VALLEJOS

Interim Decision #2129




                          MATTER OF VALLEJOS

                        In Deportation Proceedings

                                  A-19038868

                     Decided by Board March 6, 1972
The provisions of section 1, Chapter 336, Hawaii Revised Statutes, requiring the
  State director of health to cooperate with the U.S. Government in arranging
  for deportation of alien public charges admitted to or hospitalized at the state
 hospital, constitute an exception to the rule of confidentiality of hospital
 records as set forth in section 4 of Chapter 325 of the Statutes. Hence, the
  hospital and clinical records and testimony of physicians and representatives
  of the Department of Public Health evidencing respondent's treatment for
  leprosy were properly admissible in evidence which formed the basis of his
  deportability under section 241(a)(1) of the Immigration and Nationality Act as
 one excludable at entry bees IISP afflicted with a dangerous contagious disease.
CHARGE:
 Order: isct of 1952—Section 241(a)(1) [8 U.S.C. 1251(a)(l)] Excludable at time of
                        entry (section 212(a)(6); 8 S 1182(a)(6))—afflicted
                        with a dangerous contagious disease.
ON BEHALF OF RESPONDENT:                         ON BEHALF OF SERVICE:
 Tin Chong Goo, Esquire                            Douglas H. Brehm
 1022 Bethel Street                                Acting Trial Attorney
 Honolulu, Hawaii 96813
 (Brief filed)


  This is an appeal from a decision of a special inquiry officer
dated March 31, 1971, denying the respondent's motion to reopen
the deportation proceedings. We affirm the decision and the appeal
will be dismissed.
   The respondent is a 36-year-old married male alien, a native and
citizen of the Philippines, who was admitted to the United States
at Honolulu, Hawaii for permanent residence on November 7, 1969.
At the deportation hearing, the truth of all the allegations contained in the order to show cause was admitted by the respondent
except for the allegation that at the time of his entry he was
afflicted with a dangerous contagious disease, to wit: leprosy.
Deportability was not conceded. However, in a decision of a special
inquiry officer dated March 5, 1971, the respondent was found


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 deportable as charged in the order to show cause and was granted
 voluntary departure with an alternate order that if he failed to
 depart from the United States within 60 days, he shall be deported
 to the Philippines. Counsel for respondent reserved his right to
 appeal from the special inquiry officer's decision but instead of
 taking an appeal, filed a motion to reopen the deportation proceedings.
   Counsel for respondent contends that the special inquiry officer
 should have reopened the deportation hearing to suppress the
 hospital records and all other evidence presented by the representatives of the Hawaii Department of Health, on the basis of the
confidentiality requirements of the Hawaii Revised Statutes, and
to suppress the testimony of Dr. Robert Kim and the report of the
 Straub Clinic, on the basis of the personal physician-patient
privilege. Counsel further contends that without the disclosure of
the clinical facts that he alleges should be suppressed, it would not
be possible to establish deportability as charged in the order to
show cause by evidence which 'is clear, convincing and unequivocal.
   In support of his motion, counsel for respondent cites the
provisions of Chapter 325, section 4, Hawaii Revised Statutes,
which make certain hospital records confidential. However, Chapter 336, section 1, Hawaii Revised Statutes, is an exception to the
rule of confidentiality set forth in Chapter 325, section 4, hereinbefore mentioned, for the reason that it directs the director of health
to cooperate with the Government of the United States in arranging for deportation of all alien public charges admitted to or
hospitalized at the state hospital. In the case of U.S. ex rel. Leon v.
Murff, 

 (C.A. 2,1957), the court held that the records of
the state mental hospital and medical certificates of the United
States Public Health Service were admissible. In that case, section
23 of the New York Mental Hygiene Laws directed cooperation in
the deportation and removal of mentally afflicted aliens. 

 held that a mere notice to the immigration officials without
a disclosure of the clinical facts showing the nature and extent of
the ailment would not enable those officials to form any judgment
as to the deportability of the person. Section 1 of Chapter 336 of the
Hawaii Revised Statutes, unlike the statute in 

 is not
restricted merely to mentally afflicted aliens. In the matter before
us, there is sufficient evidence to show hospitalization and/or
treatment of the contagious disease of leprosy at the state hospital
and in a hospital where hospitalization and treatment of this
disease were financed by the State of Hawaii. From the evidence
in this record, we are satisfied that the respondent was an alien
public charge admitted to or hospitalized at a state hospital. The

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 director of health would be required under Chapter 336, section 1
to cooperate by providing in evidence hospital records and all
other medical evidence of all physicians and representatives who
are under the auspices of the Department of Health.
   Chapter 621, section 20 of the Hawaii Revised Statutes provides
that consent is deemed to have been given by the patient in all
cases in which a party to a suit, action or proceeding offers a
physician to testify to the physical condition of the party. Dr.
Robert Kim was present for interrogation at the hearing upon the
request of respondent's counsel and Dr. Kim was cross-examined
by counsel. No objection was made by counsel at the time of the
hearing and he examined Dr. Kim as to matters disclosed in
consultation and course of treatment. Under the provision of the
Hawaii Revised Statutes above-mentioned, the physician-patient
privilege was waived. Although Dr. Kim was associated with a
private clinic, he is a leprology consultant for the State of Hawaii,
and in that capacity he is responsible for the surveillance of all
contact clinics and diagnostic clinics throughout the state. Since
Dr. Kim is under the auspices of the Department of Public Health
for leprology, the Department of Health was required under the
provisions of Chapter 336, section 1 of the Hawaii Revised Statutes
to cooperate by submitting in evidence the medical testimony of
Dr. Kim.
  A deportation hearing is an administrative proceeding, civil in
nature, and the strict rules of evidence followed in the courts are
not controlling, Pang v. INS, 

 (C.A. 3,1966), cert. denied

 (1967). However, we are convinced that under Chapter
336, section 1, Hawaii Revised Statutes, the certifications by the
United States Public Health Service, the hospital records, the
medical testimony of the physicians and representatives of the
Public Health Department, the testimony of Dr. Kim, and the
report of the Straub Clinic were properly admitted in evidence at
the deportation hearing because this evidence was necessary to
enable the Service to form a judgment as to the respondent's
deportability. Without admitting such evidence, there could be no
cooperation with the Service.
   Our review of the entire evidence in the record satisfies us that
the respondent was found deportable on the charge in the order to
show cause by evidence which is clear, convincing and unequivocal. Respondent's request for suppression of the hospital records
and all other medical evidence is without merit. Accordingly, we
find no reason to reverse the special inquiry officer's decision.
  ORDER: It is ordered that the appeal be and the same is hereby
dismissed.


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