Matter of F-S-C-

Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)1—At any time after entry has boon a nar.otio drug edd irt

BEFORE THE BOARD Discussion: The case comes forward on appeal from the order of a special inquiry officer dated March 31, 1958, directing that the respondent be deported on the ground set forth in the order to show cause. The facts are fully set forth in the decision of the special in- quiry officer. The record relates to a native and citizen of China, approximately 58 years old, male, who testified that he first entered the United States at the port of San Francisco, California, in May 1922 as a student. He last entered the United States at the port of Seattle, Washington, ex SS. President Jefferson, on December 15, 1931, and was admitted upon presentation of a reentry permit after an absence from the United States since December 1930. The case for deportation is mainly predicated upon a sworn statement made by the respondent on September 10, 1957, before a Service investigator. Counsel has strenuously objected to the admission of this statement in evidence. However, there is no doubt that the statement is admissible under the regulations (8 CFR 212.14(e) ). There is no requirement that the alien be advised of his right to refuse to answer and to have counsel during the course of a preliminary interrogation nor to be advised concerning his right to claim protection of the Fifth Amendment (United States

ex rel. Bilokumsky v. Tod, 263 U.S. 149; Thompson v. United

States, 10 F.2d 781; Plane v. Carr, 19 F.2d 470, cert. den. 275 U.S.

545; Ex parte Callan, 42 F.2d 664, cert. den. 283 U.S. 862; Matter

o f B B A-4g90755, 4 T. R. N. Dec. 760, 763).

In the sworn statement the respondent stated that he had been

a user of morphine for about 5 years and on several occasions tried

to get away from this habit, seeking the assistance of several doc-

tors, and that subsequently he went to a small town to attempt to

break the habit but being unsuccessful turned himself over to the

Lexington Hospital for narcotic users where he remained for about 2 weeks. He stated that he was a voluntary patient at Leaingtou;

that he had been a drug addict for about 5 or 6 years prior thereto;

and that he had inserted morphine mixed with sugar in his arm,

displaying old scars. He stated that ho used the drug upon arising

in the morning and before he would go to sleep at night. He was

asked whether he bought the morphine from a prescription that

was given him by a physician because of some ailment and replied

in the negative, that he had bought it through illegitimate sources.

He claims not to have used any narcotic drugs since April 15,

1957, and that he has enjoyed good health since his release from the hospital at Lexington. He also stated that he had been steadily

employed as a chef prior to going to Lexington.

At the deportation hearing, upon examination by his attorney,

the respondent again testified that he had been steadily employed

as a restaurant cook and that he had never been a narcotic addict.

He claimed that he had never even been a steady user of morphine

nor an habitual drug user but that he used drugs in connection

with an illness in the nature of piles to relieve a painful burning

sensation. He stated that he received prescriptions for the narcotic

drugs from 2 doctors, whose names he could not at first remember

but then later named the doctors, one in Indianapolis and one in

Chicago, the latter being deceased. He was not able to further

identify the first doctor. His attention was called to the fact that

in the sworn statement he did not mention that he had a prescrip-

tion from a doctor and he explained that he thought the investi-

gator was asking about the occasions he bought through illegitimate

sources. He further stated that he was following instructions from

the doctor when administering the morphine to himself. He also

explained that he thought the questioning regarding the use of

morphine in eumiection with an injury or oickness and the need of

this drug to relieve pain, which he had answered in the negative,

referred to whether he had an order on his person at that time

but that when he first started he did have an order from a doctor.

The respondent admitted that he was a voluntary patient at the

Lexington Hospital as indicated in his sworn statement.

The respondent submitted letters from 2 physicians expressing

the opinion that respondent was not a drug addict. One of the

doctors, a surgeon for the Chicago Police Department handling cases of the narcotic unit, expressed the opinion based upon the

writer's experience that the respondent is not a confirmed narcotic

addict but only an occasional user. The respondent Testified that

he had seen this doctor on 8 or 10 occasions as a personal physician.

