Matter of W----

• Decision Date: 25 April 1960
• Docket Number: A-10941470
• Parties: MATTER OF W---- In DEPORTATION Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

8 I&N Dec. 630

MATTER OF W----

In DEPORTATION Proceedings

A-10941470

Board of Immigration Appeals

Decided by Board April 25, 1960

Deportability—Section 241(a)(3), 1952 act—Imposes upon alien burden of establishing that mental disability did not exist prior to entry.

An alien institutionalized at public expense within five years of entry because of mental disability has 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 commitment, 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 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,...