Matter of Grijalva

Decided by Board June 24 1988

委员会于1988年6月24日决定

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: Severiano A. Roderte, Esquire David Peters 111 West Monroe, Suite 718 General Attorney Phoenix, Arizona 85003

代表被申请人： 代表移民局： Severiano A. Roderte, Esquire David Peters 111 West Monroe, Suite 718 总律师 Phoenix, Arizona 85003

The respondent has appealed an immigration judge's decision, dated January 22, 1986, in which the immigration judge denied the respondent's request for relief pursuant to section 241(0(2) of the Immigration and Nationality Act, 8 U.S.C. §1251(f)(2) (1982), and

被申请人对移民法官1986年1月22日的决定提出上诉，在该决定中，移民法官依据《移民与国籍法》第241(0(2)条、8 U.S.C. §1251(f)(2) (1982)驳回了被申请人寻求救济的请求，并

ordered that the respondent be deported to Mexico. The appeal will be dismissed. The respondent is a 38-year-old native and citizen of Mexico. He was admitted into the United States for lawful permanent resi- dence on February 12, 1985. The respondent's spouse is also a Mexican national who is a lawful permanent resident in this coun- try. The respondent and his wife have been married for 6 years. They have a United States citizen daughter and son, whose ages are 5 and 3, respectively. The respondent's wife has a 10-year-old son from a previous marriage who also resides with the respondent and his wife. On October 1, 1985, the respondent entered a guilty plea in the Superior Court of Maricopa County, Arizona, to the charge of pos- session of marihuana in violation of sections 13-3401 and 13-3405 of the Arizona Revised Statutes, a class 6 undesignated felony. 1

命令将被申请人驱逐至墨西哥。上诉将被驳回。 被申请人是38岁的墨西哥本地人和公民。他于1985年2月12日获准进入美国进行合法永久居留。被申请人的配偶也是墨西哥国民，是我国合法永久居民。被申请人与其妻子已结婚6年。他们有一名美国公民女儿和儿子，年龄分别为5岁和3岁。被申请人的妻子与前一次婚姻有一名10岁的儿子，也与被申请人及其妻子同住。 1985年10月1日，被申请人在亚利桑那州马里科帕县高等法院对违反《亚利桑那州修订法规》第13-3401条和第13-3405条持有大麻的指控表示认罪，该罪为6级未指定重罪。1

The respondent was convicted on October 29, 1985, and he was sen- tenced to 3 years' probation for the offense. 2 On October 29, 1985, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) against the respondent, charging that he was deportable pursuant to section. 241(a)(11) of the Act as an alien who had been convicted of a violation of a law relating to the possession of marijuana. 3 At his deportation hearing, the re- spondent admitted that the allegations concerning him in the Order to Show Cause were true, denied the charge of deportability

被申请人于1985年10月29日被定罪，并被判处3年缓刑。2 1985年10月29日，移民与归化局对被申请人签发了《出庭通知、听证通知和外国人逮捕令》（表格I-221S），指控其作为被判犯有与持有大麻有关的法律违规罪的外国人，依据该法第241(a)(11)条可被驱逐出境。3 在驱逐出境听证中，被申请人承认《出庭通知》中有关其的指控属实，否认可驱逐出境的指控

I Although neither of the parties has submitted a copy of the statute under which the respondent was convicted, we take administrative notice of section 13-3405 of the Arizona Revised Statutes, which provides in pertinent part: A. A person shall not knowingly: 1. Possess or use marijuana . . . B. A person who violates: 1. Subsection A, paragraph 1 involving an amount of marijuana not possessed for sale having a weight at the time of seizure of less than one pound is guilty of a class 6 felony

I 尽管双方均未提交被申请人据以被定罪的法规副本，我们对《亚利桑那州修订法规》第13-3405条作行政认知，其相关部分规定： A. 任何人不得明知： 1. 持有或使用大麻 . . . B. 违反以下规定的人： 1. A小节第1款，涉及非为出售而持有的大麻，在扣押时重量少于一磅的，犯6级重罪

