates, cocaine, metharnphetamines, or

a combination thereof, in violation of section 11550 of the California

Health and Safety Code.

At his deportation hearing, the respondent admitted that he was

convicted of the crime of use and being under the influence of a

controlled substance, but argued that his conviction did not subject

him to deportation. The crux of his contention was that Congress did

not intend to imclude convictions for use and being under the influence

of drugs within the meaning of section 241(a)(11) of the Act when it

revised that ground of deportability by the passage of the Anti-Drug

Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207. The

immigration jmdge rejected the respondent's argument and found him

deportable as charged. The respondent has reiterated his contentions

on appeal.

We note at the outset that the fact of the respondent's conviction,

which supports his deportability in this case, has been established by

clear, unequivocal, and convincing evidence. See Woodby v. INS, 385

U.S. 276 (1966); 8 C.F.R. § 242.14(a) (1994). Although the factual

basis for the respondent's deportability is undisputed, the following

legal issues must be addressed: (I) whether Congress intended to

include the crimes of use and being under the influence of drugs as

deportable offenses under section 241(a)(11) of the Act; (2) assuming

that the decision in Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), is

controlling precedent, whether the California law under which the

respondent was convicted is a strict liability statute that requires no

element of nuns rea for conviction and therefore falls within the ambit

of Lennon; and (3) whether Lennon v. INS is applicable law in light of

the subsequent revision of the statute and the language of the decision

limiting it tio foreign convictions.

I This section of the Act has been revised and redesignated as section 241(a)(2)(B) of

the Act, 8 U.S.C. § 1251(a)(2)(13) (Sapp. V 1993), by section 602(a) of the Immigration

Act of 1990, Pub. 1,. No. 101-649, 104 Stat. 4978, 5080, but that amendment does not

apply to deportation proceedings for which notice has been provided to the alien before

March 1. 1991. See section 602(d) of the Immigration Act of 1990, 104 Stat. at 5082.

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Interim Decision #3226

CONVICTION FOR USE OF DRUGS AS A DEPORTABLE

OFFENSE

Prior to the amendments of the Anti-Drug Abuse Act of 1986,

section 241(a)(11) of the Act provided for the deportability of an alien

who at any time 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 marihuana,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, marihuana, any salt derivative or preparation of opium or coca

leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate.

Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1982) (emphasis

added).

Interpreting that version of the law, we held in Matter of Sum, 13

I&N Dec. 569 (BIA 1970), that an alien's conviction for use of a

narcotic drug could not be equated with a conviction for unlawful

possession of the drug so as to bring the alien within the "illicit

possession" provisions of section 241(a)(11) of the Act, or the similar

exclusion provisions of section 212(a)(23) of the Act, 8 U.S.C.

§ 1182(a)(23) (1970). In reaching that conclusion, we followed Varga

v. Rosenberg, 237 F. Supp. 282 (S.D. Cal. 1964), which rejected the

position that use of a drug necessarily includes its possession, and we

overruled our prior contrary decisions in Matter of Fong, 10 I&N Dec.

616 (BIA 1964), and Matter of H--U-, 7 I&N Dec. 533 (BIA 1957),

where we had held that the unlawful use of drugs presupposes their

illicit possession.

Following the passage of section 1751 of the Anti-Drug Abuse Act of

1986, 100 Stat. at 3247-48, section 241(a)(11) of the Act was amended

to provide for the deportability of an alien who at any time has been

convicted of a violation of, or a conspiracy to violate, any law or regulation of a

State, the United States, or a foreign country relating to a controlled substance (as

defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

Section 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11) (1988). 2 In light

2 As we noted previously, section 241(a)(11) of the Act was revised and redesignated as

section 241(a)(2)(B) of the Act by section 602(a) of the Immigration Act of 1990, 104

Stat. at 5080. The current statute now provides as follows:

CONTROLLED SUBSTANCES.—

(i) CONVICTION. —Any alien who at any time after entry has been convicted of

a violation of (or a conspiracy or attempt to violate) any law or regulation of a State,

the United States, or a foreign country relating to a controlled substance (as defined

in section 102 of the Controlled Substances Act (21 U.S.C. 802)), other than a single

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of the changes to this section of the Act, we again addressed the

question raised in Matter of Sum, supra, in our decision in Matter of

Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). We noted that the

revised language of the statute no longer contained any limitation

regarding the kind of conviction within its scope. Concluding that it

was now broad enough to include convictions for use and being under

the influence of drugs, we determined that Matter of Sum had been

superseded by the amendment to the Act.

