MATTER OF AWADH In Deportation Proceedings A-31145551 Decided by Board August 23, 1976 (1) Respondent was convicted, on a guilty plea, of possession of marijuana in violation of section 3(1) of the Canadian Narcotic Control Act, R.S.C. 1970, c. N-1 and is thus amendable to deportation under section 241(a)(11) of the Immigration and Nationality Act. Case law interpreting the Canadian Narcotic Control Act indicates that scienter or guilty knowledge is required for conviction. Thus the Canadian statute is distinguishable from the British statute which is similarly worded. Matter of Lennon, 15 I. & N. Dec. 9 distinguished. (2) Respondent's claim of lack of procedural due process in the Canadian proceeding is without merit in the instant proceeding because there is no requirement in the immigration laws which requires that a foreign conviction conform to United States constitutional guarantees. (3) Respondent's allegation of selective, arbitrary and discriminatory enforcement of section 241(a)(11) of the Act is unsubstantiated. (4) Board of Immigration Appeals does not entertain Constitutional challenges to the statutes it administers. See Matter of Ramos, 15 I. & N. Dec. 671 (BIA 1976), and Matter of L, 4 I. & N. Dec. 556, 557 (BIA 1951). CHARGE: Order: Act of 1952-Section 241(a)(11) [8 U.S.C. 1251(a)(11)]—Convicted of a violation of law or regulation relating to the illicit possession of marijuana ON BEHALF OF RESPONDENT: Abdeen M. Jabara, Esquire 658 Pallister Avenue ON BEHALF OF SERVICE: George Indelicato Appellate Trial Attorney Detroit, Michigan 48202 The respondent appeals from the January 7, 1976 denial by the immigration judge of his motion to reopen and reconsider and his motion for a stay of deportation. The appeal will be dismissed. At the original deportation proceeding the respondent admitted all of the allegations in the order to show cause and requested no discretionary relief. The immigration judge found him deportable as charged. The respondent waived his right to appeal. Deportability is predicated upon a conviction in Canada, on a guilty plea, of possession of marijuana in violation of section 3(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. In his motion to reopen and reconsider, the respondent urged the immigration judge, and this Board on appeal, to follow Lennon v. INS, 527 F.2d 187 (C.A. 2, 1975), and to find, as in that case, that the respondent was convicted of possession of marijuana under a statute which made guilty knowledge irrelevant. In addition, he contends that the respondent was denied procedural due process in the Canadian proceeding, where he was not represented by counsel and where the translator, the brother of the respondent's codefendant, was biased. For these reasons he states that deportability should not be based on the Canadian conviction. The respondent further contends that enforcement of section 241(a)(11) of the Immigration and Nationality Act against him by the Immigration and Naturalization Service is arbitrary and discriminatory and that he has been improperly singled out for deportation. Lastly, the respondent asserts that section 241(a)(11) is unconstitutional in that it imposes cruel and unusual punishment for an act which in some places is not even considered criminal. We shall consider each of these arguments in turn. In Lennon v. INS, supra, the court considered not just the wording of the British statute 1 but also the case law interpreting that statute. The result was a finding that a person could be convicted under the British statute without guilty knowledge. The respondent contends that the Canadian statute is almost identical with the British one, and that therefore it should be interpreted in the same way. However, an examination of recent Canadian cases interpreting section 3(1) of the Narcotic Control Act reveals that guilty knowledge is required for a conviction under this provision. In Regina v. Kobierski [1975], 18 C. C. C.2d 419 (Br. Col. S.Ct. 1974), the defendant was charged with possession of a narcotic on the basis of the fact that traces of morphine were found in his urine. Because he did not know that his urine contained morphine, he was acquitted. In Regina v. Douglas [1975], 18 C.C.C.2d 189 (Ont. C.A. 1974), the driver of a truck in which marijuana was found under the floor mat was acquitted because there was no evidence that he had knowledge of the presence of the marijuana. He was not the owner of the truck, and it was not proven that he had ever driven it before. In Beaver v. Regina [1957], S.C.R. 531, 118 C.C.C. 129 (1957), under a similar provision, it was held that a defendant in possession of a package containing a substance he believes 1 "A person shall not be in possession of a drug unless... authorized. . . ." Dangerous Drugs Act 1965, Sec. 3, c. 15. 