Petition to review an order of the Board of Immigration Appeals directing deportation of John Lennon and denying his application for adjustment of status.
Kaufman, Chief Judge, Mulligan and Gurfein, Circuit Judges. Mulligan, Circuit Judge, (dissenting).
We have come a long way from the days when fear and prejudice toward alien races were the guiding forces behind our immigration laws. The Chinese exclusion acts of the 1880's and the "barred zone" created by the 1917 Immigration Act have, thankfully, been removed from the statute books and relegated to the historical treatises. Nevertheless, the power of Congress to exclude or deport natives of other countries remains virtually unfettered. In the vast majority of deportation cases, the fate of the alien must therefore hinge upon narrow issues of statutory construction. To this rule, the appeal of John Lennon, an internationally known "rock" musician, presents no exception. We are, in this case, called upon to decide whether Lennon's 1968 British conviction for possession of cannabis resin renders him, as the Board of Immigration Appeals believed, an excludable alien under § 212(a)(23) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(23), which applies to those convicted of illicit possession of marijuana. We hold that Lennon's conviction does not fall within the ambit of this section.
To provide the necessary context for decision in this case, an overview of the factual background is appropriate.
On October 18, 1968, detectives from the Scotland Yard drug squad conducted a warrantless search of Lennon's apartment at 34 Montague Square, London. There, the officers found one-half ounce of hashish inside a binocular case and thereupon placed Lennon under arrest. Lennon pleaded guilty to possession of cannabis resin in Marylebone Magistrate's Court on November 28, 1968; he was fined $: 150.*fn1
On August 13, 1971, Lennon and his wife Yoko Ono arrived in New York. They had come to this country to seek custody of Mrs. Lennon's daughter by a former marriage to an American citizen.
It was at this point that the Lennons first met with the labyrinthine provisions of the Immigration and Nationality Act which were to result in the deportation proceedings which we review. Accordingly, a brief description of the relevant portions of that Act is here in order.
INA § 212(a), 8 U.S.C. § 1182(a), lists thirty-one classes of " excludable aliens" who are ineligible for permanent residence, and, indeed, are (with the exception provided by § 212(d)(3)(A)), unable to enter this country at all. This portion of the Act is like a magic mirror, reflecting the fears and concerns of past Congresses. Among those excludable is
any alien who has been convicted of a violation of . . . any law or regulation relating to the illicit possession of . . . marihuana (§ 212(a)(23))
Section 212(d)(3)(A) permits the INS, in its discretion, temporarily to waive excludability and to admit the alien under a temporary non-immigrant visa. When this visa expires, the alien must leave or face deportation. INA § 241(a)(2), 8 U.S.C. § 1251(a)(2). At any time after admission, however, the alien may petition for permanent resident status. INA § 245(a), 8 U.S.C. § 1255(a). This application can be, in effect, a challenge to his classification as an excludable alien.
Since Lennon's conviction appeared to render him excludable, the INS specifically waived excludability under § 212(d)(3)(A). The Lennons were then given temporary visas valid until September 24, 1971; the INS later extended the expiration date to February 29, 1972.
The day after Lennon's visa expired, March 1, Sol Marks, the New York District Director of the INS, notified the Lennons by letter that, if they did not leave the country by March 15, deportation proceedings would be instituted. On March 3, Lennon and his wife filed third preference petitions.*fn2 In response to these applications, the INS instituted deportation proceedings three days later. The INS, for reasons best known to them, did not act on the applications, and the Lennons were therefore unable to apply for permanent residence. After waiting two months, the Lennons filed suit in the Southern District for an injunction compelling the INS to rule on their petitions. Lennon v. Marks, 72 Civ. 1784.*fn3 At oral argument in that case, Marks advised the judge that the INS would consider the applications; they were approved within the hour.
In March, April, and May, 1972, deportation hearings were held before Immigration Judge Fieldsteel. On May 12, 1972, ten days after the INS finally approved their petition for third preference status, the Lennons applied to the Immigration Judge for permanent residence.*fn4 During the hearing, letters from many eminent writers, artists, and entertainers, as well as from John Lindsay, at that time the Mayor of New York, were submitted to show that, were the applications approved, the Lennons would make a unique and valuable contribution to this country's cultural heritage. The Government did not challenge Lennon's artistic standing, but instead contended that his 1968 guilty plea made him an excludable alien, thus mandating the denial of his application. Lennon countered by arguing that he was not excludable under § 212(a)(23) since he had not been convicted of violating a law forbidding illicit possession. Under British law, Lennon urged, guilty knowledge was not an element of the offense. Lennon further argued that, by commencing deportation proceedings while he was seeking custody of his wife's child,*fn5 the agency had violated its hitherto invariable practice and therefore had abused its discretion.*fn6
The Immigration Judge filed his decision on March 23, 1973. Since Yoko Ono had obtained permanent resident status in 1964, he granted her application. But, because he believed that Lennon was an excludable alien, the Immigration Judge denied his application and ordered him deported. The Immigration Judge also held that it was not within his province to review the Director's decision to begin deportation proceedings.
Lennon sought review of the Immigration Judge's decision before the Board of Immigration Appeals. He also began a collateral action in the Southern District in which he sought to enjoin his deportation. He was deserving of this relief, he contended, since the District Director and the Immigration Judge had prejudged his case. The INS had, he said, instituted deportation proceedings because they feared he might participate in demonstrations that would be highly embarrassing to the then-existing administration. In January, 1975, Judge Owen denied a government motion for summary judgment. Lennon v. United States, 387 F. Supp. 561 (1975).
Meanwhile, on July 10, 1974, the Board filed its decision. The Board conceded that § 212(a)(23) does not exclude aliens convicted of possession under laws which make knowledge immaterial to the offense. However, the Board concluded that
a person who was entirely unaware that he possessed any illicit substance would not have been convicted under the [British] Dangerous Drugs Act of 1965. (p. 25)
The Board also held that it was without jurisdiction to consider Lennon's claim that he was improperly denied nonpriority status. Accordingly, the Board concluded that Lennon was ineligible for permanent residence and ...