The provisions of subsection (aX11) as relate to a single offense of simple posses- sion of 30 grams or less of marihuana may, in the discretion of the Attorney Gen- eral, be waived for any alien (other than an alien described in subsection (aXl9)) who— (A) is the spouse or child of a citizen of the United States or of an alien lawfully admitted for permanent residence, or (B) has a child who is a citizen of the United States or an alien lawfully admit- ted for permanent residence. if it is established to the satisfaction of the Attorney General that the alien's de- portation would result in extreme hardship to the United States citizen or lawful- ly resident spouse, parent, or child of such alien and that such waiver would not be contrary to the national welfare, safety, or security of the United States. This discretionary waiver was added to the Act in 1981 for hnmani- tarian purposes to ameliorate the hardship that an alien's deporta- tion would cause to his United States citizen or lawful permanent resident relatives when the alien had been convicted of one simple possession of marihuana offense. See Section 8, Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, 95 Stat. 1161; see also H.R. Rep. No. 264, 97th Cong., 1st Sess. 20-21, re- printed in 1981 U.S. Code Cong. & Ad. News 2589-90. Both the respondent and his wife testified in support of the re- spondent's application for relief from deportation. The respondent also submitted into evidence the transcript from his criminal pro- ceedings in which he had entered a guilty plea to the charge of pos- session of marihuana. The immigration judge accepted into evi- dence, over the objection of the respondent, the police reports which described the respondent's arrest and which summarized the evidence that was seized at the respondent's home. At the conclu- sion of the deportation hearing, the immigration judge, as noted above, found the respondent to be deportable as charged and denied his section 241(0(2) application. On appeal, the respondent contends that he admitted in his criminal proceedings only that he had been in possession of a "ciga- rette and a half' of marihuana, that the immigration judge's find- ing that the respondent possessed more than 30 grams of marihua- na was incorrect, and that he is eligible for a section 241(0(2) waiver of deportability. The respondent also contends on appeal that the immigration judge erred in admitting into evidence the police reports concerning the respondent, because those reports were outside the record of his criminal proceedings and because he

(aX11)小节中涉及单纯持有30克或以下大麻的单一罪行的规定，经司法部长自由裁量，可对任何外国人（(aXl9)小节所述外国人除外）予以豁免，如果该外国人—— (A) 是美国公民或合法获准永久居留的外国人的配偶或子女，或 (B) 有一名子女是美国公民或合法获准永久居留的外国人。 如果司法部长确信该外国人的驱逐出境将导致对该美国公民或合法居民配偶、父母或子女的极端困难，且该豁免不违背美国的国家福利、安全或保障。 该自由裁量豁免于1981年出于人道主义目的加入法案，以减轻当外国人被判犯有一项单纯持有大麻罪时，其驱逐出境将对其美国公民或合法永久居民亲属造成的困难。见1981年《移民与国籍法修正案》第8条，Pub. L. No. 97-116, 95 Stat. 1161；另见H.R. Rep. No. 264, 97th Cong., 1st Sess. 20-21，重印于1981 U.S. Code Cong. & Ad. News 2589-90。 被申请人及其妻子均作证支持被申请人的驱逐出境救济申请。被申请人还提交了其刑事程序的笔录作为证据，在该程序中他对持有大麻的指控表示认罪。移民法官不顾被申请人的反对，将描述被申请人逮捕并概述在被申请人家中扣押证据的警方报告采纳为证据。如上述，在驱逐出境听证结束时，移民法官认定被申请人如所指控可被驱逐出境，并驳回了其第241(0(2)条申请。 在上诉中，被申请人主张其在刑事程序中仅承认持有“一支半香烟”的大麻，移民法官关于被申请人持有超过30克大麻的认定不正确，且其有资格获得第241(0(2)条驱逐出境豁免。被申请人还在上诉中主张，移民法官将有关被申请人的警方报告采纳为证据有误，因为这些报告不在其刑事程序记录之内，且他

did not have the opportunity to cross-examine the persons who pre- pared the reports. The Service bears the burden of establishing an alien's deport- ability by means of evidence that is "clear, unequivocal, and con- vincing." Woodby v. INS, 385 U.S. 276, 286 (1966); 8 C.F.R. § 242.14(a) (1988). The Service has met that burden in this case be- cause the respondent conceded that all of the allegations concern- ing him in the Order to Show Cause, including the allegation that he had been convicted of possession of marihuana in violation of Arizona law, were true. We therefore find that the Service has sus- tained_ the charge of section 241(a)(11) deportability that it entered against the respondent. 4 Aliens in deportation proceedings have the burden of proving statutory eligibility for relief from deportation and of showing that they are entitled to a favorable exercise of discretion. See 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.1b(4), at 7-11 (rev. ed. 1987). The respondent here has the burden of showing that he is eligible for section 2410(2) relief and that he warrants that relief as a matter of discretion. See 8 C.F.R. §§ 242.17(d), (e) (1988); see also Reid v. INS, 756 F.2d 7, 10 (3d Cir. 1985); Matter of Connally, 19 I&N Dec. 156 at 160 (BIA 19S4). The respondent submitted into evidence the transcript from his criminal proceedings to support his contention that he was convict- ed of a single offense of possession of less than 30 grams of mari- huana. The transcript reflects that the sentencing judge informed the respondent of his rights and then told the respondent that the judge "need[ed] to establish a factual basis to support [the respond- ent's] guilty plea." The following exchange then took place between the sentencing judge and the respondent (defendant):

