A-6458281
Decided by Board February 15, 1956
Institutionalized at public expense — Section 241 (a) (3), Immigration and Nationality Act — Basis for deportability remains as long as the full debt has not been discharged.
An alien found deportable under section 241 (a) (3) of the Immigration and Nationality Act, because he has become institutionalized at public expense within five years after entry, remains deportable under that statute as long as the full cost of the institutional care has not been paid. The fact that a portion of the debt has been paid is not a basis for terminating deportation proceedings.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (3) — Institutionalized at public expense.
BEFORE THE BOARD
Discussion: This case has been certified pursuant to 8 CFR 6.1 (c) for review of an order entered by the special inquiry officer November 14, 1955, terminating the above-captioned proceedings. Counsel has not filed an answer to the notice of certification as provided in 8 CFR 6.15.
The record relates to a native and citizen of Mexico, male, married, 52 years of age, who was admitted to the United States for permanent residence at the port of San Ysidro, California, on August 31, 1949. Respondent testified that he last entered the United States at the port of San Ysidro, California, on June 1, 1953, and was admitted upon presentation of his alien registration receipt card.
The evidence establishes that the respondent was committed to the Patton State Hospital, Patton, California, on July 27, 1953, as a mental patient. There is a showing that he was discharged from the hospital on March 7, 1955, as recovered. The respondent testified that he has paid approximately $80 on the cost of his hospital expenses, the total bill amounting to $925. Respondent has been informed by the Department of Mental Hygiene, State of California, that the state is willing to accept payment in monthly installments for as long as may be necessary. Respondent testified that he intended to liquidate the balance due for his hospitalization when it is possible to make installment payments from his earnings.
The warrant of arrest issued September 20, 1955, charges that respondent is subject to deportation under section 241 (a) (3) of the Immigration and Nationality Act of 1952. This section reads as follows: "Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who-* * * hereafter, within five years after entry, becomes institutionalized at public expense because of mental disease, defect, or deficiency, unless the alien can show that such disease, defect, or deficiency did not exist prior to his admission to the United States." The special inquiry officer concludes that the evidence of record supports a finding that the cause of respondent's mental disease, defect, or deficiency has not been shown not to have existed prior to his admission to the United States. The special inquiry officer also concludes that respondent cannot now be deemed to have become institutionalized at public expense because the evidence establishes that he is liquidating his obligation to the State of California.
Ordinarily, the burden of establishing deportability is upon the Government in an expulsion case. However, the statute (section 241 (a) (3), supra) in this instance places the burden upon the alien to establish that the mental disease for which he "becomes institutionalized" had its inception subsequent to "his admission to the United States." Respondent was last admitted to the United States at the port of San Ysidro, California, on June 1, 1953. The superintendent of the institution wherein respondent was confined, in an affidavit dated August 25, 1955, states: "The case history fails to show that his (respondent's) commitment to this institution was caused by any event or condition arising after August 31, 1949." This same official in a letter dated October 18, 1955, makes the following observation: "The origin of the attack of mental illness was not known. * * * Mr. C---- suffered from a functional psychosis and no definite cause for this illness is known. Precipitating factors, however, may well have been patient's worry about his boy and marital difficulties at home."
Respondent, if he does not meet the burden of establishing that his mental illness "did not exist prior to his admission" on June 1, 1953, is subject to deportation if the evidence affirmatively establishes that subsequent to December 23, 1952, he became "institutionalized at public expense" within five years of his last entry by reason of said illness. The special inquiry officer is of the opinion that since the respondent has been informed by the Department of Mental Hygiene, State of California, that "they are willing to accept payment in monthly installments for as long as may be necessary," and that since respondent has evidenced his intent to continue payments and has made token payments in the amount of $80, he cannot be deemed to have "become institutionalized at public expense."
Section 241 (a) (3) of the Immigration and Nationality Act creates a new ground for deportation which has no counterpart in section 19 of the Immigration Act of 1917. That portion of section 19 ( supra) which provides for the deportation of "any alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing" is now section 241 (a) (8) of the Immigration and Nationality Act. We have interpreted the aforestated provision of the 1917 act to mean that an alien cannot be said to have become a public charge until a demand for payment has been made ( Matter of C----, A-3907777, 2 IN Dec. 538). We have also held that an alien does not become a public charge until there has been a failure or refusal to pay for treatment and care accorded by the public institution ( Matter of B----, 456033/544, 3, I. N. Dec. 323).
The determining factor under section 241 (a) (3), supra, however, is whether an alien after the enactment of the statute "becomes institutionalized at public expense" because of mental disease, defect, or deficiency. Congress in providing this new ground for deportation in the 1952 act was aware of the fact that in some cases where aliens are institutionalized because of mental deficiency they escape deportation as a public charge by payment of the minimum charge of public institutions which does not represent the full cost to the tax payer. Under the circumstances, we are of the opinion that the special inquiry officer's conclusion with respect to respondent's hospitalization is based upon the wrong premise. It is our opinion that the defenses applicable to the "public charge" provision of the 1917 act have no application to section 241 (a) (3), supra. In other words, under section 241 (a) (3) of the 1952 act there is no basis for terminating the proceedings as long as the full debt has not been discharged.
See Senate Report No. 1515, 81st Congress, 2d Session, pursuant to Senate Resolution 137, page 390.
There are other matters which need clarification. The special inquiry officer has not indicated with certainty which of respondent's two entries is the basis for his conclusion that respondent did not become institutionalized at public expense because of mental disease, defect, or deficiency, which has not been shown not to have existed prior to his admission to the United States. We are also of the opinion that further interrogation of Dr. Gericke, Superintendent of Patton State Hospital, or of some member of his staff who attended respondent while hospitalized, may help to clarify the issue of whether respondent's mental condition existed prior to his admission to the United States. An order will be entered remanding the case to the special inquiry officer for further hearing in accordance with the foregoing opinion.
Order: It is directed that the case be remanded to the special inquiry officer for further hearing in accordance with the foregoing opinion.