In the Matter of B

Board of Immigration AppealsExecutive Office for Immigration ReviewU.S. Department of JusticeOct 28, 1948
3 I&N Dec. 323 (B.I.A. 1948)
3 I&N Dec. 3233 I&N Dec. 323

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56033/544

Decided by Board September 10, 1948 Ruling by Acting Attorney General October 28, 1948

Public charge within 5 years after entry — Section 3 of the Immigration Act of 1917 — Alien committed to Manteno State Hospital in Illinois — Test whether alien became "public charge" so as to be deportable on that ground.

1. An alien ordered committed as a patient to the Manteno State Hospital in Illinois within 5 years after last entry is not held to have become a public charge within the meaning of the Immigration Act of 1917 merely because she was maintained and treated in the above Illinois institution free of charge pursuant to the provisions of Illinois law under which the State authorities could not and did not demand payment for these services and could not bring suit against the alien or any other person to collect for such services.

2. The test to be applied to determine whether an alien has become a public charge within the reach of the Immigration Act of 1917 is set forth as follows: (1) That a charge for the services rendered to the alien must be imposed under appropriate law so that a cause of action in contract lies against the alien or designated relatives or friends, (2) that a demand for payment was made on the parties liable under law, and (3) a failure to pay for the charges.

CHARGES:

Warrant: Act of 1917 — Likely to become a public charge at the time of entry.

Act of 1917 — Became a public charge within 5 years after entry.

BEFORE THE BOARD


Statement of the Case: This case is before us on the Service's motion requesting withdrawal of the outstanding order and warrant of deportation and cancellation of the deportation proceedings. The Board agrees with the Service that there is no legal basis for the deportation order and that the proceedings should be dismissed. An issue has been raised, however, as to the soundness of the Board's construction of the "public charge" clause in section 19 of the act of February 5, 1917 as it relates to the Illinois statutes relevant to this case. Because this issue has been raised, we shall give the reasons that lead us to hold that respondent did not become a public charge within 5 years after her entry to the United States, a holding with which, we repeat, the Immigration and Naturalization Service agrees.

Discussion: Respondent, a 34-year-old native of Ireland and subject of Great Britain, has been living in the United States since her lawful admission for permanent residence in November 1920. She was then 16 years of age. In about 1926 respondent entered a convent in Omaha, Nebr. She took her final vows as a nun about 8 years later. In the spring of 1939, apparently because she had suffered a nervous breakdown, respondent was discharged from the convent. She returned to Chicago, Ill., where she lived with her sister and her brother-in-law. There was some friction between them and it was therefore decided, for reasons concerned with respondent's health, that she should take a trip to Ireland to visit her mother in that country. She left the United States on July 22, 1939, with a reentry permit and was readmitted to this country on Christmas Day of that year as a returning resident. That was her last entry.

Early in 1940 respondent was sent to the Cook County Psycopathic Hospital for observation. On March 15 she was ordered committed to the Manteno State Hospital by the county court of Cook County. Her condition was there diagnosed as "Psychoneurosis, Reactive Depression." She is still a mental patient in that institution. Respondent's sister has been providing money for the purchase of respondent's clothing and for other incidentals.

The present deportation proceedings are based on respondent's last entry to the United States in December 1939. Were it not for the visit she made to her mother in the summer and fall of that year, she would not now be under deportation proceedings. There would then be no question of the lawfulness of her residence in the United States.

The warrant of arrest contains two charges, one that respondent was a person likely to become a public charge at time of entry and the other that respondent did become a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent to entry. There is no disagreement that respondent was not a person likely to become a public charge at the time of her December 1939 entry. The only issue raised is whether respondent became a public charge within the meaning of the 1917 act by reason of her involuntary commitment to the Manteno State Hospital in March 1940.