没有机会对编写报告的人进行交叉询问。 移民局负有以“明确、不含糊且令人信服”的证据证明外国人可被驱逐出境的责任。Woodby v. INS, 385 U.S. 276, 286 (1966)；8 C.F.R. § 242.14(a) (1988)。移民局在本案中已履行该责任，因为被申请人承认《出庭通知》中有关其的所有指控，包括其被判犯有违反亚利桑那州法律持有大麻罪的指控，均属实。因此，我们认定移民局已维持其对被申请人提出的第241(a)(11)条可驱逐出境指控。4 驱逐出境程序中的外国人负有证明法定驱逐出境救济资格并证明其有权获得有利自由裁量的责任。见2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.1b(4), at 7-11 (rev. ed. 1987)。本案被申请人负有证明其有资格获得第2410(2)条救济并证明其作为自由裁量事项值得获得该救济的责任。见8 C.F.R. §§ 242.17(d), (e) (1988)；另见Reid v. INS, 756 F.2d 7, 10 (3d Cir. 1985)；Matter of Connally, 19 I&N Dec. 156 at 160 (BIA 19S4)。 被申请人提交其刑事程序笔录作为证据，以支持其关于其被判犯有持有少于30克大麻的单一罪行的主张。笔录显示，量刑法官告知被申请人其权利，然后告诉被申请人法官“需要确立事实基础以支持[被申请人]的认罪”。随后，量刑法官与被申请人（被告）之间进行了以下对话：

Based on the record the court finds that the defendant has knowingly, inteligently [sic], and voluntarily entered a negotiated guilty plea to possession of marijuana, a class 6 felony, open ended offense. I further find that there is a factual basis to sustain the guilty plea. I will accept the guilty plea. The respondent maintains that only the transcript from his criminal proceedings and his conviction record should be consid- ered in determining the amount of marihuana that he was convict- ed of possessing. However, based upon a review of the transcript from the criminal proceedings, it is apparent that the specific amount of marihuana which the respondent possessed was not at issue in his criminal proceedings. The sentencing judge explained to the respondent that the judge wished to question the respondent for the purpose of establishing a "factual basis" for the respond- ent's guilty plea. The sentencing judge sought only a concession from the respondent that he had in fact possessed marihuana, without regard to the amount he possessed. 5 The respondent's con-

根据记录，本庭认定被告明知、明智[原文如此]且自愿地对持有大麻——一项6级重罪、开放式罪行——作出了协商认罪。本庭进一步认定存在维持认罪的事实基础。本庭将接受认罪。 答辩人主张，在确定其被判持有大麻的数量时，只应考虑其刑事程序的笔录及其定罪记录。然而，基于对刑事程序笔录的审查，显然答辩人所持有大麻的具体数量在其刑事程序中并非争点。量刑法官向答辩人解释，法官希望询问答辩人，以确立答辩人认罪的事实基础。量刑法官仅寻求答辩人承认其事实上持有大麻，而不论其持有的数量。5 答辩人的定

viction record, a copy of which is included in the record, states that the respondent "is guilty of the crime of possession of marijuana," but does not specify the amount that the respondent had been found guilty of possessirig. 6 The precise amount of marihuana that the respondent was convicted of possessing also cannot be deter- mined from the criminal statute under which he was convicted.? Accordingly, in cases such as the instant case, where the amount of niarihuana that an alien has been convicted of possessing cannot be readily determined from the conviction record, the alien who seeks section 241(0(2) relief must come forward with credible and convincing testimony, or other evidence independent of his convic- tion record, to meet his burden of showing that his conviction in- volved "30 grams or less of marihuana." 8 The respondent here

罪记录（其副本已列入记录）载明答辩人“犯有持有大麻罪”，但未具体说明答辩人被判定持有大麻的数量。6 答辩人被判定持有大麻的确切数量也无法从其被定罪所依据的刑事法规中确定。7 因此，在诸如本案的情形中，即无法从定罪记录中直接确定外国人被判定持有的大麻数量时，寻求第241(0(2)条救济的外国人必须提供可信且令人信服的证言，或独立于其定罪记录的其他证据，以履行其证明其定罪涉及“30克或以下大麻”的责任。8 本案答辩人

gave the following testimony at his deportation hearing in support of his section 241(0(2) application and in support of his contention that his conviction for possession was for an amount less than 30 grams of marihuana. The respondent testified that he was arrested for possession of marihuana several days after a friend of his left some marihuana in the respondent's home. He further claimed that he was not aware that the friend had left marihuana in his home until the respondent was arrested. The respondent explained that he had met a man, whom he ulti- mately identified as Jesus Torrez, when the respondent was in the check-out line of a supermarket located near his home in Arizona. He stated that his wife was with him at the supermarket, but that he was alone in the check-out line when he met Jesus Torrez. The respondent claimed that Torrez told him that he was pleased to meet a Mexican and that Torrez added: "I have not been able to meet any Mexicans here." The respondent originally testified that after he met Torrez at the supermarket, Torrez came with him to the respondent's home; but he later stated that Torrez asked the respondent where he lived while they were talking at the supermarket, and that Torrez then followed the respondent home. The respondent noted that Torrez drove a "big blue car with California license plates" and that the car "looked like a Cadillac." He also stated that his wife did not know that Torrez had followed him to the house. According to the respondent, Torrez then came into the respondent's house, apparently with his consent. When questioned by the Service attorney as to whether the re- spondent often let strangers into his house, the respondent replied that he did not let strangers into his home but that Torrez had been "very friendly." The respondent added that other than his inn- mediate family he did not let anyone into the house. The respondent testified further that Torrez gave him a small packet and that Torrez also left a larger bag in the respondent's house.° He said that Torrez placed the bag on the shelf in the bed- room closet so that the respondent's children could not reach the bag. The respondent testified, however, that he was not aware of the contents of the bag until after the police had arrested him and told him that the bag contained marihuana. According to the re- spondent, Torrez set the bag down and said he was going to leave it there "for a while," but he did not return for it. Three days later the police arrived and arrested the respondent.

