A-7644263
Decided by the Board on April 15, 1944.
Seventh Proviso Relief — Section 3 of the act of February 5, 1917 — Unrelinquished domicile — Evidence.
The domicile of a minor, dependent, unemancipated child follows that of the person from whom the domicile of origin was taken. This child's parents had not changed their domicile since 1922 when they all came here to reside, this alien then being less than 2 years old. There was no evidence this alien abandoned her domicile on reaching majority. The evidence showed the alien's constant desire to rejoin her family here, after going to Mexico in 1939. It was concluded this alien had not relinquished her domicile here within the meaning of the seventh proviso to section 3 of the act of February 5, 1917.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917 — One or more attacks of insanity.
BEFORE THE BOARD
Discussion: The appellant, a native and citizen of Mexico, 23 years of age, single, applied for admission to the United States for permanent residence at Laredo, Tex. on March 7, 1944. She presented a section 4 (c) nonquota immigration visa and a Mexican Form 5 (c) identification card. A Board of Special Inquiry has excluded her on the ground above specified and she has appealed.
From October 19, 1939 to March 18, 1940, the appellant was confined to a Mexican institution for the mentally ill. The record contains a report prepared by a medical officer of the institution dated October 11, 1941. He diagnosed her case as "acute confusional insanity and psychic ailment produced by a phenomena of auto-intoxication of the nervous system which on occasions may result in schizophrenia." He further stated that after two months of treatment the appellant was restored to a complete normal mental condition and that she was discharged on March 18, 1940 having at that time experienced a remission of her symptoms.
The appellant was found excludable on the same ground by a Board of Special Inquiry on January 12, 1942, the excluding decision being founded on the medical report now before us. On January 26, 1942, we found that the ground of exclusion had been sustained. It is clear that the appellant is inadmissible as a person who has had one or more attacks of insanity. Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is an alien, a native and citizen of Mexico;
(2) That the appellant has applied for admission for permanent residence;
(3) That the appellant has presented a valid nonquota immigration visa and a Mexican Form 5 (c) identification card;
(4) That the appellant has had an attack of insanity.
Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 3 of the Immigration Act of 1917, the appellant is inadmissible as a person who has had one or more attacks of insanity.Other Factors: The Central Office recommends that the appellant's admission be authorized upon her posting a public charge bond of $500, under the seventh proviso of section 3 of the Immigration Act of 1917 which provides that aliens returning after a temporary absence to an unrelinquished domicile of seven consecutive years may be admitted in the discretion of the Attorney General and under such circumstances as he may prescribe.
At the time we considered the appellant's application on January 26, 1942, we expressed the view that if she had seen fit to pursue her application we would have been disposed to admit her under the seventh proviso. In connection with her application at that time, the Board of Special Inquiry accorded her several hearings. However, she failed to present herself at the final hearing and we sustained the excluding decision without prejudice to a reapplication for admission within 1 year.
The first question we are required to determine is whether the appellant as a matter of law is eligible for admission under the seventh proviso. She was admitted to the United States for permanent residence on September 28, 1922 and resided in this country with her parents continuously until October 1939. She proceeded to Mexico at that time as a result of her illness and she remained there until the early part of 1942, when she entered the United States illegally. This followed her exclusion on January 26, 1942. A warrant of arrest was then issued but she was permitted to depart voluntarily on March 7, 1942 before any hearing was accorded under the warrant. Since that time she has remained in Mexico.
The appellant was born on February 6, 1921, and attained her majority on February 6, 1942. It is well settled that an infant being non sui juris is incapable of fixing or changing his domicile unless he has been emancipated by his parents. During minority the domicile of an infant continues to be the same as that of the person from whom he took his domicile of origin and changes only with the domicile of that person. 19 C.J. 411; Yarborough v. Yarborough, 290 U.S. 202, 90 A.L.R. 924. Since 1922 the domicile of the appellant's parents was in this country.
Her parents have lived in Corpus Christi, Tex. and her mother now resides in that city. Her father died in 1938.
The record establishes that the appellant has always been dependent on her parents for support, and there is no evidence that since attaining her majority she has abandoned her domicile in the United States. Both her testimony and her actions indicate a constant desire to rejoin her family in this country. She endeavored to obtain admission as stated in January 1942; in fact, she entered this country illegally shortly thereafter; and since her voluntary departure she has persisted in her endeavor to come to the United States. We find that the appellant is returning to an unrelinquished domicile in the United States after a temporary absence.
Finally, we must consider whether under the circumstances presented discretion should be exercised. Apparently, the appellant has completely recovered. She was examined by a Public Health Service medical officer and he has passed her. Her family is extremely desirous of securing her return to the United States. It appears, however, that she would be completely dependent upon her family for support, and in view of her past history and her lack of assets we think that her admission should be conditioned upon the furnishing of a public charge bond in the amount of $500.
Order: It is ordered that the alien be admitted for permanent residence under the seventh proviso to section 3 of the Immigration Act of 1917, notwithstanding that she is a person who has had one or more attacks of insanity, provided that she posts a $500 public charge bond.