IN THE MATTER OF V In EXCLUSION Proceedings A-6002307 Decided by the Board July 22, 1944 Exclusion by Board of Special Inquiry-Previous attack of insanity-AppealSection 17 of the Immigration Act of 1917-8 Code of Federal Regulations 136.2. 1. No appeal lies from a decision of the Board of Special Inquiry under the provisions of section 17 of the Immigration Act of 1917 and 8 C. F. R. 136.2, where the alien has been rejected by the Board of Special Inquiry because of certain stated physical or mental conditions existent at the time of exclusion. 2. An appeal does lie from the Board of Special Inquiry decision where the ground of exclusion is a previous attack of insanity, because it is a past circumstance or event which is under consideration, and not a physical or mental condition existent at the time of exclusion. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1929, as amended-Previously arrested and deported, no permission to reapply. Act of 1917-Previous attack of insanity. Act of 1924-Immigrant without immigration visa. BEFORE THE BOARD Discussion: The appellant applied for admission at the Detroit and Canada Tunnel on February 28, 1944, at which time he was given a hearing before a Board of Special Inquiry. Reopened hearings were conducted on March 11 and May 15, 1944, after which the appellant was excluded on the above grounds. From that action he appeals. The appellant is a native and citizen of Canada, 35 years old. He states that he is seeking admission to join the United States Army, hoping eventually to become an American citizen. He presents a Canadian passport issued jointly to himself and his wife and valid until December 8, 1945. He is not in possession of an immigration visa or any other kind of visa. The appellant testifies that he has lived in the United States a total of about 2 years which consists of many short periods since his childhood. The record indicates that he came to the United States in January 1939 as a visitor for 6 months and that in February 1940 he was deported on the charge that at the time of his entry he was an immigrant not in possession of an immigration visa. He has not since applied for permission to reapply for admission. Since January 1944 he has entered the United States several times as a native Canadian exempt from the requirement of a permit to enter. The appellant has been certified as having had one or more attacks of insanity. Section 136.2, 8 C. F. R., provides: When no appeal lies. No appeal lies where the decision of a board of special inquiry, based upon the certificate of the examining medical officer, as required by section 17 of the Immigration Act of 1917 (39 Stat. 887; 8 U. S. C. 153), rejects an alien because (a) he is afflicted with tuberculosis in any form or a loathsome contagious or dangerous contagious disease, or (b) he is an idiot or an imbecile or an epileptic or is insane or feeble-minded, or (c) he is afflicted with constitutional psychopathic inferiority or has any mental defect or is a chronic alcoholic. Section 17 of the Immigration Act of 1917 provides in part: That the decision of a board of special inquiry shall be based upon a certificate of the examining medical officer and, except as provided in section 21 hereof, shall be final as to the rejection of aliens affected with tuberculosis in any form or with a loathsome or dangerous contagious disease, or with any mental or physical disability which would bring such aliens within any of the classes excluded from admission to the United States under section 3 of this act. As we read the statute and the regulation promulgated thereunder, no appeal lies where the alien has been rejected by the Board of Special Inquiry because of certain stated physical or mental conditions, existent at the time of the exclusion. That at some time in the past an alien had an attack of insanity is an occurrence or fact, not an existent condition. We therefore regard an exclusion by a Board of Special Inquiry on the ground that an alien has had a prior attack of insanity as reviewable by this Board as would be other grounds of inadmissibility provided for in Section 3 of the Immigration Act of 1917. For this reason we are obliged to consider the evidence bearing on that ground of exclusion. The appellant testifies that he was committed to a neurological hospital in Montreal (Verdun Protestant Hospital) in 1940 and was there until May 1941. Exhibit 3 is a case history of the appellant submitted by the superintendent of that institution. The appellant was admitted on December 5, 1940, being then 32 years old. A detailed description of his physical condition, emotional reactions, and mental trends is given. It reveals a history of maladjustment since childhood, inability to earn a living or to get along with his first wife, a marked hostility towards his parents, ideas of great musical talent, and "confabulations and prevarications" which "could be called delusions." It is stated that the subject used alcohol apparently from childhood, and that at times he consumed 80 ounces a week. He had said that he had used marihuana for 4 years but had discontinued its use 2 years before his commitment.' It had been the appellant's 1 The record contains a copy of a conviction of the appellant in Federal court in Florida on November 3, 1939, for unlawfully acquiring marihuana without paying the transfer tax (Ex. 2). habit for several years prior to his commitment to retire at 8 or 9 in the morning, get up at about 6 p. m., and stay up all night. The week prior to his commitment he had become acutely upset, he would eat not at all or in large amounts, would stare into space or pace restlessly up and down, and he had become destructive. In the middle of the night he would take glass tumblers and throw them against the wall of his parents' hotel where he was living. A provisional diagnosis of chronic psychopathic inferiority in the schizophrenic class was made. In May 1941 he was permitted to leave the institution on trial, and in November 1941 he was discharged as improved. The certifying physician testified that his original certification was based on his questioning of the alien at that time, and that after reading the clinical report, it is his opinion that the certification of one or more attacks of insanity is correct. The appellant presented a letter from the medical superintendent of the Verdun Protestant Hospital advising him to request the immigration authorities