The respondent argues that our interpretation of the revised

language of section 241(a)(11) of the Act is too broad. He asserts that

the amendment was aimed at the problem of drug trafficking by aliens

and did not envision the inclusion of convictions for use of drugs,

which had not previously been grounds for deportability. According to

the respondent, the intent of Congress was only to include "designer"

drugs within the scope of the statute and to simplify it by eliminating

the list of prohibited drugs, making reference to the Controlled

Substances Act instead. Consonant with this position, the respondent

contends that Varga v. Rosenberg, supra, which held that use of drugs

was not a deportable offense, remains controlling law on this issue.

Thus, he argues that Matter of Hernandez-Ponce, supra, should be

overruled as too harsh an interpretation of the statute. We decline to

alter the position taken in that case.

We note first that it is well recognized that Congress has historically

exhibited a strong national policy to deport aliens convicted of drug

offenses from our country. See, e.g, Ayala-Chavez v. United States

INS, 944 F.2d 638 (9th Cir. 1991); Mason v. Brooks, 862 F.2d 190 (9th

Cir. 1988); Blackwood v. INS, 803 F.2d 1165 (11th Cir. 1986); Kolios v.

INS, 532 F.2d 786 (1st Cir.), cert. denied, 429 U.S. 884 (1976); Kelly v.

INS, 349 F.2d 473 (9th Cir.), cert. denied, 382 U.S. 932 (1965); GarciaGonzales v. INS, 344 F.2d 804 (9th Cir.), cert. denied, 382 U.S. 840

(1965); Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), affil, 989 F.2d

1085 (9th Cir. 1993); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988);

Matter of Favela, 161&N Dec. 753 (BIA 1979); Matter of A-F-, 8 I&N

Dec. 429 (BIA, A.G. 1959). In recent years Congress has been active in

passing legislation that even more clearly manifests its intention to

limit the ability of drug offenders to remain in the United States. See,

e.g., Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978;

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181; see

also Matter of K-, 20 I&N Dec. 418 (BIA 1991); Matter of U-M-, supra;

offense involving possession for one's own use of 3t) grams or less of marijuana, is

deportable.

Section 241(a)(2)(B)(i) of the Act. Thus, in the current, revised version of statute,

congress retained the phrase. "any law ... relating to a controlled substance." Id.

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Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of Meza, 20

I&N Dec. 257 (BIA 1991); Matter of Eden, 20 I&N Dec. 209 (BIA

1990); Matter of Barrett, 20 I&N Dec. 171 (BIA 1990). It is apparent

from this legislation that Congress has intensified its interest in

preventing drug offenders from avoiding deportation. 3 Moreover,

while passing laws more stringent to alien drug offenders subsequent to

our decision in Matter offlernandez-Ponce, supra, Congress showed no

disagreement with our position by including an exception for those

convicted of use or being under the influence of controlled substances.

This was so even though Congress did create an ameliorative provision

by ma1dng an exception for those convicted of "a single offense

involving possession for one's own use of 30 grams or less of

marijuana."4 Section 241(a)(2)(B) of the Act, S U.S.C. § 1251(a)(2)(B)

(Supp. V 1993).