First, we wish to make the following preliminary observation for the purpose of clarifying the issue. The acceptance by an alien of services provided by a State or by a subdivision of a State to its residents, services for which no specific charge is made, does not in and of itself make the alien a public charge within the meaning of the 1917 act. To illustrate, an alien who participates, without cost to him, in an adult education program sponsored by the State does not become a public charge. Similiarly with respect to an alien child who attends public school, or alien child who takes advantage of the free-lunch program offered by schools. We could go on ad infinitum setting forth the countless municipal and State services which are provided to all residents, alien and citizen alike, without specific charge of the municipality or the State, and which are paid out of the general tax fund. The fact that the State or the municipality pays for the services accepted by the alien is not, then, by itself, the test of whether the alien has become a public charge.

We do not wish to imply that even if such aliens were regarded as public charges, they would become subject to deportation under the public charge clause in section 19. The alien could not be deported if he could affirmatively establish that the cause for which he had become a public charge had arisen subsequent to entry. But, if it were to be held that all aliens became public charges by accepting such services, such a holding would necessarily result in making aliens seeking admission to the United States excludable under that clause of section 3 of the act of February 5, 1917, which bars aliens likely to become public charges from entering the United States, provided it were shown the alien would accept the free municipal and State services. Furthermore, under the same hypothesis, if such aliens succeeded in entering the United States, they would become subject to deportation under the first clause of section 19 on the ground that at the time of entry they were persons likely to become public charges, provided the proceedings were seasonably instituted.

We think the true test in determining when an alien becomes a public charge is implicit in the decisions in Nocchi v. Johnson, 6 F. (2d) 1 (C.C.A. 1, 1925) and Ex parte Kichmiriantz, 283 Fed. 697 (N.D. Cal., 1925). In the Nocchi case the alien was a minor who had entered the United States with his parents in 1913 when he was 7 years of age. In 1916, when he was 10, he was sent to the Wrentham State School for Defective Children, an institution operated at the expense of the State of Massachusetts. Deportation proceedings were instituted against the alien child shortly after his admission to the Wrentham State School. One of the grounds of deportation was that the alien had become a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent to entry. The Circuit Court of Appeals found that the alien had not become a public charge within the meaning of the 1917 act. In its decision the court pointed out that under Massachusetts law the alien's parents were liable for his support and education. The court also pointed out that the officials of the State of Massachusetts were under a duty to collect proper charges for the alien's support and training in the Wrentham School. The court said (p. 2):

Congress never intended that an unfortunate alien defective child or insane wife, committed to a State institution for curative treatment, having, respectively, parents or husband financially able to pay all proper charges, should thereby become pauperized, "a public charge," and on that ground deported. Compare United States v. Ted (D.C.), 300 F. 913, affirmed (C.C.A.) 300 F. 918; Ex parte Kichmiriantz (D.C.) 283 F. 697.

It must not be overlooked that the rights we are now dealing with are rights of this boy. It was the legal duty of his parents, being able, to support and educate him. It was also the duty of the officers of the Commonwealth of Massachusetts to collect proper charges for his support and training in the Wrentham School, even if the parents were unwilling to pay these charges. Failure by his parents, or by the officers, or by both, in this duty, does not subject the boy to the penalty of deportation.

* * * * * * *

* * * it is clear that they (the parents) were able to pay, and we hold that, being able to pay, failure on their part, either inadvertently or intentionally, was not, as matter of law, enough to make the child a public charge within the meaning of the statute.

The Kichmiriantz case concerned a young Armenian alien who had been committed to the Stockton State Hospital, Stockton, Calif., within 5 years after his admission to the United States. The alien's parents and other relatives were residents of California. Under California law the parents of an insane person were liable for care, support, and maintenance. The court assumed, though there was no specific evidence on the issue, that the parents had discharged their obligation under California law. In its opinion the court said (p. 698):

* * * when the State receives from the relatives what it has fixed as an adequate compensation for such support, I do not think the individual so cared for is a public charge within the meaning of the act.

We think on the basis of these two decisions that the following test must be applied to determine whether an alien has become a public charge within the reach of the 1917 act: (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 services or other designated relatives or friends. If there is no charge 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 demand for payment of the charges upon those persons made liable under State law. And (3) there must be a failure to pay for the charges. If there is a failure to pay either because of 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.

An exception is made with respect to requirement for demand for payment in a case where the patient and persons legally responsible for his care and maintenance are known to be destitute. ( In re M----, 56073/871, Board of Immigration Appeals, July 24, 1946).

