The respondent is a 34-year-old unmarried male, born in the Dominican Republic on January 29, 1936, who at last arrived at San Juan, Puerto Rico on July 30, 1963, at which time he was admitted as a visitor for pleasure. On March 6, 1964, he was convicted in the Superior Court of Puerto Rico, San Juan Division, of possession of heroin and was sentenced to serve a term of five to nine years in prison. The record is quite clear that at the time of the original deportation hearing, the respondent was duly advised of his right to counsel and that he intelligently and knowingly waived the right. It is settled law that in a deportation hearing the respondent has the absolute right to waive counsel1 and if the hearing is eminently fair in all respects, respondent's constitutional rights are not violated by the absence of counsel, since a deportation hearing is a civil and not a criminal matter. A respondent has not been denied counsel when he waives his privilege to be represented.3 In the instant case the respondent received a fair hearing in accordance with the law and there was no denial of due process of law.* The respondent's claim that he is a United States citizen is without foundation. He was born on January 29, 1936 and was an illegitimate child. He was never legitimated. His mother came to the United States and was naturalized on December 2, 1943. Under the Nationality Act of 1940, which was in effect when the mother was naturalized, a child born out of wedlock and never legitimated could not derive United States citizenship from the naturalization of either his father or his mother.5 Moreover, he did not derive citizenship under the Immigration and Nationality Act of 1952, which became effective on December 24, 1952. Section 321 (a) of the Act, which expanded the 1940 Act, provides that an illegitimate child will derive citizenship when the mother is naturalized provided the child is under age 16 at the time of naturalization, which was the case here. However, it has been 1 Murgia-Melendrez v. INS, 407 F.2d 207 (9 Cir., 1969); Millan-Garcia v. INS, 343 F.2d 825, 828 (9 Cir., 1965), reversed on other grounds 382 U.S. 69 (1965). 2 Woodby v. INS, 385 U.S. 276 (1966); Harisiades v. Shaughnessy, 342 U.S. 580 (1952); U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149 (1923); Diric v. INS, 400 F.2d 658 (9 Cir., 1968); Murgia-Melendrez v. INS, supra; Espinosa v. INS, 404 F.2d 544 (9 Cir., 1968). 3 Burr v. INS, 350 F.2d 87 (9 Cir., 1965). See also U.S. ex rel. Mustafa v. Pederson, 207 F.2d 112 (7 Cir., 1953). 4 Hee Chan v. Pilliod, 178 F. Supp. 793 (U.S.D.C., N.D. Illinois 1959). 5 Espindola v. Barber, 152 F. Supp. 829 (U.S.D.C., N.D. Calif., 1957). specifically held that this provision of the 1952 Act is not retroactive, and if the child is over 16 years of age on the effective date of the Act, he has no claim to citizenship by derivation. Respondent was almost 17 years old on December 24, 1952. The respondent is not entitled to the privilege of voluntary departure because section 244 (e) specifically prohibits this discretionary relief to anyone who has been convicted of a narcotics violation. Further, the discretionary relief of suspension of deportation under section 244 (a) (2) is precluded by the fact that the person seeking such relief must have resided in the United States for at least 10 years after the offense was committed. Respondent cannot meet this requirement. Accordingly, the appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. Espindola v. Barber, supra; Matter of L—, 8 I. & N. Dec. 272 (BIA, 1959). MATTER OF SUM In Deportation Proceedings A-4713047 Decided by Board May 22, 1970 Respondent's conviction under section 11720 of the California Health and Safety Code for unlawful use of proscribed narcotic drugs may not be equated with a conviction for unlawful possession of such narcotic drugs so as to bring him within the "illicit possession" provisions of sections 212(a)(23) and 241 (a) (11) of the Immigration and Nationality Act (Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964), followed). [Matter of H-U—, 7 I. & N. Dec. 533, and Matter of Fong, 10 I. & N. Dec. 616, overruled.] CHARGES: Order: Act of 1952-Section 241(a)(1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry-immigrant, no visa (section 212 (a) (20) of Act). Lodged: Act of 1952-Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry-immigrant, no visa section 13(a), Act of May 26, 1924). ON BEHALF OF RESPONDENT: 30 Hotaling Place San Francisco, California 94111 ON BEHALF OF SERVICE: Sam I. Feldman