Interim Decision #2263

Interim Decision #2263

MATTER OF HARUTUNIAN

In Section 245 Proceedings

A-19230396

Decided by Regional Commissioner February a, 1974

(1) The test set forth in Matter of B—, 3 L & N. Dec. 323 (1948), for determining

deportability as a person who has become a public charge (a determination

predicated on events which have already taken place), is inapplicable to a

determination of excludability under section 212(aX15) of the Immigration

and Nationality Act, as a person likely to become a public charge (a determination predicated on an opinion as to the likelihood of future events).

(2) A determination as to the likelihood of a person becoming a public charge

within the meaning of section 212(a)(15) of the Act should take into consideration factors such as an alien's age, incapability of earning a livelihood, a lack

of sufficient funds for self-support, and a lack of persons in this country willing

and able to assure that the alien will not need public support.

(3) Applicant, who is 70 years old, who lacks means of supporting herself, who

has no one responsible for her support, and who expects to be dependent for

support on old-age assistance is ineligible for a visa under section 212(aX15) of

the Act, as likely to become a public charge, even though the state from which

she will receive old-age assistance does not permit reimbursement. Therefore,

she is ineligible for adjustment of status under section 245 of the Act, as

amended.

ON BEHALF OF APPLICANT: Emanuel Braude, Esquire

215 W. 5th Street, Suite 910

Los Angeles, California 90013

The District Director found the applicant ineligible for adjustment of status and certified this matter to the Regional Commissioner for review pursuant to 8 CFR 103A.

The applicant, a female native of Turkey, is now stateless. She

resided in Roumania from 1931 to 1970. For the reason conditional

entry visa numbers were not available, she was paroled into the

United States in September 1970.

The applicant submitted the instant application on October 5,

19'72 seeking status as a permanent resident under the provisions

of section 245 of the Immigration and Nationality Act, as

amended, as a nonpreference immigrant. During the interview

conducted on May 24, 1W3 in conjunction with her application, it

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was determined that she had been granted "old age assistance" by

the California State Department of Social Welfare upon her

arrival in the United States and that her monthly grant was

increased from $204.00 in November 1972 to $209.00 in December

1972.

The District Director stated in part that the applicant has been

on welfare since her arrival in the United States in September

1970 and denied the application on June 1, 1973 reasoning that she

was excludable under section 212(a) of the Act which provides in

pertinent part as follows: "Except as otherwise provided in this

Act, the following classes of aliens shall be ineligible to receive

visas and shall be excludable from admission into the United

States: ... (15) Aliens who, in the opinion of the consular officer at

the time of application for a visa, or in the opinion of the Attorney

General at the time of application for admission, are likely at any

time to become public charges...."

Counsel submitted a brief in response to the Notice of Certification (Form I-290C) for the Regional Commissioner's consideration

wherein he stated that the "welfare" the applicant receives was,

and is "old age assistance, a form of categorical aid." Counsel

added as follows:

There is no provision in the laws of the State of California requiring

repayment of old age assistance benefits of the type received by Haigouhi A.

narntunian (California Welfare and Institutions Code Sec. 12000, et seq., and

County of Alameda v. Janssen, (1940), 16 Cal. 2d 276, 283, 106 P2d 11), nor is

there any provision in the laws of the State of California which provides for a

charge to be made against the recipient of such aid as was received by

Haigouhi A. Harutunian, except where the recipient subsequently acquires

property (California Welfare and Institutions Code Sec. 17403). (Amended

Finding of Fact No. 8, Emanuel Braude v. United States of America, Civil No.

68-1973-EC).

The term 'public charge,' as used in the exclusion provisions of the Immigration and Naturalization Act (8 U.S.C. 1182(a)(15)), ... is to be defined in the

same way as the phrase 'public charge' is used in the deportation sections of

the Immigration and Naturalization Act. (8 U.S.C. 1251(a)(8)). (Amended

Conclusion of Law No_ 1, Emanuel Braude v. United States of America, supra).

Therefore, the definition of 'public charge' used in the Immigration decision

Matter of B—, 3 L & N. Dec. 323, (B IA, 1948), controls this case. (This decision

was approved by the then Attorney General of the United States, 3I. & N.

Dec. 227.)

Counsel's contention that "There is no provision in the laws of the State of

California for repayment of old age assistance of the type received ..." by the

applicant, is not free from dispute. While that statement appears to be true

with regard to the individual who is the recipient of such assistance, in a

decision dated December 12, 1973 by the Supreme Court of California (Steoap

v. Superior Court of Sacramento County), the Court held that the state law

requires the adult children of a recipient of public assistance under California's Old Ave Security Law to reimburse the county to the extent of their

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ability. However, for the reasons indicated below, this issue is not pertinent to

the decision in the instant case.

