Interim Decision #2678

Interim Decision #2678

MATTER OF CARRILLO

In Deportation Proceedings

A.-31073471

Decided by Board November 28, 1978

An alien convicted of "Unlawful Carrying of a Firearm during the Commission of a

Felony" (18 U.S.C. 924(c)) is not deportable under section 241(a)(11) of the Immigration

and Nationality Act, 8 U.S.C. 1251(a)(11), even though the underlying felony is the

illicit possession of heroin, since 18 U.S.C. 924(c) is not "a law . . . relating to the illicit

possession of a narcotic drug." Castaneda de Esper v.1NS, 557 F.2d 79 (6 Cir. 1977) and

Blotter of Velasco, Interim Decision 2601 (BIA 1977) followed. Matter of Chang,

Interim Decision 2550 (BIA 1977) distinguished.

CHARGES:

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

relating to the illicit possession of or traffic in narcotics

Act of 1952—Section 241(a)(4) [8 U.S.C. 1251(a)(4)]—Convicted of a crime

involving moral turpitude committed within five years after

entry and sentenced to confinement for a year or more

ON BEHALF OF RESPONDENT:

David E. Marcus, Esquire

1221 State Street

P. 0. Box 1631

El Centro, California 92243

BY: Milhollan, Chairman; Moniatis, Maguire, and Farb, Board Members. Concurring

Opinion: Appleman, Board Member_

In a decision dated July 22, 1976, the immigration judge found the

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

Nationality Act, 8 U.S.C. 1251(a)(11), as an alien who had been con-

victed under a law relating to the illicit possession of narcotics. The

respondent was found to be ineligible for any form of relief from deportation, and he was ordered deported to Mexico. He has now appealed,

arguing that his conviction was not under a law relating to the illicit

possession of narcotics. The appeal will be sustained.

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

'Waited States as a lawful permanent resident on March 12, 1971. On

April 19, 1976, he was convicted in the United States District Court for

the District of Arizona upon a plea of guilty to violation of 18 U.S.C.

924(c), "Unlawful Carrying of a Firearm during the Commission of a

625

Interim Decision #2678

Felony" 1, to wit, possession of heroin with intent to distribute (21

841(a)(1) and (b)).

An Order to Show Cause was issued on June 23, 1976, charging the

respondent with deportability under sections 241(a)(4) and 241(a)(11) of

the Act, 8 U.S.C. 1251(a)(4) and 1251(a)(11). 2 At the deportation hearing on July 22, 1976, the Service trial attorney conceded (Transcript p.

14) and the immigration judge found that the Service had not met its

burden of establishing that the respondent was deportable under section 241(a)(4). However, he found that, since the underlying felony upon

which the respondent's conviction under 18 U.S.C. 924(c) had been

based was the illicit possession of heroin, the respondent had been

convicted under "a law . . . relating to the illicit possession of a narcotic

drug . . . ." He therefore found that the respondent was deportable

under section 241(a)(11).

In Matter of Velasco, Interim Decision 2601 (BIA 1977), we held that

a conviction under 18 U.S.C. 4 for misprision of the felony of illicit

possession of marihuana was not a conviction under a law "relating to the

illicit possession of . . . narcotic drugs . . . ." Relying upon the holding

of the United States Court of Appeals for the Sixth Circuit in Castaneda

de Esper v. INS, 557 F.2d 79 (6 Cir. 1977), we declined to interpret a

conviction for misprision to incorporate the underlying narcotic-related

felony for the purposes of section 241(a)(11) of the Act. In Castaneda de

Esper v. INS, supra, the court held that when a criminal statute "does

not by its language indicate [that] it was contemplated to be a 'narcotic

law'," and historically has constituted a "criminal offense separate and

distinct from the [underlying] felony," such a statute is not a "law

relating to . . . narcotic drugs . . . ."

