Section 212(a)(23) of the Act provides that an alien shall be ineligible for a visa and excluded from admission into the United States if he "... 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, or any salt derivative or preparation of opium or coca leaves, or isonipecaine or any addiction-forming or addiction-sustaining opiate; or any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs."

The applicant argues that he is not within that class of aliens who are excludable from the United States under the provisions of section. 212(a)(23) of the Act. The pertinent part of this section is that part which provides:

or any alien who the consular officer or immigration officers know or have reason to believe is or has been an illicit trafficker in any of the aforementioned drugs. A criminal conviction is unnecessary to establish a basis for exclusion under this provision. The applicant contends the "illicit trafficker" provision of section 212(a)(23) does not include marihuana as one of the specified illicit drugs, and that, therefore, that provision is inapplicable to the applicant.

Prior to July 14, 1960, sections 212(a)(23) and 241(a)(11) of the Act set forth grounds for the exclusion or deportation from the United States of aliens convicted of narcotic law violations. Since marihuana is not a narcotic drug, the courts held in various decisions that convictions for illicit possession of or traffic in marihuana did not bring the alien within the immigration law which required the exclusion or deportation of one convicted of illicit possession of or traffic in narcotic drugs. To overcome the effect of these decisions, Congress amended the immigration law in 1960 to provide for the deportation of an alien convicted of illicit possession of or traffic in narcotic drugs or marihuana.' The legislative history of this amendment clearly establishes that the concern that Congress had with marihuana violations was as great as its concern with violations of law relating to narcotic drugs. Congress expressed the view that violation of laws relating to marihuana are but the forerunners of violations of other laws relating to dangerous and more addiction-forming 'See Act of July 14, 1960, P. L. 86-648, 74 Stat. 504, sec. 9.

narcotics. Congress also pointed out that the ease with which marihuana could be obtained is undoubtedly one of the leading causes of increased incidence of juvenile delinquency and it stressed the urgent necessity for the enactment of this legislation.2 See generally Matter of Amiet, 14 I. & N. Dec. 146 (BIA 1972).

In 21 U.S.C. 812(b), marihuana is listed as a controlled substance (Section (c) of Schedule I). Marihuana is also defined 21 U.S.C. 802(15) under the general heading of Drug Abuse-Prevention, Control (Chapter 13). Further, in 8 U.S.C. 352(d), marihuana is listed as one of the drugs that shall be deemed to be misbranded under the Food, Drug, and Cosmetic Act unless the label includes the statement "Warning-May be Habit Forming."

In a recent decision of the Court of Appeals for the Ninth Circuit, the court affirmed this Board's decision excluding an alien for illegal trafficking in hashish under section 212(a)(23) of the Act. The court pointed out in its decision that the pertinent language clearly refers back to the earlier inclusion of marihuana as one of the drugs subject to the section. The court also held that marihuana and hashish are derivatives of a common source and that marihuana is sufficiently general in scope to include hashish in the context of applying section 212(a)(23) of the Act. See Hamid v. INS, No. 75-1110 (9 Cir. July 14, 1976). In light of the legislative history reflecting the position of Congress with regard to marijuana, and in view of the aforementioned interpretation of the Court of Appeals for the Ninth Circuit, we conclude that an illicit trafficker of marihuana comes within the exclusion provisions of section 212 of the Act.

In his appeal, the applicant brings to our attention the dismissal of the criminal complaint against the respondent for importation of marihuana. He submits that the criminal charge was made upon the same facts which form the basis for these proceedings; that the criminal charge was dismissed in the United States District Court because of insufficient evidence; and that the exclusion order against the applicant should be "reversed" in view of these events. We point out that the reason for the dismissal of the criminal complaint against the applicant is not contained in any official document in the record. Further, the criminal action against the applicant was a separate judicial matter, and that our administrative decision in these exclusion proceedings shall be predicated upon a review of the evidence of record and the application of the appropriate immigration law. Unlike the criminal judicial proceeding where a defendant must be found guilty beyond a reasonable doubt, an administrative finding of excludability must be based upon reasonable, substantial, and probative evidence. See Mason v. Tillinghast, 27 F.2d

2 See U.S. Code Cong. & Ad. News, 86th Cong., Second Session 1960, pp. 3134, 3135.

580 (1 Cir. 1928); O'Connell v. Ward, 126 F.2d 615 (1 Cir. 1942). In this connection, we note that section 212(a)(23) of the Act provides that a ground for exclusion exists if an . . . immigration officer knows or has reason to believe . . . that an alien is an illicit trafficker.

