KOWALSKI

Interim Decision *1261

MATTER or KOWALSKI
In DEPORTATION Proceedings
A-10867062
Ditoideut by Board January 17, MC

Since the alien is not institutionalized at public expense where the maintenance
charges have been paid and are currently being paid in the sum demanded, even
though the charges have been fixed by appropriate State authorities at a rate
less than the rate prescribed under State statute, a charge of deportability
under section 241(a) (3) of the Immigration and Nationality Act does not
lie. [Matter of C—R---,71. & N. Dec. 124, overruled.]
Onanaz:
Order: Act of 1952—Section. 241 (4) (3) [8 U.S.C. 1251(a) (3) ]—Institution-
alized at public expense for mental disease.

The ease comes forward on appeal from the order of the special
inquiry officer dated August 80, 1962, directing that the respondent be
deported to Belgium on the charge contained in the order to show
cause.
The record relates to a native and citizen of Belgium, about 27 years
old, female, who last entered the United States at the port of New
York on May 28, 1960, as a returning resident. She was previously
admitted to the United States on March 29, 1958, for permanent
residence and thereafter made two trips to Belgium returning from her
first trip on March 80, 1959, after an absence of about two months and
from her last trip after a stay in Belgium of about seven or eight
months. She is married to a permanent lawfully resident alien by
whom she has a four-year-old son.
The respondent has been a patient at the Chicago State Hospital
since her commitment thereto by the County Court of Cook County,
Illinois, on September 26, 1960_ Her condition has been diagnosed
as schizophrenic reaction, chronic undifferentiated type. The re-
spondent was previously committed to the same institution from Au-
gust 8, 1960, to August 29, 1960. The statement of a staff member of
the hospital, dated September 29, 1960, sets forth that the respondent
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was a schizophrenic of long standing and that her history disclosed
that she had been hospitalized in a mental institution prior to the time
she came to the United States. The respondent's hospitalization in a
mental institution in Belgium on two occasions prior to her entry into
the United States was verified.
The section of law under which deportation of the respondent is
sought is section 241(a) (3) of the Immigration and Nationality Act
which provides for the deportation of an alien who hereafter, within
5 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 or her
admission to the United States. The evidence establishes that the re-
spondent has become institutionalized within 5 years after entry be-
cause of a mental disease, defect or deficiency, and it has not been
shown that the mental disease, defect or deficiency did not exist prior
to her admission to the United States. The only issue remaining is
whether the respondent was institutionalized at public expense within
themeaning of the act.
The special inquiry officer, by order dated March 31, 1961, after a
hearing at which the husband had testified that he had paid nothing
on his wife's bill, that he did not want his wife back and that because
of all of his other expenses he was unable to pay for her hospitaliza-
tion, ordered deportation on the charge stated in the order to show
cause. On appeal, by order dated June 23, 1961, we remanded the
case for the purpose of including in the record evidence showing the
husband's legal liability for payment of hospitalization and treatment
in the Chicago State Hospital and the final results of an action for
recovery of the respondent's monthly maintenance charges from the
respondent's husband provided in sections 9-19 and 9-23 of the Illinois
Mental Health Code and for such other action as might be appropriate.
At the reopened hearing evidence was presented showing that the
husband had been informed by the Department of Welfare as of
January 30, 1962, that the monthly rate to him on the basis of his
financial situation for the care and maintenance of the respondent was
decreased from $36.00 a month to $9.00 a month, that the husband
had remitted payment on February 16, 1962 of all charges assessed
against him for the care of his wife which brought his account up to
current status, that the husband paid $87.00, the amount billed for his
wife's care, and has been paying the sum of $9.00 a month as billed
for his wife's care and maintenance at the Chicago State Hospital.
The special inquiry officer, after considering various provisions of
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the Illinois Mental Health Code and several court decisions,) came
to the conclusion that inasmuch as the only payments made for the
respondent's care and maintenance were her husband's remittances of
$9.00 per month which were less than the rate prescribed under
section 9-20 of the Illinois Mental Health Code, that the respondent
had been institutionalized at public expense. The decision of the
special inquiry officer was based upon the precedent decision of Matter
of C-1?—,71.& N. Dec. 124, 126, which was quoted as follows :
The determining factor under section 241(a) (3), supra, however, is whether
an alien after the enactment of the statute "becomes institutionalized a 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 or the minimum charge
of public institutions which does not represent the full cost to the taxpayer.
Under the circumstances, we are of the opinion that the special inquiry officer's
conclusion with respect to the 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) (8),
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.
The decision in Matter of C—I , supra, relied upon the language
of Senate Report No. 1515 pursuant to Senate Resolution 137 (81st
Congress, 2d Session) at page 390 in which it was the conclusion of the
subcommittee that all aliens who become public charges any time after
entry from causes not affirmatively shown to have arisen after entry
should be subject to deportation; that information available to the
subcommittee indicates that in some cases where persons are institu-
tionalized because of mental deficiency they escape deportation as a
public charge by payment of the minimum charge of public institu-
tions which does not represent the full cost of the taxpayer. It was
therefore recommended that all aliens who become institutionalized
because of mental deficiency within five years after entry should also be
deportable. The Committee Report is dated April 20, 1950.
It is believed that by relying upon this language contained in the
Senate Report No. 1515, the decision in Matter of C-R--- 2 reached an
erroneous conclusion. It is true that the various Senate bills intro-
duced at the first and second sessions of the 82nd Congress (S. 716
introduced January 29, 1951, S. 2055 introduced August 27, 1951 and
Sections 9-10, 9-20, 0-21, 0-22, and 9-24 of the Illinois Health Mental Code ;
Public Welfare v. Bohleber, 21 Ill. 2d 587, 173 N.E. 2d 457; Department of
Public Welfare v. A'Sern, 14 Ill. 2d 575, 153 N.B. 2d 22. Both of these cases
involved claims against the estate of the deceased patients for maintenance
charges.
2 7 & N. Dec.124.