The respondent was convicted under 18 U.S.C. 924(e) for the unlawful

carrying of a firearm during the commission of a felony. Like the

misprision statute involved in Castaneda de Esper v. INS, supra, and

Matter of Velasco, supra, 18 U.S.C. 924(c) is not by its terms a "narcotic law." Castaneda de Esper, supra, at 8. Rather, a conviction under 18

U.S.C. 924(c) may be based upon any underlying felonious act.' Siirsi18 U.S.C. 9240 states, in pertinent part: "Whoever— (1) uses a firearm to coxrarnit

any felony for which he may be prosecuted in a court of the United States, or (2) carries a

&rearm unlawfully during the commission of any felony for which be may be prosecuted Ili

a court of the United States shall . . . be sentenced to a term of imprisonment for not less

than one year nor more than ten years."

2 Under section 241(a)(4), an alien is deportable who is convicted of a crime involving

moral turpitude committed within five years after entry and who is sentenced to confinement for a year or more. Under section 241(a)(11), in pertinent part, an alien is deportable

who has been convicted of a violation of "any law . . . relating to the illicit possession

of . narcotic drugs . . . ."

Cf. Matt e r of Chang, Interim Decision 2550 (ZIA 1977), where we held that, since 0 1

of a843(b)unlawfseocmiatnflyocehmisn

626

Interim Decision #2678

larly, possession of a firearm during the commission of a felony is an

offense separate and distinct from the underlying felony. United States

v. Williams, 523 F.2d 1203 (5 Cir. 1975); United States v. Ramirez, 482

F.2d 807 (2 Cir.), cert. denied, 414 U.S. 1070 (1973). Therefore, notwithstanding the fact that the underlying felony may, in a particular

case, be a narcotic-related offense, we find that 18 U.S.C. 924(c) itself is

not a "law relating to the illicit possession of . . . narcotic drugs . . . ."

Accordingly, the respondent's conviction under that statute does not

give rise to his deportability under section 24I(a)(11) of the Immigration

and Nationality Act. The appeal will be sustained, and the proceedings

will be terminated.

ORDER: The appeal is sustained, and the proceedings are terminated.

CONCURRING OPINION: Irving A. Appleman, Board Member.

I am in agreement with the majority opinion with respect to the

narcotics charge. The charge based on conviction of a crime involving

moral turpitude was not sustained by the immigration judge and no

cross appeal was filed by the Service to preserve the charge. However,

were that charge before us, I would be disposed to question the summary disposition given it by the immigration judge.

This alien was convicted under 18 U.S.C. 924(c) of unlawful carrying

of a firearm during commission of a felony "as charged in Count 2 of

the Indictment." Count 3 of the indictment charged the violation occurred during "commission of the offense of possessing with intent to

distribute heroin." This type of statute and conviction might reasonably

seem to require an examination of the felony for which the firearm was

being carried—not for purposes of the narcotics charge, for the reasons

noted in the majority decision, but to determine the turpitudinous or

nonturpitudinous nature of the principal offense. See U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (2 Cir. 1933); U.S. ex rel. Robinson v. Day,

51 F.2d 1022 (2 Cir. 1931); Bisaillan v. Hogan, 257 F.2d 435, 437 (9

Cir.), cert. denied, 358 U.S. 872 (1958); Matter of S—, 2 I. & N. Dec.

559, 570 (A.G. 1947) (manslaughter); Matter of R—, 1 I. & N. Dec. 540

(BIA 1943) (burglary Scl degree); Matter of R—P—, 4 I. & N. Dec. 607

MIA 1952) (contributing to the delinquency of a minor); Matter of W—,

4 I. & N. Dec. 241 (BIA 1951) (unlawful entry of a building); Matter of

N—, 8 I. & N. Dec. 466 (BIA 1959) (malicious mischief); Matter of

felony) makes specific and exclusive reference to subsections I and II of the Comprehen-

sive Drug Abuse Prevention and Control Act, Pub. L. 91-518, Title II §101,84 Stat. 1242

(1970), a conviction under that statute constitutes a conviction within the ambit of aectiort

212(a)(23) of the Immigration and Nationality Act.

627

Interim Decision 42678

McNaugh,ton, Interim Decision 2663 (BIA 1978) (conspiracy); cf. Matter

of Sloan, 12 I. & N.. Dec. 840 (BIA 1966, A.G. 1968) ("variant" rule).

Since the issue is not before us it needs neither elaboration nor

resolution at this time.

628