The record in this case does not disclose any evidence used against the respondents to establish deportability which was obtained as a result of any search or through arrest. Instead, the respondents argue, in effect, that their physical presence is the evidence to be suppressed as that presence was obtained illegally. The general principle that the illegality of an arrest does not destroy a later valid proceeding has long been recognized by the Supreme Court and is still a valid rule of law, Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 421 (1886). This principle has been repeatedly upheld by the courts, Guzman-Flores v. INS and Castellanos-Castillo v. INS, 496 F.2d 1245 (C.A. 7, 1974); Taylor v. Alabama, 465 F.2d 376 (C.A. 5, 1972); United States v. Woodring, 446 F.2d 733 (C.A. 10, 1971); United States v. Morris, 445 F.2d 1233 (C.A. 8, 1971); Autry v. Wiley, 440 F.2d 799 (C. A. 1, 1971); High Pine v. Montana, 439 F.2d 1093 (C. A. 9, 1971); LaFranca v. INS, 413 F.2d 686 (C.A. 2, 1969). At the hearing the respondents admitted that they were not United States citizens. They did not invoke the Fifth Amendment. Therefore, under section 291 of the Act, they bore the burden of proving the time, place and manner of their entry into the United States, Matter of Ortega-Mojaro, 13 I. & N. Dec. 838 (BIA 1970). Since they failed to sustain that burden, they are presumed to be in the United States in violation of law. The Service did not rely upon any statement taken or any evidence seized at the time of the respondents' arrest to establish deportability. Thus, even if the arrest was illegal, this would not invalidate the subsequent deportation proceedings, Huerta-Cabrera v. INS, 466 F.2d 79 (C.A. 7, 1972). See also: Shing Hang Tsui v. INS, 389 F.2d 994, 995 (C.A. 7, 1968); Valeros v. INS, 387 F.2d 92 (C. A. 7, 1967); and Bilokumsky v. Tod, 263 U.S. 149 (1923). We reject counsel's statement on appeal that the respondents were denied due process and a fair hearing. The respondents were given an opportunity to offer evidence that they were legally entitled to remain in the United States, but not one shred of evidence was proffered. The immigration judge's finding of deportability was established by evidence that is clear, convincing and unequivocal. We find no abuse of discretion in the immigration judge's denial of voluntary departure. Accordingly, the following order will be entered. ORDER: The appeal is dismissed. MATTER OF BRONSZTEJN In Deportation Proceedings A-13880397 Decided by Board November 26, 1974 Section 241(a)(11) of the Immigration and Nationality Act directs the deportation of an alien who has been convicted of a violation of, or conspiracy to violate, any law or regulation relating to the illicit possession of narcotic drugs or marijuana. The respondent was convicted upon a plea of guilty for attempted possession of marijuana. The Act makes no distinction between felonies and misdemeanors in narcotics offenses. Conviction for the offense of attempted possession of marijuana is an offense relating to the illicit possession of narcotic drugs or marijuana. Where a person would be found deportable if convicted of a substantive offense, he would also be deportable if convicted of an attempt to commit that offense. Therefore, respondent's conviction for attempted possession of marijuana renders him deportable under section 241(a)(11) of the Act, and also ineligible for voluntary departure. CHARGES: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)-Illicit possession of marijuana (Sections 220.05 and 110, New York Penal Law). Lodged: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Attempted criminal possession of marijuana (Sections 110 and 220.05, New York Penal Law). ON BEHALF OF RESPONDENT: Edith Lowenstein, Esquire 36 West 44th Street ON BEHALF OF SERVICE: New York, New York 10036 This is an appeal from an order of an immigration judge finding the respondent deportable on the lodged charge, and directing his deportation to Israel. The appeal will be dismissed. The respondent is a 23-year-old male alien, a native of the Union of Soviet Socialist Republics, last a citizen of Poland, who was admitted to the United States for permanent residence in 1964. The respondent was arraigned on August 5, 1971 and charged with violating sections 220.20 and 220.10 of the New York Penal Law. On December 13, 1971, in the Criminal Court, City, County and State of New York, the respondent was convicted upon a plea of guilty for attempted possession of marijuana pursuant to sections 110 and 220.05 of the New York Penal Law. It was on the basis of this conviction that he was found deportable under the provisions of section 241(a)(11) of the Immigration and Nationality Act. He designated Israel as the country of deportation. On appeal counsel argues (1) that there was insufficient evidence to support the charge on which the respondent was convicted, and that the conviction was the result of plea bargaining; (2) that conviction under section 110 of the New York Penal Law, attempted criminal possession of marijuana in the sixth degree, is not within the ambit of section 241(a)(11) of the Act. Counsel requests that if the Board finds the respondent deportable, it remand the case for consideration of the respondent's eligibity for the privilege of voluntary departure. Insofar as the question whether there was sufficient evidence to support the charge under section 110 of the New York Penal Law is concerned, the short answer is that we are bound by the criminal record, and that we may not go behind it and review the evidence and render an independent judgment on the guilt or innocence of the alien involved, U.S. ex rel. Zaffarano v. Corsi, 63 F.2d 757 (C.A. 2, 1933); Rassano v. INS, 377 F.2d 971, 974 (C.A. 7, 1966) 1; Cruz-Sanchez v. INS, 438 F.2d 1087 (C.A. 7, 1971). If the respondent wishes to attack the validity of his conviction, he must do so in the criminal courts. Moreover, under the very terms of section 241(a)(11) of the Act, no distinction is made between a misdemeanor and a felony. Section 110 of the New York Penal Law defines attempt as follows: "... A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." An attempt to commit a crime has been judicially defined as an act done with intent to commit and tending but failing to effect its commission. It does not reach the stage of attempt, unless it carries the project forward within dangerous proximity to the criminal end sought, People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903); People v. Sobieskoda, 235 N.Y. 411, 139 N.E. 558 (1923); People v. Werblow, 241 N.Y. 55, 148 N.E. 786 (1925); People v. Ditchik, 288 N.Y. 95, 41 N.E. 2d 905 (1942). The attempt must have gone so far that the crime would have been completed but for an extraneous intervention, People v. Rizzo, 246 U.S. 334, 158 N.E. 888 (1927). It takes its character and its quality from the nature of the law toward whose violation it is or was directed and in this particular instance it was the intended crime of possession of narcotics. Under New York Penal Law an attempt to possess marijuana is a lesser degree of the crime of possession of narcotics. The Immigration and Nationality Act makes no distinction whatever between a conviction for a felony or a conviction for a misdemeanor. We have held repeatedly that a person who is found deportable if 1 Remanded on other grounds. convicted of a substantive offense would be deportable if convicted of an attempt to commit that offense, U.S. ex rel. Meyer v. Day, 54 F.2d 336 (C.A. 2, 1931). See also: Matter of De S-, 1 I. & N. Dec. 553 (BIA 1943), involving an attempt to smuggle; Matter of E—, 1 I. & N. Dec. 505 (BIA 1943), involving attempted compulsory prostitution of women; Matter of B-, 1 I. & N. Dec. 47 (BIA 1941), involving attempt fraud; Matter of S―, 3 I. & N. Dec. 617 (BIA 1949), involving attempted arson; Matter of V-, 4 I. & N. Dec. 100 (BIA 1950), involving attempted bribery. In enacting the Narcotic Control Act of 1956 (Act of July 18, 1956, 70 Stat. 567, 575), Congress added language to section 241(a)(11) of the Act for the purpose of making a conviction relating to illicit possession of narcotics a ground of deportation. As amended, the provisions of section 241(a)(11) of the Act direct the deportation of an alien "who has been convicted of, or conspiracy to violate any law or regulation relating to the illicit possession of narcotic drugs or marijuana." The words "relating to" have been construed to be the controlling phrase in section 241(a)(11) of the Act, Matter of M-, 6 I. & N. Dec. 560 (A.G. 1955). The courts have construed the phrase to have broad coverage, Bowles v. Ohio Fuel Gas CO., 65 F. Supp. 426 (N.D. Ohio, 1946), aff'd 158 F.2d 814 (C.A. 6, 1947); Commonwealth v. Mathues, 210 Pa. 372, 407, 59 A. 961, 975 (1904). Deportability based on a conviction for attempted possession of marijuana in violation of Louisiana Revised Statutes 14:27-40:962 was upheld in United States v. Rosenson, 291 F. Supp. 874 (E.D. La. 1968), aff'd United States v. Rosenson, 417 F. 2d 629 (C.A. 5, 1969), cert. denied 397 U.S. 962. See also: Simpson v. United States, 195 F.2d 721 (C.A. 9, 1952); People v. Siu, 126 Cal. App.2d 41, 271 P.2d 575 (1954); State v. Broadnax, 216 La. 1003, 45 So.2d 604 (1950); Cruzado-Gomez, 14 I. & N. Dec. 513, (BIA December 18, 1973). For the foregoing reasons, we conclude (1) that the respondent has been convicted of a narcotic violation within the meaning of the immigration laws and is deportable pursuant to section 244(a)(11) of the Act; and (2) that deportability has been established by evidence that is clear, convincing and unequivocal. Counsel's request that we remand the case for consideration of the respondent's eligibility for the privilege of voluntary departure is denied. There is no provision in the immigration laws that would permit the respondent any form of discretionary relief from deportation. Accordingly, and in view of the foregoing, we will affirm the immigration judge's order and dismiss the appeal. ORDER: The appeal is dismissed. MATTER OF MARINO In Deportation Proceedings A-19499685 Decided by Board April 30, 1975 Respondent was found deportable under the provisions of section 241(a)(2), of the Immigration and Nationality Act, as a nonimmigrant visitor who had remained longer than authorized. At a reopened hearing respondent's application for adjustment of status under section 245 of the Act was denied because he was excludable under section 212(a)(9) of the Act, as one who had been convicted of a crime of moral turpitude. The appeal is dismissed. Respondent contended that his conviction in Italy of fraudulent destruction of his own property was (1) not a final conviction, as when he appealed the conviction, an Italian presidential decree of amnesty extinguished the crime, and (2) the conduct was in any event a petty offense because the penalty assessed was only six months in jail. The foreign amnesty is ineffective to prevent deportation. In determining whether the conviction for the crime under Article 642 of the Italian Penal Code was a felony or misdemeanor, the equivalent United States crime most comparable is the crime described in District of Columbia Code, 22-402 which is a felony. Therefore, the petty offense exception to section 212(a)(9) of the Act is not available to respondent. CHARGE: Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)—Nonimmigrant visitor— remained longer. ON BEHALF OF RESPONDENT: Mario M. De Optatis, Esquire 253 Broadway New York, New York 10007 ON BEHALF OF SERVICE: This is an appeal from the January 30, 1973 decision of the immigration judge, made at a reopened hearing, in which he reaffirmed an earlier decision finding the respondent deportable, denied the respondent's application for adjustment of status on the ground that he was excludable under section 212(a)(9) of the Immigration and Nationality Act as a person who had been convicted of a crime involving moral turpitude, and regranted the privilege of voluntary departure. We agree with the immigration judge's excellent opinion; the appeal will be dismissed. The respondent, a native and citizen of Italy, has applied for adjustment of status on the basis of an approved fifth preference visa petition |