在其驱逐听证会上为支持其第241(0(2)条申请并支持其关于持有定罪涉及少于30克大麻的主张，提供了以下证言。答辩人作证称，在其朋友将一些大麻留在答辩人家中几天后，他因持有大麻被捕。他还声称，在答辩人被捕之前，他并不知道朋友将大麻留在了他家中。 答辩人解释说，当他在位于亚利桑那州其家附近的一家超市的结账队伍中时，他遇到了一名男子，他最终确认该男子为Jesus Torrez。他陈述，在超市时他的妻子与他在一起，但他在结账队伍中遇到Jesus Torrez时是独自一人。答辩人声称，Torrez告诉他，他很高兴遇到一个墨西哥人，Torrez还补充说：“我在这里一直没能遇到任何墨西哥人。” 答辩人最初作证称，在超市遇到Torrez后，Torrez随他来到答辩人家中；但他后来陈述，Torrez在超市交谈时问答辩人住在哪里，然后Torrez跟随答辩人回家。答辩人指出，Torrez开着一辆“挂着加利福尼亚州牌照的蓝色大车”，那辆车“看起来像凯迪拉克”。他还陈述，他的妻子不知道Torrez跟随他到了房子。据答辩人称，Torrez随后进入了答辩人的房子，显然是经其同意。 当服务局律师询问答辩人是否经常让陌生人进入其房子时，答辩人回答说他不会让陌生人进入其家，但Torrez“非常友好”。答辩人补充说，除了他的直系亲属，他不让任何人进入房子。 答辩人进一步作证称，Torrez给了他一个小包，Torrez还在答辩人家中留下了一个较大的袋子。9 他说，Torrez把袋子放在卧室壁橱的架子上，以便答辩人的孩子够不到袋子。然而，答辩人作证称，直到警察逮捕他并告诉他袋子里装有大麻之后，他才知道袋子的内容物。据答辩人称，Torrez放下袋子并说他要把它留在那里“一段时间”，但他没有回来取。三天后，警察到达并逮捕了答辩人。

The respondent stated that he smoked a cigarette consisting of the substance that was in the small packet that Torrez had given to him. He claimed that he "took a puff' from the cigarette and when he realized that "it wasn't a [tobacco] cigarette," he no longer wished to smoke it. The respondent said that he had a sore throat for a few days from the substance that he smoked. He stated that he had never seen marihuana before and that he did not realize that the substance was marihuana even after he had taken a puff from the cigarette. The respondent also claimed that he did not bother to look into the larger bag in the closet after he tasted the cigarette. Furthermore, he asserted that after he had taken "a puff' from the cigarette, he placed the remainder of the cigarette in his pocket. The respondent stated that when the police came and executed their search warrant, they found "enough [marihuana] for a cigarette" in his pocket. The police also found the larger bag when they executed the search warrant. When questioned at his deportation hearing as to whether the police had found scales and boggles during their march, the respondent claimed that those items were in the larger bag and that he had been entirely un- aware of the contents of that bag. The respondent's wife gave the following testimony concerning the circumstances of her husband's arrest. She stated that the day of the arrest was a Tuesday and that she had been away visiting relatives in Tucson during the previous Friday through Monday. She did testify, however, that she remembered going to the local supermarket with the respondent "a few days before the arrest" She stated that the children were also with her and the respondent when they went shopping on that occasion_ The respondent's wife testified further that she and the respond- ent went home after they had been at the supermarket. She stated that she did not remember anyone coming into the house and speaking with the respondent immediately after they returned from the supermarket. She also claimed that she did not remember seeing a bag in the bedroom closet. She further stated that she did not see a man named Jesus Torrez come to the house, that the re- spondent never told her about Jesus Torrez coming to the house, and that the respondent never told her about a man from the local supermarket coming to the house. Considering the testimony given by the respondent and his wife, we find that they have not presented a plausible account of the events that led to the respondent's arrest and conviction. The re- spondent claimed that when he tasted the cigarette that Torrez had given to him, he coughed and had a sore throat for several days. Presumably, a person who had that kind of a reaction to the

