ownership or occupation of a building would not result in a finding of guilt under these provisions.

Other sections of the Poisons Act, such as Sections 22 and 23, also require a knowing violation. It is perhaps also significant that other sections which do assign strict liability for possession or distribution of defined substances do provide for statutory defenses. Section 21(2) states:

(2) If any person has in his possession any drug of addiction other than prepared opium or Indian hemp, he shall be guilty of an offence against this Division unless(a) he is licensed or otherwise authorized under the regulations to manufacture, sell, distribute or supply the drug;

(b) he is otherwise authorized under the regulations to be in possession of the drug; or (c) the drug was supplied or requested to be supplied, for the use of that person, by a medical practitioner or veterinary surgeon, or on and in accordance with a prescription complying with the regulations. (Emphasis supplied.)

There are thus provisions which do free a person from strict liability for possession. Even in these cases, however, an exception is made for prepared opium or Indian hemp.

When such language is used in certain sections and not in others, it is fair to conclude that a purpose is served by this. In this case, the purpose would appear to be to hold persons strictly liable under Sections 21(1)(a) and (b) for the prohibited actions.

The terminology used in the Act therefore indicates that either through design or inadvertence Australia did not create a statute that requires guilty knowledge. This can be seen both from the terms used in Section 21(1)(a) and the fact that other provisions do require either knowing possession or allow certain statutory defenses to be interposed. The absence of such qualifying language in Section 21(1)(a) can only lead to one conclusion: that strict liability may ensue under this section.

An Australian case, cited by the respondent, in which Section 9(1)(b) of the Poisons Act is interpreted, also supports this conclusion. Regina v. McGrath, New South Wales Law Reports (1971) Vol. 2, p. 181; (1971) 2 N.S.W.L.R. 181. While the case interprets a section of the Act applicable to the supplying or sale of any restricted substance, the phrasing of the section is similar to Section 21(1)(a) in that it contains no element of knowledge. Section 9(1)(b) states:

no person other than a medical practitioner, dentist or veterinary surgeon, in the lawful practice of his profession as such, shall supply or sell to another person any restricted substance.

In construing this section, the court in McGrath, id., concluded that the section imposed strict liability and it was not necessary for the prosecution to establish that the defendant had knowledge of the fact that he was dealing with a restricted substance. McGrath, id., at 188. In reaching this conclusion, the court noted that the legislature had, in

other parts of the Poisons Act, made it plain that knowledge was required. Taking into account the subject matter and clear policy disclosed by the Act, and the absence of anything in Section (9)(1)(b) to indicate that mens rea was required, the court concluded that absolute liability resulted from selling or supplying a restricted substance without the authorization specifically delineated in the Act. This case, analogous to the present one, is therefore strong evidence that Section 21(1)(b) under which the respondent was convicted, does not require guilty knowledge. Several prior Board decisions in which narcotics laws were interpreted also point to this conclusion.

In Lennon, supra, the statute under which he was convicted read in part:

A person shall not be in possession of a drug unless . . . authorized. . . .

The court found that he was therefore". . . convicted under a law which in effect makes guilty knowledge irrelevant and that (B) a foreign conviction under such a law does not render the convicted alien excludable." Lennon, supra, at 191.

In a later case in which the Board applied Lennon we found that Chapter 223, Section 25(5), of the Statute Law of the Bahama Islands did require guilty knowledge and we distinguished that case from Lennon. Matter of Pasquini, Interim Decision 2496 (BIA 1976); affirmed, Pasquini v. INS, 557 F. 2d 536 (5 Cir. 1977). The Bahamian law contained a provision that illegal possession would be found unless the person could "prove the same was deposited there without his knowledge or consent...." In the present case, the Australian law provides for no such defense.

In another case involving a conviction under Section 3(1) of the Narcotics Control Act of Canada, R.S. C. 1970 c. N-1, we found that conviction under that section required guilty knowledge. Matter of Awadh, Interim Decision 2519 (BIA 1976). Although the statute there was almost identical to the British statute in Lennon an important distinction was that Canadian courts had interpreted the statute to require guilty knowledge before a conviction could be rendered. In this case, the Service has presented no case law on this point. This leaves only the words of the statute to be construed.

The final point to be considered is the Service's contention that Lennon is distinguishable because conviction here was for sale while conviction in Lennon was for possession. We do not, however, find that a different result necessarily follows. Under the Poisons Act, an unknowing sale of Indian hemp could lead to conviction. While this is probably unlikely, it is not inconceivable on the face of the statute. A product could be sold containing any of the various parts of the Indian hemp plant whose sale is forbidden while the seller believed it to be a perfectly

innocuous product. Given these circumstances, and the fact that the Service has provided no evidence of the fact that the Poisons Act requires mens rea for conviction, it cannot be said that his deportability was established by clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966).

