BRONSZTEJN

Interim Decision #2376

MATTER OF BRONSZTEJN
`1 , •

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 of-
fenses. 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, reapondent's conviction
for attempted pcissession 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 lib, 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: ON BEHALF OF SERVICE:
Edith Lowenstein, Esquire Paul C. Vincent
36 West 44th Street ... Appellate Trial Attorney
New York, New York 10026 .

This is an appeal from an order of an immigration judge finding the
respondent deportable on the lodged charge, and directing his deporta-
tion to Israel. The, appeal will laq-, 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
nriminal 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
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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 Na-
' lity Act. He designated Israel as the country of deportation.
done.
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, t:ae 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 1"..2c1 1087 (aA_ '7, 1971). If the respondent wishes to Ram*
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 reac:a the stage of attempt, unless it carries the project forward
within dangerous proximity to the criminal end sought, People v. Sulli-
van, 173 N.Y. 122, 65 N.E. 989 (1903); People v. Sobieshoda, 235 N.Y.
411, 139 N.E 558 (1923); People v. Werblow, 241 N.Y. 55, 148 N.E. 786
(1926); People v. Ditehik, 288 N.Y. 95, 41 N.B. 2d 905 (1942). The
attempt mus; have gone so far that the crime would have been com-
pleted 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
I Remanded on other grounds.

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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 .5—, 1 L & 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 at-
tempted bribery.
In enacting the Narcotic Control Act of 1956 (Aet 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 cover-
age, Bowles v. Ohio Fuel Gas CO., 65 P. Supp. 426 (N.D. Ohio, 1946),
afrd 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 L & 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 immi-
gration 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 de-
nied. There is no provision in the immigration laws that would permit
the respondent any form of discretionary relief from deportation. Ac-
cordingly, and in view of the foregoing, we will affirm the immigration
judge's order and dismiss the appeal.
ORDER: The appeal is dismissed.

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