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argument on the merits of the case. He was informed in advance of oral argument by telephone and letter, and again at oral argument, that we believed he had sufficient time to prepare and that we expected argument on the merits. It was made clear to counsel at oral argument that by not arguing on the merits he was taking the risk, if the decision on his motion was adverse, that he would not have a further opportunity to argue. Counsel indicated that he fully understood our position (Transcript of oral argument, p. 13). He declined argument on the merits and stated that he would rely instead on his extensive brief (Transcript of oral argument, p. 47).

II. DEPORTABILITY

The respondent is charged under section 241(a)(2) with having remained in the United States after the expiration of his authorized stay as a nonimmigrant. The respondent's authorization to remain in the United States ended on February 29, 1972, but the district director, in the exercise of discretion pursuant to 8 CFR 242.5, granted the respondent the privilege of departing voluntarily on or before March 15, 1972. The district director's discretionary action did not extend the period of the respondent's authorized stay, nor did it restore him to a lawful nonimmigrant status; the respondent remained here merely at the sufferance of the district director. Matter of Merced, 14 I. & N. Dec. 644 (BIA 1974); Matter of Gallares, 14 I. & N. Dec. 250 (BIA 1972).*

On March 6, 1972, the district director revoked the respondent's privilege of voluntary departure pursuant to 8 CFR 242.5(c). This regulation allows a district director to revoke voluntary departure granted under 8 CFR 242.5 without notice if he ascertains that the application for voluntary departure should not have been granted. The regulations vest no authority in the Board to review such a revocation. See 8 CFR 242.5(c); 8 CFR 3.1(b). The decision to revoke a grant of voluntary departure and institute deportation proceedings is a matter of prosecutorial discretion which is outside the Board's jurisdiction. Matter of Merced, supra; see Matter of Geronimo, 13 I. & N. Dec. 680 (BIA 1971); Matter of Gallares, supra. The respondent cannot claim that he was induced to remain past February 29, 1972 by the grant of voluntary departure, since at the time the district director granted that privilege, on March 1, 1972, the respondent had already remained longer of his own volition.

The discretionary grant of voluntary departure under 8 CFR 242.5(b) should not be confused with action that a district director may take under 8 CFR 214.1(a) to extend the period of a nonimmigrant's authorized stay pursuant to an application made by a nonimmigrant whose authorized stay has not yet expired. We cannot agree with language on page 3 of the immigration judge's opinion which indicates that the granting of the privilege of voluntary departure by the district director extended the period of the respondent's authorized stay.

The present case can be distinguished from Matter of Siffre, 14 I. & N. Dec. 444 (BIA 1973). That case dealt with an alien who had been admitted as a nonimmigrant student for a fixed period of time. Before the authorized stay had expired, the district director attempted to "revoke" the alien's nonimmigrant student status and to charge him. under section 241(a)(2) as a nonimmigrant who remained longer than permitted. We held that the district director had no authority to "revoke" a nonimmigrant status. If the district director believed that the alien was violating the conditions of nonimmigrant status, he should have instituted deportation proceedings under section 241(a)(9) for fail ure to maintain nonimmigrant status. The district director's other op tion was to wait until the alien's authorized stay had expired and then, i the alien failed to depart, to institute deportation proceedings unde section 241(a)(2) based upon the alien's having remained longer tha permitted.

The respondent's situation, however, is quite different. His au thorized stay expired on February 29, 1972. At that point he lost hi lawful nonimmigrant status. He remained in the United States merely as a deportable alien who had been granted the discretionary privilege of departing voluntarily pursuant to 8 CFR 242.5. The decision whether or not to grant voluntary departure under 8 CFR 242.5, or to revoke such privilege once granted, is a matter within the sole discretion of the district director. We conclude that deportability under section 241(a)(2) of the Act has been established by evidence that is clear, convincing anc unequivocal.

