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or disability shall in no case be issued with respect to an alien having only mental shortcomings due to ignorance, or suffering only from a mental condition (i) attributable to remedial physical causes or (ii) of a temporary nature, caused by a toxin, drug, or disease." This implies those acute brain syndromes resulting from poison, systemic infection, exhaustion, or malnutrition. It must be borne in mind that this does not conflict with the requirement that a class A certificate shall be issued for narcotic drug addiction or for excludable mental disorders existing in the case of addiction to other drugs.

10. Mental defect.-a. Under this term is classified any mental disease not discussed above which when it seriously impairs the mental function of the alien and gravely interfers with his total behavior and interpersonal relations is to be regarded as excludable. * *

b. The determination of the existence of a serious degree of mental abnormality must be left to the examining physician, but several criteria are given below as an aid to him in exercising his professional judgment: (1) whether the mental defect is of an hereditary nature; (2) whether it would require hospitalization; (3) whether the individual's behavior resulting from the defect is such as to be likely to bring him into repeated conflict with social customs, constituted authority, or the social environment.

e. Individuals suffering from psychoneurosis are certifiable for mental defect only upon determination of a serious degree of mental illness in accordance with the criteria outlined above. (Emphasis supplied throughout.)

In addition to the above directions, Section B of the Manual, Types of Certificates in Various Diagnostic Categories, page 6-15, lists "Transient Situational Personality Disorders, gross stress reaction," with the symbol "K," for which the directions are, "Do not certify." It seems clear that the regulations adequately cover the instant case, and that they do not contemplate that a person such as respondent should be deported on the charge laid here.

Respondent's brief on appeal cites four cases, all unreported, in each of which the Board found that the Immigration Service had not met the burden of establishing that the mental illness existed at time of entry. In a number of cases, unreported, the Board has invoked 42 CFR 34.7 and found that temporary conditions (e.g., injuries, post-partem psychoses, illnesses due to surgery and glandular conditions, etc.) do not constitute insanity or mental defects for immigration purposes. The only reported Board decisions on this subject are Matter of W, 2 I. & N. Dec. 68; Matter of S 5 I. & N. Dec. 682, similar to the instant proceeding; and Matter of V, 2 I. & N. Dec. 127, where the order of exclusion was affirmed.

In the instant case, we have conflicting evidence and medical diagnoses as to whether respondent was afflicted with a mental defect at the time of his last entry. Since the question arises in deportation, as distinguished from exclusion proceedings, the Board is required to evaluate all the evidence of record, including the certificates of the United States Public Health Serivce and the

evidence submitted by respondent, in order to determine whether the charge is sustained. United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806 (1949); United States ex rel. Leon v. Murff, 250 F.2d 436 (C.A. 2, 1957).

Although there is nothing in the record one way or the other, we must assume that respondent was thoroughly examined in Italy, both mentally and physically, before he was issued an immigration visa for entry into the United States for permanent residence. The only evidence of mental illness prior to respondent's entry into the United States is the less than 2 months in the hospital in Rome, where his diagnosis on admission was "schizophrenic syndrome," and there was no further diagnosis at the time of dismissal. In addition, we have the two certifications of the United States Public Health Service, exhibits 3 and 13, based, not on personal examination of the alien, but on other documents (of record here) submitted for their opinion, and a clinical summary and certification as to alien's becoming a public charge from the Brooklyn State Hospital, Brooklyn, New York, both documents created at the time of his second illness. On the other hand, the alien has offered medical testimony of two psychiatrists who examined him personally, one in 1950 before the second period of illness, and the other who has seen him recently and over a period of the last several years. Both agree that he is not schizophrenic, that he did not have schizophrenia, that his illness were akin to war neurosis, brought on not only by his war experiences, but by his efforts to adjust while still in his "teens," alone and unaided, to life in two foreign countries, Italy and the United States, in rapid succession, neither of whose languages he knew.

So far as this record shows, the alien has made a successful adjustment to life in the United States, having obtained two college degrees within the past 9 years while he was learning the English language. He is married, and has been and is self-supporting. A large body of psychiatric writing indicates that if respondent had been suffering from schizophrenia he could not, following brief periods of hospitalization and treatment, have again emerged into a new and highly competitive society and fended for himself under the most strenuous conditions.

