A-6759690.Board of Immigration Appeals Executive Office for Immigration Review U.S. Department of Justice
Decided by Board October 29, 1954.
Deportability — Section 241 (a) (3) of Immigration and Nationality Act — Confinement to institution must commence after December 23, 1952 — Section 241 (a) (8) of the act — Demand for payment must be made within 5 years after entry.
(1) In order to sustain a deportation charge under section 241 (a) (3) of the Immigration and Nationality Act, it is necessary to show that the alien became institutionalized at public expense after December 23, 1952. Therefore, an alien whose confinement in such institution within five years after entry began August 19, 1952, and still continues, is not deportable under section 241 (a) (3).
(2) Deportability under section 241 (a) (8) of the Immigration and Nationality Act, as a person who has become a public charge within five years after entry from causes not affirmatively shown to have arisen after entry, is not established unless demand for payment is made within the five-year period after entry or unless it is shown that demand was unnecessary because there was no one against whom payment could be enforced.
CHARGES:
Warrant: Act of 1952 — Institutionalized at public expense because of mental disease, defect or deficiency within five years after entry.
Act of 1952 — Public charge within five years after entry.
BEFORE THE BOARD
BEFORE THE BOARD
Discussion: This case is before the Board on an appeal from a decision of a special inquiry officer ordering the respondent’s deportation.
Because of the respondent’s mental condition and confinement to Camarillo State Hospital, warrant of arrest dated February 26, 1954, was served on that hospital. At the hearing on March 19, 1954, a psychiatrist on the staff of that institution testified that the respondent was incompetent to testify in these proceedings. Testimony in the hearing was given by the psychiatrist and by the respondent’s son, A—- L—-.
The record reflects that the respondent is a 76-year-old widowed alien, native and citizen of Greece, who last entered the United
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States at New York, New York, on August 28, 1947, at which time she was admitted for permanent residence upon the presentation of a first preference quota immigration visa.
The respondent was admitted to the Camarillo State Hospital on August 19, 1952, pursuant to a commitment of the Superior Court of Los Angeles County on August 18, 1952. Her condition was diagnosed as “senile psychosis, simple deterioration,” with recovery not expected. The “Certification as to Alien Becoming a Public Charge” dated February 1, 1954, states that “Patient is without funds, therefore no demand has been made on her. The only legally responsible relative listed is the patient’s son, A—- C—- L—- * * *. A demand was made on March 6, 1953, and to date no payment has been received.” It is also certified therein that that hospital is supported by the State of California.
Actually the respondent has two daughters as well as the aforementioned son living in the United States but the son testified that these daughters do not wish to help the respondent. Respondent’s son’s income at the time of the hearing was only $31 per week and he has been unable, although allegedly willing, to pay toward his mother’s hospitalization. The son testified that he would not be able to make any payments unless he gets a good job and earns enough money to pay. Subsequent to the hearing the attorney filed a brief dated April 19, 1954, in which he stated that the son was under the impression that the $1,800 owed the hospital had to be paid in a lump sum. When he learned he could pay monthly he started to make payments and paid $65 up to April 7, 1954, as is evidenced by receipts attached to the brief. Also attached was a letter dated April 7, 1954, from the Department of Mental Hygiene, State of California, setting forth that pursuant to law, the monthly charges effective January 1, 1954, would be $15 per month.
The first charge in the warrant of arrest is that the respondent is deportable under section 241 (a) (3) of the Immigration and Nationality Act in that, within five years after entry, she became institutionalized at public expense because of mental disease, defect or deficiency which has not been shown not to have existed prior to her admission to the United States. It is true that the respondent was confined to the institution nine days less than five years following her admission to the United States. However, she was confined to this institution prior to the effective date of the Immigration and Nationality Act. That act became effective on December 24, 1952. The confinement in the institution preceded that date and continued until the present time. The sole issue, therefore, revolves about the meaning of the words “hereafter, within five years after entry, becomes institutionalized,”
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particularly in view of the language of section 241 (d) of the act which provides:
Except as otherwise specifically provided in this section, the provisions of this section shall be applicable to all aliens belonging to any of the classes enumerated in subsection (a), notwithstanding (1) that any such alien entered the United States prior to the date of enactment of this Act, or (2) that the facts, by reason of which any such alien belongs to any of the classes enumerated in subsection (a) occurred prior to the date of enactment of this Act.