2 "Except as authorized by this Act or the regulations, no person shall have a narcotic in his possession." Narcotic Control Act, §3(1), R.S.C. 1970, c.N-1. is harmless but which in fact is a narcotic, cannot be convicted of possession of a narcotic. Consequently, we find the present case distinguishable from Lennon in that the respondent here was convicted of a violation of a statute which has been interpreted to require scienter for conviction. With regard to the respondent's claim that he was denied procedural due process in the Canadian proceeding, there is no provision in the immigration laws to the effect that a foreign conviction must conform to the constitutional guarantees of the United States. Matter of Gutierrez, 14 I. & N. Dec. 457 (BIA 1973); Matter of M-, 9 I. & N. Dec. 132 (BIA 1960). This view has been judicially upheld. Brice v. Pickett, 515 F.2d 153 (C.A. 9, 1975). The respondent's assertion that he has been singled out for selective, arbitrary, and discriminatory enforcement of section 241(a)(11) of the Act is totally unsubstantiated, and, so far as we can tell, has no merit. Regarding the alleged unconstitutionality of section 241(a)(11), we do not entertain constitutional challenges to the statutes we administer. Matter of Ramos, 15 I. & N. Dec. 671 (BIA 1976); Matter of L—, 4 I. & N. Dec. 556, 557 (BIA 1951). For these reasons, the appeal will be dismissed. MATTER OF DA SILVA In Visa Petition Proceedings A-20809233 Decided by Board August 23, 1976 (1) Petitioner and beneficiary were natives of Portugal and residents of New York. Since they were related as uncle and niece they could not validly marry in New York because New York law (Domestic Relations Law, § 5, subd. 3 (McKinney's, 1964), provides that marriages contracted between uncle and niece are incestuous and void. Petitioner and beneficiary contracted a marriage in the State of Georgia where marriages between uncle and niece are valid (Ga. Code Ann. § 53-105). (2) While New York law declares marriages between uncle and niece to be incestuous and void if solemnized within New York, the New York statute does not expressly regulate a marriage solemnized in another state where it is legal. (3) Since the marriage was legally contracted in Georgia and is thus not regulated by New York law nor violative of New York public policy, the marriage will be recognized as valid in New York and is valid for immigration purposes. ON BEHALF OF PETITIONER: Francisco R. Garcia, Esquire 225 Broadway New York, N. Y. 10007 The lawful permanent resident petitioner applied for preference status for the beneficiary as his spouse under section 203(a)(2) of the Immigration and Nationality Act. In a decision dated May 27, 1976, the district director denied the petition on the ground that the petitioner and the beneficiary were not lawfully married under the laws of the State of their residence, New York. The petitioner's appeal will be sustained and the record remanded to the district director. Both the petitioner and the beneficiary are natives and citizens of Portugal with their home address in Rocky Point, New York. The petitioner was admitted as a lawful permanent resident on January 12, 1964. On August 13, 1975, the parties were married at Augusta, Georgia.1 In an interview conducted by the Service on May 13, 1976, the parties 1 It appears that the parties had previously attempted to marry in Montreal, Canada in August 1973. This marriage was prior to the beneficiary's lawful divorce from her first husband which was ultimately secured in Nevada on July 2, 1975. stated that they were related as uncle and niece and that because of their relationship they could not marry in the State of New York. They consulted a lawyer to ascertain whether they could legally marry elsewhere in the United States and were directed to the State of Georgia. The petitioner stated that he and his wife departed New York for Georgia solely to marry because Georgia would recognize a marriage between an uncle and a niece, and that they had always intended to return to New York to live. The legal validity of a marriage is generally determined by the law of the place of the celebration. Loughran v. Loughran, 292 U.S. 216 (1934); Matter of Levine, 13 I. & N. Dec. 244 (BIA 1969); Matter of P—, 4 I. & N. Dec. 610 (A.G. 1952). There are, however, exceptions to this general rule. Thus, a marriage complying with all the requirements of the State of celebration might nevertheless be deemed invalid if it is invalid under the laws of a State where one of the parties is domiciled at the time of the marriage and where both intend to make their home afterward, or if it violates a strong public policy of the State of domicile. See Matter of Zappia, 12 I. & N. Dec. 439 (BIA 1967). Citing Matter of Zappia, supra, the district director found that the marriage was contracted in Georgia solely to evade statutory prohibitions in New York and that, therefore, the marriage was not valid for the purpose of conferring immediate relative status on the beneficiary. The applicable New York statute, Domestic Relations Law, §5, subd. 3 (McKinney's 1964), provides, in part: § 5. Incestuous and void marriages A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either: 3. An uncle and niece or an aunt and nephew. If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void. . . . Counsel for the petitioner contends that while subdivision 3 of section 5 does indeed prohibit marriage between an uncle and niece, such is applicable only to a marriage performed within the State of New York. The principal case relied upon by counsel is In re Estate of May, 305 N.Y. 486, 107 N.Y.S.2d 170 (1953). There, the New York Court of Appeals held valid a marriage between an uncle and niece of the Jewish faith, both residents of New York, celebrated in Rhode Island where such a marriage was legal. The court stated: We regard the law as settled that, subject to two exceptions . . ., and in the absence of a statute expressly regulating within the domiciliary State marriages solemnized 2 Under Ga. Code Ann. §53-105, a marriage between an uncle and niece is valid. |