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 Interim. Decision #1261
S. 2550 introduced January 29, 1952) all provided in section 241 (a) (3)
for the deportation of an alien who within five years after entry became
institutionalized because of mental disease, defect, or deficiency. How-
ever, the House Bill, H.R. 5678, introduced October 9, 1951 (82nd
Congress, 2d Session) section 241 (a) (3) provided for the deportation
of any alien who "hereafter within five years after entry, becomes
institutionalized at public expense because of mental disease, defect,
or deficiency." (Emphasis supplied.) In an analysis of some of the
major differences between the McCarron Omnibus Bill (S. 2550) and
the Humphrey-Lehman Bill (S. 2842) it was pointed out that section
241(a) (3) of the McCarron Bill makes deportable aliens who, within
five years after entry, become institutionalized because of mental dis-
ease, defect or deficiency, though it be a nervous breakdown, whether
rr not the alien can pay his own way and whether or not the cause
existed before entry. The Humphrey-Lehman Bill makes such per-
sons deportable only if they are institutionalized at public expense
and if the mental disease, defect or deficiency existed prior to entry.
It was pointed out that the Humphrey-Lehman Bill follows the
present law.8
The bill, as it was finally enacted on June 27, 1062, provides in
section 241(a) (3), 8 U.S.C. 1251(a) (3), for the deportation of any
alien who hereafter, within five years after entry, becomes institu-
tionalized at public expense because of mental disease, defect or defi-
ciency, unless the alien can show that such disease, defect, or deficiency
did not exist prior to his admission to the United States. The final
draft of the bill appears to have evolved as a floor amendment and
the only comment relative thereto is to the effect that in conforming
the language of both House and Senate versions, the conferees have
provided for a statute of limitations (as contained in the House
version) in accord with humanitarian principles, particularly in the
cases of aliens where deportation would be based on mental disease or
on economic distress.'
It can be seen that the bill as finally enacted differed widely from
the original draft which was the result of the recommendations con-
tained in House Report No. 1515 (81st Congress, 2d Session), page
390. Not only was a five-year statute of limitations provided for, but
provision was also made that if the alien became institutionalized at
public expense and if it was shown that the mental disease, defect or
deficiency did not exist prior to his admission, the ground of deport-
ability would fail. Thus, the legislation as finally enacted resembled
closely the public charge provisions of the Immigration Act of Febru-
3 98 Congressional Record 5799.
`House Report No. 2096 (62nd Cong., 2d Secs.), p. 127; 98 Congressional
Record 7017 (June 11,19x2).

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ary 5, 1917. Therefore, the comments in the Report on the Committee
on the Judiciary pursuant to Senate Resolution 137 5 with its recom-
mendation that all aliens who become institutionalized because of
mental deficiency within five years of entry should be deportable was
never enacted into law, but the less stringent provisions of the Hum-
phrey-Lehman Bill was enacted into section 241(a) (3) which followed
the then existing law. 6
The law that then existed is set forth in Matter of B.—, 3 I. & N.
Dec. 323 (A.G., October 28, 1948). In that case the respondent first
entered the United States in 1920, and last entered on July 22, 1939,
after a visit to Ireland. Early in 1940 she was sent to the Cook County
Psychopathic Hospital for observation and in March she was ordered
committed to the Manteno State Hospital by the County Court of
Cook County, Illinois. Her condition was diagnosed as psycho-
neurosis, reactive depression, and at the time of the hearing she was
still a mental patient at that institution. Her sister provided money
for the purchase of respondent's clothes and for other incidentals.
The Illinois statute provided that the respondent was entitled to
receive free maintenance, care and treatment while a patient at the
Mantena State Hospital and she was only liable for her clothing,
transportation and other incidental expenses which were discharged
by her sister. The Board, citing the cases of Noechi v. Janson, 6 F.2d
1 (1st Cir., 1925) and Ex parte Kiehmiriaats, 283 F. 697 (N.D. Cal.
1922), evolved the following rule: (1) the State or other governing
body must, by appropriate law, impose a charge for the services
rendered to the alien; in other words, the State must have a cause of
action in contract against either the person taking advantage of the
State's services or other designated relatives or friends; if no charge
is made and if the State does not have a cause of action, the alien cannot
be said to be a public charge; (2) the authorities must make a demand
for payment of the charge upon those persons made liable under the
State law except where the patient and persons legally responsible for
its care and maintenance are known to be destitute; and (3) there
must be a failure to pay for the charges; if there is a failure to pay
either because of the lack of demand or because the State authorities
do not perform their duty to collect the charges, the alien cannot be
said to have become a public charge. A minority of the Board dis-
sented from this view but the Attorney General sustained the majority
opinion.
In the present case, the State has fixed a charge having in mind the
ability of the respondent or her legally liable husband, to pay, and
payment has been made of the sum demanded. The fact that the
* Senate Report No. 1515 (81st Cong., 2d Bess., 390).
6 98 Congressional Record 5797.

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State might later have recourse against the estate of the patient or of
her husband we believe is not material to the charge laid under section
241(a) (8) of the Immigration and Nationality Act. Inasmuch as
the maintenance charges have been paid and are currently being paid,
it cannot be said that the respondent is being institutionalized at public
expense and the charge must therefore fall. The proceedings will be
terminated.
ORDER: It is ordered that the appeal be sustained and that the
proceedings be and the same are hereby terminated.

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