MATTER OF PAULUS

In Deportation Proceedings

A-11773984

Decided by Board May 25, 1965

Where the record of conviction is silent as to the narcotic involved, an alien's conviction of violation of section 11503, Health and Safety Code of California, for selling and delivering a substance and material în lieu of a narcotic after having offered to sell and furnish a narcotic, does not constitute a ground of deportability under section 241(a)(11), Immigration and Nationality Act, as amended, since the conviction could have involved a substance which though a narcotic under California law is not a narcotic drug within the meaning of the immigation laws.

CHARGES:

Order: Act of 1952-Section 241(a) (11) [8 U.S.C. 1251(a) (11)]-Con

victed of violation of any law governing or controlling the taxing, sale, etc., of narcotic drugs, to wit, section 11503, Health and Safety Code of California (1963).

Lodged: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]-Convicted of violation of any law relating to the illicit traffic in narcotic drugs, to wit, section 11503, Health and Safety Code of California.

The special inquiry officer terminated proceedings. The Service appeals from the order of the special inquiry officer terminating proceedings. Only the lodged charge is in issue; the Service withdrew the charge in the order to show cause.

The special inquiry officer has written an extensive and well reasoned order; briefly, respondent, a 30-year-old married male alien, native and last a national of Germany, was admitted to the United States for permanent residence on February 21, 1958. He was convicted in a California state court on August 12, 1963 for violating section 11503 of the Health and Safety Code of California;1 the

information charged that respondent "did offer unlawfully to sell and furnish a narcotic to a person and did then sell and deliver to such person a substance and material in lieu of such narcotic." There is nothing in the record of conviction to identify the narcotic which respondent offered to sell. The California law relates to a narcotic or marihuana violation rather than to larcenies or frauds (Haserot v. United States, 321 F.2d 582 (9th Cir., 1963); the question is whether every conviction under the section can serve as the basis for deporting an alien as one who:

any law or regulation relating to the drugs or marihuana * ** (section

has been convicted of a violation of, * * illicit possession of or traffic in narcotic 241 (a) (11) of the Act (8 U.S.C. 1251)). The special inquiry officer's reason for terminating proceedings is that the record being silent as to the narcotic involved in the conviction it is possible that the conviction involved a substance (such as peyote) which is a narcotic under California law but is not defined as a narcotic drug under federal law: since a doubt is thus created, and since the respondent must be given the benefit of the doubt, it cannot be said for immigration purposes, that he has been convicted of a law relating to narcotic drugs.

The Service contends that the conviction is sufficient because, the California statute is recognized as one relating to narcotics (no case interpreting it so in the context of a deportation proceeding is cited), because Congress used the term "narcotic drugs" in a generic sense, and because Congress' failure to provide a federal standard leaves room for state interpretation. At oral argument, the Service representative expressed the belief that the issue presented was whether the substitution of a nonnarcotic at the time of sale prevents the law from being one concerning narcotic drugs. He also pointed out that the history of the law reveals that it was enacted to make possible convictions of sellers of narcotics who, having arranged for the sale of a narcotic but becoming suspicious of the bona fides of the buyer,

1

1 Section 11503. Unlawful sale, furnishing, transportation, etc., of narcotic, or any other liquid, substance, or material in lieu of narcotic: Punishment. Every person who agrees, consents, or in any manner offers to unlawfully sell, furnish, transport, administer, or give any narcotic to any person, or offers, arranges, or negotiates to have any narcotic unlawfully sold, delivered, transported, furnished, administered, or given to any person and then sells, delivers, furnishes, transports, administers, or gives, or offers, arranges, or negotiates to have sold, delivered, transported, furnished, administered, or given to any person any other liquid, substance, or material in lieu of 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 10 years.

substituted a nonnarcotic to avoid possible arrest, on a narcotic charge.

1

1

Counsel makes a distinction between the sale of a narcotic and the sale of narcotic drugs. He contends that one who offers to sell a narcotic and delivers a nonnarcotic has not engaged in "illicit traffic", that a federal definition must be used to determine whether a conviction falls within the terms of the federal law (Mendoza-Rivera v. Del Guercio, 161 F. Supp. 473 (So.D. Cal., 1958), affirmed Hoy v. Mendoza-Rivera, 267 F.2d 451 (9th Cir., 1959), and that procedural error was committed when respondent was prevented from explaining the circumstances concerning his conviction.

The California law was meant to discourage anyone from engaging or appearing to engage in narcotics traffic (Peo. v. Shephard, 337 P.2d 214); however, we do not believe that the present conviction comes within the provisions of the immigration laws under which "narcotic drugs" have a definite meaning and under which there must be a conviction of a law relating to narcotic drugs. At most, the Service has shown that respondent was convicted of a law which may or may not relate to narcotic drugs.