The rule set forth above is not new. The substance of the rule has been applied administratively over a long period of time. See Solicitor of Labor opinions of January 22, 1929, file 55616/275 (case of B---- D----), and Aug. 2, 1929, file 55612/741 (case of N---- M----). See also Matter of F----, 55033/444 (Feb. 13, 1942); Matter of V----, 56091/232 (Mar. 25, 1944); Matter of G----, May 27, 1944; Matter of C----, 3907777 (Apr. 25, 1945). The Immigration and Naturalization Service recently, in Matter of G----, 55827/471 (June 20, 1947), applied the rule, so far as necessary, to another alien committed to the Manteno State Hospital.

We return now to the particular case before us for decision. Section 9-1, chapter 91 ½; section 77.038 (88), Jones' Illinois Statutes Annotated, reads now substantially the same as it did when respondent was committed to the Manteno State Hospital.

* * * a mentally ill person or person in need of mental treatment admitted to any State hospital for the mentally ill shall be maintained and treated, while in the hospital, at the expense of the State, but the cost of clothing, transportation, and other incidental expenses not constituting any part of the maintenance or treatment shall be defrayed at the expense of the patient or of his relatives liable for his support or of the county of his residence or of the county from which he was admitted.

Section 26 of the act approved April 15, 1875, as amended, paragraph 64, chapter 23, Illinois Revised Statutes, 1947, reads in part and so far as here pertinent:

Residents of this State who are inmates of any of the State charitable institutions shall receive their board, tuition and treatment free of charge. * * * If any inmate is unwilling to accept gratuitous board, treatment, or tuition, the department of public welfare may receive pay therefor, and shall account for the same in an itemized monthly or quarterly statement, as donations, duly credited to the persons from whom they were received; * * *

It is clear that under Illinois law respondent was entitled to receive free maintenance, care, and treatment while a patient at the Manteno State Hospital. She was only legally liable for her clothing, transportation, and other incidental expenses. This latter liability, as the record clearly shows, was discharged by her sister. Neither respondent nor her sister nor other relatives or friends were under any legal liability to pay for respondent's care, maintenance, and treatment. The State authorities could not and did not demand payment for these services and could not bring suit against respondent or any other person to collect for such services. The department of public welfare of the State of Illinois could receive money from respondent or any other person on her behalf because of her care, maintenance, and treatment only as a donation and not as a discharge of any liability incurred by her. If there be any doubt about this, see letter of the attorney general of the State of Illinois of April 19, 1948, addressed to the Board.

As the Acting Commissioner states in his decision, respondent did not become a public charge within the meaning of the 1917 act. This conclusion follows first because the State of Illinois made no charge against respondent or anyone else for the services rendered her, and secondly, because no demand for payment was made by the State of Illinois. Finally, we repeat, the result we have reached in this case has been the constant administrative practice by the immigration authorities since our decision in Matter of V----, supra. ORDER: The motion of the Immigration and Naturalization Service to withdraw the order and warrant of deportation and to dismiss the proceedings is granted.


BEFORE THE ACTING ATTORNEY GENERAL

The decision and order of the majority of the Board of Immigration Appeals dated September 10, 1948 are hereby approved.


This matter is before us upon motion of the Commissioner of Immigration and Naturalization requesting that the outstanding order and warrant of deportation be withdrawn and that the deportation proceeding be terminated.

The majority of the Board agrees with the Commissioner of Immigration and Naturalization.

The issue in this case is whether the subject became a public charge within 5 years after entry to the United States and therefore whether she is subject to deportation within the provisions of section 19 of the Immigration Act of February 5, 1917.

Section 19 (a) of the act of February 5, 1917 ( 39 Stat. 889-890; 54 Stat. 671-673; 56 Stat. 1044; 8 U.S.C. sec. 155) provides for the deportation of * * * "any alien who within 5 years after entry becomes a public charge from causes not affirmatively shown to have arisen subject to landing" * * *.