We can only conclude that the respondent's conviction was not for illicit sale of Indian hemp within the meaning of the Act.2 The respondent's conviction does not therefore bring him within section 241(a)(11) of the Act. The appeal will accordingly be sustained.

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

2

Although it was not necessary to reach the respondent's claim that "Indian hemp" is not marihuana within the meaning of section 241(a)(11) of the Act, it is evident to us that this contention is without substance. Section 20 of the Poisons Act defines Indian Hemp as the "plant known as Cannabis Sativa L." All species and varieties of Cannabis are included in the statutory proscription against marihuana. United States v. Kelly, 527 F.2d 961 (9 Cir. 1976).

MATTER OF FAVELA

In Exclusion Proceedings

A-13577232

Decided by Board May 31, 1979

(1) Where an applicant in exclusion proceedings first entered the United States in 1963 as a lawful permanent resident at the age of four, and returned to Mexico with his parents two years later because the father had decided not to live in the United States, the loss of permanent resident status could be imputed to the applicant as he was under the custody and control of his parents. Matter of Winkens, Interim Decision 2429 (BIA 1975).

(2) An alien convicted for entry of goods by false statements under the Federal Youth Corrections Act can still be excluded under section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), on evidence establishing that a Service officer had reason to believe that he was a trafficker in marihuana.

(3) The provision in section 212(a)(23) respecting exclusion based on a Service official's belief that an alien has been a drug trafficker is distinct from that part of section 212(a)(23) requiring a conviction, and exclusion or deportation proceedings brought under this part are not within the Service Operations Instruction requiring a deferment of deportation proceedings where there is a possibility an expungement certification will issue under the Federal Youth Corrections Act.

(4) The Congressional intent behind the Federal Youth Corrections Act is not violated by bringing charges under section 212(a)(23) of the Immigration and Nationality Act, which is one of several provisions in the Act disclosing a strong Congressional intent to combat marihuana trafficking by excluding traffickers, regardless of age.

EXCLUDABLE: Act of 1952-Section 212(a)(20) [8 U.S.C. 1182(a)(20)]—-Immigrant without valid visa

Section 212(a)(23) [8 U.S.C. 1182(a)(23)-Narcotics trafficker-marihuana

ON BEHALF OF APPLICANT: Timothy S. Barker, Esquire

Legal Aid Society of

San Diego, Inc.

1744 N. Euclid Avenue

San Diego, California 92105

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members

In a decision dated November 17, 1978, an immigration judge found the applicant excludable as charged and ordered him deported. The applicant appeals from this decision. The appeal will be dismsssed.

The applicant is a 20-year-old native and citizen of Mexico. He was

admitted into the United States as a lawful permanent resident on February 14, 1963, with his parents and brothers and sisters. He was about four years old at that time. He remained in the United States for approximately two years, at the end of which time he returned to Mexico with his family, where he attended school. He returned to the United States with his father on several occasions following the family's departure from the United States. In 1975, the applicant returned to the United States and obtained employment in a restaurant in California for the next two years. On October 5, 1977, as he was attempting to enter the United States after a trip to Mexico, he was stopped at the port of entry at San Ysidro, and arrested. He subsequently was paroled into the United States to stand trial. On November 14, 1977, he was convicted of a violation of 18 U.S.C. 542, entry of goods by means of false statements. On January 19, 1978, a Notice to Applicant For Admission Detained For Hearing Before Immigration Judge was issued, informing the applicant that he was detained for an exclusion hearing before an immigration judge because he appeared to the immigration officer to be excludable under sections 212(a)(9) and (20) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(9) and (20). A further notice was issued on October 13, 1978, informing the applicant of his apparent excludability under section 212(a)(23) of the Act, 8 U.S.C. 1182(a)(23), as an illicit trafficker in marihuana. An exclusion hearing was held on February 9, 1978, October 27, 1978, and November 3, 1978. The immigration judge found that the applicant was excludable under both section 212(a)(20) and section 212(a)(23) of the Act. The basis of the first finding was that the applicant's father and mother had both abandoned their lawful permanent resident status in 1965 or 1966, and that this abandonment was imputed to the applicant. The basis of the second finding was that the applicant had admitted his conscious participation in an attempt to smuggle a kilogram of marihuana into the United States. He also concluded that the fact that the applicant had been convicted under the Federal Youth Corrections Act did not foreclose a finding of excludability under section 212(a)(23) of the Act, as it pertained to traffickers, and that a conviction was not required to sustain a finding of excludability.

The applicant on appeal simply contends that the immigration judge's decision was incorrect.

After reviewing the record, we have concluded that the immigration judge correctly found that the applicant had abandoned his permanent resident status when he returned to Mexico with his parents. The testimony amply showed that the applicant's father had decided not to live in the United States, and that when he returned to Mexico he bought land there and was employed in Tijuana (Tr. pp. 12, 13, 30). Matter of Sias, 11 I. & N. Dec. 171 (BIA 1965).