Interim Decision 4E1511
MALLEs or .STorrcrererr
In Exclusion Proceedings
A-12424810
Decided by Board September 23, 1965
The absence of any regulatory provisions applicable to exclusion proceedings
which are similar to those in deportation proceedings regarding mentally
incompetent aliens is no bar to a similar hearing under section 236, Immigration and Nationality Act, as amended; therefore, where a mentally incompetent alien's presence at the exclusion proceedings was deemed impracticable, be had no relatives or friends to act on his behalf, and the special inquiry officer asked the acting superintendent of the hospital in which
the alien was confined to represent the applicant, and the latter, through his
representative, was advised of his right to appeal the U. S. Public Health
Service certification of "afflicted with psychopathic personality," the procedure of the special inquiry officer was proper and constituted a fair hearing.
txciammu.s: Act of 1952--Section 212(a) (4) [8 U.S.C. 1182(a) (4)1—.-Aftlicted
with psychopathic personality (paranoid personality per S.N.D.O.).
The case comes forward pursuant to certification' by the special
inquiry officer of his order entered May 26, 1965 finding the applicant excludable on the ground set forth above and ordering him
• excluded and deported from the United States.
The record relates to a native and citizen of Bulgaria, 21 years
old, male, single, who was paroled into the United States on December 7, 1961 at the port of New York, purshant to section 1 of the
Act of July 14, 1960.2 Prior to entering the United States on Decem-
2 Section 1 of the Act of July 14, 1960 provides4bat under the terms of sec-
tion 212(d) (5) of the Immigration and Nationality Act, the Attorney General
may parole into the United States, pursuant to such regulations as he may
prescribe, an alien refugee escapee defined in section 15(e) (1) of the Act of
-
September 11, 1257 if such alien (1) applies for parole while physically present within the limits of any country which is not Communist, Communistdominated, or Communist-occupied, (2) is not a national of the area in which
the application is made. and (3) is within the mandate of the United Nation:
High Commissioner for Refugees.
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Interim Decision #1511 -
ber 7, 1961, the applicant had resided in Paris, France since April
1960; from June 1951 to April 1960 he resided in Istanbul, Turkey;
prior to June, 1951 he resided in Bulgaria.
In November of 1903 the applicant was arrested and indicted for
the offense of attempting to commit murder and for the offense of
aggravated battery. ; However, subsequent to the indictment, it was
determined that the applicant was mentally incompetent, he was
committed to the Illinois Security Hospital, at Menard, Illinois
and the indictment was quashed. Parole was revoked on March 22,
1965 and the applicant was detained for hearing before a special
inquiry officer.
Prior to the hearing Dr., Israel Newmark, physician in charge at
the Illinois Security Hospital, at Menard, testified that the applicant
was mentally incompetent to testifyi; that the applicant, if he knew
that these proceedings were for the purpose of determining his
excludability and possible deportation from the United States,
Would in all probability commit suicide. It was therefore determined
that the hearing should be held outside the presence of the applicant. The Acting Superintendents of the Illinois Security Hospital
was than asked to represent the applicant, it having been determined
that the applicant did not have any friend or relative who could
act in his behalf. -
A medical certificate was issued certifying that the applicant is
afflicted with psychopathic personality (paranoid personality per,
g.N.D.0.); signed by two medical doctors at the Public Health
Service. Attached to the medical certificate is a medical examination of the applicant on Form FS 398, showing the applicant to be
afflidted with psychopathic personality (paranoid personality per
S.N.D.O.), and signed -by the Medical Doetor-Surgeon General,
United States Public Health Service Hospital, Chicago, 'Illinois
(Ex. 6). The applicantithroughl his representative, was' advised of
his right, pursuant ta`section. 234 of the Immigration and 'Nationality
Act and section 34.14(a) (2), Title 42, OM, to"appeal- the -findings
, of the United States Public Health Service to a medical board but
Jana to do so.
Ordinarily in such cases the decision of the special inquiry officer
is final and there is no further appeal to this Board. However, the
special inquiry officer has certified his order to the Board because
there is no provision contained- in 8 OFR 236 similar to that provided in 8 CFR 242.11 which provides:
Incompetent respondents—When it is impractical for the respondent to be
present at the hearing because of mental incompetenci, the guardian, near rel,
ative, or friend who was served with a copy of the order to show cause shall
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Interim Decision #1511
be permitted to appear on behalf of the respondent. If such a person cannot
reasonably be fotind or fails or refused to appear, the custodian of the respondent shall be requegted to appear on behalf of the respondent.
Section 212(d) (5) of the Immigration and Nationality Act, and
section 3 of the Act of July 14, 1960 provide that after the purpose
of the parole has been served, the alien shall be returned to the
custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other
applicant for admission to the "United States in accordance with
the provisions of- sections 235, 238 and 237 of the Immigration and
Nationality Act. The applicant therefore is in the position of an
entrant alien. Section 234 of the Immigration and Nationality Act
provides for the physical and mental examination of arriving aliens
by medical officers of the -United States Public Health Service. The
regulations, 42 CFR 34.7 (v) provides for the issuance of a Class
"A" 'certificate with respect to aliens who are afflicted with psychopathic personality. After the issuance of such a Class "A" certificate, the alien's only recourse is to a board of medical officers as provided in section 234 and 42 CFR 34.14. No appeal lies to the Board
of Immigration Appeals. -
Section 236 provides that any arriving alien who has bean detained for further inquiry under section 235 may be excluded and
deported and the determination of such special inquiry shall be
based only on the evidence produced at the hearing. Neither section
280 of the Act nor the regulations, 8 CFR 238, contain any 'provision
similar to that cited by the special inquiry officer in section 242.11
regarding incompetent respondents. Nor is there any provision
similar to that contained in 8 CM 242.3 in deportation 'proceedings which provides that if the respondent is not competent to widerstand the nature of the proceedings, a copy of the order to show
cause, and the warrant 'of arrest, if issued, shall be served only
upon the perion in charge of the institution or hospital in which
the respondent is confined; in case of mental incompetency, whether
or not confined in an institution, a copy of the order and of the
warrant of arrest, if issued shall be served upon such respondent's
guardian, near relative or friend, whenever possible. •
However, the burden of proof under section 235-is greater than
that under section 241 inasmuch as any person coming into the
united States may be required to state under oath the purpose or
purposes for which he comes, the length •of time he intends to
remain in the -United. States, whether or not he intends to remain
in the United States permanently and, if an alien, whether he intsmda'
to become a citizen thereof, and such other items of information as
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Interim . Decision 4t1511
shall aid the immigration officer in determining whether he is a
national of the United States or an alien and, if the latter, whether
he belongs to any of the excluded classes enumerated in section 212
of the Act. Deportation has been characterized as delayed exclusion.
It is felt that the ommission of regulations such as have already
been cited which apply to deportation proceedings under 8 CFR
242 is not a bar to a similar hearing under section 236. In like
vein, it has been held that a mentally incompetent United States
citizen, acting through a legally appointed guardian; is eligible to
Ale visa petition on behalf of a beneficiary.' In view of the provisions of section 235 and section 236(d) of the Act relating to mentally incompetent aliens, together with 42 CFR, Part 34, we feel that
the procedure adopted by the special inquiry officer in the instant
ease was proper and constituted a fair hearing. The order of the
special inquiry officer will be approved.
ORDER: It is ordered that the order entered by the special inquiry
officer on May 26, 1165 excluding the applicant alien be and the
same is hereby affinned.
'Hatter of T—, 9 I. & N. Dec. 503, citing Wong v. Hog, 173 F. Sapp. 856.
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