被申请人陈述，他抽了一支由Torrez交给他的小包中所装物质制成的香烟。他声称他“吸了一口”那支香烟，当他意识到“那不是[烟草]香烟”时，他就不再想抽了。被申请人说，他因所吸的物质而喉咙痛了几天。他陈述，他以前从未见过大麻，并且即使在他吸了一口那支香烟之后，他也没有意识到该物质是大麻。被申请人还声称，在他尝了那支香烟之后，他没有费心去查看壁橱里那个较大的袋子。此外，他断言，在他从那支香烟中“吸了一口”之后，他把香烟的剩余部分放进了自己的口袋。被申请人陈述，当警察到来并执行他们的搜查令时，他们在他口袋里发现了“足够[大麻]卷一支香烟”的量。警察在执行搜查令时还发现了那个较大的袋子。当在驱逐听证会上被问及警察在搜查过程中是否发现了秤和烟斗时，被申请人声称那些物品在那个较大的袋子里，而他完全不知道该袋子的内容物。 被申请人的妻子就她丈夫被捕的情况作了以下证言。她陈述，被捕当天是星期二，而在之前的星期五至星期一期间，她一直外出到图森探亲。然而，她确实作证说，她记得在“被捕前几天”与被申请人一起去当地超市。她陈述，那次他们去购物时，孩子们也和她及被申请人在一起。 被申请人的妻子进一步作证说，她和被申请人在超市之后回了家。她陈述，她不记得他们从超市回来后立即有人进入房子并与被申请人说话。她还声称，她不记得在卧室壁橱里看到过一个袋子。她进一步陈述，她没有看到一个名叫Jesus Torrez的男子来到房子，被申请人从未告诉她Jesus Torrez来过房子，而且被申请人从未告诉她有一个来自当地超市的男子来过房子。 考虑到被申请人及其妻子提供的证言，我们认定他们并未就导致被申请人被捕和被定罪的事件提供可信的陈述。被申请人声称，当他尝了Torrez给他的那支香烟时，他咳嗽了，并且喉咙痛了几天。据推测，对一个物质有那种反应的人会把它处理掉。然而，被申请人作证说，当警察到达时，他口袋里仍然有那个装有大麻的小包。被申请人的证言称，他允许一个他最近才认识的人把一个袋子放在他卧室的壁橱里，以使其处于他孩子们够不到的地方，但他随后没有查看那个袋子，这也难以令人相信。 此外，被申请人妻子的证言并未佐证，反而对被申请人本已似是而非的说法进一步投下疑问。被申请人的妻子陈述，尽管她在超市与丈夫在一起，并在他们去过超市后与他一起回家，但她没有看到一个名叫Jesus Torrez的男子进入房子，而且她的丈夫没有告诉她关于这个进入他们家的男子的事。然而，被申请人把Torrez描述为一个友好的人，他说他很高兴见到一个墨西哥国民。被申请人声称他非常喜欢Torrez，以至于他显然对自己只允许家庭成员进入房子的做法作了一个例外。尽管Torrez的这次不寻常来访发生在家人从超市返回后不久，被申请人的妻子却声称对Torres的来访一无所知。此外，被申请人妻子的证言称逮捕发生在星期二，而她在之前的星期五至星期一期间一直在图森探亲（分别在被捕之日前4天和1天），这与被申请人的证言相冲突，即被申请人在与妻子购物时遇到了Torrez，Torrez把大麻留在被申请人家里并说他将回来取，而3天后警察到达了被申请人的家。如果被申请人妻子的证言被接受为真实，那么在Torrez据称于警察到达前3天将被申请人的大麻留在其家里时，她实际上会在图森，而不是与丈夫在当地超市购物。 此外，与警察报告中包含的信息相比，被申请人为支持其第241(f)(2)条申请而提供的证言似乎是虚假的。被申请人在上诉中主张，移民法官将警察报告采纳为证据是错误的。被申请人辩称，警察报告不应被采纳为证据，因为这些报告不在其刑事程序的记录之内，而且他没有机会交叉询问准备这些报告的人。尽管这里的警察报告本质上是传闻，但这并不意味着它们在驱逐程序中不可采纳。正如

substance would dispose of it. The respondent testified, however, that he still had the packet containing marihuana in his pocket when the police arrived. The respondent's testimony that he al- lowed someone whom lie had recently met to place a bag in his bedroom closet in such a manner that it would be out of the reach of his children, but that he did not subsequently look into the bag, is also difficult to believe. In addition, the testimony of the respondent's wife did not cor- roborate, but instead cast further doubt on, the respondent's al- ready specious claim The respondent's wife stated that, although she was with her husband at the supermarket and went home with him after they had been at the supermarket, she did not see a man named Jesus Torrez enter the house, and her husband did not tell her about this man who came into their home. The respondent, however, described. Torrez as a friendly man who said he was happy to meet a Mexican national. The respondent claimed to have liked Torrez so much that he apparently made an exception to his practice of only allowing family members into the house. Despite the unusual visit from Torrez, which occurred shortly after the family had returned from the supermarket, the respondent's wife claimed to have no knowledge of the visit by Torres. Furthermore, the respondent's wife's testimony that the arrest occurred on a Tuesday and that she had been in Tucson visiting relatives during the preceding Friday through Monday (4 days and 1 day, respec- tively, before the day of the arrest) conflicts with the respondent's testimony that he met Torrez while the respondent was shopping with his wife, that Torrez left the marihuana in the respondent's house and said that he would return for it, and that 3 days later the police arrived at the respondent's home. If the testimony of the respondent's wife is accepted as true, then she would actually have been in Tucson, rather than shopping with her husband at the local supermarket, when Torrez allegedly left the marihuana at the respondent's house 3 days before the police arrived. Moreover, when compared with the information that is included in the police reports, the testimony that the respondent gave in support of his section 241(f)(2) application appears to be false. The respondent contends on appeal that the immigration judge erred by admitting the police reports into evidence. The respondent argues that the police reports should not have been admitted into evidence because those reports were outside the record of his criminal pro- ceeding's and because he did not have the opportunity to cross-ex amine the persons who prepared the reports. Although the police reports here are hearsay in nature, this does not mean that they are inadmissible in the respondent's deportation proceedings. As