Report 352 of the Sixty-fourth Congress, First session 1915 to 1916, Senate reports, volume 2 of April 17, 1916, to accompany H.R. 10384 is to the following effect:

The existing law authorizes the deportation of any alien who becomes a public charge, within the specified time limit, from causes existing prior to entry. As H.R. 6060 passed the Senate it changed the latter part of this provision so that it read "from causes not affirmatively shown to have arisen subsequent to landing." The change went out of the measure in conference. It has now been restored by the House committee and accepted by the House (p. 42, line 24, to p. 43, line 1). Many cases arise in which it is practically impossible for the Government to carry the burden imposed upon it as the existing law is worded, and the Commissioner General of Immigration and the Secretary of Labor have repeatedly recommended that this change be made. (See S. Rept. No. 355, 63d Cong., 2d sess., p. 12, and S. Doc. No. 451, there mentioned.)

It is my opinion that the subject hereof became a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent thereto; within the meaning of section 19 of the act of February 5, 1917, supra, as that term is defined and interpreted, taking into consideration the statutes of the State of Illinois as hereinafter set forth and discussed (this is also in the light of the amplification contained in the memorandum and the correspondence with the Illinois officials annexed hereto).

At the outset it is important to observe that the opinion of the majority, if accepted, would nullify totally the legislative intent of section 19 of the act of February 5, 1917, supra, relating to the deportability of persons who within 5 years after entry became charges upon the public within the State of Illinois, because if that interpretation were to be adopted, absolutely no alien who is receiving medical treatment, care, and maintenance at public expense in mental hospitals in the State of Illinois could be expelled from the United States. The very purpose of section 19 of the 1917 act was to prevent such burden upon the several commonwealths of the United States. Such interpretation is impractical, unsound, and without foundation in the light of correspondence of the attorney general of the State of Illinois, and upon the basis of the statutes involved.

Certainly the intention is not something evinced dehors the statute; it is to be learned from it, with those extrinsic aids to a correct interpretation to which resort may be had; and that intention, when satisfactorily ascertained is the design to which the letter is subordinated. And it is ever to be borne in mind that the intention is to be collected from the words, the context, the subject matter, the effects and consequences, the spirit and reason of the law and other acts in pari materia (vol. II, Southland, Statutory Construction, p. 1077).

M---- E---- B----, the subject hereof, was born in Newry, County of Armagh, Northern Ireland, on May 24, 1904. She is a subject of Great Britain.

The record establishes that M---- E---- B---- first arrived in the United States at New York on October 28, 1920, ex-S.S. Celtic. She remained in this country until July 28, 1939, when she proceeded to Ireland to visit her mother, brother, and sister at the suggestion of a sister in Chicago, as hereinafter set forth. She returned to this country via New York on December 25, 1939, ex S.S. Cameronia, at which time she was admitted upon presentation of a permit to reenter the United States.

The evidence of record discloses that the alien attended school in Ireland to the eighth grade. During the year of 1927 she entered a convent in Omaha, Nebr., where she remained for a period of 12 years. It would appear that she suffered from a nervous affliction, thereafter left the convent, and, pursuant to the advice of her sister, who thought that a trip abroad would be beneficial, she proceeded to Ireland to visit her relatives.

There is of record a certificate of Dr. W---- H. B---- (M.D.), managing officer of the Manteno State Hospital, Manteno, Ill., appropriately executed before a notary public on May 25, 1940, wherein it is stated in part as follows:

As to Alien Being a Public Charge. Institution of which inmate: Manteno State Hospital. Date of admission thereto: March 15, 1940. Said institution is supported in whole or in part by State, county, or municipal funds: By State funds. * * *

In addition to the portion of the certificate referred to in the preceding paragraph furnished by the authorities of the State of Illinois a clinical summary was introduced in evidence.

In the certificate of Dr. B----, hereinabove referred to, it is stated that —

Patient was committed to Manteno State Hospital for Cook County Psychopathic Hospital, where she evidently had been examined by their medical staff, and their impression was that this patient was suffering from paranoid psychosis. She was presented before our medical staff; doctors present were Dr. B----, Dr. T----, Dr. S----, Dr. S----, Dr. N----, Dr. S----, Dr. R----, and the moderator was Dr. C----, clinical director, diplomate of the American Board of Neurology and Psychiatry.

