Interim Decision #8055




                   MATTER OF HERNANDEZ-PONCE

                         In Deportation Proceedings

                                   A-38834427

                      Decided by Board March 9, 1988

(1) The Anti-Drug Abuse Act of 1986, Pub. L No. 99-570, 

, amended
   sections 241(aX11) and 212(aX23) of the Immigration and Nationality Act, 

(a)(11) and 1182(aX23) (1982), and significantly broadened the types of drug
  offenses which render an alien deportable or excludable.
(2) Section 241(aX11) of the Act, which previously rendered deportable only those
   aliens convicted of illicit possession of or traffic in narcotic drugs or marihuana,
  now refers to "any law or regulation" relating to a controlled substance; and
  therefore, the immigration judge properly found deportable an alien twice convict-
   ed of the crime of use and being under the influence of phencyclidine ("PCP"), a
  controlled substance.
(3) The Board's construction of the former statute, which distinguished a conviction
  for unlawful use of a proscribed drug from a conviction for its unlawful posses-
  sion, was based on the clearly different language of the former statute and is
  clearly incompatible with the plain meaning of the amended statute. Matter of
  Sum, 

 (BIA 1970), superseded.
CHARGE:
 Order: Act of 1952—Sec. 241(aX11) [

(aX11)]--Convicted of controlled
                      substance violation
ON BEHALF OF RESPONDENT:                           ON BEHALF OF SERVICE:
  Pro se                                            Joseph M. Ragusa
                                                    General Attorney

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members



   In a decision dated August 4, 1987, the immigration judge found
the respondent deportable pursuant to section 241(a)(11) of the Im-
migration and Nationality Act, 

(aX11) (Supp. W
1986), denied his application for voluntary departure, and ordered
him deported to Mexico_ The respondent has appealed. Additional-
ly, the 'Immigration and Naturalization Service has raised the issue
of the respondent's deportability. Pursuant to our authority under

(c) (1988), we will consider that issue on certification.
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The respondent's appeal will be dismissed and his request for oral
argument before the Board is denied. The decision of the immigra-
tion judge will be affirmed.
   The respondent is a 23-year-old male, native and citizen of
Mexico, who was admitted to the United States as a lawful perma-
nent resident in 1984. On September 29, 1986, the respondent was
convicted in the State of California Municipal Court, County of
Santa Clara, of the crime of use and being under the influence of
phencyclidine ("PCP") in -violation of section 11550(b) of the Califor-
nia Health and Safety Code. On January 14, 1987, the respondent
was convicted of the same crime before the same court. On April
24, 1987, an Order to Show Cause, Notice of Hearing, and Warrant
for Arrest of Alien (Form I-221S) was issued against the respond-
ent charging him with being deportable on the basis of these two
convictions. At his deportation hearing on August 4, 1987, the re-
spondent admitted to all of the factual allegations contained in the
Order to Show Cause but denied that he was deportable based on
his record. The immigration judge found the respondent to be de.
portable as charged.
   On appeal, the respondent argues that he was without legal rep-
resentation at his deportation hearing and, because of his own lack
of familiarity with immigration law and procedure, that he was not
adequately represented. The respondent asserts that the immigra-
tion judge abused his discretion by proceeding with the hearing
before the respondent was able to obtain counsel.
   From our review of the record we note that the immigration
judge took scrupulous care to inform the respondent of his right to
be represented by counsel while also informing him of Legal Aid
counsel which might be available at no charge. The respondent
first appeared before the immigration judge on May 7, 1987, at
which time his hearing was postponed until June 25, 1987, in order
to provide him with the opportunity to obtain counsel. On June 25,
1987, the respondent again appeared before the immigration judge
without counsel. At this time, the attorney for the Service lodged a
new factual allegation relating to the respondent's January 14,
1987, drug conviction. The judge postponed the respondent's depor-
tation hearing until August 4, 1987, thereby affording him a fur-
ther opportunity to obtain legal representation and to prepare his
defense on the new factual allegation. On August 4, 1987, the re-
spondent again appeared before the immigration judge without
counsel. At this hearing, the immigration judge elected to proceed
with the deportation hearing, having the respondent represent
himself. We find that the immigration judge fully informed the re-
spondent of his right to be represented by counsel and reasonably
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granted several continuances of the hearing for the purpose of al-
lowing the respondent to obtain representation. See 

 (1987). The respondent's failure to obtain counsel after a
rather lengthy period of time and several continuances makes ap-
parent that he simply was unable to secure counsel at his own ex-
pense. Consequently, the immigration judge had no option but to
proceed with the hearing. See Vides-Vides v. INS, 

