In DEPORTATION Proceedings

MATTER OF 5--

In DEPORTATION Proceedings

A-8364783

Dceidrd by Mara ,July' 21, 1959

Excludability—Afflicted with psychopathic personality—Homosexual—Crime involving moral turpitude—Michigan—Gross indecency, section 338, Michigan

Penal Code.

(1) A homosexual is within the class of persons afflicted with psychopathic

personality as contemplated by section 212(a) (4) of the 19,52 act when he

has engaged in homosexual activities on many occasions over a period of

time and his behavior is not a response to unusual circumstances such as

au all male environment.

(2) Violation of section 338. Michigan Penal Code, gross indecency, held to

involve moral turpitude despite absence of statutory definition of the crime.

CHARGES:

Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excluaanie

at time of entry as afflicted with psychopathic personality.

Lodged: Act of 1952—Section 241(a) (1) [8 . 1T.S.C. 12-51(a) (1)]—Excludable

at time of entry as having admitted commission of crimes involving moral turpitude; namely, gross indecency and crime against

nature (Michigan).

BEFORE THE BOARD

Discussion: Respondent. is a 33-year-old unmarried male alien, a

native and national of Canada, whose last entry into the United

States was at Detroit, Michigan, on August 15, 1958, when he entered

as a returning resident. Respondent was admitted for permanent

residence at. Detroit on August 27, 1952. The special inquiry officer

found respondent not deportable on the charge stated in the order

to show cause, but found him deportable on the lodged charge. The

alien appeals from the special inquiry officer's decision, contesting

the finding that he is deportable on the lodged charge.

The examining officer appeals from so much of the special inquiry

officer's order as finds the respondent deportable on the lodged

charge only, contesting the special inquiry officer's conclusion that

the respondent. is not subject to deportation under section 241(a) (1)

of the immigration and Nationality Act as a person afflicted with

a psychopathic personality under section 212(a) (4) at time of

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entry. It is the conclusion of the Board that the alien is deportable

on both charges.

On April 12, 1958, respondent was arrested in Detroit for "accosting and soliciting" a male police officer to perform an unnatural

sex act (oral perversion), in violation of section 448, Michigan

Penal Code. On his plea of guilty, he was convicted and sentenced

to pay a fine in lieu of a jail term. Thereafter on June 19, 1958,

respondent made a sworn statement to an immigration investigator,

following the usual warning that "any statement you make must

be of your own free will and may be used as evidence in any

deportation or other proceedings." The alien stated that he was

willing to make the statement under oath. It is this statement (exh.

2) which forms the basis for the lodged charge.

Respondent was asked if he understands the meaning of the word

homosexual, and he said, "Yes, I understand the meaning of the

word, yea." He stated he had homosexual tendencies since he was

15 or 16 years of age and described the manner and nature of his

indulgence. He stated that he had engaged in such acts with other

male persons for "practically four years." He admitted frequenting

locations known to be gathering places for homosexuals, admitted

acts of sodomy, stated that he had engaged in such activities sometimes two or three times a month and sometimes not as often. The

definitions of "gross indecency," section 338, and "sodomy," section,

153, Public Acts of 1931, Michigan, were read to respondent, and

he was asked if he admitted the commission of these crimes prior

to his last entry into the United States on April 1, 1957. Respondent answered, "Yes," to each of these questions.

After the time of 'making the statement, respondent went to

Ca.nada with his father and mother and returned on August 15,

1958. An order to show cause dated October 31, 1058, was served

on respondent, and the hearing was commenced. on November 10,

1958. Respondent denied that he was afflicted with a psychopathic

personality. He admitted that the sworn statement of June 19,

1958, was .made by him and that all the information contained in

the record of that statement was true and correct. He admitted

having been interrogated by Dr. P L , M.D., Psychiatric

Consultant, of the United States Public Health Service. Dr. L

issued a Class A medical certificate certifying that respondent was

efflictecl with "sociopathic personality disturbance, sexual deviation

(homosexuality) - (psychopathic personality with pathologic 9C7111

ality)" at, the time of his last entry. Exhibit 2 and the medical

certificate, exhibit 3, were introduced in evidence, and there was no

objection by respondent or counsel.

