A-3907777.
Decided by Board April 25, 1946.
Public charge — Within 5 years after entry — Section 3 of the Immigration Act of 1917 — State hospital expenses — Demand for payment.
An alien cannot be said to be subject to deportation as having become a public charge within 5 years after entry where no demand for payment of State hospital expenses was made within that time, it being noted that there was some ability to pay.
CHARGES:
Warrant: Act of 1917 — Likely to become public charge.
Act of 1917 — Person of constitutional psychopathic inferiority.
Act of 1917 — Became a public charge within 5 years after entry.
BEFORE THE BOARD.
Discussion: The Presiding Inspector has found the respondent deportable on the last charge stated above and has recommended her deportation. The case is before us for review.
The respondent, a 39-year-old native of Newfoundland and subject of Great Britain, last entered the United States at the port of New York on October 21, 1937. At the time of the institution of deportation proceedings she was a patient at the Brooklyn State Hospital and was then, and apparently still is, mentally incompetent. Since July 1943 she has been institutionalized at the Middletown State Hospital in Middletown, N.Y. The warrant of arrest was originally served on May 27, 1943, on Dr. J---- A. B----, senior physician at the Brooklyn State Hospital. Thereafter, on June 12, 1943, a copy of the warrant of arrest was again served, this time on the respondent's husband. Whether or not the original service on Dr. B---- was valid in view of 8 C.F.R. 150.4 (a), it is clear that such service occurred more than 5 years after the respondent's last entry in October 1937. For that reason, if for no other, and as found by the Presiding Inspector, the first two warrant charges cannot be sustained.
With respect to the last charge contained in the warrant of arrest the evidence in the record shows that on September 3, 1940, pursuant to an order of commitment by the New York Supreme Court, issued on August 28, 1940, the respondent was admitted to the Brooklyn State Hospital. On December 20, 1940, one Dr. S---- C. W----, Medical Inspector, Department of Hygiene, 80 Centre Street, New York City, executed an unverified Form 533 — Proof that Alien has become a Public Charge, which was introduced into evidence as exhibit 3. In this form Dr. W---- stated, in answer to the question as to whether any demand had been made for the payment of the respondent's hospital expenses, and the results of such demand, if any, "Question of maintenance is still pending." It seems clear from the foregoing that up to December 20, 1940, no demand had yet been made upon the alien, or those liable for her maintenance, for the payment of the charges, if any, resulting from her confinement in the Brooklyn State Hospital, apparently because the appropriate New York authorities had not yet determined the rate to be charged. In the absence of such a demand for payment, of course, a finding that the alien had become a public charge could not be made. See Nocchi v. Johnson, 6 F. (2d) 1 (C.C.A. 1st, 1925); Matter of G----, 56123/917 (renumbered A-2237226) (May 27, 1944); Matter of V----, 56091/232 (March 25, 1944); Matter of F----, 56033/444 (February 13, 1942).
So far as this record shows, no demand for payment was made until on or about September 1, 1943, about 1 year after the expiration of the 5-year period following the alien's last entry. At that time the appropriate New York authorities, apparently pursuant to lawful authority, requested the alien's husband to make monthly payments of $10 for her care and maintenance. There have been no defaults in any of these payments since that time.
Unquestionably, if, as we believe and as we have always held, an alien cannot be said to become a public charge until a demand for payment has been made, the respondent in this case, because of the time when the demand was made, could not possibly have become a public charge within 5 years after entry, the expiration of which period made her immune from deportation irrespective of whether she thereafter became such a charge. And, it is interesting to note, the husband was required to pay not for the alien's care and maintenance prior to September 1, 1943, but only for those charges, fixed at $10 monthly, incurred at and subsequent to that time. Apparently, no charge was made for the period she was institutionalized prior to September 1943, though it does appear that during that time the alien's American-born husband was earning about $4,000 yearly, had some ability to pay and was under a legal obligation to reimburse the State. The failure of the officers of the State of New York to make a demand for payment of those charges, if any, does not subject the alien to deportation as having become a public charge within 5 years after entry. Findings of Fact: Upon the basis of all the evidence presented, it is found:
In addition the demand was made subsequent to the service of the warrant of arrest and for this reason it would also appear that from a strictly legal point of view the warrant charge under consideration cannot be sustained.
In view of our ultimate finding that the respondent did not become a public charge within 5 years after entry, we need not discuss the presiding Inspector's contention that the failure to pay for the actual cost of the alien's hospitalization, $2 daily, subjected her to deportation even though the $10 monthly charge had been paid.
See sections 24a and 80 of the New York Mental Hygiene Law as they now exist and as they read during the time of the alien's early hospitalization.
See Nocchi v. Johnson, supra, where, in a case involving an alien maintained in a Massachusetts correctional institution and whose deportation was sought on a similar charge, the court said:
"It must not be overlooked that the rights we are now dealing with are rights of this boy. It was the legal duty of his parents, being able, to support and educate him. It was also the duty of the officers of the Commonwealth of Massachusetts to collect proper charges for his support and training in the Wrenthan School, even if the parents were unwilling to pay these charges. Failure by his parents, or by the officers, or by both, in this duty, does not subject the boy to the penalty of deportation * * *.
"* * * At most, the record indicates a misunderstanding by the authorities and the parents on the point, probably immaterial, of their willingness to pay the boy's expenses. But it is clear that they were able to pay, and we hold that, being able to pay, failure on their part, either inadvertently or intentionally, was not, as a matter of law, enough to make the child a public charge within the meaning of the statute."
(1) That the respondent is an alien, a native of Newfoundland and a subject of Great Britain;
(2) That the respondent last entered the United States at the port of New York on October 21, 1937;
(3) That on September 3, 1940, pursuant to an order of the New York Supreme Court, the respondent was committed to the Brooklyn State Hospital as an insane patient;
(4) That in July 1943 the respondent was transferred to the Middletown State Hospital and is now a mental patient in that institution;
(5) That no demand for the payment of the cost of the respondent's care and maintenance was made by the New York authorities until September 1943;
(6) That the warrant of arrest was served on the physician in charge of the Middletown State Hospital on May 27, 1943.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under sections 3 and 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that at the time of entry she was likely to become a public charge;
(2) That under sections 3 and 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that at the time of entry she was a person of constitutional psychopathic inferiority;
(3) That the respondent did not become a public charge within 5 years after her last entry;
(4) That under section 19 of the act of February 5, 1917, the respondent is not subject to deportation on the ground that she has become a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent thereto.Order: It is ordered that the warrant of arrest be canceled and the proceedings dismissed.