Interim Decision *1261 

MATTER or KOWALSKI 

In DEPORTATION Proceedings 

A-10867062 

Ditoideut by Board January 17, MC 

Since the alien is not institutionalized at public expense where the maintenance 

charges have been paid and are currently being paid in the sum demanded, even 

though the charges have been fixed by appropriate State authorities at a rate 

less than the rate prescribed under State statute, a charge of deportability 

under section 241(a) (3) of the Immigration and Nationality Act does not 

lie. [Matter of C—R---,71. & N. Dec. 124, overruled.] 

Onanaz: 

Order: Act of 1952—Section. 241 (4) (3) [8 U.S.C. 1251(a) (3) ]—Institutionalized at public expense for mental disease. 

The ease comes forward on appeal from the order of the special 

inquiry officer dated August 80, 1962, directing that the respondent be 

deported to Belgium on the charge contained in the order to show 

cause. 

The record relates to a native and citizen of Belgium, about 27 years 

old, female, who last entered the United States at the port of New 

York on May 28, 1960, as a returning resident. She was previously 

admitted to the United States on March 29, 1958, for permanent 

residence and thereafter made two trips to Belgium returning from her 

first trip on March 80, 1959, after an absence of about two months and 

from her last trip after a stay in Belgium of about seven or eight 

months. She is married to a permanent lawfully resident alien by 

whom she has a four-year-old son. 

The respondent has been a patient at the Chicago State Hospital 

since her commitment thereto by the County Court of Cook County, 

Illinois, on September 26, 1960_ Her condition has been diagnosed 

as schizophrenic reaction, chronic undifferentiated type. The respondent was previously committed to the same institution from August 8, 1960, to August 29, 1960. The statement of a staff member of 

the hospital, dated September 29, 1960, sets forth that the respondent 

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Interim Decision #1261 

was a schizophrenic of long standing and that her history disclosed 

that she had been hospitalized in a mental institution prior to the time 

she came to the United States. The respondent's hospitalization in a 

mental institution in Belgium on two occasions prior to her entry into 

the United States was verified. 

The section of law under which deportation of the respondent is 

sought is section 241(a) (3) of the Immigration and Nationality Act 

which provides for the deportation of an alien who hereafter, within 

5 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 deficiency did not exist prior to his or her 

admission to the United States. The evidence establishes that the respondent has become institutionalized within 5 years after entry because of a mental disease, defect or deficiency, and it has not been 

shown that the mental disease, defect or deficiency did not exist prior 

to her admission to the United States. The only issue remaining is 

whether the respondent was institutionalized at public expense within 

themeaning of the act. 

The special inquiry officer, by order dated March 31, 1961, after a 

hearing at which the husband had testified that he had paid nothing 

on his wife's bill, that he did not want his wife back and that because 

of all of his other expenses he was unable to pay for her hospitalization, ordered deportation on the charge stated in the order to show 

cause. On appeal, by order dated June 23, 1961, we remanded the 

case for the purpose of including in the record evidence showing the 

husband's legal liability for payment of hospitalization and treatment 

in the Chicago State Hospital and the final results of an action for 

recovery of the respondent's monthly maintenance charges from the 

respondent's husband provided in sections 9-19 and 9-23 of the Illinois 

Mental Health Code and for such other action as might be appropriate. 

At the reopened hearing evidence was presented showing that the 

husband had been informed by the Department of Welfare as of 

January 30, 1962, that the monthly rate to him on the basis of his 

financial situation for the care and maintenance of the respondent was 

decreased from $36.00 a month to $9.00 a month, that the husband 

had remitted payment on February 16, 1962 of all charges assessed 

against him for the care of his wife which brought his account up to 

current status, that the husband paid $87.00, the amount billed for his 

wife's care, and has been paying the sum of $9.00 a month as billed 

for his wife's care and maintenance at the Chicago State Hospital. 

