IN THE MATTER OF V

Public charge within 5 years after entry — Section 3 of the Immigration Act of 1917 — Deportability not established where alien confined in State hospital for criminally insane as part of criminal proceeding.

The charge that the alien became a public charge within 5 years after entry is not sustained where the alien is confined in the Lima State Hospital, Lima, Ohio, for the criminally insane after indictment for crime. Detention in that hospital is equivalent to confinement in a penal institution and under Ohio law support cannot be collected for persons under indictment for crime.

CHARGE:

Warrant: Act of February 5, 1917 — Public charge within 5 years after entry.

BEFORE THE SPECIAL INQUIRY OFFICER

Discussion: The record relates to a 44-year-old male, a native and citizen of Czechoslovakia who first entered the United States at the port of New York, on August 19, 1946, at which time he was lawfully admitted to the United States for permanent residence. That entry has been verified. Subsequently he made a visit to Canada, and returned to this country at Port Huron, Mich., on June 2, 1947, when he was admitted to resume permanent residence. That entry has been verified. The record discloses that on December 20, 1951, respondent was committed indefinitely to the Lima State Hospital, Lima, Ohio, by a Judge of the Common Pleas Court of Cuyahoga County, where he had been indicted for stabbing to kill or wound and carrying concealed weapon. He is still an inmate of that hospital.

The Lima State Hospital has been designated as the hospital for the criminal insane in the State of Ohio, and the respondent is in that hospital because he is criminally insane. Respondent was sent to that institution in accordance with the order of the court, and under procedures designated by law. No demand was made upon the alien for payment for his hospitalization because under Ohio law support cannot be collected for persons under indictment for crime. It is evident that when an accused person is sent to the Lima State Hospital, after indictment for crime, the detention therein is part of the criminal proceeding. Detention in this hospital is nothing more than the equivalent to confinement in a penal institution, except that the insane person is detained in the hospital for the insane, where the accused may be given the special care required, rather than being detained in a jail or penitentiary. It has been previously held that a person confined to a penal institution is not regarded as a public charge within the purview of the Immigration Act of 1917. Similarly, it must be concluded that the confinement of respondent in the Lima State Hospital cannot be used to sustain the immigration charge "became a public charge within 5 years after entry."

There is another reason why the charge in the warrant of arrest cannot be sustained. It has been held that in order to determine whether an alien had become a public charge within 5 years after entry, the following tests must be applied: (1) the State or other governing body, must by appropriate law, impose a charge for the services rendered to the alien; (2) the authorities must make demand for payment of the charge upon these persons made liable under State law; and (3) there must be a failure to pay for the charges, Matter of B----, 56033/544, 3 IN Dec. 323. Such a demand has not been made upon the respondent for the reason previously stated. In view of the foregoing, it is concluded that the respondent is not deportable under the act of 1917 as a person who became a public charge within 5 years after entry. Therefore, the proceedings will be terminated.

Findings of Fact as to Deportability: Upon the basis of all the evidence presented it is found:

(1) That the respondent is an alien, a native and citizen of Czechoslovakia;

(2) That the respondent last entered the United States at Port Huron, Mich., on June 2, 1947, at which time he was admitted to resume permanent residence;

(3) That on December 20, 1951, respondent was admitted to the Lima State Hospital, a hospital for the criminal insane, upon an order of an indefinite commitment from the Common Pleas Court of Cuyahoga County, after he had been indicted for stabbing to kill or wound and carrying concealed weapon;

(4) That the respondent is still an inmate of the Lima State Hospital.

(1) That under sections 19 and 20 of the act of February 5, 1917 respondent is not subject to deportation on the ground that he became a public charge within 5 years after entry into the United States from causes not affirmatively shown to have arisen subsequent thereto.

The Board of Immigration Appeals has directed that this case be certified to that Board, and the final order will be entered in this case by the Board. You will be allowed 10 days in which to submit to this office any brief, memorandum, or request for oral argument, which you desire to have transmitted with the record in this case, for consideration by the Board.