The term "public charge" appears in sections 212(a)(15) and 213 of the

Immigration and Nationality Act, as amended. That term also appeared in

section 19(a) of the Act of February 5, 1917 which provided grounds for

deportation.

The counsel for the applicant cites as persuasive the leading administrative

decision stating the essential elements of proof of deportability for becoming

a public charge within 5 years after entry, Matter of B—, 8 I. & N. Dec. 823

(Acting Attorney General, 1948). He also cites an unreported lower court

decision interpreting a public charge bond, Emanuel Braude v. United States,

C.D. Cal., Civ. No. 68-1973-EC, May 15, 1970. His determination rests on the

proposition that the term "public charge" should be defined the same way

wherever it appears in the Immigration and Nationality Act, namely in

Sections 212(aX15), 213, 241(a)(8); (8 U.S.C. 1182, 1183, 12511

Matter of 13—, supra, states that where the alien received public support he

is deportable only if

1. The state by law imposes a charge for the services rendered, thereby

creating a debt, to be paid by the alien or other designated persons,

2. the authorities have made a demand for reimbursement,

3. there was a failure to repay.

Braude expressed doubt concerning the soundness of Matter of

B—. However, in the light of that administrative interpretation

the court held that a bond provision guaranteeing that an alien

immigrant would not become a public charge was not breached

when the alien received old age assistance in California, since

there was no obligation under California law to repay.

Applying the deportability standard contained in Matter of B—

to the case under consideration, the Counsel for the applicant

finds, as the court did in Braude, that under California law there is

no provision for a charge to be made against the recipient of old

age assistance, and he concludes that an alien dependent for

support on old age assistance is not thereby rendered ineligible for

a visa.

Matter of B— defines deportability for having become a public

charge after entry. But its appraisal of the deportation statute is

not necessarily controlling in relation to the provisions for exclu-

sion. While the exclusion and deportation statutes both refer to

aliens who become a public charge, it does not follow necessarily

that Congress intended that the same criteria be applied in both

situations. The exclusion statute deals with aliens seeking to enter

and who must satisfy detailed qualitative requirements. The

deportation statute dislodges an established residence.

The purpose of all rules for the interpretation of statutes is to

give effect to the legislative intent. There is no invariable rule for

the discovery of that intention. United States v. American Tru,c1cing Associations, Inc., 310 U.S. 534, 542 (1940); 82 C.J.S., Statutes,

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Sec. 311. While it may normally be assumed that identical words

used in different parts of the same statute are intended to have an

identical meaning, this assumption readily yields when the legislative intent requires variant meanings in different contexts.

It is not unusual for the same word to be used with different meanings in the

same act, and there is no rule of statutory construction which precludes the

courts from giving to the word the meaning which the legislature intended it

should have in each instance. Atlantic Cleaners & Dyers, Inc. v. United States,

. 286 U.S. 427,433 (1932).

Words generally have different shades of meaning, and are to be construed if

reasonably possible to effectuate the intent of - the lawmakers; and this

meaning in particular instances is to be arrived at not only by a consideration

of the words themselves but by considering, as well, the context, the purposes

of the law, and the circumstances under which the words were employed,

Vermilga43rown Co. v. Connell, 335 U.S. 377,386 (1948).

The exclusion and deportation statutes embodying the term

"public charge" have been on the statute books for over 80 years

in essentially the same form. Act of March 3, 1891, secs. 2, 11; 26

Stat. 1084, 1086; cf. Act of August 3, 1882; 22 Stat. 214. The

accepting of a bond promising, in consideration of an alien's

admission, that he will not become a public charge apparently had

its origin in administrative practice earlier than 1903—Act of

March 3, 1903, Sec. 26; 32 Stat. 1220. The present language of

Section 213 has been in the law without essential variation since

1907. Act of February 20, 1907, Sec. 20; 34 Stet. 907.

Regarding deportability, there are no significant comments in

the legislative history. Matter of B

went unmentioned in the

1950 and 1952 congressional reports accompanying the Act. An

effort to enlarge the class of deportable aliens confined in public

institutions by adding a new class to the Act, Section 241(aX3), 8

U.S.C. 1151(aX3), appears to have been ineffective as the result of

last minute floor amendments to the legislation. Matter of Kenyaski, 10 I. & N. Dec. 159 (BIA 1963).

