56073/871.
Decided by Board July 24, 1946.
Public charge — Within 5 years of entry — Section 19 of the Immigration Act of 1917 — Evidence.
An alien admitted to a State institution supported by State funds, as a poor and indigent person and provided for therein, within 5 years of entry into the United States, is subject to deportation on the ground she became a public charge within 5 years after her entry into the United States from causes not affirmatively shown to have arisen subsequent to such entry, where (1) there has been no waiver of the liability for charges; (2) the State (New York) statutory steps to create and fix liability for such charges have been taken; and (3) there is affirmative evidence that no one who might be responsible, is willing or able to pay such charges (thereby eliminating the necessity for a demand for payment).
CHARGES:
Warrant: Act of 1917 — Became a public charge within five years after entry.
Act of 1917 — Person of constitutional psychopathic inferiority.
BEFORE THE BOARD
Discussion: This record relates to a native of Scotland, a citizen of Canada, female, 45 years of age, who last entered the United States at the port of Buffalo, N.Y., on October 20, 1936, upon presentation of return permit No. 1110951, issued August 6, 1936. Respondent was admitted for permanent residence at the port of Niagara Falls, N.Y., on October 3, 1928.
A warrant for the alien's arrest on the above-stated charges was issued on March 29, 1941, but was not served until February 23, 1944. The warrant of arrest was not served within 5 years of the alien's last entry; therefore, the statute has tolled insofar as the second charge in the warrant of arrest is concerned.
The evidence relied upon to sustain the first charge in the warrant of arrest consists of a Form 534, "proof that the alien has become a public charge," dated at New York City on February 20, 1941, and executed under oath on March 15, 1941, by one S---- C. W----, M.D., clinical director, Brooklyn State Hospital, Brooklyn, N.Y. This exhibit indicates that as of February 20, 1941, the respondent was an inmate of Gowanda State Hospital, Gowanda, N.Y., to which she was admitted on October 12, 1940; that the said institution is supported by State funds and that the "alien has been requested to pay full hospital maintenance," "is unable to pay anything," there being "no known liable kin." Exhibit 6, a letter under date of February 23, 1944, from the senior county clerk, Buffalo State Hospital, Buffalo, N.Y., indicates that respondent was transferred to that institution on January 22, 1943. This exhibit also states that a letter was written to respondent's sister in Canada, but no reply received, and efforts to get in touch with relatives failed; that previous to her admission respondent was supported by the Erie County Department of Welfare, and that nothing has been paid for respondent to either hospital (Gowanda or Buffalo State).
The alien's deportability rests solely upon the single charge, to wit: Did she in fact become a public charge within 5 years of her last entry, from causes not affirmatively shown to have occurred subsequent thereto? We find on examining the New York State statutes relating to mental hygiene that they prescribe certain procedures and limitations relative to the care and support of the poor and indigent insane and the liability therefor. They also provide for certain contingencies which may or may not happen in the future.fn1 It has been judicially established that where the law of the state wherein the alien is alleged to be a public charge provides certain procedures and limitations as to liability for maintenance, it will be presumed in the absence of an affirmative showing to the contrary that said charges were borne by those responsible, as the State law requires. New York courts hold that there must be a strict compliance with all requirements of the mental hygiene law.
See sec. 24 (a), art. 2, and secs. 7-9, art. 5, Hygiene Law, New York State; also secs. 914, 915, and 926 b, c, and d, Code of Criminal Procedure, New York State.
Ex parte Kichmiriantz, 283 Fed. 697, D.C.N.D. Cal., 1st Div., July 13, 1922; Ex parte Orzechowska, 23 Fed. Supp. 429, D.C. Oreg., May 9, 1938.
See In re Cross Estate, 165 N.Y.S. 710; In re Hessney Estate, 31 N.Y.S. 2nd 980; In re Willis Estate, 158 N.Y.S. 985.
We conclude therefrom that under a statute which provides for contingencies, in futuro, the facts as they now exist should control without regard to possible future events. We propose to sustain the charge where there is a reasonable showing in the record of compliance with state law as that law relates to an existing factual situation. Where it affirmatively appears in the record that no one can pay the charges incurred, there is no necessity for a demand for payment.
Insofar as the case at bar is concerned, we conclude that there is a reasonable showing in this record that the respondent was duly admitted to a New York State institution according to New York State mental hygiene law as a poor and indigent insane person; that the State institution is supported by State funds; that all the steps required by statute to create and fix her present or past liability or the liability of relatives liable by statute have been taken and that there has been no waiver, express or implied, of any liability thus created. It also affirmatively appears in the record that there is no one willing or able to pay the charges so far incurred by respondent and that she is and has been a person whose support and care is and has been provided at the expense of the public within the statutory period.
Relative to the medical certificate issued in connection with that portion of the charge which relates "from causes not affirmatively shown to have arisen subsequent thereto," it appears from the record that the medical certificate was predicated upon a clinical examination, and therefore is deemed to be sufficient.
The charge that respondent became a public charge within 5 years after entry into the United States from causes not affirmatively shown to have arisen subsequent thereto is sustained.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is an alien, a native of Scotland, a citizen of Canada;
(2) That the respondent last entered the United States at the port of Buffalo, N.Y., on October 20, 1936, upon her presentation of a return permit;
(3) That the respondent was admitted to the Gowanda State Hospital, Gowanda, N.Y., as an insane patient on October 12, 1940, where she was confined until January 22, 1943, when she was transferred to the Buffalo State Hospital, Buffalo, N.Y., where she is now an inmate; and from October 12, 1940, through October 20, 1941, was a public charge of the State of New York.
(4) That the laws of New York State provide certain procedures and limitations relative to the liability for costs, maintenance and care for mentally ill residents of that State who are poor and indigent;
(5) That the causes of the respondent's mental condition did not arise subsequent to her entry into the United States;
(6) That at the time of respondent's last entry into the United States she was a person of constitutional psychopathic inferiority and general mental instability;
(7) That the respondent was not taken into custody or the warrant served upon her in this proceeding within 5 years of her last entry into the United States.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Immigration Act of February 5, 1917, respondent is subject to deportation on the ground that she became a public charge within 5 years after her entry into the United States from causes not affirmatively shown to have arisen subsequent thereto;
(2) That under sections 3 and 19 of the Immigration Act of February 5, 1917, the respondent is not subject to deportation on the ground that she was a person of constitutional psychopathic inferiority at the time of entry into the United States;
(3) That under section 20 of the Immigration Act of February 5, 1917, the respondent is deportable to Canada, if practicable, otherwise to the United Kingdom, at Government expense.Other Factors: Judicial notice is taken of the fact that the record contains information that Canada has denied consent for the alien's return to that country.
Order: It is ordered that the alien be deported to the United Kingdom at Government expense on the first charge as stated in the warrant of arrest.
It is further ordered, That the alien be provided with special care and attention during the ocean voyage.