Acting Appellate Trial Attorney (Brief filed) The special inquiry officer certified his order denying respondent's application under section 249 of the Act. The application will be granted. The question is whether the Board should continue to follow its precedents holding that a conviction for unlawful use of proscribed drugs makes an alien deportable as one who has been convicted for unlawful possession of such drugs. We shall overrule the precedents. The facts have been fully stated by the special inquiry officer. He found the respondent deportable on the lodged charge. Respondent applied to the special inquiry officer, under section 249 of the Act, for the administrative creation of a record of lawful admission for permanent residence. One condition of eligibility is that the applicant not be excludable under provisions excluding "violators of the narcotic laws". The pertinent portion of section 212 (a) (23) of the Act requires exclusion of, "Any alien who has been convicted of a violation of *** any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana * * *."1 Respondent has been convicted in 1941 for taking or using narcotics.2 The special inquiry officer did not personally believe that the conviction for taking or using narcotics made respondent inadmissible under section 212 (a) (23) which speaks of possession of the proscribed drugs. However, since Board precedents equate a conviction for unlaful use with a conviction for unlawful possession, he held that the respondent was inadmissible under section 212 (a) (23).3 An issue similar to that before us was considered in Varga v. Rosenberg, 237 F. Supp. 282 (S.D. Calif., 1964). Varga was convicted under section 11721 of the California Code which punishes a person who illegally used or came under the influence of a proscribed drug. The Service sought to deport him under that portion of section 241 (a) (11) of the Act which requires the deportation of an alien "who at any time has been convicted of a violation of, *** any law or regulation relating to illicit possession of or traffic in narcotic drugs or marihuana * * *”. (Emphasis supplied.) The court held that the respondent was not deportable. The court pointed out that the legislative history indicated that Congress intended to attack traffic in rather than use of narcotics. The court found that Varga's conviction was for use. The court concluded that the drug had been in his system, and that it followed he had not been in the possession which would have given him the power to traffic in the drug. Varga is the only published court decision on the issue. The position of the court in that case is based on legal precedents which hold that "use" does not necessarily include "possession." A con 1 It is unnecessary to comment on the significance, if any, of the section 249 reference to narcotics and the section 212(a)(23) reference to this, but also to marihuana. 2 Respondent was convicted on July 25, 1941 of violating then section 11720 of the California Health and Safety Code which required the criminal punishment of a "narcotic addict"—a term defined as relating to one who illegally "takes or otherwise uses any narcotics". Respondent testified he used narcotics on or off before his conviction and did not use it thereafter. He does not appear to have been an "addict" as that term is defined under immigration laws, Matter of F-S—C—, 8 I. & N. Dec. 108 (BIA, 1958). 3 Matter of Fong, 10 I. & N. Dec. 616 (BIA, 1964); Matter of H—U—, 7 I. & N. Dec. 533 (BIA, 1957). trary view had previously been expressed by another judge of the same court in an unreported decision, Bukaroff v. Rosenberg, No. 212-61-TC, April 17, 1961, which was apparently never appealed. The Solicitor General of the United States, although aware of the cleavage, declined to authorize an appeal in Varga. The Service's trial attorney stated at the hearing that the Service follows Varga in that it does not institute a deportation proceeding if the conviction is such as is found in that case (pp. 10-11). Insofar as concerns the "illicit possession" portions of sections 212 (a) (23) and 241(a) (11) of the Act, we believe that Varga should be followed rather than Bukaroff and the Board precedents to the contrary. We, therefore, overrule Matter of Fong, supra, and Matter of H—U—, supra, which hold to the contrary. ORDER: It is ordered that the special inquiry officer's denial of respondent's application under section 249 of the Act be withdrawn. It is further ordered that respondent's application under section 249 of the Act be granted. |