We find that the applicant attempted to cross the border with a large quantity of marihuana concealed in his motor vehicle. We also find that his testimony as to why he happened to be driving the motor vehicle which contained marihuana on September 19, 1975, is not plausible. We further find that he did not tell the truth at his hearing when he testified that he had only driven the Ford Ranchero for one day preceding his apprehension. The testimony of the Border Patrol Agent and the Customs Inspector establish that the applicant had driven the Ford Ranchero back and forth across the border on several occasions prior to September 19, 1975, the date of his apprehension. The applicant changed his story under interrogation by authorities and admitted being offered $200 to drive the Ford Ranchero across the border and knowing that "something" was in that vehicle. These prehearing admissions contradict his original prehearing explanation and his testimony at this hearing. Under the aforementioned circumstances, we find that the applicant's testimony was not credible. In light of his lack of credibility, his offer to furnish information concerning drug traffickers, and his prehearing admission that he was offered money to drive his automobile across the border, we find that there is sufficient reason to believe that the applicant knew or had reason to know that marihuana was concealed in his automobile.

We further find that the applicant was a knowing and conscious participant or conduit in an attempt to smuggle marihuana into the United States. This activity brings him within the provisions of section 212(a)(23) of the Act relating to "illicit trafficker." Cf. Matter of R-H-, 7 I. & N. Dec. 675 (BIA 1958). It is no defense that the applicant has only committed one transgression. The statutory reference to an illegal trafficker does not necessarily entail proof of organized continuous trade in marihuana. In Matter of P-, 5 I. & N. Dec. 190 (BIA 1953), an alien who on a single occasion bought narcotics for resale in the United States was deemed an illicit trafficker within the meaning of section 212(a)(23) of the Act. In this case, the applicant attempted to smuggle 162 pounds of marihuana into the United States. In view of such a large quantity of marihuana, we infer that it was not intended for personal use. We conclude, therefore, that the marihuana was to be used in "traffic" and that the applicant is an illicit trafficker as contemplated by the statute.

Inasmuch as the applicant is an alien commuter, he does make a meaningful departure when he leaves the United States. Hence, the applicant does not come within the ambit of Rosenberg v. Fleuti, 374

U.S. 449 (1963), and is subject to exclusion proceedings upon his return to the United States. Matter of Diaz, Interim Decision 2443 (BIA 1975); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (BIA 1971); Matter of Moore, 13 I. & N. Dec. 711 (BIA 1971). We also note that, even if the respondent was not an alien commuter, the Fleuti doctrine would not apply to him because of his marihuana smuggling activity. See Matter of Leal, Interim Decision 2439 (BIA 1975); Matter of Valdovinos, 14 I. & N. Dec. 438 (BIA 1973); Matter of Valencia-Barajas, 13 I. & N. Dec. 369 (BIA 1969); and Matter of Alvarez-Verduzco, 11 I. & N. Dec. 625 (BIA 1966).

The immigration judge properly found the applicant inadmissible under section 212(a)(23) of the Act. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

MATTER OF CHO

In Visa Petition Proceedings

A-31184541

Decided by Board April 19, 1977

(1) Beneficiary was born in Korea on June 21, 1960, and had lived there in the home of his adoptive parents (petitioners) from 1968 to 1972. In 1972 the adoptive parents emigrated to the United States. In 1973, beneficiary was adopted by proxy when his name was entered in the Korean Family Registry as the adopted child of the petitioner and his wife.

(2) Even though the adoption was not formalized until after the adoptive parents had emigrated to the United States, the adoption was valid under Korean law because the registration provisions of section 878(1) of the Korean Civil Code had been complied with, and because the documents had been examined by the Family Registrar and found to comply with the provisions of section 881 of the Korean Civil Code.

(3) Mere fact that a preference classification is an incidental benefit of the adoption does not raise a presumption the adoption is invalid or entered into to evade the immigration laws.

(4) This adoption meets the requirements of section 101(b)(1)(E) of the Immigration and Nationality Act because the beneficiary had been validly adopted in Korea before the age of 14 years, and because he had resided with the adoptive parents for a period of two years preceding the adoption which satisfies the statutory requirement. See Matter of M-, 8 I. & N. Dec. 118 (BIA 1958; A.G. 1959). The visa petition will be granted. ON BEHALF OF PETITIONER: Pro se

BY: Milhollan, Chairman; Wilson, Maniatis, and Appleman, Board Members

The lawful permanent resident petitioner applied for preference status for the beneficiary as his adopted child under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated August 25, 1976, the District Director denied the petition on the ground that the adoption, although perhaps technically valid under section 101(b) of the Act, was nonetheless insufficient to support the accord of immigration benefits, since it "seemed" to have been entered into for the purpose of evading the immigration laws. The petitioner appeals. The appeal will be sustained.

The beneficiary, a native and citizen of Korea, was born on June 21, 1960. In 1968, at the age of eight years, she was taken into the home of the petitioner and his wife. She lived with the petitioner and his wife as