following issuance of a third preference visa which invalidated the visa prior to entry into the United States is Matter of T-, 3 I. & N. Dec. 528 (B.I.A., April 6, 1949). There the alien, while still a minor, obtained an annulment of her marriage in Texas. The decree was declared by the court to be an annulment of the marriage contract ab initio. Therefore, we terminated proceedings because the alien, by the annulment, again became an unmarried minor child. There is no such issue in the instant case.

Counsel quotes from United States ex rel. Leibowitz v. Schlotfeldt, 94 F.2d 263 (C.A. 7, 1938), in support of his application. The court in that case repeatedly stated that the "appellee would have been entitled to a quota visa if his correct name and age had been stated," and he "was within the quota provisions and otherwise met the prescribed requirements to enable him to effect a legal entry." The case cited is not applicable to the instant proceeding. Respondent became ineligible for the status claimed in the visa issued to her.

The matter of good faith does go to the question of whether the Board will act favorably on respondent's petition for favorable exercise of the discretion under section 211(c) and (d). The record contains a mimeographed, one-page document, entitled "Marital Declaration," signed by respondent and attached to her visa. This declaration, headed "American Consulate General, Naples, Italy," dated February 5, 1959, states, "I understand that this visa will become invalid should I marry prior to my admission to the United States. Should I marry I understand if I make application at a U.S. port of entry I will be excluded or, if admitted, liable to deportation." The marital declaration appears both in English and in Italian, and is signed by respondent on the blank line for signature at the end of the paragraph in Italian. Respondent testified that she is able to read and write in the Italian language. There is no evidence concerning the length of time she attended school, but her testimony is precise and well phrased.

Counsel submits that the "Marriage Declaration" is not prescribed or authorized by the immigration act and is of no binding force. The device of the marriage declaration has no legal significance, of course, except that it is additional evidence that notice was given

2 Section 211 (c) provides: "The Attorney General may in his discretion, subject to subsection (d), admit to the United States any otherwise admissible immigrant not admissible under clause (2), (3), or (4) of subsection (a), if satisfied that such inadmissibility was not known to and could not have been ascertained by the exercise of reasonable diligence by, such immigrant prior to the departure of the vessel. * * *” (Emphasis supplied.)

Section 211(d) provides that the discretion under 211 (c) shall not be exercised unless the immigrant can obtain a quota number under the proper quota during the present fiscal year or during the next fiscal year.

an unmarried minor child (of marriageable age) applying for a third preference quota visa. The fact is that since this marriage declaration has been in use by United States consulates appeals to the Board such as the instant case have greatly decreased.

The marriage declaration is intended to emphasize the statement set forth in the visa, paragraph 30, "I claim to be a third preference quota immigrant and my claim is based on the following facts: Minor unmarried daughter of an alien lawfully admitted to the United States for permanent residence." Paragraph 31 lists the documents required by the Immigration and Nationality Act, filed herewith and made a part hereof, as follows: "birth certif., single status certif., family status certif., penal docs. (3), marital statement." Thus the immigration documents in the possession of this respondent from February 5, 1959 until the date she was admitted to the United States, April 20, 1959, declare in not less than four places that she is a minor unmarried daughter, as required by section 101(b) (1), the definition section, and section 203 (a)(3), the quota section of the act.

Counsel ridicules the suggestion that the "immigrant examines, scrutinizes and remembers" the documents he is asked to sign, and states that the immigrant signs all papers requested and, evidently, never looks at them again. The travel documents were in the hands of respondent for more than 2 months prior to her marriage. Counsel criticizes the wording of the "Marital Declaration." Certainly it must be admitted that it is awkwardly phrased. The fact remains that it should be enough of a warning to have put a literate person on notice that marriage following the issuance of the visa, but prior to her entry into the United States, would in some way seriously affect her immigrant status, even if the other statements and declarations in her visa regarding her unmarried status had made no impression upon her.

The facts of the case are not as they would be if the documents had been signed by respondent and returned to a Government official, so that she did not see them from the time she signed them until the time she applied for admission into the United States. She stated at her hearing that she signed all the documents without stopping to read them. However, in her preliminary statement (Ex. 6, p. 3) she said that she thinks she read the document but cannot remember; she only remembers signing it.

We fail to see where counsel derives comfort from Clarke v. Landon, 139 F. Supp. 113 (D. Mass., 1956), or from Landon v. Clarke, 239 F.2d 631 (C.A. 1, 1956). The instant case falls under the rule that if the misrepresentation had been known at the time of respondent's entry into the United States, she would have been denied use of the visa in her possession.