In a recent case addressing the issue now before us, the United

States Court of Appeals for the Ninth Circuit recognized an incongruity in the inclusion of this exception for a single conviction involving

possession of a personal-use quantity of marijuana, but the omission of

a similar exclusion for actual use of marijuana. Flores-Arellano v. INS,

5 F.3d 360 (9th Cir. 1993). 5 Nevertheless, the court determined that

the plain language of the phrase "any law ... relating to a controlled

substance" is unambiguous and that its ordinary meaning encompasses laws proscribing use or being under the influence of a controlled

substance. Examining the legislative history of the Anti-Drug Abuse

Act of 1986, the court found that it was inconclusive and lacked the

clear indication of a contrary intention necessary to overcome the

plain language of the statute. Furthermore, the court rejected the

alien's reliance on Varga v. Rosenberg, supra, and Matter of Sum,

supra. In so doing, the court distinguished the previous version of the

3 Thc legislative history of the Immigration Act of 1990 states that the provisions

relating to criminal aliens were designed to assist the Service in the apprehension and

deportation of such aliens. See H.R. Cod. Rep. No. 955, 101st Cong. 2d Sen. 132,

reprinted in 1990 U.S.C.C.A.N. 6784, 6797. See also Statement by President George

Bush upon signing 3.358, 26 Weekly Comp. Pres. Doc. 1946 (Dec. 3, 1990), reprinted in

1990 U.S.C.c.A.N. 6801 1 (stating that the Immigration Act of 1990 met several

objectives of the Bush administration's war on drugs and violent crime).

4 Previously, this exception was available only by means of a discretionary waiver

which required an eligible alien to be the spouse or child of a United. States citizen or a

lawful permanent resident or to be the parent of such a child. Section 241(0(2) of the

Act, 8 U.S.C. § 1251(0(2) (1988).

5 The court created a solution to this perceived paradox by fashioning its own

exception for a single conviction of actual personal use of marijuana, finding it implicit

in the statute. The court emphasized, however, that its interpretation would have no

effect on aliens, such as the respondent, who have been convicted of use or being under

the influence of controlled substances other than marijuana.

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statute interpreted by those cases, which limited deportability to

convictions for drug trafficking and possession, from the current,

broader language of the statute. We agree with this reasoning of the

Ninth Circuit and reject the respondent's contention that Matter of

Hernandez-Ponce, supra, should be overruled as contrary to the

legislative history of the Anti-Drug Abuse Act of 1986 and Varga v.

Rosenberg.

MENS REA REQUIREMENT UNDER CALIFORNIA LAW

Our analysis of the statute does not end here, however, because the

respondent has also argued that Matter of Hernandez-Ponce, supra, is

improper since it implicitly overrules Lennon v. INS, supra, as well as

Matter of Wolf, 16 I&N Dec. 125 (BIA 1977), in which the Board

adopted the Lennon decision. The aliens in those cases had been

convicted of possession of marijuana under a British statute which was

found to impose absolute liability. In Lennon, the Second Circuit

determined that in light of the "deeply rooted requirement of

knowledge and intent in our legal system," Congress did not intend to

subject an alien "convicted under a foreign law that made guilty

knowledge irrelevant" to the harsh immigration consequences of a

drug conviction. Lennon v. INS, supra, at 193-94. We stated in Wolf

that we would follow the court's interpretation of the statute in

question, agreeing that a person's lack of knowledge that a prohibited

substance was in his possession was irrelevant to the offense defined

by the British law. The respondent asserts that section 11550 of the

California Health and Safety Code, under which he was convicted,

similarly requires no proof of guilty knowledge. Thus, he argues that

the rationale stated in Lennon should apply to him.

We have reviewed our decisions dealing with so-called "strict

liability" statutes and conclude that they do not require us to overrule

Matter ofHernandez-Ponce, supra, as the respondent urges. See Matter

of Poon, 17 I&N Dec. 350 (BIA 1980), affd, 707 F.2d 258 (6th Cir.