The special inquiry officer, after considering various provisions of 

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Interim Decision #1261 

the Illinois Mental Health Code and several court decisions,) came 

to the conclusion that inasmuch as the only payments made for the 

respondent's care and maintenance were her husband's remittances of 

$9.00 per month which were less than the rate prescribed under 

section 9-20 of the Illinois Mental Health Code, that the respondent 

had been institutionalized at public expense. The decision of the 

special inquiry officer was based upon the precedent decision of Matter 

of C-1?—,71.& N. Dec. 124, 126, which was quoted as follows : 

The determining factor under section 241(a) (3), supra, however, is whether 

an alien after the enactment of the statute "becomes institutionalized a public 

expense" because of mental disease, defect or deficiency. Congress in providing 

this new ground for deportation in the 1952 Act was aware of the fact that 

in some cases where aliens are institutionalized because of mental deficiency 

they escape deportation as a public charge by payment or the minimum charge 

of public institutions which does not represent the full cost to the taxpayer. 

Under the circumstances, we are of the opinion that the special inquiry officer's 

conclusion with respect to the respondent's hospitalization is based upon the 

wrong premise. It is our opinion that the defenses applicable to the -public 

charge" provision of the 1917 Act have no application to section 241(a) (8), 

supra. In other words, under section 241(a) (3) of the 1952 Act there is no 

basis for terminating the proceedings as long as the full debt has not been 

discharged. 

The decision in Matter of C—I , supra, relied upon the language 

of Senate Report No. 1515 pursuant to Senate Resolution 137 (81st 

Congress, 2d Session) at page 390 in which it was the conclusion of the 

subcommittee that all aliens who become public charges any time after 

entry from causes not affirmatively shown to have arisen after entry 

should be subject to deportation; that information available to the 

subcommittee indicates that in some cases where persons are institutionalized because of mental deficiency they escape deportation as a 

public charge by payment of the minimum charge of public institutions which does not represent the full cost of the taxpayer. It was 

therefore recommended that all aliens who become institutionalized 

because of mental deficiency within five years after entry should also be 

deportable. The Committee Report is dated April 20, 1950. 

It is believed that by relying upon this language contained in the 

Senate Report No. 1515, the decision in Matter of C-R--- 2 reached an 

erroneous conclusion. It is true that the various Senate bills introduced at the first and second sessions of the 82nd Congress (S. 716 

introduced January 29, 1951, S. 2055 introduced August 27, 1951 and 

Sections 9-10, 9-20, 0-21, 0-22, and 9-24 of the Illinois Health Mental Code ; 

Public Welfare v. Bohleber, 21 Ill. 2d 587, 173 N.E. 2d 457; Department of 

Public Welfare v. A'Sern, 14 Ill. 2d 575, 153 N.B. 2d 22. Both of these cases 

involved claims against the estate of the deceased patients for maintenance 

charges. 

2 7 & N. Dec.124. 

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768-11;0--03----12 
Interim. Decision #1261 

S. 2550 introduced January 29, 1952) all provided in section 241 (a) (3) 

for the deportation of an alien who within five years after entry became 

institutionalized because of mental disease, defect, or deficiency. However, the House Bill, H.R. 5678, introduced October 9, 1951 (82nd 

Congress, 2d Session) section 241 (a) (3) provided for the deportation 

of any alien who "hereafter within five years after entry, becomes 

institutionalized at public expense because of mental disease, defect, 

or deficiency." (Emphasis supplied.) In an analysis of some of the 

major differences between the McCarron Omnibus Bill (S. 2550) and 

the Humphrey-Lehman Bill (S. 2842) it was pointed out that section 

241(a) (3) of the McCarron Bill makes deportable aliens who, within 

five years after entry, become institutionalized because of mental disease, defect or deficiency, though it be a nervous breakdown, whether 

rr not the alien can pay his own way and whether or not the cause 

existed before entry. The Humphrey-Lehman Bill makes such persons deportable only if they are institutionalized at public expense 

and if the mental disease, defect or deficiency existed prior to entry. 