物品就会将其处理掉。然而，受访人作证称，警察到达时，他口袋里仍装着那个装有大麻的包裹。受访人还称，他允许一个最近才认识的人把一个包放进他卧室的壁橱里，放置方式使他的孩子们够不到，但他后来没有查看过那个包，这一证词同样难以令人相信。 此外，受访人妻子的证词不仅没有印证受访人本已似是而非的说法，反而对其提出了进一步质疑。受访人的妻子称，尽管她和丈夫一起在超市，并且在超市之后与他一起回家，但她没有看见一个名叫Jesus Torrez的男子进入房子，她丈夫也没有告诉她这个进入他们家的男子。然而，受访人却把Torrez描述为一个友好的人，说Torrez表示很高兴见到一个墨西哥国民。受访人声称自己非常喜欢Torrez，以至于他显然对自己只允许家庭成员进入房子的惯例作了一次例外。尽管Torrez这次不寻常的到访发生在全家人从超市回来之后不久，受访人的妻子却声称对Torres的到访一无所知。此外，受访人妻子的证词称逮捕发生在星期二，而她在之前的星期五至星期一（分别为逮捕之日前4天和1天）一直在图森探亲，这与受访人的证词相矛盾：受访人称，他在与妻子购物时遇到了Torrez，Torrez把大麻留在受访人家里并说他会回来取，3天后警察到达受访人家中。如果接受受访人妻子的证词为真，那么在Torrez据称于警察到达前3天将大麻留在受访人家中时，她实际上应该是在图森，而不是在当地超市与丈夫购物。 此外，与警察报告中包含的信息相比，受访人为支持其第241(f)(2)条申请而提供的证词似乎是虚假的。受访人在上诉中主张，移民法官将警察报告采纳为证据属于错误。受访人辩称，警察报告不应被采纳为证据，因为这些报告不在其刑事程序的记录之内，而且他没有机会交叉询问制作这些报告的人。尽管这里的警察报告在性质上属于传闻，但这并不意味着它们在受访人的驱逐程序中没有可采性。正如

we stated in Matter of Velasquez, 19 I&N Dec. 377 at 380 (BIA 1986), "documentary evidence in deportation proceedings need not comport with strict judicial rules of evidence; rather, in order to be admissible, such evidence need only be probative and its use funda- mentally fair, so as not to deprive an alien of due process of law." See also United States v. Herrera-Medina, 609 F.2d 376, 379 (9th Or. 1979). The police reports in the instant case are probative of the circumstances surrounding the respondent's arrest and convic- tion for possession of marihuana. Other than objecting to the hearsay nature of the police reports and stating that they were not a part of his conviction record, the respondent has not explained how the immigration judge's consid- eration of the police reports was "fundamentally unfair." The re- spondent does not claim, for example, that he made statements in- voluntarily to the officers who arrested him, or that the police offi- cers acted egregiously in seizing evidence at his house. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). Furthermore, with respect to the ad- missibility of prior statements, the regulations specifically provide:

正如我们在Matter of Velasquez, 19 I&N Dec. 377 at 380 (BIA 1986)中所说，“驱逐程序中的书面证据不必符合严格的司法证据规则；相反，为了可采纳，此类证据只需具有证明力且其使用基本公平，从而不剥夺外国人的正当法律程序。”另见United States v. Herrera-Medina, 609 F.2d 376, 379 (9th Or. 1979)。本案中的警察报告对被申请人因持有大麻而被捕和被定罪的相关情况具有证明力。 除了反对警察报告的传闻性质并陈述它们不是其定罪记录的一部分之外，被申请人没有解释移民法官对警察报告的考虑如何“基本不公平”。例如，被申请人没有声称他向逮捕他的警官所作陈述是非自愿的，或者警察在扣押其房子里的证据时行为极其恶劣。见INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984); Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980)。此外，关于先前陈述的可采纳性，条例明确规定：

