FARMER

                                                 Interim Decision #2299




                          MATTER OF FARMER
                        In Exclusion Proceedings
                                 A-19815486

                    Decided by Board June 28, 197k
A lawful permanent resident alien who, subsequent to entry, experienced
 psychological difficulties impairing her mental capacities, who was placed
 aboard a plane to Italy by her husband with a one-way ticket he purchased for
 her, and who remained in Italy for over a month, did not upon her return to
 this country make an entry within the meaning of section 101(a)(12) of the
 Immigration and Nationality Act, since her impaired mental capacity either
 rendered her departure unintended or her presence in Italy involuntary
 within the exception clause of that section. Accordingly, she is not subject to
 exclusion proceedings.
EXCLUDABLE: Act of 1952—Section 212(a)(2) [8 U.S.C.1182(aX2)}—Aliens who are
                              insane.
               Act of 1952—Section 212(aX3) 18 U.S.C. 1182(a)(3)]—Aliens who
                             have had a prior attack of insanity.
ON BEHALF OF APPLICANT:      Joseph L. Ventress, Esquire
                             1229 West First Street
                             Los Angeles, California 90026


  The alien applicant has appealed the decision of an immigration
judge, dated May 14, 1973, which ordered her excluded and
 deported pursuant to sections 212(aX2) and 212(03) of the Immigration and Nationality Act. The appeal will be sustained and the
 proceedings terminated.
   The applicant is a native and citizen of Italy. She is married to a
United States citizen and was admitted to this country as an
immigrant on November 21, 1969. She last departed from the
United States on December 17, 1972, traveling by plane to Italy
with a one-way ticket purchased for her by her husband. She
remained in Italy for over a month, returning to the United States
on February 7, 1973. As a result of her irrational conduct on board
the plane bound for the United States, the applicant was paroled
into this country, and she was temporarily hospitalized upon her
arrival at Los Angeles, California. Exclusion proceedings were
then commenced in March of 1973.
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Interim Decision #2299
   Prior to her exclusion hearing, the applicant was examined by
two physicians employed by the United States Public Health
 Service. On February 9, 1973, these physicians issued a Class A
Medical Certificate (Ex. 3) relating to the applicant that described
her as being afflicted with "Schizophrenia reaction—Paranoid
type." The record indicates that the applicant appealed that
medical determination. On February 27, 1973 a three-member
medical board was convened to hear the applicant. The medical
board agreed with the earlier determination regarding the applicant's mental condition (Ex. A). The procedures employed in making the medical evaluation appear to have conformed with the
applicable regulations. See 42 CFR Part 34.
  The applicant contests the decision of the immigration judge on
several grounds. However, we need not consider the issues raised
by the applicant's attack on her psychiatric evaluation, because,
regardless of her mental state, she is not properly excludable on
the facts of this case. In order for the applicant to be subject to the
exclusion provisions of section 212(a) of the Act, she must first be
found to be attempting an "entry" as defined in section 101(aX13).
See Matter of Hoffman Arnayo, 

 (BIA. 1971). We
                           -


have determined that the applicant is not seeking to make an
"entry" within the meaning of the Act.
  The pertinent portion of section 101(aX13) states:
    The term "entry" means any coming of an alien into the United States,
  from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in
  the United States shall not be regarded as making an entry into the United
  States for the purposes of the immigration laws if the alien proves to the
  satisfaction of the Attorney General that his departure to a foreign port or
  place or to an outlying possession was not intended or reasonably to be
  expected by him or his presence in a foreign port or place or in an outlying
  possession was not voluntary....
   It is evident from the record that the applicant's psychological
difficulties predated her December 17, 1972 departure from the
United States. Her husband was responsible for purchasing the
one-way ticket to Italy and for placing her aboard the departing
aircraft. We are satisfied that the applicant's lack of mental
capacity either rendered her presence in Italy "not voluntary" or
caused her departure to be "not intended," within the meaning of
these statutory limitations to the general definition of "entry."
Accordingly, she is not subject to exclusion. She may not be
prevented from resuming her residence in the United States.
  ORDER: The appeal is sustained and the proceedings are
terminated.


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