The diagnosis in this case is psychoneurosis, reactive depression; the prognosis, that complete cure is probably not possible.

Preceding the order of commitment to the Manteno State Hospital by the authorities of Cook County, Ill., the subject hereof was in the Cook County Psychopathic Hospital for observation. She is still a mental patient in the Manteno State Hospital, which institution as hereinabove set forth is maintained by State funds and where she is still receiving care and maintenance at the expense of the State of Illinois.

A warrant of arrest was issued in this case on July 8, 1940, alleging that at the time of last entry this alien was a person likely to become a public charge and that she became a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent thereto.

Before consideration of this case by the Board a memorandum was prepared and transmitted to the Attorney General of the State of Illinois and a copy of that memorandum, together with a letter of transmittal and the response of the Attorney General of Illinois are attached hereto. (Not attached now.) The pertinent portions of the Illinois statute applicable to this case are as follows:

Chapter 91 ½, section 10 of the Illinois Revised Statutes of 1943 reads in part as follows:

Section 10. Maintenance and Treatment. * * * Mentally ill persons admitted to any State hospital for mentally ill, shall be maintained and treated while in the hospital at the expense of the State, but the cost of the clothing, transportation, and other incidental expenses not constituting any part of the maintenance or treatment shall be defrayed at their own expense or that of the county from which they were admitted.

Section 23, chapter 23, Smith-Hurd Illinois Revised Statutes, 1931, covering the matter of compensating the State of Illinois for the expense of inmates maintained and treated in its mental hospitals, was considered by the Illinois Supreme Court in the Matter of Board of Administration of Illinois v. Miles, 115 N.E. 841. The statute was declared unconstitutional. It would appear from the Supreme Court's opinion that prior to the act of 1912 persons admitted to mental hospitals were maintained and treated at the expense of the State of Illinois and no charge was made against them, except for the cost of clothing, transportation, and other incidental expenses. As amended in 1912, a change in policy was made concerning the cost of maintenance and treatment of inmates of such hospitals by making them and their estates liable for the total cost of support and treatment, as well as for the expenses which they were required to defray before the passage of the act of 1912. A similar provision of 1912 was declared unconstitutional by the court.

Paragraph 9-1, chapter 91 ½ of the Illinois Mental Health Act approved July 24, 1945 provides as follows:

Subject to the provisions of section 26 of "An act to regulate the State charitable institutions and the State reform school, and to improve their organization and increase their efficiency," approved April 15, 1875, as amended, a mentally ill person or person in need of mental treatment admitted to any State hospital for the mentally ill shall be maintained and treated, while in the hospital, at the expense of the State, but the cost of clothing, transportation, and other incidental expenses not constituting any part of the maintenance or treatment, shall be defrayed at the expense of the patient or of his relatives liable for his support, or of the county of his residence or of the county from which he was admitted.

Illinois Revised Statutes, 1941, chapter 85, paragraph 15, provides:

All insane persons admitted to any State hospital or asylum for the insane shall be maintained and treated while in the institution at the expense of the State but the cost of clothing, transportation, and other incidental treatment shall be defrayed at their own expense or that of the county from which they are admitted.

Section 26 of the act referred to in section 9-1 appears as paragraph 64, chapter 23, Illinois Revised Statutes 1947 and reads as follows:

Residents of this State who are inmates of any of the State charitable institutions shall receive their board, tuition, and treatment free of charge. Residents of other States may be admitted upon payment of the just costs of board, tuition, and treatment: Provided, That no resident of another State shall be received or retained to the exclusion of any resident of this State. If any inmate is unwilling to accept gratuitous board, treatment, or tuition, the department of public welfare may receive pay therefor, and shall account for the same in an itemized monthly or quarterly statement, as donations, duly credited to the persons from whom they were received; and if the department receives any moneys for the purpose of furnishing extra attention and comforts to any inmates of the institution, it shall account for the same, and for the expenditures, in like manner.