The special inquiry officer may receive in evidence any oral or written statement which is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial. 8 C.F.R. § 242.14(c) (1988) (emphasis added); see also Matter of Velasquez, supra, at 380. Thus, any prior statements that the respondent made during a pre- vious investigation that are relevant to his eligibility for section 241(0(2) relief are admissible in his deportation proceedings. In addition, the admission into the record of the information con- tained in the police reports is especially appropriate in cases in- volving discretionary relief from deportation, where all relevant factors concerning an arrest and conviction should be considered to determine whether an alien warrants a favorable exercise of discre- tion. Based on all of the foregoing, we conclude that the immigra- tion judge did not err in admitting the police reports into evidence, and we also will consider the information contained in those re- ports on appeal. The certified copy of the police reports in the record includes a list of items that were seized at the respondent's residence the day that the search warrant was executed." Among the items seized was a clear plastic haggle containing a vegetable substance that was taken from the respondent's left front pocket. This item was sent to the laboratory at the Arizona Department of Public Safety

特别调查官可以采纳任何口头或书面陈述作为证据，只要该陈述对案件中的任何问题具有实质性和相关性，且此前由被申请人或任何其他人在任何调查、审查、听证或审判期间作出。8 C.F.R. § 242.14(c) (1988)（着重号为原文所加）；另见Matter of Velasquez, supra, at 380。因此，被申请人在先前调查期间所作的任何与其获得第241(0(2)条救济资格相关的先前陈述，在其驱逐程序中均可采纳。 此外，将警察报告中包含的信息纳入记录，在涉及驱逐自由裁量救济的案件中尤为适当，因为在此类案件中，应考虑与逮捕和定罪有关的所有相关因素，以确定外国人是否值得自由裁量的有利行使。基于上述所有内容，我们认定移民法官将警察报告采纳为证据并无错误，并且我们也将在上诉中考虑这些报告中包含的信息。 记录中的警察报告经核证副本包括一份在搜查令执行当天在被申请人住所被扣押的物品清单。”在被扣押的物品中，有一个透明塑料袋，里面装有从被申请人左前口袋中取出的植物性物质。该物品被送往亚利桑那州公共安全部的实验室

and was identified as 1.93 grams of marihuana. The police officers also seized a brown paper bag, containing three clear plastic bag- gies of vegetable substance, from the top shelf of the closet in the respondent's master bedroom. The laboratory determined that the bag contained a total of 580 grams of rnarihuana. 11 The police offi- cers also found both a scale and a package of wrapping papers inside a shoebox on the top shelf of the closet in the respondent's master bedroom. Another clear plastic baggie, which contained what was subsequently determined to be 1.59 grams of marihuana, was found in the bottom drawer of a cabinet located in the closet of a separate bedroom. One of the police reports included in the record was prepared by Officer Melendez, who states that he questioned the respondent after informing him of his Miranda rights in. Spanish. According to Officer Melendez, the respondent told him at the time of the arrest that the marihuana which had been found in the paper bag did not belong to the respondent, but belonged to "Francisco Torres." Offi- cer Melendez's report also indicates that the respondent clahned that Torres, whom he and his wife met when they were coming out of the local supermarket, had paid him $40 for holding the mari- huana while Torres was in California. Officer Melendez notes fnr- ther that the respondent informed him that Torres drove a large blue car with California license plates and that Torres approached the respondent and his wife and told them how happy he was to meet people from Mexico. Officer Melendez states in his report that he asked the respondent where he obtained the marihuana that was found in his pocket, and the respondent replied that a friend of his, whom he refused to identify, had left it in his living room. The respondent also informed Officer Melendez at this time that he did occasionally smoke marihuana. The testimony that the respondent gave at his deportation hear- ing concerning the circumstances surrounding his arrest and con- viction contradicts the statements, as reported by Officer Melendez, that the respondent made at the time of his arrest. The respondent claimed at his deportation hearing that he did not smoke raarihua- na and that he became ill the one time that he tried it. He stated to Officer Melendez, however, that he occasionally smoked mari- huana. The respondent also claimed at his hearing that he did not know that "Jesus Torrez" had left marihuana at his home until the police arrived. Yet, he told Officer Melendez that "Francisco Torres" had paid the respondent to hold Torres' marihuana. The respondent asserted before the immigration judge that his wife did