III. ELIGIBILITY FOR ADJUSTMENT OF STATUS

The respondent applied for adjustment of status under section 245 of the Act. In order to show eligibility for adjustment of status, an alien must establish that he was inspected and admitted or paroled into the United States, that he is eligible to receive an immigrant visa, that he is admissible to the United States for permanent residence, and that an immigrant visa is immediately available. Since adjustment of status is a privilege, the alien has the burden of establishing his eligibility. 8 CFR 242.17(d); Montemurro v. INS, 409 F.2d 832 (C.A. 9, 1969); Cabrera v. INS, 415 F.2d 1096 (C.A. 9, 1969).

The immigration judge found that the respondent was not admissible to the United States for permanent residence because he was excludable under section 212(a)(23) of the Act as one who had been convicted of violating a law relating to the illicit possession of marihuana. Section 212 (a)(23) provides for the exclusion of:

Any alien who 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 of marihuana...

A certified copy of a record of conviction was placed in evidence, showing that on November 28, 1968, the respondent pleaded guilty in the Marylebone Magistrates' Court (England) to a charge of having a dangerous drug, cannabis resin, in his possession without being duly authorized (Ex. 10). The British statute which he violated was Regulation 3, Dangerous Drugs (No. 2) Regulations, Dangerous Drugs Act of 1965. Copies of the British statute and regulations were introduced as Exhibit 11. The pertinent statutory provisions are:

Dangerous Drugs Act 1965, section 1:

The drugs to which this Part of this Act applies are raw opium, coca leaves, poppy-straw, cannabis, cannabis resin and all preparations of which cannabis resin forms the base.

Regulation 3, Dangerous Drugs (No. 2) Regulations 1964:

A person shall not be in possession of a drug unless he is generally so authorised or, under this Regulation, so licensed or authorised as a member of a group, nor otherwise than in accordance with the provisions of these Regulations and, in the case of a person licensed or authorised as a member of a group, with the terms and conditions of his licence or group authority.

The respondent has admitted that the record of conviction relates to him (Transcript of hearing, p. 30). Nevertheless, the respondent contends that his conviction does not place him within the exclusion provision of section 212(a)(23) because (1) the British statute under which he was convicted did not require mens rea, and (2) cannabis resin is not "marihuana" within the meaning of section 212(a)(23).

As to the contention regarding mens rea, it is maintained by counsel in his brief that a binoculars case containing cannabis resin was found in the respondent's house, but that the respondent had no knowledge of the presence of the drug (Respondent's brief on appeal, p. 54; Transcript of hearing, p. 81). He pleaded guilty, counsel alleges, because lack of knowledge was not a defense to a prosecution under the Dangerous Drugs Act of 1965 (Transcript of oral argument, p. 46). Therefore, counsel claims, the respondent's plea of guilty was an admission only of physical control of a binoculars case which proved to contain a dangerous drug (Respondent's brief on appeal, p. 62). Counsel argues that the respondent did not admit any knowledge of the drug's presence, and that he therefore would not come within the class of persons whom Congress wished to exclude under section 212(a)(23).

The provisions of section 212(a)(23) were intended to deal with foreign as well as domestic convictions. See Matter of Gardos, 10 I. & N. Dec. 261 (BIA 1963, aff'd Gardos v. INS, 324 F.2d 179 (C.A. 2, 1963); cf. S. Rep. No. 1515, 81st Cong., 2d Sess. 410 (1950). However, under federal law, in order to be convicted of the crime of possession of marihuana one must have knowledge or intent to possess. 21 U.S.C. 844. The same is

true under the law of the District of Columbia, United States v. Weaver, 458 F.2d 825 (D.C. Cir., 1972), as well as the law of the vast majority of states. See Annot., 91 A.L.R. 2d 810, 821 et seq. (1963) and supplements. Therefore, it is fair to state that in enacting section 212(a)(23), Congress did not intend to exclude persons who were entirely unaware that a prohibited substance was in their possession. Cf. Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Cal., 1964); Matter of Sum, 13 I. & N. Dec. 569 (BIA 1970). Since the respondent has raised a significant question regarding the knowledge requirement of the British statute, we believe that an in-depth discussion of the British law is warranted.