From the foregoing it is manifest that the use of the word “hereafter” in section 241 (a) (3) places some limitation upon what would otherwise be the effect of section 241 (d). Furthermore, such limitations are clearly contemplated in certain cases as is evidenced by the opening clause of section 241 (d) which recognizes exceptions to its otherwise all-inclusive language. We, therefore, turn to an analysis of the statutory language and to give effect to all pertinent words therein.
First, the word “hereafter” does not require that the respondent’s entry into the United States follow the effective date of the act because the words “within five years after entry” are set out as an independent clause preceded and followed by commas and because such interpretation is not indicated when it is considered that section 241 (d) has for its general purpose the directive that the date of entry shall be immaterial.
Second, the words “becomes institutionalized” are not synonymous with language indicating a state of being in an institution such as would be the case if the statute provided “hereafter, within five years after entry, is institutionalized.” It is the becoming rather than the being institutionalized which appears to be the controlling factor. Therefore, it would follow that the beginning of the confinement in the institution is the thing which must be “hereafter,” that is, after December 23, 1952. Any other meaning should not be ascribed in the absence of a clear intent so to do by Congress.
Support for the conclusion being reached in this case is found in House Report No. 1365, 82d Congress, 2d session, dealing with this act. Therein it is stated that the principal classes of deportable aliens, as contained in the act, are as follows: “(3) Aliens who, after enactment of the bill and within 5 years of entry, become institutionalized * * *” (p. 60). See also Senate Report No. 1137, 82d Congress, 2d session, p. 21.
From the foregoing it is manifest that the first charge in the warrant of arrest is not sustained.
The remaining charge is that laid under section 241 (a) (8) of the Immigration and Nationality Act which provides for the deportation of an alien who, in the opinion of the Attorney General, has
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within five years after entry become a public charge from causes not affirmatively shown to have arisen after entry. This charge is in all material respects similar to a charge contained in section 19 (a) of the Act of February 5, 1917, as amended, which provided for the deportation of an alien who within five years after entry becomes a public charge from causes not affirmatively shown to have arisen subsequent to landing. In connection with that charge under the 1917 act this Board has held that an alien cannot be said to become a public charge until a demand for payment has been made (Matter of C—-, A-3907777, 2 IN Dec. 538). In Matter of M—-, 56073/871, 2 IN Dec. 694, it was held that, among other things, there must be affirmative evidence that no one who might be responsible, is willing or able to pay the charges for the respondent thereby eliminating the necessity for a demand for payment. See also Matter of B—-,
56033/544, 3 IN Dec. 323.
In the instant case, the certification by the Assistant Superintendent of the Camarillo State Hospital states that the only responsible relative listed was the patient’s son and that a demand was made upon him on March 6, 1953, for payment but that no payment has been made. While it is true that that certification states that the only responsible relative listed was the patient’s son whereas in fact the patient had two daughters in the United States, it would seem to be an immaterial circumstance. Apparently, there was liability for payment and the demand therefor was made March 6, 1953, which was subsequent to a period ending five years after the respondent’s entry into the United States. There is no showing that any demand for payment was made within the five-year period nor that arrangements for payment could not have been made, had a demand been made, within that period. As is evidenced by documents attached to the attorney’s brief, charges have now been fixed commencing January 1, 1954, at $15 per month payable in advance and as of April 7, 1954, $65 have been paid. We do not believe that the Government has established that a demand within the five-year period was unnecessary because such demand is unnecessary only where it can be shown that there is no one against whom payment can be enforced. This was not shown by the record in the instant case. The second charge must therefore fall.
Order: It is ordered that the proceedings be terminated.
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