Obviously the statutes of the State of Illinois were designed to take care of residents of the State, principally citizens thereof as distinguished from persons of other States. The word "State" here is used in its broadest possible political and scientific significance because if such were not the intent, persons from all jurisdictions could take advantage of the liberality of Illinois institutions without fear of any subsequent consequences. We must, therefore, view the statute in a practical manner.

The Attorney General of the State of Illinois specifically stated in his communication of April 19, 1948, "As provided in paragraph 64, chapter 23, resident patients who are unwilling to accept gratuitous maintenance, care, and treatment, may make payment therefor to the department of public welfare which is to receive the same as a donation."

This Board has heretofore observed that inasmuch as no indebtedness accrues to the State institution in Illinois that the patient is not a public charge within the meaning of section 19 of the act of February 5, 1917, supra, but this reasoning is fallacious and falls short of a complete view of the purpose of the Illinois statute, especially when the authorities of the State of Illinois are capable of determining the extent and the amount of expenses in each case chargeable to the public for care and maintenance of such patients in such mental institutions. Moreover, the decided cases of the Board of Immigration Appeals are distinguishable from the case at bar for reasons hereinafter set forth.

In the Matter of A---- V----, 56091/232, decided by the Board on March 25, 1944, the alien involved was a 26-year-old native and citizen of Mexico. She became a patient in Manteno State Hospital in Illinois. The mother of the respondent attempted to reimburse the hospital for care and treatment but was advised that reimbursement would not be accepted under section 10, chapter 91 ½, Illinois Revised Statutes, 1943. In that case and in accordance with prior decisions where reimbursement could have been made, this Board held that the alien could not be considered a public charge within the meaning of section 19 of the act of February 5, 1917. The same view was taken in the Matter of L---- A----, 55834/369.

In the case of K---- M---- A---- or K---- M. A----, 56051/357 (New York), the alien became a public patient in the Matteawan State Hospital, Beacon, N.Y., the Board said, among other things:

However, the fact remains that the alien was hospitalized therein at public expense and it has been established that the cause of his hospitalization was one arising from conditions existing prior to entry. The statute does not make an exception merely because under the provisions of the particular State statute the hospital is precluded from receiving payment. The responsibility is on the alien or his relatives to see that he does not become a public charge in an institution where payment is precluded by statute. In other words the responsibility rests upon those persons to ascertain that fact and, therefore, it is not a defense to say that a person does not become a public charge merely because acceptance of fees for care and maintenance is precluded by statute.

The examples of public charges given by the majority are not in accordance with legal definitions of that term.

"Public" is defined by Bouvier, "as the whole body politic, or all the citizens of the State" ( Ex parte Horn, 292 Fed. 455 (p. 457)). A public charge means a money charge upon or expense to the public for support and care. It means a person for whom support and care is provided at the expense of the public or a person committed to the custody of a department of the Government by due course of law.

50 Corpus Juris, p. 852.

The public in this case is the people of the State of Illinois.

"Charge" is defined by Webster, "to lay or impose tax, duty, or trust." A judgment is a charge upon land ( Darling v. Roger, 22 Wend. (N.Y. 491)). It may be said it is a responsibility peculiar to the person affected and a public charge to be a person committed to the custody of a department of the Government by due course of law. Ex parte Horn, supra (p. 457). See also Ex parte Britten, 293 Fed. 61 (p. 62); Ex parte Tsunetaro Machido, 277 Fed. 239 (p. 241), decided September 16, 1921 W.D. Wash. N.D.

In the Matter of Ex parte Kichmiriantz, D.C.N.D. Cal., 1st Div. decided July 13, 1932, 283 Fed. 697 (p. 698), the court said:

I am of the opinion that the words "public charge" as used in the Immigration Act (act of Feb. 5, 1917, sec. 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, S. 4289½ J.J.)), means just what they mean ordinarily; that is to say, a money charge upon, or an expense to the public for support and care; and when the State receives from the relatives what it has fixed as an adequate compensation for such support, I do not think the individual so cared for is a public charge, within the meaning of the act.