A. Knowledge Requirement of British Statute.

The history of the British laws relating to illegal possession of drugs is quite involved.5 The earliest reported decision relating to possession of drugs is R. v. Carpenter, [1960] Crim. L. Rev. 633. In that case, drugs were found in the trunk of a car parked outside a house in which the defendant was arrested. The defense was that he had borrowed the car from a friend some 24 hours earlier and was unaware of the presence of the drugs. The trial court convicted the defendant, but the Court of Criminal Appeal reversed, holding that there was not sufficient evidence of conscious possession of the drug to go to the jury. Since it was conceded by the prosecution at trial that knowledge was a necessary element of the crime, this case does not help greatly in clarifying the legal definition of possession. However, one commentator has noted that "as the law tends to work rather by description than by definition the case is important as an illustration of a fact-situation where a person was held not to be in possession." A. Owen, Dangerous Drugs-Possession, The New Law Journal, September 28, 1972, at 844.

In Lockyer v. Gibb, [1966] 2 All E.R. 653 (Q.B.), the first fully reported case, a bottle containing tablets was discovered in the hold-all which the defendant was carrying. The tablets were found to be a prohibited drug. The defendant admittedly was aware that she was in possession of the bottle and that the bottle contained tablets; however, she claimed that a friend had given the bottle to her to look after and that she did not know what the tablets were. The trial court concluded that she was in unauthorized possession of a prohibited drug, notwithstanding the fact that she might not have known that the tablets she had were such a prohibited drug. The defendant was given leave to appeal her conviction.

On appeal, the Queen's Bench Division sustained the conviction, holding that while it was necessary for the prosecution to show that the

5 There were several predecessors to the Dangerous Drugs Act of 1965. However, since the provisions relating to possession are nearly identical, no distinction between them will be made in the following discussion.

defendant knew that she had the articles which turned out to be a drug, it was not necessary that she should know in fact that the articles were a drug and a drug of a particular character. In the course of his opinion, Lord Parker rendered the following notable dictum:

In my judgment, before one comes to a consideration of a necessity for mens rea or, as it is sometimes said, a consideration of whether the regulation imposed an absolute liability, it is of course necessary to consider possession itself. In my judgment, it is quite clear that a person cannot be said to be in possession of some article which he or she does not realise is, or may be, in her handbag, in her room, or in some other place over which she has control. That, I should have thought, is elementary; if something were tipped into one's basket and one had not the vaguest notion it was there at all, one could not possibly be said to be in possession of it."

Lord Parker also referred to the Canadian case of Beaver v. R., [1957] S.C.R. 531, in which the majority of the Supreme Court of Canada concluded under a similar statute that one who has physical possession of a package which he believes to contain a harmless substance, but which in fact contains a narcotic drug, cannot be convicted of being in possession of the drug. Lord Parker expressed disagreement with this view and agreed instead with the dissenting justices in Beaver.

In R. v. Smith, [1966] Crim. L. Rev. 558, the defendant was convicted of possessing a drug found in a room at a house where she was living. The trial judge had instructed the jury that it was necessary for the prosecution to show that the defendant lived in the room and "had a common interest in it so that she controlled all the things that were in it of any significance." The conviction was quashed by the Court of Criminal Appeal, which held that the jury should have been directed to decide whether the defendant knew of the drug and if so whether she had possession or control of it.

In the case of Dalas, [1967] Crim. L. Rev. 125, the defendant appealed from a conviction for possession of cannabis and the imposition of a three-year sentence. He claimed a belief that the substance he possessed was an Indian culinary herb rather than a dangerous drug. The Court of Criminal Appeal accepted the idea that for the sentence to have a rational foundation there must be convincing evidence that the defendant knew he was carrying cannabis rather than curry powder. The court concluded, however, that the evidence fully justified the trial judge's rejection of the defendant's explanation of innocence and also justified the imposition of the severe sentence.

The House of Lords considered for the first time the type of knowledge required for conviction of the statutory offense of drug possession in Warner v. Metropolitan Police Commissioner, [1968] 2 All E.R. 356 (H.L.). In that case, the defendant's van was stopped by police and two parcels were found, one containing bottles of perfume and the other * [1966] 2 All E.R. at 655.

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