Not only was respondent not eligible for the preference visa she obtained, but she now seeks a third preference quota visa for her husband as the spouse of an alien lawfully admitted for permanent residence. Thus, respondent and her husband would both enter the United States under the preferences, rather than having to wait out their turn on the lists for nonpreference visas.

We find that this is not an appropriate case for the favorable exercise of the discretion provided in section 211(c). Respondent has not established to our satisfaction, as required by the statute, that her inadmissibility under the preference visa issued to her "was not known to and could not have been ascertained by the exercise of reasonable diligence by" her, prior to the departure of her vessel from Italy for the United States. On the contrary, it is our opinion that she is a person who is able to comprehend the meaning and effect of the documents placed before her. The special inquiry officer has granted respondent voluntary departure, and that is the maximum relief available to her on this record.

Order: It is ordered that the appeal be and is hereby dismissed.

MATTER OF PC

In DEPORTATION Proceedings

A-10172681

Decided by Board June 1, 1960

Deportability-Section 241(a)(11)—Conviction in New York for possession of narcotics-Nature of drug ascertained from police affidavit and laboratory

report.

Conviction in New York for possession of unspecified narcotic drug supports deportability under section 241 (a) (11) of act where police officer's affidavit and laboratory report disclose that drug in question was heroin. Under rules of the New York Code of Criminal Procedure police affidavit and laboratory report were part of pleading on which respondent was tried and are considered part of record of conviction.

CHARGE:

Order: Act of 1952-Section 241 (a) (11) [8 U.S.C. 1251 (a) (11)]-Convicted of illicit possession of narcotic drugs (section 3305, Public Health Law of New York).

BEFORE THE BOARD

Discussion: The examining officer appeals from an order entered by the special inquiry officer on January 29, 1960, terminating the above-captioned proceeding. A memorandum of law urging the respondent's deportation has been submitted by the examining officer. No exceptions have been filed by the respondent.

An order to show cause was personally served upon the respondent on January 7, 1960. The order charges in substance that the respondent is a native and citizen of Cuba who last entered the United States through the port of Miami, Florida, on June 24, 1955, and that he was convicted in the Court of Special Sessions of New York City on November 4, 1959, of the crime of unlawfully possessing "a certain narcotic drug."

The deportation hearing was conducted in the respondent's absence pursuant to the authority provided by section 242 (b) of the Immigration and Nationality Act (8 U.S.C. 1252 (b)). There is evidence of record that due notice of the hearing was served upon the respondent on two occasions and that he failed to appear for the hearing.

Alienage and the respondent's conviction of the crime of unlawfully possessing a narcotic drug in violation of section 3305 of the Public Health Law of New York1 is established by the evidence of record. The information accusing the respondent of unlawfully possessing a narcotic drug does not designate the particular narcotic drug found in the respondent's possession. However, a sworn affidavit executed by the arresting officer, a court report by the same officer and a Police Laboratory Analysis Report establish that the respondent was in possession of "heroin" when he was arrested. The three documents are before us as a part of the court record on file in the clerk's office, Court of Special Sessions, New York County, New York, Docket No. 18272-1959.

The special inquiry officer terminates the proceeding under the rule set forth in the case of Hoy v. Mendoza-Rivera, 267 F.2d 451 (C.C.A. 9, 1959). The Circuit Court of Appeals ruled in the Mendoza case (supra) that insofar as marijuana is involved, deportability under section 241 (a) (11) of the Immigration and Nationality Act (8 U.S.C. 1251(a) (11)) depends upon a conviction for possession for the purpose of manufacture, production, sale, etc., of the said drug. The special inquiry officer reasons that inasmuch as a specific narcotic drug is not designated either in the New York statute or the information accusing the respondent, we cannot go behind the information and supply the deficiency from supplementary court documents furnished as a part of the court record. The information merely charges that the respondent "unlawfully did possess and have control of a certain narcotic drug."

The examining officer urges that the supporting documents attached to the information are as much a part of the record of the respondent's conviction as is the information filed against him by the District Attorney on September 1, 1959. She maintains that since the affidavit executed by the arresting officer and the supporting laboratory report both specify "heroin" as the drug possessed by the respondent and that since these documents were received by the court prior to the respondent's plea of "guilty," the case is not controlled by the Mendoza rule (supra) because there is nothing in the record of conviction to show that the drug possessed was found to be marijuana.

The issue before us is whether in this particular case the affidavit and the police laboratory report may be considered in arriving at a determination of the narcotic drug involved in the respondent's conviction. We are of the opinion that certain provisions of the

1

Section 3305, New York Public Health Law, reads as follows:

"It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article.".