1983); Matter of Davis, 16 I&N Dec. 748 (BIA 1979); Matter of

Pritchard, 161&N Dec. 340 (BIA 1977); Matter of Wolf, supra; Matter

of wadh, 15 I&N Dec. 775 (BIA 1976); Matter of Pasquini, 15 I&N

Dec. 683 (BIA 1976), air d, 557 F.2d 536 (5th Cir. 1977); Matter of

Lennon, 15 I&N Dec. 9 (BIA 1974), vacated, 527 F.2d 187 (2d Cir.

1975). We note that in all but one of these cases we found that either

the statute or the case law interpreting it provided for some defense

permitting the defendant to prove his lack of knowledge. We therefore

concluded that the statute was not one of strict liability and did not fall

within the ambit of the Second Circuit's holding in Lennon. Matter of

Poon, supra (Hong Kong statute containing rebuttable presumption of

knowledge); Matter of Pritchard, supra (British law revised to permit

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Interim Decision #3226

proof of lack of knowledge); Matter of Awadh, supra (Canadian case

law interpreting scienter requirement); Matter of Pasquini, supra

(Bahamian statute providing defense of lack of knowledge). Only in

Matter of Davis, supra, did we find that strict liability existed where

the alien's conviction for sale of hemp was obtained under a provision

of the Australian Poisons Act that was devoid of any element of

knowledge or mens rea. In the absence of any indication in the statute

or case law of an available defense, we concluded that the Immigration

and Naturalization Service had failed to establish deportability.

The respondent in this case was convicted under section 11550(a) of

the California Health and Safety Code. That statute provides in

pertinent part as follows:

No person shall use, or be under the influence of any controlled substance ... except

when administered by or under the direction of a person licensed by the state to

dispense, prescribe, or administer controlled substances. It shall be the burden of the

defense to show that it comes within the exception.

Cal. Health and Safety Code § 11550(a) (West 1993).

The respondent has presented nu evidence indicating the intent of

the California legislature, nor any interpretation by the state courts

regarding the requirement of an element of mens rea in this statute.

We note, however, that the California Penal Code contains the

following provision: "In every crime or public offense there must exist

a union, or joint operation of act and intent ... " Cal. Penal Code

§ 20 (West 1993).

Construing this statutory provision in People v. Gory, 170 P.2d 433

(Cal. 1946), a case involving possession of drugs, the California

Supreme Court stated the following:

But this does not mean that a positive, willful intent to violate the law is an essential

ingredient of every offense. Sometimes an act is expressly prohibited by statute, in

which case the intentional doing of the act, regardless of good motive or ignorance of

its criminal character, constitutes the offense denounced by law. Instances illustrating this principle may be found= in statutes enacted for the protection of public

morals, public health, and the public peace and safety. If a specific intent is not made

an ingredient of the statutory offense, it is not necessary to prove such specific intent

in order to justify a conviction.

Id. at 435 (citation omitted). The court went on to conclude that

neither intent nor knowledge was a required element under the statute

defining the offense of possession of drugs. Id. at 436.

The decision in Gory was subsequently given conflicting interpretations by the lower appellate courts of California, however, some

holding that knowledge of the presence of the substance alone was

necessary for conviction, while others required proof that the defendant also knew the physical character of the article. See People v.

Teller, 284 Cal. Rptr. 913 (Cal. Ct. App. 1991), for the historical

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development of the issue and citation of the relevant cases. This

disagreement was settled by the Supreme Court of California in People

v. Gorg, 291 P.2d 469 (Cal. 1955), where it quoted with approval but

without explanation the following rule from two lower court cases: "In

order to sustain a conviction of possession of narcotics it must be

shown that the defendant had either physical or constructive possession, and that he was aware that the substance of which he had

possession was a narcotic." Id. at 471 (quoting People v. Can diotto,

275 P.2d 500 (Cal. Dist. Ct. App. 1954), and People v. Walker, 262

P.2d 640 (Cal. Dist. Ct. App. 1953). The court finally clarified its

position in People v. Winston, 293 P.2d 40 (Cal. 1956), stating that the

requirement of knowledge of the nature of the substance possessed was

"implicit in the discussion of the basic principles involved" in Gory.

