Matter of A-

Discussion: The case is before us by certification. The special

inquiry officer ordered the respondent deported on the charge stated

above and certified the case to this Board for review. Respondent,

a 29-year-old married female, a native and national of Cuba, was

admitted to the United States for permanent residence on March 1, 1954. From April 24, 1956, until October 5, 1956, she was a patient

in the Creedmore State Hospital in New York where her condition

was diagnosed as dementia praecox, catatonic. She received electric

shock treatments and chemical therapy. After discharge from the

hospital she went to Cuba to visit her parents. She returned from

that visit on March 24, 1957, and was readmitted as a returning law-

ful resident. The issue is whether at the time of her reentry, re-

spondent was a person who had had an attack of insanity.

To establish deportability, the Service relies upon a clinical sum- mary which was made in connection with the respondent's hospital-

ization at the Creedmore State Hospital. Counsel had no objection

to the admission of this record. Counsel argues that the clinical

summary is not sufficient. It is his belief that respondent cannot be

found to have been a person excludable at the time of her entry

unless the rules of law and evidence applicable to an exclusion

proceeding are applied.

An alien applying for admission who is thought to be exclud-

able because he has had an attack of insanity must be examined

by a medical officer of the United States Public Health Service from

whose certification, if unfavorable, an appeal may be taken to a

Board of Medical Officers of the United States Public Health Service

at which time an alien may introduce an expert witness (sections

234-236, Immigration and Nationality Act; 8 U.S.C. 1224-1226).

Counsel believes that this procedure must be followed. It is argued

that because of the refusal of the Government to follow the pro-

cedures which would have applied had the alien applied for admis-

sion, she is being deprived of due process of law. Counsel has sub-

mitted a certificate from Dr. C— who examined the respondent on

August 21, 1957. This physician, termed by counsel as a "psychia-

trist," states that it is his opinion that the respondent did not suffer

an attack of insanity. It appears that his opinion is based upon

an examination of the clinical summary and a personal interview

with the respondent.

Congress has set up an exclusion procedure and a deportation

procedure (sections 234—236, 242, Immigration and Nationality Act;

8 U.S.C. 1224-1226, 1252). As to each procedure, Congress has

furnished separate detailed instructions. These instructions differ

sharply in several ways. In an exclusion case where the cause of

exclusion is one of certain grounds relating to mental condition, no

appeal can be taken from the order of the special inquiry officer

requiring exclusion. In the deportation proceeding, on the other

hand, even though the identical ground is used to order the alien's

deportation, there is an appeal. Another example, in exclusion pro-

ceedings the burden of establishing admissibility is upon the alien;

in deportation proceedings the burden of establishing deportability

is upon the Government (section 291, Immigration and Nationality

Act; 8 U.S.C. 1361). Neither administrative nor judicial authori-

ties have ever acted as if it were necessary in deportation proceed-

ings to do all those things which are required to exclude an alien

when it is merely a question as to whether he had been excludable

at the time he applied for admission. For example, to exclude a per-

son on the ground that his entry was prejudicial to the United States,

a certain procedure had to be followed. If, however, the alien suc-

ceeded in entering the United States, he could be deported on the

ground that he had been excludable at the time of entry as one whose

entry was prejudicial without following that procedure (United

States ex rel. V ajta v. Watkins, 179 F.2d 137 (C.A. 2, 1950) ).

Canciamilla v. Haff, 64 F.2d 875 (C.A. 9, 1933), involved the de-

portation of an alien who was charged with having been an epileptic

at the time of entry and who claimed that the evidence did not sup-

port the charge. In support of the charge proof was made of the fact of the respondent's admission to a hospital as an epileptic about

a year-and-a-half after his last entry and the report of the hospital

made in connection with that matter was submitted. The court

held that it was proper to find that Canciamilla had been epileptic

at the time of entry.

In United States v. Flores-Rodriguez, 237 F.2d 405, C.A. 2, a de-

portation proceeding, the court accepted a Government contention

that an alien had been excludable at time of entry as a person of

constitutional psychopathic inferiority, even though no certification

of such condition had been made by the United States Public Health Service.

In Matter of P—, A-8312899, 7 I. & N. Dec. 258, we held con-

tention such as that advanced by counsel was "unresponsive."

It is, therefore, proper to determine in this deportation proceed-

ing whether the respondent suffered an attack of insanity prior to

her last entry, and it is not mandatory that the alien be inter-

viewed by the doctors of the United States Public Health Service

although in many cases this may be a helpful course (United States

ex rel. Leon v. Shaughnessy, 143 F. Supp. 270, S.D.N.Y., affd. sub.

nom. United States ex rel. Leon v. Murff, 250 F. 2d 436, C.A. 2, 1957).

The doctors who observed the respondent for the period of about

5 months during which she was confined diagnosed the respondent

as suffering from insanity. They have set forth in detail their

reasons for their diagnosis. The physician who approved the cer-

tification and forwarded it under his name to the Immigration Serv-

ice stated that he had 10 years of experience in cases such as con-

cerned the respondent and that his experience had been with the De-

partment of Mental Hygiene in New York State. Seven different

doctors were involved in the care and treatment of the respondent

at the hospital. None questioned the finding that she was insane.

Opposed to this we have the statement of a physician whose quali-

fications are not shown and whose opinion it is that the respondent

suffered from disassociative reaction, a neurotic illness rather than

a psychosis. (Disassociative reaction is regarded by the Public

Health Service as a noncertifiable condition unless it is of such

severity as to be certified as a mental defect.) The respondent's

physician has not given a definition of "disassociative reaction"

other than to indicate that a brief episode of confusion and memory

loss following a series of psychologically important stresses would

fall under that category. He states that the respondent would dis-

play residual symptoms if she had been through a psychosis. How-

ever, he has failed to point out the diagnostic differences between

the psychosis which it is claimed the respondent suffered and the

neurosis which he believes she endured. We do not believe that

under these circumstances the certificate of Dr. C— raises a serious

question as to the correctness of the diagnosis made by the physicians of the mental institution where the respondent was confined. Respondent was represented by counsel of her own choosing. She had opportunity to testify, to call witnesses and present evidence in her own behalf and to cross - examine witnesses against her. We find the procedure followed was adequate. Deportation was properly found. Order: It is ordered that no change be made in the order of the special inquiry officer requiring respondent's deportation.