MATTER OF A-
In DEPORTATION Proceedings
A-8027281
Decided by Board January 94, 1958
V.vidance--lleportation charge under section 211(a)(1) of the 1952 not based on
excludability at entry because of prior attack of insanity need not be supported by U.S.P.H.S. medical certificate.
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United States Public Health Service medical certificate, prescribed by statute
to sustain exclusion order against alien applying for admission, is not required in a deportation proceeding to establish alien's inadmissibility at
time of entry because of prior attack of insanity.
CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at time of entry under section 212(a) (3)—One or more attacks of
insanity
BEFORE THE BOARD
Discussion: Tim case is before us by certification. The special
inquiry officer ordered the respondent deported on the charge stated
above and certified the ease to this Board for review. Respondent,
a 29-year-old married female, a native and national of Cuba, was
admitted to the United States for permanent residence on March 1,
1954. From April 24, 1956, until October 5, 1956, she was a patient
in the Creedmore State Hospital in New York where her condition
was diagnosed as dementia praecox, catatonic. She received electric
shock treatments and chemical therapy. After discharge from the
hospital she went to Cuba to visit her parents. She returned from
that visit on March 24, 1957, and was readmitted as a returning lawful resident.. The issue is whether at the time of her reentry, respondent was a person who had had an attack of insanity.
To establish deportability, the Service relies upon a clinical summary which was made in connection with the respondent's hospitalization at the Creedanore State Hospital. Counsel had no objection
to the admission of this record. Counsel argues that the clinical
summary is not sufficient. It is his belief that respondent cannot he
found to have been a person excludable at the time of her entry
unless the rules of law and evidence applicable to an exclusion
proceeding are applied.
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An alien applying for admission who is thought to be excludable because she has had an attack of insanity must be examined
by a medical officer of the United States Public Health Service from
whose certification, if unfavorable, an appeal may be taken to a
Board of Medical Officers of the United States Public Health Service
at which time an alien may introduce an expert witness (sections
234-236, Immigration and Nationality Act; 8 U.S.C. 1224-1226).
Counsel believes that this procedure must be followed. It is argued
that because of the refusal of the Government to follow the procedures which would have applied had the alien applied for admission, eha is being deprived of due process of law. Counsel has submitted a certificate from Dr. C— who examined the respondent on
August 21, 1957. This physician, termed by counsel as a "psychiatrist," states that it is his opinion that the respondent did not suffer
an attack of insanity. It appears that his opinion is based upon
an examination of the clinical summary and a personal interview
with the respondent.
Congress has set up an exclusion procedure and a deportation
procedure (sections 234-286, 242, Immigration and Nationality Act;
8 U.S.C. 1224-1226, 1252). As to each procedure, Congress has
furllielaid separate detailed instructions. These instructions differ
sharply in several ways. In an exclusion case where the cause of
exclusion is one of certain grounds relating to mental condition, no
appeal ,an he taken from the order of the special inquiry officer
requiring exclusion. In the deportation proceeding, on the other
hand, even though the identical ground is used to order the alien's
deportation, there is an appeal. Another example, in exclusion proceedings the burden of establishing admissibility is upon the alien;
in deportation proceedings the burden of establishing deportability
is upon the Government (section 291, Immigration and Nationality
Act; 8 U.S.C. 1301). Neither administrative nor judicial authorities have ever acted as if it were necessary in deportation proceedings to do all those things which are required to exclude an alien
when it is merely a question as to whether he had been excludable
at the time he applied for admission. For example, to exclude a person on the ground that his entry was prejudicial to the United States,
a certain procedure had to be followed. If, however, the alien succeeded in entering the United States, he could be deported on the
ground that he had been excludable at the time of entry as one whose
entry was prejudicial without following that procedure (United
States ea rel. V ajta v. Watkins, 179 F.2d 187 (C.A. 2, 1910) ).
Caneiain.illa v. Haff,
64 F.2d 875 (C.A. 9, 1933), involved the deportation of an alien who was charged with having been an epileptic
at the time of entry and who claimed that the evidence did not support the charge. In support of the charge proof was made of the
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fact of the respondent's admission to a hospital as an epileptic about
a year-and-a-half after his last entry and the report of the hospital
made in connection with that matter was submitted. The court
held that it was proper to find that Canciamilla had been epileptic
at the time of entry.
In United States v. Flores-Rodrigues, 237 F.2d 405, C:A. 2, a deportation proceeding, the court accepted a Government contention
that an alien had been excludable at time of entry as a person of
constitutional psychopathic inferiority, even though no certification
of such condition had been made by the United States Public Health
Service.
In Matter of P—, A-8312899,
7 I. & N. Dec. 258, we held contention such as that advanced by counsel was "unresponsive."
It is, therefore, proper to determine in this deportation proceeding whether the respondent suffered an attack of insanity prior to
her last entry, and it is not mandatory that the alien be interviewed by the doctors of the United States Public Health Service
although in many cases this may be a helpful course (United States
ea rel. Leon v. Shaughnessy,
143 F. Supp. 270, S.D.N.Y., affd. sub.
mom. United States ea , rel. Loan v. hturlf,
250 F. 2.1.06, C.A. 2, 1957).
The doctors who observed the respondent for the period of about
5 months during which she was confined diagnosed the respondent
as suffering from insanity. They have set forth in detail their
reasons for their diagnosis. The physician who approved the certification and forwarded it under his name to the Immigration Service stated that he had 10 years of experience in eases such as concerned the respondent and that his experience had been with the Department of Mental Hygiene in New York State. Seven different
doctors were involved in the care and treatment of the respondent
at the hospital. None questioned the £1.1.1ding that she was insane.
Opposed to this we have the statement of a physician whose qualifications are not shown and whose opinion it is that the respondent
suffered from disassociative reaction, a neurotic illness rather than
a psychosis. (Disassociative reaction is regarded by the Public
Health Service as a noncertifiable condition unless it is of such
severity as to be certified as a mental defect.) The respondent's
physician has not given a definition of "disassociative reaction"
other than to indicate that a brief episode of confusion and memory
loss following a series of psychologically important stresses would
fall under that category. He states that the respondent would display residual symptoms if she had been through a psychosis. However, he has failed to point out the diagnostic differences between
the psychosis which it is claimed the respondent suffered and the
neurosis which he believes she endured. We do not believe that
under these circumstances the certificate of Dr. C— raises a serious
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question as to the correctness of the diagnosis made by the physicians
of the mental institution where the respondent was confined.
Respondent was represented by counsel of her own choosing. She
had opportunity to testify, to call witnesses and present evidence
in her own behalf and to cross - examine toitnosgas sgainst her We
find the procedure followed was adequate. Deportation was properly
found.
Order: It is ordered that no change be made in the order of the
special inquiry officer requiring respondent's deportation.
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