Id. at 45. Thus the court explained that while "specific intent to violate

the law is immaterial to a conviction for the unlawful possession of a

narcotic, knowledge of the object's narcotic character ... is required."

Id. at 44.

This knowledge requirement was subsequently extended to prosecutions for sale of controlled substances in People v. Daniels, 537 P.2d

1232 (Cal. 1975). In that case the Supreme Court again found, as in

Gory, that the statutory offense required only proof of a general

criminal intent to commit the prohibited act and that no specific

intent to violate the law was necessary for conviction. However, the

court noted that the element of knowledge of the character of the

substance sold had been judicially added as another prerequisite to

conviction. See also People v. Gorg, supra (stating that awareness of the

narcotic nature of a plant must be shown to sustain a conviction for

cultivating marijuana); People v. Carrasco, 173 Cal. Rptr. 688 (Cal_ Ct.

App. 1981) (requiring proof of the dual knowledge elements of

presence and nature of the substance for conviction for possession of

drugs in a penal institution).

Thus, we find that the underlying presumption in California law

that every crime contains an element of intent has been recognized

through judicial interpretation as having applicability to drug offenses.

By adding a knowledge requirement, the California courts have made

evidence of an offender's guilty mind essential for a conviction in

various contexts. Cf. Tart v. Massachusetts, 949 F.2d 490 (1st Cir.

1991) (noting that absent clear evidence of contrary legislative intent,

criminal statutes are generally presumed to require the state to

establish defendant's culpable state of mind); United States v. Singleton, 946 F.2d 23 (5th Cir. 1991) (stating that a presumption exists that

statutes include an element of mental culpability), cert. denied, 502

U.S. 1117, (1992). But cf. People v. Telfer, supra (requiring no proof of

knowledge of the physical character of the substance being manufac0C1

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Lured in prosecution for manufacture of a controlled substance due to

the danger to the public health and safety and the remote likelihood

that manufacture of the drug was innocent).

Moreover, we note that in this case, as in others involving

convictions under the California use statute, the complaint charges

that the use of drugs was "willful." See, e.g., Sallas v. Municipal Court,

150 Cal. Rptr. 543 (Cal. Ct. App. 1978); In re Becerra, 32 Cal. Rptr.

910 (Cal. Dist. Ct. App. 1963). The word "willful" has generally been

stated to mean that "a person acts knowingly with respect to the

material elements of the offense, unless a purpose to impose further

requirements appears." United States v. Hoyland, 914 F.2d 1125 (9th

Cir. 1990) (quoting American Law Institute, Model Penal Code

§ 2.02, p.249) (emphasis added); see also Hirsch v. INS, 308 F.2d 562,

567 (9th Cir. 1962) (quoting Neely v. United States, 300 F.2d 67, 72

(9th Cir.), cert. denied, 369 U.S. 864 (1962) (upholding a jury

instruction that the word "willful" means that the act is done

deliberately and with knowledge)); American Surety Co. v. Sullivan, 7

F.2d 605, 606 (2d Cir. 1925) (defining "willful" as meaning that the

person charged with the duty knows what he is doing). This inclusion

of the term "willful" in the respondent's complaint reinforces our

opinion that a person could not he convicted of use of drugs under

California law in the absence of some finding of guilty knowledge on

the part of the user.

Finally, the offense defined by this statute, to "use, or be under the

influence" of a controlled substance, itself implies an active and

purposeful participation on the part of the offender. The definitions of

the verb to "use" include the following: "to consume or take (as liquor

or drugs) regularly"; "to carry out a purpose or action by means of';

"to put into service esp. to attain an end." Webster's New Collegiate

Dictionary 1288 (1977). These terms suggest that use of a controlled

substance inherently involves a conscious, voluntary act on the part of

the user and, consequently a lack of innocence. 6 Cf. United States v.

