MATTER of W—
M DEPORTATION Proceedings
A-1041470
Decided by Board April 25, 1960
Deportability—Section 241(a)(3), 1952 act--Imposes upon alien burden of es abEshing that mental disability did not exist prior to entry.
An alien institutionalized at public expense within five years of entry because
of mental disability ha3 the burden of establishing that the disability did
not exist prior to his entry. Burden Is not met where the only evidence
offered to show that his mental illness did not exist prior to admission is
the testimony of respondent, who is confined under a court order of commitwent, and his wife's testimony which is inconsistent with previous statements.
.CHARGE :
Order: Act of 1952—Section 241(a) (3) [8 U.S.C. 1251(a) (3)]—Institutionalized at public expense within five years after entry.
BEFORE THE BOARD
Discussion : This case comes forward on appeal by the examining
officer from a decision of the special inquiry officer dated December
17, 1959, terminating the proceedings
The record relates to a native of Poland, presently stateless, 36
years old, male, who last entered the United States on February 14,
1957, and was admitted for permanent residence. The respondent
was on May 22, 1959, ordered committed to the New Jersey State
Hospital for the Insane at Marlboro, New Jersey, at public expense
pursuant to a final order of commitment of the Union County Court
of Union County, New Jersey. The commitment paper was predicated upon the certificates of two duly qualified physicians and the
testimony of the wife.
In discussing the burden of proof under section 241(a) (3) of the
Immigration and Nationality Act under which deportability is
charged, the special inquiry officer sets forth that the Government
must establish by reasonable, substantial and probative evidence that
the respondent is deportable as charged; that the burden is upon
the respondent to show initially that he did not have the disease
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before he came to the United States. The special inquiry officer
concludes that the respondent has by his own testimony and the
testimony of his wife during the course of the hearing sufficiently
carried the burden of showing that the illness had not existed prior
to his entry into the United States so as to require the Government
to controvert that showing by reasonable, substantial and probative
evidence.
It is believed that the standard of burden of proof in this type
of case is governed by the decision in Matter of C R—
7
I. & N. Dec. 124
. Ordinarily, the burden of establishing deportability is upon the Government in an expulsion case. However, the
statute in question, section 241(a) (3) of the Immigration and Nationality Act, provides for the deportation of an alien who thereafter, within five years after entry, becomes institutionalized at public expense because of mental disease, defect, or deficiency, unless
the alien can show that such disease, defect, or deflciency did not
exist prior to his admission to the United States. Thus, the statute
specifically places the burden upon the alien to establish that the
mental disease for which he "becomes institutionalized" did not
exist prior to his admission to the United States. The respondent,
if lie does not meet this burden which is shifted to him by the specific language of the statute, is subject to deportation if the evidence
affirmatively establishes that within five years after his entry he
became institutionalized at public expense.
By way of analogy, comparison may be made with a somewhat
similar ground of deportation in a prior statute, section 19(a) of the
Immigration Act of 1917 (8 U.S.C. 155(a)) which provided for the
deportation of any alien who, within five years after entry, became a
public charge from cause not affirmatively shown to have arisen
subsequent to landing. This section was judicially construed to mean
that the alien had the burden of proving that the disease did not
antedate his landing in the United States.'
In the instant case the only evidence offered to sustain the burden
upon the alien of establishing that his mental illness did not exist
prior to his admission was the testimony of the respondent and of
his wife. The respondent is confined to a mental institution pursuant to a. court order of commitment and his wife has given testimony which is inconsistent with previous statements. It is not
believed that this type of evidence is sufficient to sustain the burden
placed upon the respondent.
The case will be remanded for further hearing in order that the
correct standard of burden of proof be applied. The respondent
should 119 VP an opportunity to introduce testimony by a psychiatrist
1 Canciamilla v. Half,
(1926).
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to support his contention that his mental illness did not exist prior
to his admission to the United States. In addition, he may submit
affidavits of persons who knew him abroad relating to his behavior
and other characteristics which might be helpful in assessing the
onset of his mental illness. The service may produce such evidence
as it deems appropriate.
Order: It is ordered that the case be remanded for further proceedings in accordance with the foregoing paragraph.
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