A second doctor, who treated the respondent in March 1957 and

again in January 1958, sets forth that he had occasion to observe

respondent quite a few times during those 9. periods, that in his

opinion the respondent was not addicted to narcotic drugs and

that at the present time he finds no evidence of narcotic addiction.

Dapnrtatinn of the respondent is sought under section 211(a) (11)

of the Immigration and Nationality Act on the ground that after

entry he has been a narcotic drug addict. The term "narcotic

drug addict" is not defined in the act but recourse has been had to

the definition of the term "addict" as used in 4'2 U.S.C.A. 201(k)

which reads as follows:

The term "addict" means any person who habitually uses say habit-forming narcotic drugs so as to endanger me poetic morale, health, ,, afeLy, m. welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction.

This definition was quoted with approval in Matter of I- C , A 5462239, 6 I. & N. Dec. 374, which noted that the

definition appeared to be in accord with judicial decisions which

recognized that one may be a - user without being an addict.'

Under the prior Act of February 18, 1931, as amended by sections

21 and 22 of the Alien Registration Act of 1940 (8 U.S.C. 156a),

relating to deportation for a narcotic conviction, the addict was an

exception to the proscription of the deportation statute and the

burden of proving that he was within the exception as an addict

who was not a dealer or peddler was upon the alien' However,

under the present statute, section 241(a) (11) of the Immigration

and Nationality Act (8 U.S.C. 1251(a) (11) ), a narcotic drug ad-

dict falls within the scope of the deportation statute and the burden

of proof is upon the Service to establish deportability by a pre-

ponderance of reasonable, substantial and probative evidence.

In the present case the only evidence against the respondent is

the admissions he made in the sworn statement to a Service investi- gator of September 10, 1957. At the hearing under questioning by

counsel he has repudiated or explained some of the statements

'Matter of B—, A-6815221, 3 1. & N. Dec. 620; Mow v. McGrath, 101 F. 2d 982; Ex parts Bag, 77 F. Supp. 74. 'Matter of V—, 56073J670, 1 L & N. Dec. 160; Wong Hang Jim v, Car- michael, 115 F.2d 529; :Nicoll v. Briggs, 83 F.2d 375.

made by him and has claimed that his original use of narcotic drugs

was upon prescription issued by 2 doctors to relieve rectal pains

and that his method of administering the drug was in accordance

with the prescription. In the sworn statement he stated he was a

voluntary patient in the Lexington Hospital in April 1957 but that

he was discharged after 2 weeks. The hospital record or history

was not made a part of the evidence of record and, indeed, under

the provisions of 42 U.S.C.A. 260(d), the record of such voluntary

commitment is confidential and is not to be divulged. The respond-

ent has not consented to the release of such hospital record. In

view of the fact that, the respondent was discharged after 2 weeks,

it is not believed that any conclusion as to addiction can be drawn

from his 2 weeks' stay at the hospital at Lexington, particularly

in the absence of the hospital history.

The respondent has also submitted letters from 2 physician, who

have treated him; while one categorizes him as a narcotic user,

both doctors rule out addiction to narcotic drugs. It is true that

these letters do not include any case history but they do represent

the opinion of 2 physicians who have been in contact with the

respondent on a number of occasions. The respondent claims not

to have used narcotics since April 1957 and there does not appear to

be any evidence of withdrawal symptoms. In addition, in view of

the technical definition of addiction in 42 U.S.C.A. 201(k), it is

not believed that the respondent's admission that he was an addict is a sufficient basis upon which to predicate a determination of

narcotic drug addict so as to warrant a finding of deportability

thereon. After a careful review of all the evidence of record, it is be-

lieved that the present evidence of record leaves us in doubt on the

matter of addiction and does not constitute a preponderance of

evidence which is maaonablo, substantial and probative upon which

to base a finding of addiction so as to render the respondent de-

portable under the provisions of section 241(a) (11) as a narcotic

drug addict. Accordingly, the proceedings will be terminated.

Order: It is ordered that the proceedings be and the same are

hereby terminated.