Freed, 401 U.S. 601, 609 (1971) (noting the obviousness of the fact

that possession of handguns, which are as dangerous as narcotics, is

not an innocent act). See generally United States v. Erne, 576 F.2d 212,

6 See generally Robinson v. California, 370 U.S. 660 (1962), where, due to the

involuntary nature of addiction, the Supreme Court found unconstitutional as cruel and

unusual punishment that part of the precursor statute to section 11550 which prohibited

being addicted to the use of narcotics. In its decision, the Court distinguished penalizing

a person under the California statute for an addiction, which could be contracted

innocently or involuntarily, from imposing punishment under statutes prohibiting the

use of drugs or their possession, sale, or purchase, or for antisocial or disorderly

behavior resulting from their administration, acts which were apparently considered to

be volitional. Id at 666-67.

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215 (9th Cir_ 1978) (stating that the court's concern about not

requiring criminal intent for a conviction under the Internal Revenue

Code was ameliorated by the fact that the crime could not be

committed unknowingly); United States v. Delahoussaye, 573 F.2d

910, 913 (5th Cir. 1978) (approving of a magistrate's imposition of a

"should have known" standard of scienter). We note in this regard that

the respondent has made no claim that he contested the allegations

against him on grounds that his use of drugs was innocent or that he

was placed under their influence involuntarily.

On the basis of the following factors, we conclude that the

respondent's conviction under the California statute prohibiting the

use of controlled substances was not rendered without regard to his

mental culpability: the nature of the crime of use of a controlled

substance, the principle underlying the California penal laws that the

element of intent is a prerequisite to crime, the California case law

requiring guilty knowledge for a conviction for possession or sale of

drugs, the fact that willfulness was alleged in this and other use cases,

and the absence of any assertion by the respondent that his use of

drugs was innocent or that he was placed under their influence

involuntarily. We also note that the respondent has submitted no

support for his premise that a person could be convicted of using or

being under the influence of a controlled substance in California in

circumstances where it was established that he or she was mistaken as

to the nature of the drug or was tricked or forced into taking it7

Having considered the above factors, we reject the respondent's

assertions that guilty knowledge was irrelevant to his conviction under

California law and that a finding of deportability would be in

contradiction to Lennon v. INS, supra. Moreover, as we have

previously pointed out, the Ninth Circuit recently reviewed a conviction under the same California statute at issue here and found the

convicted alien deportable because the plain language of the deportation statute clearly "encompasses laws proscribing use or being under

the influence of a controlled substance." Flores-Arellano v. INS, supra,

7 In similar cases the criminal courts have found a requirement of mental culpability

implicit in the statute or have allowed an affirmative defense to be made. Cf. State v.

Cleppe, 96 P.2d 435 (Wash. 1981) (stating that an affirmative defense has been

permitted for unwitting possession of drugs in order to ameliorate the harshness of the

almost strict liability of the statute); Matter of Awadh, supra, and cases cited therein

(describing Canadian cases in which lack of knowledge prevented conviction for

possession of drugs despite strict liability of the statute). See generally Morissette v.

United States, 342 U.S. 246, 25256 (1952) (noting the unanimity with which courts

have adhered to the idea that wrongdoing must be conscious to be criminal and have

found knowledge or intent implicit in statutes defining common-law offenses, but also

recognizing that exceptions have been made for "public welfare offenses").

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at 362. That court, whose law is controlling in this case, noted no

exceptions.

APPLICABILITY OF LENNON

In light of the aforementioned changes in the immigration laws

effected by the Anti Drug Abuse Act of 1986, we now find it

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appropriate to question whether Lennon v. INS, supra, remains