In Mendoza-Rivera, supra, the question was whether an alien convicted under California law of possessing marihuana has been convicted of a violation of a law relating to narcotic drugs. Under California law marihuana is classified as a narcotic drug. The court determined that Congress treated narcotic drugs and marihuana in separate categories and ruled therefore that marihuana was not included in the term "narcotic drugs" for purposes of the immigration laws. It would thus appear that only a conviction for illicit possession of or traffic in a substance which is defined as a narcotic drug under federal laws can be the basis for deportation proceedings under section 241(a) (11) of the Act. Since the conviction here could have been for an offer to sell a substance which though a narcotic under California law is not a narcotic drug under federal laws, we cannot say that the Service has borne its burden of establishing that respondent has been convicted of a violation of a law relating to narcotic drugs. The fact that for some purposes, the California statute is considered a narcotic law violation does not bring a conviction within the immigration laws: it is well recognized that a law may be considered a conviction for some purpose and not others (Matter of G-9 I. & N. Dec. 159, 166); furthermore, the name the state gives a crime does not necessarily control (United States v. Flores-Rodriguez, 237 F.2d 405, 2nd Cir., 1956).

ORDER: It is ordered that the Service appeal be and the same is hereby dismissed.

MATTER OF SHAW

In Visa Petition Proceedings

NYC-N-17649

1

Decided by District Director May 28, 1965

i

Since the term "of distinguished merit and ability” implies preeminence in the field of endeavor, nonimmigrant classification under section 101 (a) (15) (H) (i), Immigration and Nationality Act, for a singer-performer for a television show, is denied an 18-year-old beneficiary who was unknown as a performer a year ago; who has no record of extensive performances; whose recording successes are few in number; while one of her recordings has reached the pinnacle of success in Great Britain, their popularity has been strictly ephemeral; the supporting documentation, consisting of 26 clippings from publications, is essentially biographical, offering virtually no critical appraisal of her performances or talents; the proposed salary for the work involved, which does not include transportation and incidental expenses, would scarcely defray first-class transportation; and, in addition, an advisory opinion of the American Federation of Television and Radio Artists concludes the beneficiary falls far short of being of distinguished merit and ability.

A petition by Sullivan Productions, Incorporated, 524 West 57th Street, New York, New York, was submitted on May 19, 1965, to accord Sandie Shaw, an 18-year-old native and citizen of Great Britain, classification under section 101(a) (15) (H) (i) of the Immigration and Nationality Act. The services of the beneficiary are sought as a singer-performer for the Al Hirt Television Show.

The provisions of sections 101(a)(15) (H)(i) and 101(a)(15) (H) (ii) of the Act, which are applicable and to which reference will be made, are quoted below:

Section 101 (a) (15)—the term "immigrant" means every alien except an allen who is within one of the following classes of nonimmigrant aliens

(H) an alien having a residence in a foreign country which he has no intention of abandoning (i) who is of distinguished merit and ability and who is coming temporarily to the United States to perform temporary services of an exceptional nature requiring such merit and ability; or (ii) who is coming temporarily to the United States to perform other temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.

A prior petition to accord the beneficiary classification under section 101(a) (15) (H) (i) of the Act was submitted by the Hullabaloo Company, New York, New York, on March 26, 1965. Her services were sought as a performer to sing popular British songs on the Hullabaloo Television Show. The beneficiary was to receive $1500 for one performance.

The documentation submitted in support of the earlier petition included a letter by Mike Maitland of Warner Brothers Records, Incorporated, Burbank, California, stating the beneficiary is destined to become an important record artist in the United States, and statements by the General News Editor of Music Business magazine and the Music Editor of Billboard magazine indicating the beneficiary to be among the top English recording stars and a singer and performer of distinguished merit and exceptional ability. Also furnished were various record popularity tables. During the week ending October 31, 1964, the beneficiary's recording of "Always Something There to Remind Me" was in the number one position in Great Britain. An article appearing in the London Daily Mail of October 23, 1964, was submitted indicating the beneficiary to have been awarded a silver disc to commemorate the sucesss of this recording.

It is the policy of this Service, in the course of processing petitions of this nature, to request relating organizations and associations or outstanding individuals in their respective fields to provide advisory opinions regarding the qualifications, skills, or talents of the various beneficiaries. The Assistant Executive Secretary of the American Federation of Television and Radio Artists informed this office on April 7, 1965, that, in his opinion, the beneficiary is not a distinguished performer. He also advised that the services to be performed did not appear to be exceptional in nature and further asserted that her recordings were neither exceptional nor outstanding.

While the desires of unions to ban or limit the employment of foreign entertainers utilized to the detriment of unemployed American performers is appreciated, the opinions of such organizations must be given some weight because of their pertinency in matters involving an assessment of the merit and availability of performers in areas in which they are of necessity experienced and knowledgeable.

It was concluded that the evidence of record failed to establish that the beneficiary is a person of distinguished merit and ability within the contemplation of section 101 (a) (15) (H) (i) of the Immigration and Nationality Act. On April 7, 1965, accordingly, the petition by the Hullabaloo Company in behalf of Miss Shaw was denied.

A petition to accord Miss Shaw classification under section 101 (a) (15) (H)(ii) of the Act was submitted on May 24, 1965, by Puritan