The stages in decisional interpretations of the deportation statute, culminating in Matter of B supra, are instructive;

—

1. The words "public charge" had their ordinary meaning, that is to say, a

money charge upon or an expense to the public for support and care, the alien

being destitute. Ex parte Kichmiriantz, 283 F. 697, N.D. Cal. 1922; In re

Nunez, 18 F. Supp. 1007, S.D. Ca1.1937, reversed on other grounds, 93 F.2d 41.

2. The alien had not yet become a public charge, even though he personally

was destitute and his care and support were being paid for by public funds, if

there existed close relatives, ready, willing and able to pay the bill, but the

appropriate government agency had failed to submit any bill. Ex parte

.achmiriants, supra; Brugnoli v. Tod, 300 F. 913, S.D.N.Y. 1923, affirmed 300

F. 918; Donatello v. Commissioner, 4 F.2d 808, E.D.N.Y. 1925; Nocchi v.

Johnson, 6 F2d 1. (CA. 1. 1925); Ex parts Orzechowska, 23 F. Supp. 428, D.

Ore. 1938.

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3. The alien had not become a public charge where the alien's mother had

offered to make reimbursement, but under state law payment could not be

accepted for maintenance and treatment of the institutionalized alien. Matter

of V—, 2 I. & N. Dec. 78 (B IA 1944).

4. The alien had not become a public charge where the circumstances were

like those described in 3, above, except that no one had offered reimbursement. Matter of B—, supra, 3 I. & N. Dec. 323 (Acting Attorney General 1948).

In these four steps we observe a complete reversal of emphasis

on the importance of the factor of ability to make reimbursement:

1. No one could pay—deportable.

2. No one had paid, but a relative could —not deportable.

3. No one had paid; a relative, though not obliged to, was willing—not

deportable.

4. No one could pay and no one was obliged to—not deportable.

Even though the burden in cases 3 and 4 above falls on the

taxpayers, there are cogent reasons for inferring a legislative

intent (bearing in mind a resident alien's stake in this country) to

construe the deportability provision favorably toward the alien. Cf.

Yamataya v. Fisher, 189 U.S. 86 (1903); Fong Haw Tan v. Phelan,

333 U.S. 6 (1948); Wong Yang Sung v. McGrath, 339 U.S. 33 (1950);

.Cwong Hai Chew v. Golding, 344 U.S. 590 (1953); Rowoldt v.

Perfetto, 355 U.S. 115 (1957); Rosenberg v. Fleuti, 374 U.S. 449

(1963); INS v. Errico, 385 U.S. 214 (1966); Woodby v. INS, 385 U.S.

276 (1966). These and other cases have permeated the deportation

statutes, both substantive and procedural, with a rule of strict

construction. Cf. Gordon & Rosenfield, Immigration Law and

Procedure, Sec. 4.1c.

The legislative history of the exclusion statute, Section

212(aX15), is somewhat more revealing of congressional intent.

Mention has been made of the early adoption of the term "public

charge". In 1915 the Supreme Court ruled in Gegiow v. Uhl, 239

U.S. 3, that immigrants destined to a particular city were not

excludable as persons likely to become a public charge on the basis

of lack of job opportunities there. The court ruled that the

exclusion ground rests on "permanent personal objections" irrespective of economic conditions. In order to nullify this restrictive

interpretation of the statute Congress amended the exclusion

section when it reenacted it in the Immigration Act of February 5,

1917 by relocating the phrase in question, moving it away from

"paupers", etc. S.Rep. 352, 64th Cong., 2d Sess., April 17, 1916.

Several courts promptly questioned the efficacy of the amendment

and affirmed the interpretation that a "person likely to become a

public charge" is one who for some cause is about to be supported

at public expense "by reason of poverty, insanity and poverty,

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disease and poverty, idiocy and poverty ...". Ex parte Mitchell, 256

F. 299, N.D.N.Y. 1919; Ex parte Sakaguchi, 277 F. 913, CA. 9, 1922.

The 1950 Omnibus Report of the Senate Judiciary Committee,

preceding adoption of the Immigration and Nationality Act, had

an extensive discussion of persons excludable as likely to become a

public charge. S.Rep. 1515, 81st Cong., 2d Sess., April 20, 1950, pp.

346-350. Noting that courts had given varied definitions to the

phrase, the subcommittee recapitulated the holdings. A relevant

portion, with citations deleted, reads:

The financial status of an alien, although not the only criterion, has been

considered along with other elements.

Thus, an alien who owned a business in this country was held not to be

deportable under the "public charge" provision, even though he was unable to

read English or any other language. An illiterate widow of 70 with only $100

in hand and $1,000 in postal savings in Italy, and with no one obligated to

support her, was excluded as likely to become a public charge.

