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, 64 F.2d 875 ; Er parte Wong Ming, 30 F.2d 766; United 

States ex rel. Casimano v. Commissioner of Immigration, 15 F.2d 555 (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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