applicable to the current statute at all. In this regard we note that the

immigration law reviewed by the Second Circuit in its 1975 opinion

addressed violations of laws proscribing the "illicit" possession of

drugs, a term which carries with it the connotation of an intentional

violation.8 In 1986, however, Congress eliminated the words "illicit

possession" from the statute, broadening the language of the law to

render deportable aliens convicted of violating "any law ... relating

to a controlled substance." See sections 212(a)(23) and 241(a)(11) of

the Act, 8 U.S.C. §§ 1182(a)(23), 241(a)(11) (1988). Consequently,

there no longer exists any statutory limitation on the types of drug

offenses which subject an alien to exclusion or deportation. We find

nothing in the legislative history of the Anti-Drug Abuse Act of 1986

to indicate that Congress meant to restrict its expansive language by

allowing an exception to be made for statutes lacking a mens rea

component. See Flores-Arellano v. INS, supra. See generally De Osorio

v. United States INS, 10 F.3d 1034, 1043 (4th Cir. 1993) (relying on

Congress' unquestionably restrictive intent to reject the argument that

the principle of leniency to aliens should be applied in interpreting the

statute regarding the availability of section 212(c) waivers). In fact, by

progressively enacting more stringent immigration provisions relating

to drug offenders, Congress has shown that it takes the matter of drug

abuse and its concomitant crime in this country very seriously and that

it has a diminishing tolerance for those aliens who violate statutes

aimed at drug enforcement. In view of Congress' clear shift to enlarge

the scope of the statute, we believe that the rationale of the Second

Circuit's Lennon decision, which was based largely on an interpreta8 The significance of the term "illicit" was emphasized in the Lennon decision by the

Second Circuit, which noted that if the word merely meant "unlawful," it would be

redundant. Lennon v. INS, supra, at 193 n.11. The fact that this restrictive language

might be interpreted as limiting the scope of the exclusion ground to aliens convicted

under statutes where guilty knowledge was required was also acknowledged by the Fifth

Circuit in Pasguini v. United States INS, 557 F.2d 536, 539 (5th Cir. 1977). However, in

that case the court specifically declined to decide whether to follow the Second Circuit's

holding, finding it unnecessary because the Bahamian statute before it could not "be

read so as to render intent or knowledge irrelevant in a prosecution for possession of

marijuana." Id.

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Interim Decision #3226

tion of the congressional intent underlying a version of the statute that

'

is no longer in effect, has been severely undermined.

We acknowledge that the Second Circuit's perception of the intent

of Congress resulted in. part from its reliance on the following

statement made by the Board in Matter of Lennon, supra: "Mt is fair

to state that in enacting section 212(a)(23), Congress did not intend to

exclude persons who were entirely unaware that a prohibited substance

was in their possession?' Id. at 18. We reached this conclusion based

solely on the fact that elements of knowledge or intent had been

included in statutes prohibiting the possession of drugs under both

federal law and the law of the District of Columbia. However, we note

that a number of state statutes currently in force in this country that

prohibit the use or possession of drugs do not specifically include any

element of mental culpability for conviction. 9 Thus, although, as the

Second Circuit observed, the concept of mens rea is a basic tenet of

our system of criminal jurisprudence, it is not without limitations. See

United States v. Freed, supra, at 607 (1971); Morissette v. United

States, 342 U.S. 246, 250 52 (1952); United States v. Hoyland, supra,

at 1129; United States v. Erne, supra, at 214; Lennon v. INS, supra, at

193; see also Anthony A. Cuomo, Mens Rea and Status Criminality, 40

-

S. Cal. L. Rev. 463, 473 74 (1967). The courts have recognized that

"the authority of the State in the exercise of its police power to regulate

the administration, sale, prescription and use of dangerous and habitforming drugs" is unquestioned. Minnesota ex reL Whipple v. Martinson, 256 U.S. 41, 45 (1921) (emphasis added); see also Robinson v.

California, 370 U.S. 660, 664 (1962). Consequently, exceptions to the

general requirement of guilty knowledge in criminal statutes have been

carved out to permit the passage of laws to protect the public health,

safety, and welfare, particularly in the area of drug enforcement. See

United States v. Dotterweich, 320 U.S. 277 (1943); United States v.

Behrman, 258 U.S. 280 (1922); United States v. Balint, 258 U.S. 250

-

(1922); see also United States v. Freed, supra, at 607, 609; Morissette v.