It was pointed out that the Humphrey-Lehman Bill follows the 

present law.8 

The bill, as it was finally enacted on June 27, 1062, provides in 

section 241(a) (3), 8 U.S.C. 1251(a) (3), for the deportation of any 

alien who hereafter, 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 deficiency 

did not exist prior to his admission to the United States. The final 

draft of the bill appears to have evolved as a floor amendment and 

the only comment relative thereto is to the effect that in conforming 

the language of both House and Senate versions, the conferees have 

provided for a statute of limitations (as contained in the House 

version) in accord with humanitarian principles, particularly in the 

cases of aliens where deportation would be based on mental disease or 

on economic distress.' 

It can be seen that the bill as finally enacted differed widely from 

the original draft which was the result of the recommendations contained in House Report No. 1515 (81st Congress, 2d Session), page 

390. Not only was a five-year statute of limitations provided for, but 

provision was also made that if the alien became institutionalized at 

public expense and if it was shown that the mental disease, defect or 

deficiency did not exist prior to his admission, the ground of deportability would fail. Thus, the legislation as finally enacted resembled 

closely the public charge provisions of the Immigration Act of Febru3 98 Congressional Record 5799. 

`House Report No. 2096 (62nd Cong., 2d Secs.), p. 127; 98 Congressional 

Record 7017 (June 11,19x2). 

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Interim Decision #1261 

ary 5, 1917. Therefore, the comments in the Report on the Committee 

on the Judiciary pursuant to Senate Resolution 137 5 with its recommendation that all aliens who become institutionalized because of 

mental deficiency within five years of entry should be deportable was 

never enacted into law, but the less stringent provisions of the Humphrey-Lehman Bill was enacted into section 241(a) (3) which followed 

the then existing law. 6 

The law that then existed is set forth in Matter of B.—, 3 I. & N. 

Dec. 323 (A.G., October 28, 1948). In that case the respondent first 

entered the United States in 1920, and last entered on July 22, 1939, 

after a visit to Ireland. Early in 1940 she was sent to the Cook County 

Psychopathic Hospital for observation and in March she was ordered 

committed to the Manteno State Hospital by the County Court of 

Cook County, Illinois. Her condition was diagnosed as psychoneurosis, reactive depression, and at the time of the hearing she was 

still a mental patient at that institution. Her sister provided money 

for the purchase of respondent's clothes and for other incidentals. 

The Illinois statute provided that the respondent was entitled to 

receive free maintenance, care and treatment while a patient at the 

Mantena State Hospital and she was only liable for her clothing, 

transportation and other incidental expenses which were discharged 

by her sister. The Board, citing the cases of Noechi v. Janson, 6 F.2d 

1 (1st Cir., 1925) and Ex parte Kiehmiriaats, 283 F. 697 (N.D. Cal. 

1922), evolved the following rule: (1) the State or other governing 

body must, by appropriate law, impose a charge for the services 

rendered to the alien; in other words, the State must have a cause of 

action in contract against either the person taking advantage of the 

State's services or other designated relatives or friends; if no charge 

is made and if the State does not have a cause of action, the alien cannot 

be said to be a public charge; (2) the authorities must make a demand 

for payment of the charge upon those persons made liable under the 

State law except where the patient and persons legally responsible for 

its care and maintenance are known to be destitute; and (3) there 

must be a failure to pay for the charges; if there is a failure to pay 

either because of the lack of demand or because the State authorities 

do not perform their duty to collect the charges, the alien cannot be 

said to have become a public charge. A minority of the Board dissented from this view but the Attorney General sustained the majority 

opinion. 

In the present case, the State has fixed a charge having in mind the 

ability of the respondent or her legally liable husband, to pay, and 

payment has been made of the sum demanded. The fact that the 

* Senate Report No. 1515 (81st Cong., 2d Bess., 390). 

6 98 Congressional Record 5797. 

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Interim Decision *1261 

State might later have recourse against the estate of the patient or of 

her husband we believe is not material to the charge laid under section 

241(a) (8) of the Immigration and Nationality Act. Inasmuch as 

the maintenance charges have been paid and are currently being paid, 

it cannot be said that the respondent is being institutionalized at public 

expense and the charge must therefore fall. The proceedings will be 

terminated. 

ORDER: It is ordered that the appeal be sustained and that the 

proceedings be and the same are hereby terminated. 

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