Continuing the discussion of the cases heretofore decided, the matter of A---- G----, 55827/471 is of some interest. This case was decided by the Commissioner of Immigration and Naturalization and was not referred to this Board. The person involved was a native and subject of Greece who arrived at New York on September 26, 1928. She was admitted as one returning to an unrelinquished domicile of 7 consecutive years (seventh proviso, sec. 3, act of Feb. 5, 1917), upon the filing of a bond in the amount of $500 guaranteeing that she would not become a public charge upon any State, county, or municipality, etc. The discretion thus exercised was predicated upon a family situation, the husband being a naturalized citizen of the United States, a veteran of World War I and there was also a child born in the United States. The decision of the Commissioner of Immigration and Naturalization, dated June 20, 1947, referred to chapter 85, paragraph 15 (1941), and section 10, chapter 91 ½ of the Illinois Revised Statutes. In support of the allegation that this person became a public charge within 5 years after entry, there was submitted Form 534 entitled "Proof That the Alien Had Become a Public Charge in the Chicago and Manteno Hospitals in Illinois.'' Therein it was indicated that only clothing had been requested of relatives and as they were unable to furnish the same the State would do so. The deputy director of administrative service of the department of public welfare, Springfield, Ill., submitted a statement showing that the cost of this person's hospitalization from January 1, 1930, through April 30, 1946, amounted to $3,941.27.

The Commissioner of Immigration and Naturalization in cancelling the warrant of arrest referred to the Matter of V----, 56091/232 (1944); Matter of McD----, 55677/256 (1944); and Nocchi v. Johnson, 6 F. (2d) 1, (C.C.A. 1st, 1925) as precedents for his action. Obviously, these cases are distinguishable from the case at bar for all of the reasons herein set forth.

In the Matter of B---- D----, 55616/275, which case was the subject of consideration by the Solicitor of Labor (4-2097, Jan. 22, 1929), the alien there involved received medical care and maintenance at the expense of the Commonwealth of Massachusetts in the Foxborough State Hospital, Foxborough, Mass. The expenses in connection therewith were determined and an uncle of the alien offered to pay all costs incident to such care, maintenance, and treatment, but apparently the offer of reimbursement was refused. The uncle paid expenses incident to treatment and maintenance of the alien at the Psychopathic Hospital. Predicated upon the decision in the case of Nocchi v. Johnson, supra, where the authorities failed to submit a bill but where relatives were able, willing and legally obligated to pay, it was held that the alien could not be considered a public charge. Of similar import is the case of Ex parte Kichmiriantz, 283 Fed. 697, in which case the statute of California was applied.

In the Matter of M---- M----, also decided by the Solicitor of Labor (Aug. 2, 1929, 55612/741, 4-2207), the subject of that proceeding was a native of Poland who arrived at New York on March 15, 1921. She became an inmate of the Central Islip State Hospital (New York) on May 23, 1925, which was within the 5-year period following her entry to the United States. Her mother testified that she did not compensate the State of New York for the treatment, care, and maintenance rendered her daugher because she was not asked to do so and further because after the alien was cured it was the mother's impression that the hospital would submit a bill, whereupon she would pay such costs.

The mother stated that she was willing to pay for all of the expenses incident to maintenance and treatment of her daughter while the daughter was in the hospital and she also stated that she was willing to give her daughter private care and attention. The record in that case was silent as to whether the hospital authorities in New York had made any demand on the alien or responsible persons for payment covering care and maintenance at the hospital.

It has been held under the law of the State of New York that a demand must be made for payment and in the absence of such demand and showing of ability on the part of relatives to compensate the State of New York that the alien involved cannot be held to have become a public charge within the provisions of section 19 of the act of February 5, 1917. But this situation is peculiar to the law in the State of New York.

In applying the law of the State of New York in cases where aliens have been admitted to State mental institutions for medical care, treatment and maintenance, the case of B---- A---- C----, decided by this Board on April 25, 1945 (3907777) has been cited. In that case no demand was made by the New York State authorities upon the alien's husband for compensation incident to care and treatment although the husband had the ability to so compensate the State. This case is similar in principal to that of the Matter of M---- M----, supra.