并被认定为1.93克大麻。警察还从受访者主卧室壁橱顶层搁板上查获了一个棕色纸袋，内装三个透明塑料袋的植物性物质。实验室确定该袋共装有580克大麻。11 警察还在受访者主卧室壁橱顶层搁板上的一个鞋盒内发现了一台秤和一包卷烟纸。在另一间卧室壁橱内一个柜子的底层抽屉里，又发现了一个透明塑料袋，后经确定其中装有1.59克大麻。 记录中包括的一份警方报告由Melendez警官撰写，他称在依西班牙语向其告知Miranda权利后对受访者进行了讯问。据Melendez警官称，受访者在被捕时告诉他，纸袋中发现的大麻不属于受访者，而属于“Francisco Torres”。Melendez警官的报告还表明，受访者声称Torres——他和妻子从当地超市出来时遇到的——在Torres于加利福尼亚期间，付给他40美元为其保管大麻。Melendez警官进一步指出，受访者告知他，Torres驾驶一辆挂加利福尼亚州牌照的蓝色大车，Torres走近受访者及其妻子，告诉他们他很高兴遇到来自墨西哥的人。Melendez警官在报告中称，他问受访者从其口袋中发现的大麻是从哪里得到的，受访者回答说，他的一个朋友——他拒绝透露身份——把它留在了他的客厅里。受访者此时还告知Melendez警官，他偶尔吸食大麻。 受访者在驱逐听证会上就围绕其被捕和定罪的情况所作的证词，与Melendez警官所报告的受访者在被捕时所作的陈述相矛盾。受访者在驱逐听证会上声称他不吸食大麻，并且他尝试吸食的那一次还生病了。然而，他却对Melendez警官说，他偶尔吸食大麻。受访者还在听证会上声称，在警察到来之前，他并不知道“Jesus Torrez”在其家中留下了大麻。然而，他却告诉Melendez警官，“Francisco Torres”付钱给受访者以保管Torres的大麻。受访者在移民法官面前主张，他的妻子

not know about Torrez or his visit; but when he was arrested, the respondent stated that Torres had introduced himself to both the respondent and his wife. The respondent's testimony concerning the evidence that was seized at his home also contradicts the police report regarding the evidence that was found there. The respondent claimed that the of- ficers found only a small packet of marihuana in his pocket and a larger bag containing marihuana in the bedroom closet- The police report, however, indicates that a separate packet of marihuana was found in another of the respondent's bedrooms. The respondent also testified that the scales and haggles which the police found during their search came from the paper bag containing the mari- huana and that he was not aware of anything that was inside that bag. According to the police report, though, a scale and a package of wrapping papers were found in a separate shoebox that was lo- cated on the same shelf where the brown paper bag containing marihuana was found. The testimony that the respondent and his wife gave concerning the circumstances of his arrest and conviction was not persuasive. The foregoing comparison between the testimony that the respond- ent gave at his hearing and the statements that he made at the time of his arrest also casts doubt on the respondent's explanation of the circumstances surrounding his arrest and conviction. There- fore, since the respondent's conviction record does not establish the amount of marihuana that the respondent was convicted of possess- ing, and because the respondent has not come forward with con- vincing testimony or other evidence to demonstrate that his convic- tion related to 30 grams or less of marihuana, we conclude that the respondent has not met his burden of proving that he was convict- ed of a "single offense of simple possession of 30 grams or less of marihuana." In his decision, the immigration judge found that the respondent had established all of the elements for section 241(0(2) relief other than the "30 grams or less" element. We agree with the immigra- tion judge that the respondent did not meet his burden with re- spect to the "30 grams or less" requirement but express no opinion concerning whether the respondent has satisfied the remaining re- quirements for section 241(0(2) eligibility. Accordingly, we find that the respondent has not demonstrated statutory eligibility for a sec- tion 241(0(2) waiver of deportability.

不知道Torrez或其来访；但当他被捕时，受访者称Torres向受访者及其妻子都作了自我介绍。 受访者关于在其家中查获的证据的证词，也与关于在那里发现的证据的警方报告相矛盾。受访者声称，警官只在其口袋中发现了一小包大麻，并在卧室壁橱中发现了一个装有较多大麻的袋子。然而，警方报告表明，在受访者的另一间卧室中发现了单独的一包大麻。受访者还作证称，警察在搜查中发现的秤和包装纸来自装有那个大麻的纸袋，并且他不知道那个袋子里有什么东西。但根据警方报告，一台秤和一包卷烟纸是在一个单独的鞋盒中发现的，该鞋盒位于发现装有那个大麻的棕色纸袋的同一搁板上。 受访者及其妻子就围绕其被捕和定罪的情况所作的证词不具说服力。上述受访者在听证会上所作的证词与其被捕时所作陈述之间的比较，也使人们对受访者关于围绕其被捕和定罪情况的解释产生怀疑。因此，由于受访者的定罪记录并未确定受访者被判持有的大麻数量，并且由于受访者未提出令人信服的证词或其他证据以证明其定罪涉及30克或以下的大麻，我们认定受访者未能履行其举证责任，以证明其被判犯有“单一罪行的简单持有30克或以下大麻”。 在其决定中，移民法官认定受访者已确立第241(0(2)条救济的所有要件，但“30克或以下”要件除外。我们同意移民法官的意见，即受访者在“30克或以下”要求方面未履行其举证责任，但对受访者是否满足第241(0(2)条资格的其他要求不发表意见。因此，我们认定受访者未证明其具备第241(0(2)条驱逐豁免的法定资格。

Because we conclude that the respondent has not demonstrated eligibility for section 241(0(2) relief, we need not address the issue of whether he merits a favorable exercise of discretion. The re- spondent's appeal will be dismissed. ORDER: The appeal is dismissed.

由于我们认定受访者未证明其具备第241(0(2)条救济的资格，我们无需处理其是否值得行使有利自由裁量权的问题。受访者的上诉将被驳回。 命令：上诉驳回。