who possess talents required by our universities, foundations and other institutions, the language of the House Bill was modified to permit the waiver of the foreign residence requirement on the request of an interested United States Government agency; the language was also modified to permit an interested United States Government agency to request a waiver in other special circumstances. Its terms were extended to include those who acquired exchange visitor status under the Educational Exchange Act of 1948.2

While section 242.17 (a) of Title 8, Code of Federal Regulations, gives the special inquiry officer authority to hear applications for suspension of deportation under section 244 (a) or for adjustment of status under section 245 of the Act, such applications are made subject to the requirements contained in Parts 244 and 245. The special inquiry officer has the duty of informing the respondent of his apparent eligibility to apply for any of the benefits enumerated therein and to afford him an opportunity to make application therefor during the hearing. However, nothing in this section gives the special inquiry officer authority to grant the waiver provided for by section 212(e) of the Act. The authority to waive, on the basis of personal hardship to the alien, his citizen or resident alien spouse or child, is specifically delegated under section 212(e) to the Commissioner of Immigration and Naturalization who has in turn delegated such authority to the District Director. The regulations of the Department of Health Education and Welfare provide in 45 CFR 50.5 that the responsibility in connection with applications for a waiver based on the personal hardship provisions of the Department of State regulations, 22 CFR 63.6, are under the jurisdiction of the Immigration and Naturalization Service and inquiry should be directed to the appropriate district office of that Service: the regulation points out the same is true of applications for extension of visas. The State Department regulations, 22 CFR 63.6 (f), provides that an exchange visitor who wishes to apply for a waiver under the personal hardship provisions of that section may apply to the District Director of the Immigration and Naturalization Service having administrative jurisdiction over his intended place of residence in the United States.

From the foregoing, it must be concluded that the authority to grant the waiver contained in section 212 (e) of the Act, like the authority to grant extensions of visas, lies within the jurisdiction of the Immigration and Naturalization Service and not with the special inquiry officer. The Board's jurisdiction as described in 8 CFR 3.1(b) includes appeals from decisions of the special inquiry officer in exclusion

2 Idem, 2780.

3 Matter of Han. Int. Dec. No. 1241 (B.I.A., August 10, 1962).

cases as provided in Part 236 and in deportation proceedings as provided in Part 242 of the Act, but does not extend to decisions of the District Director in the granting of the waiver under section 212(e).1 We agree with the conclusion of the special inquiry officer that he has no jurisdiction to grant the waiver provided by section 212 (e) nor to review the denial of such waiver. Accordingly, the application for adjustment of status under section 245 was properly denied.

In connection with respondent's application for suspension of deportation under section 244 (a) (5) of the Immigration and Nationality Act the special inquiry officer concluded that the respondent was not statutorily eligible under that section because she does not have the required 10 years' residence. That conclusion is obviously correct. Even under the provisions for suspension of deportation in section 244 (a) as amended by the Act of October 24, 1962 (76 Stat. 1247) the respondent would not be eligible because of the limitation contained in section 244(f) which provides that no provision of the amended section 244 shall be applicable to an alien who was admitted to the United States pursuant to section 101 (a) (15) (J) or has acquired such status after admission to the United States. The special inquiry officer has granted the respondent the privilege of voluntary departure which appears to be the only discretionary relief available to her. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

Cf. Matter of De G―et al., Int. Dec. No. 1036 (A.G., 1959).

MATTER OF KOWALSKI

In DEPORTATION Proceedings

A-10867062

Decided by Board January 17, 1963

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—, 7 I. & N. Dec. 124, overruled.]

CHARGE:

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

The case comes forward on appeal from the order of the special inquiry officer dated August 30, 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 30, 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

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 the meaning 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

the Illinois Mental Health Code and several court decisions,1 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-R-,7 I. & 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 at 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 of 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) (3), 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-R-, 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

1 Sections 9-19, 9-20, 9-21, 9-22, 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'Hern, 14 Ill. 2d 575, 153 N.E. 2d 22. Both of these cases involved claims against the estate of the deceased patients for maintenance charges.

27 I. & N. Dec. 124.

161