to communicate with the hospital to obtain his medical record there. No statement is given concerning the appellant's affliction while a patient there. The appellant also presented a letter signed by his parents stating: This is to state that our son, R-—— J——— V was confined in the Verdun Convalescent Hospital not for mental reasons or purposes but rather to aid him through rest and relaxation in order to furnish a cure to his rundown condition, which to our thinking and judgment, was caused by excessive drinking. After a stay of a few months in the hospital mentioned, we feel assured the desired results were obtained, and now after 3 years his physical condition. has happily returned to normal. The appellant also presented a letter from the Inspection Board of the United Kingdom of Canada, dated September 1, 1942, recommending him as a responsible employee. Finally the appellant presented a character recommendation from a person who states that he has known him for 20 years and has "always found him a reliable person and a willing worker with an agreeable personality." A summary of the evidence on the question whether the appellant has previously had an attack of insanity reveals that the United States Public Health Service Certificate is uncontroverted by any other medical evidence. The statement of the appellant's parents to the effect that the appellant was confined to the hospital not for mental reasons but for rest and relaxation is of little or no probative value in this connection. Nor would the character recommendations preclude the appellant's having been mentally ill during the period in question. The clinical history and provisional diagnosis of chronic psychopathic inferiority in the schizophrenic class would indicate general mental and emotional weakness which became more acute for a particular period. In the absence of any substantial evidence to controvert the certificate of the United States Public Health physician, the ground of inadmissibility that the appellant had previously had an attack of insanity must be regarded as sustained. Findings of Fact: Upon the basis of all the evidence presented, it is found: (1) That the appellant is an alien, a native and citizen of Canada; (2) That the appellant is seeking admission for permanent residence; (3) That the appellant is not in possession of an immigration visa; (4) That the appellant was deported from the United States in February 1940; (5) That the appellant has not since received permission to reapply for admission; (6) That the appellant had an attack of insanity during the period between December 1940 and May 1941. Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded: (1) That under section 13(a) of the Immigration Act of 1924, the appellant is inadmissible on the ground that he is an immigrant not in possession of an immigration visa; (2) That under section 1(a) of the act of March 4, 1929, as amended, the appellant is inadmissible on the ground that he has been deported from the United States and has not since received permission to reapply for admission; (3) That under section 3 of the Immigration Act of 1917, the appellant is inadmissible on the ground that he has had prior attack of insanity. Other Factors: The appellant's parents live in Quebec and apparently visit in Florida occasionally. His first wife, whom he married in 1928, obtained a divorce from him in Reno, Nev. They have a daughter, born in Miami, Fla., in 1929, whose custody has been distributed between the parents. The appellant remarried in December 1941. His wife is a Canadian and no children have been born of this marriage. The appellant described himself as a clerk and machinist and stated that he had "just been laid off at Chrysler's in Windsor." The certifying physician, Dr. Carr, who is stated to have had considerable experience in examining applicants for induction into the United States military forces, stated that the appellant would not be admissible. Other than the Florida conviction for illegal possession of marihuana, to which the appellant had pleaded guilty and received a 90-day prison sentence, he states that he was arrested once for drunkenness and once for a traffic violation. Order: The excluding decision of the Board of Special Inquiry is affirmed. IN THE MATTER OF M In EXCLUSION Proceedings 56158/590 Decided by the Board June 26, 1944 Pauper-Definition-Admissibility to the United States-Section 3 of the act of February 5, 1917. For the purpose of the immigration laws, a pauper is one who is actually dependent upon public funds for support and who, in addition, is unable to work by reason of mental or physical infirmity, or who is unwilling to work. EXCLUDED BY BOARD OF SPECIAL INQUIRY: Act of 1917-Pauper. Act of 1917-Likely to become a public charge. BEFORE THE BOARD Discussion: The appellant, a 63-year-old woman, native of the British West Indies, citizen of Canada, applied for admission as a visitor for a period of 29 days on May 15, 1944, at Montreal, Quebec, Canada. She presented a valid nonresident alien's border-crossing identification card issued by the American Consulate at Montreal. A Board of Special Inquiry excluded her on the grounds above stated. The Public Health Service certified the appellant to be afflicted with "B. Senility-defective vision, which may affect ability to earn a living." It also appears from the record that the appellant has not been able for several years to support herself by her own efforts. Prior to the war she received public aid. More recently her main source of support has been from funds received regularly from the Catholic Federated Charities. The appellant supplements this assistance by occasional small earnings from housework. On the facts outlined above, the Board of Special Inquiry has found the appellant inadmissible as a person likely to become a public charge and as a pauper. It is clear that the appellant's inability to support herself and her dependence upon public or private aid renders her a person likely to become a public charge. The finding that she is a pauper, however, is not sustained. A pauper is defined in Bouvier's Law Dictionary as "One so poor that he must be supported at the public expense." It has also been said that mere poverty does not constitute a pauper. One may be destitute of estate or ability to earn a living and not be a pauper if he is supported by others. Only when his support is cast upon the public 844885-50- -10 |