An alien's physical condition as it related to his ability and capacity for

employment was considered, and the fact that an alien's passage to this

country had been paid by another has been considered evidence, although not

necessarily conclusive evidence, of the alien's ability to care for himself. P.

348.

The mentioned case of the '70-year-old widow is Minuto v.

Reimer, 83 F2d 166, (C.A. 2, 1936). The subcommittee's conclusion,

in pertinent part was:

The subcommittee recommends that the clause excluding persnns likely to

become public charges should be retained in the law. Since the elements

constituting likelihood of becoming a public charge are varied, there should

be no attempt to define the term in the law, but rather to establish the

specific qualification that the determination of whether an alien falls into

that category rests within the discretion of the consular officers or the

Commissioner. P. 349.

In Section 212(a)(15) of the 1952 Act, Congress inserted the

words "in the opinion of (the consul or the Attorney General) with

the manifest intention of putting borderline adverse determinations beyond the reach of judicial review. Cf. Dolenz v. Shaugh-

nessy, 206 F.2d 392, (C.A. 2, 1953).

There is a paucity of interpretive precedent decisions in modern

times. The administrative authorities have adopted the view that,

while economic factors should be taken into account, the alien's

physical and mental condition, as it affects ability to earn a living,

is of major significance. Foreign Affairs Manual, Part HI, Vol. 9,

Note 1 to 22 CFR 42.91(a)(15); Matter of Martinez-Lopez, 10 I. & N.

Dec. 409, 421-423 (AG, 1964).

We have remarked that the deportation statute must be strictly

construed. The rule is otherwise as to exclusion. An unadmitted

alien has no constitutional right of entry into this country. Turner

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v. Williams, 194 U.S. 279, 292 (1904); Knauff v. Shaughnessy, 338

U.S. 537 (1950); Shaughnessy v. Mezei, 345 U.S. 206 (1953); Kleindienst v. Mandel, 408 U.S. 753 (1972). Congress has been concerned

almost continuously since 1875 with the quality of prospective

entrants, and the pattern generally has been one of increasing

control. Kleindienst v. Mandel, supra, at p. 761. Contrary to their

attitude in deportation cases, the courts without exception have

sustained Congress' plenary power to make rules for the admission

of aliens and to exclude those who possess characteristics which

Congress has forbidden. Boutilier v. INS, 387 U.S. 118 (1967); The

Chinese Exclusion Case, 130 U.S. 581, 606 (1389); Eleindienst v.

Mandel, supra, at p. 766. With this in mind we consider that it

would be incorrect to interpret "public charge" in Section

212(a)(15) as narrowly as in the deportation section. Everything in

the statutes, the legislative comments and the decisions points to

one conclusion, that Congress intends that an applicant for a visa

be excluded who is without sufficient funds to support himself,

who has no one under any obligation to support him and who,

being older, has an increasing chance of becoming dependent,

disabled and sick. Cf. Minuto v. Reimer, supra.

Nor can there be any doubt that old age assistance is individualized public support to the needy, as distinguished from essentially

supplementary benefits, directed to the general welfare of the

public as a whole. 42 U.S.C. 306.

It is a well established fact that an applicant for adjustment of

status under Section 245 of the Act is in the same posture as to

though he were an applicant before an American consular officer

abroad seeking issuance of an immigrant visa for the purpose of

gaining admission to the United States as a lawfully permanent

resident.

In considering the factors discussed above, it becomes clear that

under the provisions of Section 241(a)(8) the determination of

deportability is made upon the basis of the alien having already

become a public charge; that such determination is predicated on

an event that has actually transpired, thus making demand for

reimbursement, and reimbursement, feasible elements. However

in Section 212(aX15) the determination of excludability is based

upon an opinion of whether the alien is likely to become a public

charge at some future time, a predication which necessarily

precludes the element of reimbursement. Therefore, in our opinion

any alien who is incapable of earning a livelihood, who does not

have sufficient funds in the United States for his support, and has

no person in the United States willing and able to assure that he

will not need public support is excludable as likely to become a

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public charge whether or not the public support which will be

available to him is reimbursable to the state.

It is our conclusion that an older alien, who lacks means of

supporting herself; who has no one responsible for her support and

who expects to be dependent for support on old age assistance is

ineligible for a visa under Section 212(a)(15) of the Act, as likely to

become a public charge, even though the state from which she will

receive old age assistance may not permit reimbursement.

In view of the above, it is determined that the record establishes

that the applicant is excludable under the provisions of Section

212(aX15). Accordingly, the District Director's decision denying the

application will be affirmed.

ORDER: It is ordered that the denial decision of the District

Director be affirmed.

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