After a consideration of the cases the majority of the Board formulate what they believe to be the test in determining whether the alien has, in fact, become a public charge. Significantly, in the State of Massachusetts if the relatives are able and willing to reimburse the State, as in the case of Nocchi v. Johnson ( supra), the alien cannot be said to have become a public charge. In the State of New York, as heretofore shown, a demand must be made of relatives or the person legally obligated to pay before the alien may be considered a charge upon the public ( K---- M---- A----; M---- M---- and B---- A---- C----, supra). In the State of California, as determined in the Kichmiriantz case, supra, if the relatives or responsible persons are able and willing to pay, the alien involved cannot be held to be a public charge.

Therefore, while the test sought to be applied universally by the majority may be the proper result in the States of Massachusetts, New York, and California, it is not applicable in its entirety in the State of Illinois because of the peculiar statute in that State. The majority of the Board concede that the Illinois Department of Public Welfare may accept reimbursement as set forth in the correspondence of the attorney general of the State of Illinois and pursuant to the Illinois statutes.

In conclusion it cannot be overlooked and the majority so concede that the subject hereof has been a mental patient in the Manteno State Hospital, Chicago, Ill., for more than 8 years past, is still a patient and will be, in all probability, a patient for a long time in the future. Moreover, her care, treatment, and maintenance is being provided by the people of the State of Illinois and neither she nor her relatives are able to reimburse the State. Consequently, the expenses must be assumed by the public.

The majority indicate that there is no disagreement as to the allegation that the respondent was a person likely to become a public charge at the time of her last entry in December 1939. If the cause of her subsequent commitment to a mental hospital in the State of Illinois existed at the time of her entry and it is affirmatively established by the evidence of record that such cause did not arise subsequent to entry, there is basis in fact that she was of mental instability at the time of her entry. This circumstance is corroborated by evidence concerning her departure for a visit to Ireland. The decisions of the courts, therefore support a finding that she was likely to become a public charge on the occasion of her last entry.

Gegiou v. Uhl, 239 U.S. 3, decided October 25, 1915. Wallis v. U.S. ex rel. Mannara, 273 Fed. 509, C.C.A. 2d, May 11, 1921. Tsunetaro Machida, 277 Fed. 239, D.C.W.D. Wash., N.D., September 16, 1921. Ex parte Mitchel, 256 Fed. 229, D.C.N.D.N.Y., March 3, 1919. F---- B----, 54766/826, November 9, 1926, 55597/231, 55219/295. U.S. ex rel. Brugnoli v. Tod, 300 Fed. 918, C.C.A. 2d, April 28, 1924. U.S. ex rel. Casimano v. Commissioner of Immigration, 15 Fed. 2d, 555, C.C.A.N.Y., November 1, 1926.

In conclusion the statutes of the State of Illinois specifically indicate medical care, treatment, and maintenance for persons committed to mental institutions shall be provided at public expense and there can be no doubt, therefore, that the alien, who is a patient in the Manteno State Hospital, Chicago, Ill. whose medical care, treatment, and maintenance is being provided for by the people of the State of Illinois, is a public charge. Moreover the evidence establishes that she became such charge upon the public within 5 years after entry and that neither she nor her relatives are financially able to compensate or reimburse the State of Illinois for such expenses. To conclude that this alien is not a public charge within the meaning of the statutes involved would be contrary to all of the established precedents and contrary to the legislative intent as well as the very purpose for which section 19 of the act of February 5, 1917, was enacted.

For all of the reasons hereinabove set forth it is my opinion that it is established adequately by the evidence of record that not only was this person likely to become a public charge at the time of her entry, but in addition thereto she did in fact become a public charge within 5 years after entry upon the State of Illinois from causes not affirmatively shown to have arisen subsequent to last entry and she is therefore subject to deportation.

The motion of the Commissioner of Immigration and Naturalization should be denied.


ROBERT E. LUDWIG, member dissenting.

Concerning the opinion of the dissent of Member Charles, I agree with the conclusion reached by Member Charles that this alien is a public charge upon the State of Illinois, and that she has become a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent to her last entry. Therefore, under the provisions of section 19 of the Immigration Act of February 5, 1917, she is subject to deportation.

As a dissent has been recorded by two members of the Board, this case is certified to the Attorney General for review pursuant to 8 C.F.R. 90.12.