(9th Cir. 1986). We are convinced that the respondent's hearing was
full, fair, and thorough. Thus, we find no merit in the respondent's
claims on appeal, which will therefore be dismissed.
   The Service asks us to consider and affirm the decision of the im-
migration judge, finding the respondent deportable under section
241(a)(11) of the Act based upon his two convictions for use and
being under the influence of PCP.
   In his decision, the immigration judge noted that, prior to Octo-
ber of 1986, section 241(a)(11) of the Act rendered deportable only
those aliens who had been convicted of an offense "relating to the
illicit possession of or traffic in narcotic drugs nr marihuana." This
Board has previously held that an alien convicted of an offense of
use of a narcotic substance, as opposed to its possession, was not
excludable under the stat'iite. 1 See Matter of Sum, 

(13IA 1970). However, the immigration judge noted that the recent-
ly amended version of section 241(a)(11) of the Act rendered inap-
plicable our holding in Matter of Sum. We must agree.
   On October 27, 1986, President Reagan signed into law the Anti-
Drug Abuse Act of 1986. 

 Stet. 3207. This
act amended the immigration laws to render deportable any alien
who
  is, or hereafter at any time after entry has been, a narcotic drug addict, or who at
  any time has been convicted of a violation of, or a conspiracy to violate, any law
  or regulation of a State, the United States, or a foreign country relating to a con-
  trolled substance (as defined in section 102 of the Controlled Substances Act (21
  U.S.C. 802)).
Section 241(a)(11) of the Act, 

(a)(11) (Supp. IV 1986)
(amending 

(a)(11) (1982)).
   This amendment significantly broadened the language used to
describe the types of offenses which have traditionally jeopardized
an alien's status. Under the immigration law as it existed prior to
its amendment by the Anti-Drug Abuse Act, the following aliens
were deportable under section 241(a)(11) of the Act for drug-related
conduct:

   I Both the deportation and exclusion grounds employ essentially identical lan-
guage regarding the types of drug convictions which would jeopardize an alien's
stair's

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Interim Decision #3055

 [ajny alien ... who at any time has been convicted of a violation of, or a conspira-
 cy to violate, any law or regulation relating to the illicit possession of or traffic in
 narcotic drugs or marihuana, or who has been convicted of a violation of, or a
 conspiracy to violate, any law or regulation governing, or controlling the taxing,
 manufacture, production, compounding, transportation, sale, exchange, dispens-
 ing, giving away, importation, exportation, or the possession for the purpose of the
 manufacture, production, compounding, transportation, sale, exchange, dispens-
 ing, giving away, importation, or exportation of opium, coca leaves, heroin, mari-
 huana, any salt derivative or preparation of opium or coca leaves or insonipecaine
 or any addiction-forming or addiction-sustqining opiate.

(a)(11) (1982), amended by 

(a)(11)
(Supp. IV 1986) (emphasis added).
   The Service, in its written brief, asserts that, by enacting the
Anti-Drug Abuse Act, Congress so enhanced the national drug en-
forcement law and policy that the amendment to the deportation
statute now renders deportable any alien convicted of any law re-
lating to controlled substances, including being "under the influ-
ence" of a controlled substance.
   It is evident to us, according to the plain words of the amended
statute, that Congress intended to expand rather than limit the
power of the Government to curtail drug abuse through the immi-
gration laws. Prior to the recent amendments, section 241(a)(11)
listed the specific drug-related criminal activities which Congress
considered sufficient to warrant the exclusion or deportation of
aliens. The amended statute refers to "any law or regulation" re-
lating to a controlled substance. These are words which, according
to our construction, clearly contain no limitation. Thus, our con-
struction of the former statute set forth in Matter of Sum, supra,
which distinguished a conviction for unlawful use of a proscribed
drug from a conviction for its unlawful possession, was based on
the clearly different language of the former statute and is clearly
incompatible with the plain meaning of the amended statute.
  In the case before us, the respondent has admitted to being twice
convicted for the crime of use and being under the influence of
phencyclidine. Phencyclidine is listed as a controlled substance
under the Controlled Substances Act. See 

 (1982). We
must conclude that the respondent falls within the purview of the
amended language of section 241(a)(11) of the Act, which refers to
convictions "relating to a controlled substance." Accordingly, the
decision of the immigration judge relating to the respondent's de-
portability will be affirmed.
  ORDER: The appeal is dismissed and the decision of the immi-
gration judge is affirmed.


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