VELASCO

Interim Decision #2601

MATTER OF VELASCO In Deportation Proceedings

A-1070560

Decided by Board July 25, 1977 Conviction for misprision of a felony to wit, possession of marihuana with intent to distribute, is not a conviction of a law "relating to the illicit possession of or traffic in narcotic drugs or marihuana," and does not subject respondent to deportability under section 241(a)(11) of the Immigration and Nationality Act. CHARGE: Order: Act of 1952—Section 241(a)(11)18 U.S.C. 1251(a)(11)¹—Convicted of a violation of law relating to illicit possession of marihuana ON BEHALF OF RESPONDENT: Joseph Abraham, Esquire Charles Louis Roberts, Esquire 505 Caples Building El Paso, Tams 79901 BY: Wilson, Acting Chairman; Maniatis, Appleman, and Maguire, Board Members

In a decision dated February 3, 1976, the immigration judge found the respondent deportable under section 241(a)(11) of the Immigration and Nationality Act and ordered his deportation. The respondent has ap- pealed from that decision. The appeal will be sustained and the proceed- ings will be terminated. The respondent, a native and citizen of Mexico, was admitted to the United States for permanent residence on September 14, 1956. On March 14, 1975, the respondent pled guilty in the United States District Court for the Western District of Texas to misprision of a felony, to wit, Possession of marihuana with intent to distribute, in violation of 18 U.S.C. §4 which provides as follows: 4.. Misprision of felony.—Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than 000 or imprisoned not more than three years, or both. These deportation proceedings were subsequently instituted against the respondent under section 241(a)(11) of the Act which provides in p ertinent part:

Interim Decision #2601 (a) Any alien in the United States. . . shall, upon the order of the Attorney General, be deported who—.. . (11) . . . 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. . . .

At the hearing before the immigration judge on December 17, 1975, the respondent made a claim to United States citizenship on the basis of evidence that his adoptive father is a United States citizen. The immi- gration judge rejected the claim on the ground that, having admitted birth in Mexico, the respondent is presumed to be an alien. He further concluded that the respondent hail failed to sustain his burden of going forward with the evidence to show otherwise. We agree with the immi- gration judge's holding. Matter of Leyva, Interim Decision 2559 (BIA January 18, 1977); Matter of Vergara, Interim Decision 2408 (B IA 1975); Matter of Ponco, Interim Decision 2326 (BIA 1974); Matter of Tijerina-Villarreal, 13 I. & N. Dec. 327 (BIA 1969). The respondent also argues that a conviction for misprision of a felony, to wit, possession of marihuana with intent to distribute, is not a conviction of a violation of a law 'relating to . . . marihilana." Accord- ingly, he denies that his conviction subjects him to deportation under section 241(a)(11) of the Act. The immigration judge, however, concluded that the phrase "relating to . . .marilmane was broad enough to encompass convictions for mis- prision of a felony provided the felony concealed is a crime "relating to . . .marihuana." In so hqlding he relied on the Attorney General's deci- sion in Matter of N—, 6 I. & N.. Dec. 557 (A.G. 1955). The alien in Matter of N had been convicted of a conspiracy to sell, dispense and distribute heroin. Section 241(a)(11) of the 1952 Act had not yet been amended to specifically include convictions for conspiracy.' The Attor- ney General, however, held that the phrase "relating to" was broad enough to encompass convictions for conspiracy to violate the narcotic laws. The question presented in the instant case was recently answered by the United States Court of Appeals for the Sixth Circuit in Castaneda 1e Esper v. INS, No. 76-1237 (6 Cir. June 15, 1977). Reversing a decision of this Board (Matter of Esper, A30 241 082, December 22, 1975) the court held that a conviction for misprision of a felony is not a conviction for a violation of a law "relating to . . . marihuana" even though the felony concealed is a crime for which a conviction would clearly fall within the provisions od section 241(a)(11) of the Act. In its opinion the court stated that the crime of misprision of a felony is a criminal offense separate and distinct from the particular felony con- ,

Interim Decision #2601

cealed. It declined to adopt an interpretati on of section 241(0(11) which would incorporate the conviction for misprision of a felony into the underlying offense concealed by the alien. We shall follow the court's decision inEsper, specifically that a convic- tion for misprision of a felony, to wit, p osspssion of marihuana with intent to distribute, is not a conviction of a law "relating to .. . marihuana." Consequently, the appeal will be sustained and the pro- ceedings against the respondent will be terminated. ORDER: The appeal is sustained; the deportation proceedings are terminated.

Footnotes

[1] The phrase "or a conspiracy to violate" 'was added by the Narcotic Control Act of 1966, 1't.113, L. No. 84-728, 70 Stat. 567.