United States, supra, at 250-60; United States v. Hoyland, supra, at

1128; Stepniewski v. Gagnon, 732 F.2d 567, 571 (7th Cit.. 1984).

Therefore, the concept of applying absolute liability in cases involving

9 Several state statutes which, on their face, have no mens rea requirement include the

following Section 11.71.060(a)(1) of the Alaska Statutes (use or display); section 11350

of the California Health and Safety Code (possession); section 18-18-404(1) of the

Colorado Revised Statutes (use); section 333.7404(1) of the Michigan Compiled Laws

(use); section 213-417(g) of the Nebraska Revised Statutes (under the influence); section

2C:35-10(b) of the New Jersey Statutes (use and under the influence); section 2-405(A)

of the Oklahoma Statutes (use); and section 69.50.401(d) of the Revised Code of

Washington (possession).

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drug violations is not foreign to our system of criminal justice. See,

e.g., United States v. Behrman, supra; United States v. Balint, supra.

In this regard we note the Second Circuit's questionable comment

that a person convicted under the British law at issue would be "quite

innocent under our system of criminal justice." Lennon v. INS, supra,

at 194 n.16. The court further stated that its holding would "not, of

course, give any comfort to those convicted in the United States of

drug violations." Id at 194. Thus, the ruling in Lennon was

specifically limited to convictions under foreign statutes and does not

constrain us in this case.

Inasmuch as the immigration laws that were the basis for the

Second Circuit's interpretation in Lennon have been changed to

significantly broaden the scope of the statute regarding drug violations,

we conclude that Lennon v. INS no longer remains controlling law.

Furthermore, since the court's ruling was specifically limited to

convictions under foreign laws, we find that the Lennon decision is, in

any case, inapplicable in cases such as that now before us, where the

alien was convicted in this country under the laws of the United States.

In light of the foregoing conclusions, the validity of our own

decision in Matter of Lennon, supra, must also be reexamined. As we

noted in our previous discussion, Congress has intensified its efforts to

prevent drug offenders from avoiding deportation by passing increasingly more stringent laws in the 20 years since Matter of Lennon was

written. By using the inclusive words, "any law or regulation ...

relating to a controlled substance," Congress has exhibited its intent to

expand the reach of the exclusion and deportation grounds to all drug

offenders, setting virtually no limits beyond the exception provided for

those convicted of a single possession offense involving 30 grams or

less of marijuana. See Flores-Arellano v. INS, supra. Inasmuch as the

statute underlying our decision in Matter of ennon has been amended

to include this comprehensive language, we no longer consider the

basic premise for our conclusion regarding congressional intent in that

case to be tenable. Accordingly, we now find it appropriate to overrule

Matter of Lennon_ In addition, Matter of Wog supra, and Matter of

Davis, supra, which followed Matter of Lennon, must be overruled as

well. Finally, we also withdraw from Matter of Poon, supra, Matter of

Pritchard, supra, Matter of ifwadlz, supra, and Matter of Pasquini,

supra, to the extent they indicate that aliens convicted under a statute

without any element of scienter are not subject to exclusion or

deportation.

Inasmuch as we reject the respondent's contention on appeal that

his conviction does not render him deportable, the appeal will be

dismissed.

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ORDER:

The appeal is dismissed.

CONCURRING OPINION: David B. Holmes, Alternate Board

Member

I respectfully concur.

I concur in the finding that Congress intended to include the crimes

of use and being under the influence of drugs as deportable offenses

under section 241(a)(11) of the Immigration and Nationality Act, 8

U.S.0 § 1251(a)(11) (1988). I also agree that, even if one assumes that

Lennon v. INS, 527 F.2d 187 (2d Cir. 1975), is controlling precedent,

the California law under which this respondent was convicted does not

fall within the ambit of Lennon. This being the case, I do not find it

necessary and would not reexamine on this record the validity of

Lennon v. INS, supra, and its progeny.