It seems reasonable enough from the medical testimony offered by respondent, and confirmed by other authorities available to us, and even more so by respondent's performance during the past 9 years, that his was a temporary disability due to exhaustion and malnutrition, and was a transient stress reaction to the difficult circumstances of the previous 10 years and the immediate situation in which he found himself at the time. His illness was not a mental defect of an hereditary nature; it has not brought him into "repeated conflict

with social customs, constituted authority, or the social environment; and there is even some question that he could be said to have "required hospitalization." Diagnosis as to the course of respondent's illness would have been difficult in 1951, as paragraph 4e of the Manual for Medical Examination of Aliens (Chapter 6, Section 4, p. 6-4) points out, but it is easy enough now to say that it was due to remediable physical causes, and this is our conclusion.

The Immigration Service has not sustained the burden of proving that respondent was excludable at the time of his entry as a person afflicted with a mental defect, to wit: schizophrenia. The proceedings will be terminated.

Order: It is ordered that the proceedings be and are hereby terminated.

MATTER OF A

In SECTION 245 Proceedings

A-11726627

Decided by Regional Commissioner May 25, 1960

Approved by Assistant Commissioner June 1, 1960

Adjustment of status-Section 245 of 1952 act-Not warranted where applicant failed to take advantage of opportunity to apply for visa outside United States.

(1) An alien crewman who intentionally deserted his vessel in 1958 and who thereafter departed from the United States upon denial of an application for adjustment of status has failed to establish that he was a bona fide nonimmigrant when he reentered as a crewman some five months later and immediately filed a new application for adjustment of status.

(2) The present application would be denied in any event as a matter of discretion since the applicant made no effort while outside the United States to obtain a nonquota immigrant visa (for which he was eligible) from an American consul.

BEFORE THE REGIONAL COMMISSIONER

Discussion: The applicant, a citizen of Greece, born February 13, 1933, at Piraeus, Greece, is a crewman who was last admitted to the United States on August 16, 1959, at New York, N.Y., as a nonimmigrant crewman. He was granted a landing permit for the period of time his ship was in port under the provisions of section 252(a)(1) of the Immigration and Nationality Act. He proceeded to Baltimore, Maryland, and on August 24, 1959, filed this application for status as a permanent resident. The District Director at Baltimore denied the application on the ground that the applicant was not a bona fide nonimmigrant at the time of entry and the applicant has appealed.

The applicant is married to a United States citizen. A visa petition was approved on January 12, 1959, according him nonquota status. Therefore, an immigrant visa is immediately available to him. He has established that he is admissible to the United States. The sole issue to be determined is whether he was admitted to the United States as a bona fide nonimmigrant.

The applicant was admitted to the United States several times during the years 1952-1955 as a nonimmigrant crewman. From

1955 until the spring of 1958 he was unable to sign on a ship destined to the United States but he finally secured a berth on a ship in Rotterdam which was destined to Baton Rouge, La. When the ship arrived in Baton Rouge on July 1, or 2, 1958, he was granted a landing permit under the provisions of section 252(a)(1) of the Immigration and Nationality Act and he immediately deserted his ship and went to Baltimore, Md. On December 31, 1958, he married his present wife and on January 2, 1959, he was apprehended by this Service. On January 5, 1959, he filed an application for status as a permanent resident. In a sworn statement made before an officer of this Service on January 2, 1959, the applicant had testified that he had been trying to get to the United States for several years and when he signed on the vessel at Rotterdam it was his intention to desert as soon as the ship arrived in the United States. Consequently, on January 27, 1959, his application for status as a permanent resident was denied, and on February 16, 1959, the Regional Commissioner affirmed the decision of the district director. The applicant was then informed that if he departed from the United States at his own expense prior to April 5, 1959, no formal proceedings would be instituted to enforce his departure. He subsequently departed as a crewman on the SS. Atlantic Grace on March 23, 1959. He remained outside the United States until August 16, 1959, when he again applied for admission as a crewman. The applicant has testified that, although he knew a visa petition had been approved on January 12, 1959, according him nonquota status, he made no attempt to secure an immigrant visa while outside the United States. He states that he was on a ship which was in the Pacific and it was impossible for him to contact an American consul. Yet he signed on the ship on which he last arrived in the United States at Vancouver, Canada. There is an American consulate in that city whom he could have contacted had he so desired. The applicant has testified that it was his intention to depart from the United States on the ship on which he arrived, but that he went to Baltimore after arriving at New York, to discuss his case with his attorney and that his attorney advised him to file this application.

In view of the applicant's statements made on January 2, 1959, concerning his efforts to gain entry into the United States and his subsequent application for status as a permanent resident, and in view of the fact that immediately after gaining admission again as a crewman he filed another application for status as a permanent resident, we find that the district director properly held that the applicant has failed to establish that he was a bona fide nonimmigrant at the time of entry.

Furthermore, had the applicant been able to establish statutory

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