F-0300-5994 and A-7276111.
Decided by Board December 21, 1954.
Fine — Section 272 (b) of the Immigration and Nationality Act — Requirement of psychiatric examination.
Where an alien was given a physical examination by the carrier before foreign embarkation and was excluded by the Service under section 212 (a) (4) of the Immigration and Nationality Act because afflicted with a mental defect, liability to fine under section 272 (b) is not incurred if the record shows that neither the carrier nor its physician had any reason to suspect from the alien's appearance and behavior that she was other than normal mentally. The term "due diligence" as used in the statute does not contemplate that the carrier shall require every potential passenger to undergo a psychiatric examination.
BASIS FOR IMPOSITION OF FINE:
Section 272 (b) — Act of 1952 — Alien Involved, A---- M---- S----.
BEFORE THE BOARD
Discussion: This case is before us on appeal from the district director's decision of July 15, 1954, imposing fine in the sum of $250 upon the agents for the SS. United States under section 272 (b) of the Immigration and Nationality Act.
The specific violation charged is bringing to the United States an alien afflicted with a mental defect.
The above-named alien was one of the passengers aboard the SS. United States when it arrived at the port of New York on January 29, 1954. The alien was in possession of a reentry permit which had been issued to her at Detroit, Michigan, on March 31, 1952, the validity of which had been extended to March 31, 1954. She had previously been admitted to the United States as a war fiancee on July 24, 1949, and her status was adjusted to that of a permanent resident on August 19, 1949.
Upon arrival at New York on January 29, 1954, the alien was examined by surgeons of the United States Public Health Service who certified her to be afflicted with a mental defect, inadequate personality, Class A. She was given a special inquiry hearing as a result of which she was excluded under section 212 (a) (4) of the Immigration and Nationality Act, based upon the mental condition for which she was certified. As she refused to appeal to a medical board, the excluding decision was final.
During the course of the special inquiry hearing, the alien testified that her husband died in October 1951; that in 1950 she had had sexual relations in the United States with a man not her husband while the latter was still living; that, after her husband's death, she also had sexual relations with two other men during January and February of 1952; that she left the United States in August 1952 to visit her parents in Germany; that prior to her departure from Hamburg in January 1954 to return to the United States, she was given a physical examination by the carrier's doctor; that she was not given a psychiatric examination in Hamburg but would have submitted to such examination if requested to do so; and that if she had been asked questions about her past, she would have answered them truthfully.
The record contains a certificate of detectability issued by surgeons of the United States Public Health Service on April 14, 1954, certifying that the alien's illness (Class A, mental defect, inadequate personality) could have been detected prior to embarkation for the United States, "had she received adequate psychiatric investigation and examination."
As applicable to the instant case, section 272 (b) of the Immigration and Nationality Act provides for imposition of a fine of $250 upon any carrier bringing to the United States an alien passenger afflicted with any mental defect (other than those enumerated in subsection (a) of said section), unless the alien was in possession of an unexpired reentry permit and applied for admission within 120 days of the date on which he was last examined and admitted by the Service, or in the event the application was made later than 120 days of such examination and admission, if the carrier establishes to the satisfaction of the Attorney General that the existence of such disease or disability could not have been detected by the exercise of due diligence prior to the alien's embarkation.
Counsel contends that no fine should be imposed herein inasmuch as it is obvious from a review of the facts that the appellants could not have detected the alien's mental defect by the exercise of due diligence prior to her embarkation. Counsel states that the finding of mental deficiency was apparently based upon the alien's sexual behavior between 1950 and 1952; that there was nothing in the alien's general appearance and demeanor which would indicate mental deficiency; that she had previously been admitted to the United States for permanent residence; that the carrier's agent who issued passage to the alien had no reason to suspect any mental defect; and that the appellants took all normal and reasonable precautions to ascertain the admissibility of the alien, including a medical examination by a competent physician.
Upon review of the entire record, including the transcript of the special inquiry hearing and the report of an investigation conducted as a result of a letter of complaint adverse to the alien, we concur with counsel that the carrier could not have detected the alien's mental defect by the exercise of due diligence prior to embarkation. It appears that, without having had the benefit of the letter of complaint and the report of investigation, neither the carrier nor its doctor would have had any reason to suspect from the alien's appearance and behavior that she was other than normal mentally. However, in order to ascertain whether the alien was afflicted with any defect or disability which would render her inadmissible to the United States, the carrier had its doctor give the alien a physical examination. We are of the opinion that the carrier took all precautions which would appear necessary and reasonable in the premises to the average prudent person. Furthermore, we agree with counsel that the term "due diligence," as used in the statute, does not contemplate that a carrier must require every potential passenger to undergo a psychiatric examination. Conceivably, the situation would be otherwise where the alien exhibits symptoms or indications in his speech, manner or appearance that he may be mentally unbalanced. Here, however, it is apparent from the record that the alien displayed no such symptoms. Accordingly, we find that the appellants have satisfactorily established that the mental defect for which the alien was certified upon her return to the United States, could not have been detected by the exercise of due diligence prior to embarkation from Germany. Liability for fine, therefore, has not been incurred.
Order: It is ordered that the appeal be and the same is hereby sustained.
It is further ordered that fine be not imposed.