T

                              MATTER OF T

                    In DEPORTATION Proceedings
                                  A-5592351
                      Decided by Board January 14, 1960

 Evidence—Hospital records containing opinions, conclusions and hourly notes
  made by hospital personnel are admissible.
 Hospital records reflecting respondent's addiction to narcotics are admissible
  in evidence in immigration proceedings notwithstanding that they contain
  opinions, conclusions, and hourly floor notes made by nurses and other hospital personnel on duty. The weight to be assigned such evidence is for
  determination by the trier of the facts.
CHARGE

  Order: Act of 1952—Section 241(a) (11) [8 U.S.C. 1251(a) (11)1—Narcotic
            drug addict.
                            BEFORE THE BOARD

  Discussion : Respondent is 58 years old, unmarried, male, a native
and national of Italy, who first entered the United States at New
York February 22, 1905. The special inquiry officer found respondent deportable on the charge set forth above and ordered him deported from the United States. Respondent appeals to this Board.
  Respondent claims to have believed that he had United States
citizenship through his father. He stated that his father told him
 that he, the father, was a citizen of the United States, and he believes
his father voted in the United States. He knows, however, that one
of his sisters was naturalized a United States citizen on her own
initiative. Two of his sisters returned to Italy and another lives in
Chicago, and respondent does not know whether the latter is a citizen. The conclusion of the special inquiry officer is that respondent
is an alien, and the record supports this conclusion. There is no
record of naturalization of respondent nor of his father. Exhibit 4
is a "Certificate of Non-Existence of Record" which is evidence that
there is no record or entry regarding the naturalization as a citizen
of the United States of respondent's father in any of the names by
which he was known. For further discussion of these certificates
see Matter of C , 

, at page 372 (B.I.A., Aug. 3,
1953). Respondent testified that his father returned to Italy follow-
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ing the death of respondent's mother. Respondent's fatner
in Italy in 1913 or 1914, and he and his second wife lived in the
United States a "couple of years." They returned to Italy in 1921,
where respondent's father remained until his death in 1932. Respondent testified that he registered as an alien in 1940 under the
Alien Registration Act, but that he has not filed an address report
card since that time.. The record contains no evidence that respondent is a United States citizen. He has admitted alienage on several
occasions. It is our conclusion that respondent's, alienage is established.
   The special inquiry officer finds that the record establishes that
since his entry, and subsequent to December 24, 1952, respondent has
b-en a narcotic drug addict, particularly at Fort Worth, Texas, in
1953, and in Omaha, Nebraska, in 1955. The evidence of record is
sufficient to sustain these findings.
   There is some controversy in the hearing record between counsel
and the special inquiry officer and the examining officer as to the
extent to which the hospital records relating to respondent may be
considered as evidence. On May 4, 1959, at Butte, Montana, respondent signed an authorization permitting Creighton Memorial
St. Joseph's Hospital at Omaha, Nebraska, and the United States
Public Health Service Hospital at Fort Worth, Texas, to release to
the, United States Immigration and Naturalization Service any records in their possession relating to him. Certified copies of the
hospital records were. obtained and constitute a portion of the, record
now before us. The detailed hospital record constituting exhibit 7
was objected to by counsel on the grounds that it consists chiefly of
hearsay and contains material not relevant to the issues in this case.
It was the conclusion of the special inquiry officer that, with the
exception of the covering sheet (containing summary, provisional
diagnosis and final diagnosis), the record from Creighton Memorial
St. Joseph's Hospital, exhibit 7, should not be considered part of
the record, inasmuch as it contains opinions, conclusions, hourly flow
notes made by nurses and other hospital personnel on duty.
   The hospital records were made at the time respondent was
patient and constitute the admission and discharge notes of doctor
who prescribed treatment for him. The records made at. those tim(
are more apt to be accurate than respondent's present recolleetic
with regard to the amount of narcotics he was using 4 and 6 yea
ago, the frequency with which he was taking drugs, and the leng
of time he had been administering narcotics to himself.
   28 U.S.C. 1732 provides for the admissibility in any court of 1
United States of memoranda and records kept in the regular con
of business. It has been widely held that under this et.ature hosp
records are admissible. in state and federal courts, at least insc
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as they relate to medical and physical conditions of patients. See
annotations to this section, also Supplement, 28 U.S.C. 1732. One
case holds that a portion of the records containing the patient's
recital as to his past life is objectionable (England v. United States,

 (C.A. 5, 1949) ). The similar recital in the present
record, contained in exhibit 7, was excluded by the special inquiry
officer. If admissible in courts of law, hospital records are certainly
admissible in administrative proceedings such as this. The certification of the custodian of the records at Creighton Memorial St..
Joseph's Hospital, Omaha, Nebraska, that the attached photostatic
copies are true and correct copies of the official records of that. institution raises them above the level of hearsay. Exhibit 7 is entitled
at least to he considered as evidence.. The weight to be assigned
these. records is for the determination of the trier of the. facts.
  The same rule applies to the records of the United States Public
Health Service Hospital at Fort Worth, Texas. It would be preferable if the certification as to their accuracy had been made by the
custodian of the records at the hospital, rather than by an investigator for the Immigration Service. However, in view of 28 U.S.C.
1732 and, even more, 28 U.S.C. 1733 (relating to records kept by
government agencies) this flaw is certainly not fatal.
  These hospital records are of much greater persuasion than respondent's present conclusions as to whether or not he was an
"addict " at any particular time. Respondent has freely admitted
       .


addiction in his preliminary statements as well as in the course of
the hearing.
   In several cases since the passage of the 1952 act we have relied
upon the statutory definition of narcotic "addict" quoted by the special inquiry officer (Matter of K C B , 

 (B.I.A., Nov. 23, 1954), and Matter of F S C              , A-3409248,
Int. Dec. No. 948 (B.I.A., Aug. 11, 1058)). 42 I•S.C.A 201(k)
defines "narcotic drug addict" as "any person who habitually uses
any habit-forming narcotic drugs so as to endanger the public morals,
health, safety, or welfare, or who is or has been so far addicted to
the. use of such habit-forming narcotic drugs as to have lost the
power of self-control with reference to his addiction."
   It is our conclusion that the record establishes that respondent
has been a drug addict. within the past 7 years on several occasions,
and as such is deportable on the charge stated in the order to show
cause.
   Respondent is not. eligible for any form of relief from deportation
under the present law. We recognize that he has been in the United
States since he was 7 years of age, that he knows nothing about his
native land, and that deportation under these circumstances constitutes a great hardship. Suspension of deportation under section
                                  595
 244(a) (5) is not available to respondent, because he must be able
 to establish physical presence in the United States for a continuous
 period of not less than 10 years following the commission of the act
 constituting a ground for deportation, and prove that during all of
 that time he has been a person of good moral character. He cannot
 establish that 10 years have passed since his last period of addiction,
 because his last hospitalization began and ended in December 1955.
Respondent is not eligible even for voluntary departure, because
section 244(e) of the Immigration and Nationality. Act provides that
voluntary departure is available to aliens under deportation proceedings, other than those within certain classes, and one of the excepted classes is an alien within the provisions of section 241(a) (11).
'Therefore, we have no choice but to affirm the special inquiry officer's order of deportation and dismiss the appeal.
   Order: It is ordered that the appeal be and is hereby dismissed




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