A-4538581
Decided by Central Office November 28, 1951
Public charge — Within 5 years after entry — Section 19, act of February 5, 1917 — Confinement in State hospital for criminally insane — Sustainability of such deportation charge.
An alien, here since 1909, who last entered the United States in September 1926, was arrested for murder in February 1927 and was committed by a judge's order to Ionia State Hospital, Ionia, Mich., a hospital designated for the criminally insane. He remained an inmate of such institution until November 1944, and on December 5, 1944, the murder charge was nolle prossed at Detroit, Mich. Though he owned a house, no demand was made upon him or his relatives for payment for charges incurred while he was a public patient at the above institution. The tests as to whether under section 19 of the act of February 5, 1917, he is deportable on the charge he became a public charge within 5 years after entry have not been met ( 3 IN Dec. 323), and his confinement in the Ionia State Hospital cannot be used to sustain this charge, just as a person confined to a penal institution is not thereby regarded as within the purview of such a charge.
CHARGES:
Warrant: Act of 1924 — No immigration visa. Act of 1917 — Illiterate. Act of 1917 — Became a public charge within 5 years.
BEFORE THE CENTRAL OFFICE
Discussion: This record relates to a 63-year-old married male, native and last a citizen of Poland, who last entered the United States at Detroit, Mich., on or about September 15, 1926.
The record discloses that the respondent first entered the United States at New York, N.Y., on June 8, 1909, and that he was lawfully admitted to the United States for permanent residence. Such entry has been verified. Subsequent to that date, he made a visit to Canada for about 24 hours and returned to this country at Detroit, Mich., on September 15, 1926. His reentry has not been verified. He claims that he has resided continuously in the United States since his lawful admission for permanent residence, that upon his reentry he was inspected and admitted to the United States by an immigrant inspector. The record establishes the respondent's lawful residence in the United States since 1909 and consequently his reentry into the United States on September 15, 1926, was lawful, under outstanding orders in effect at the time of his reentry. Thus, he is not subject to deportation under the Immigration Act of 1924 as an immigrant not in possession of a valid immigration visa.
Since, in connection with his reentry, he was returning to an unrelinquished lawful domicile of more than 5 years, he was exempt from the illiteracy provisions of section 3 of the Immigration Act of 1917 as an illiterate.
The sole remaining issue is whether he is deportable on the ground that he became a public charge within 5 years after entry. The record discloses that on February 24, 1927, respondent was arrested for murder; on March 17, 1927, he was committed to Ionia Hospital for the Insane, Ionia, Mich., by Judge Murphy, and that he remained an inmate of the State hospital from March 21, 1927, until November 17, 1944. On December 5, 1944, at Detroit, Mich., the murder charge was nolle prossed. An examination conducted by competent medical authorities at the Ionia State Hospital diagnosed the alien's condition as psychogenic anxiety state. The alien has testified that no demand was ever made on him for payment for the hospitalization and that none of his relatives ever paid for it. It furthermore appears that in a statement given by respondent on January 30, 1931, at which time he was confined to the State hospital, he alleged that he did own a house in Detroit, Mich., of which the American Trust Co. was the guardian. Furthermore, it appears in a certification by the medical superintendent of the hospital, (Form 534, proof that alien had become a public charge), dated February 14, 1931, that no demand was made on respondent or his relatives for payment of the hospital expenses.
The Ionia State Hospital has been designated as the hospital for the criminally insane. Michigan Public Laws 195, 1923, now section 14.801, volume 10, Mich., Stat., Anno. At the time of respondent's confinement, this was the only institution designated for such persons. Under the provisions of law in effect at that time, if an accused person appeared to be insane, the court did, after certain procedures were taken, commit an accused to such hospital, (Section 28.967, volume 25, Mich., Stat., Anno.). Respondent was sent to that institution in accordance with the order of the court and under the procedures designated by the provision mentioned. Such person is deemed to be a public patient (sec. 14.807, vol. 10, Mich., Stat., Anno.), chargeable to the expense of the county for the first 2 years and thereafter to the state. Under the provisions of law the county or state authorities might "recover the amount so paid from the person's own estate, if he have any, or from a relative, town, city, or county that would have been bound under existing laws to provide and maintain him elsewhere" (sec. 28.967, vol. 25, Mich., Stat., Anno). No demand for payment was made of respondent or his relatives. Section 28.967, Volume 25, Mich., Stat., Anno, under which provision respondent was presumably committed to Ionia Hospital provides in part as follows:
When any person accused of any felony shall appear to be insane * * * the court, being certified by the jury or otherwise of the fact, shall carefully inquire and ascertain the issue of insanity. * * * If such person is found insane, the judge of said court shall order that he be discharged from imprisonment and that he be turned over to the sheriff for safe custody and removal to the Ionia State Hospital, to which hospital such person shall be committed to remain until restored to sanity. When such person shall be resored to sanity, and that fact has been determined by the superintendent of such hospital or by any other proceeding authorized by this section, the said superintendent of said hospital shall forthwith certify that fact in writing to said judge and presenting attorney. The judge shall thereupon immediately require the sheriff without delay to bring such person from the said hospital and place him in proper custody until he is remanded to prison, brought to trial or judgment as the case may be, or is legally discharged.
From the foregoing, it is evident that when an accused person is sent to Ionia State Hospital under the provisions of the cited section, the detention therein is part of the criminal proceedings. In view of the insanity, the accused is taken from the prison wherein he might be confined and detained in a hospital for the insane where he is given special hospitalization and care until he is restored to sanity whereupon the criminal proceedings are again renewed. Consequently the detention in the Ionia State hospital is part of the same process used in confining criminals until such time as the criminal proceedings are disposed of. It is nothing more than the equivalent to confinement in a penal institution except that the insane person is detained in a hospital for the insane, wherein the accused may be given the special care required, rather than being detained in a jail or penitentiary. It has been previously held that a person confined to a penal institution is not regarded as a public charge within the purview of section 19 of the Immigration Act of 1917. Similarly it must be concluded that the confinement of respondent in the Ionia State Hospital cannot be used to sustain the immigration charge, "became a public charge within 5 years after entry."
It has been furthermore held that in order to determine whether an alien had become a public charge within 5 years after entry, the following tests must be applied: (1) The State or other governing body must, by appropriate law, impose a charge for the services rendered to the alien; (2) the authorities must make demand for payment of the charge upon these persons made liable under state law; and (3) there must be a failure to pay for the charges, ( Matter of B----, 56033/544, A.G. 1948, ( 3 IN Dec. 323)). An exception is made with regard to requirement for demand for payment in the case where the patient and persons legally responsible for care and maintenance are known to be destitute, ( Matter of M---- (B.I.A., 1946) 2 IN Dec. 694). In the instant case, it appears that no demand for payment was made either upon alien or upon his relatives and furthermore, it appears that respondent had property for which a guardian was appointed. Consequently, even if it is concluded that respondent was not confined to a penal institution, the requirements for establishing that he became a public charge within 5 years after entry have not been met. In view of the foregoing, it is concluded that respondent is not deportable under the act of 1917 as a person who became a public charge within 5 years after entry. Therefore, respondent is not deportable under any of the charges shown in the warrant of arrest and the proceedings will be terminated.
Order: It is ordered that the proceedings be terminated.