At a continued hearing Dr. L

testified that during his 45minute: interview with respondent the facts elicited by him were

410

sufficient to support the certificate he in ned. He recited much the

same information as that set forth in exhibit 2, but in greater deon what he based his diagnosis of a

tail. Counsel asked Dr. L

psychopathic personality in the case of respondent, and Dr. L------repl ied

* the main piece of evidence * * is the predominant homosexual in-

terests that he clearly aiiinifezit. unit has manifested for a series of years. * * *

in addition to this, * * * he was quite accepting of tins kind of sexual adjustment and was generally speaking concerned largely with the legal consequences

of his predicament rather than any moral or ethical or religious consequences

of his adjustment and behavior.

Dr. L— testified that he considered the time he spent with

respondent sufficient for the purpose of immigration procedure. That

is, he did not prescribe an y treatment. and his examination was not

for the purpose of planning treatment or for determining whether

respondent could be successfully treated.

, a physician practicing psychiatry in Detroit, MichiDr. A

gan, and offering extensive qualifications, testified in respondent's

behalf. He saw respondent nine or ten times in his office and testified that he had thoroughly examined respondent and had formulated

a theory or concept of respondent's personality and condition, which

he recited. Dr. A stated that from a psychiatric viewpoint

he does not believe respondent to be a homosexual, but states that

his diagnosis is "psycho s exual infantilism." Dr. testified

that respondent indulged in the "infantile sexual life'' only when

he was under the influence of alcohol which relieved him of his

inhibitions. Dr. A was asked by the examining officer, "Did

this respondent relate to you a history of homosexual conduct?"

Dr. A replied in the affirmative and read from his notes a

resume of respondent's background, including the fact - that his

first "experience" was in 1954; that he had, engaged in such activities

about once a month since that time, both as the active and passive

partner; and that he claims to have been under the influence of

alcohol on every occasion that he engaged in active homosexuality.

Dr. A stated that he diagnoses respondent as a neurotic rather

than a psychopathic personality, and as a person afflicted With psychosexual infantilism rather than as a homosexual, because lie has

anxieties, fears and concerns about himself, because he de.sirec3 to

cure himself, and because he has actually entered into a relationship

with a woman. In Dr_ A

's terminology, a psychopath has no

such desires and seeks no such help. Dr. A

also testifipd that

in all of these incidents respondent was "lured," and that definitely

in the circumstance of the last arrest "luring" had been present.

The psychiatrist ranged over a wide area of hypothetical unrelated to the instant case. The hearing became primarily a diseuEsion of the legal meaning of the term "psychopathic personality."

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Dr. L

replied:

was asked to define a psychopathic personality, and

I believe the term "psychopathic personality" is essentially a descriptive

term referring to individuals who manifest poor judgment, inability to learn

from experience, antisocial and dissocial trends in their life pattern, lack of

adherence to the usual social and moral standards * * * does not follow, generally speaking, the usual moral and social code * * * although this same

person is fully cognizant of the nature of his activities and he is fully responsible for them in the sense that he knows what he is doing and the

consequences of his acts.

The term "psychopathic personality" is defined for us in the

legislative history of the statute and in the Manual for Medical

Examination of Aliens, issued by the United States Department of

Health, Education, and Welfare, Public Health Service, Washington, D.C., chapter 6, Mental Diseases and Defects, which states, section A, p. 6-1:

1. General.

a. The purpose of this section is to take up separately various excludable

(class A) mental conditions with the object of clarifying the meanings of the

terms, and to furnish criteria that will help the examiner determine the proper

classification of mental conditions according to the terms contained in the law

and regulations.

h. A description of the various types of mental illness will be found in the

Diagnostic and Statistical Manual, Mental Disorders (Committee on Nomenclature and Statistics, American Psychiatric Ass'n., Washington, D.C.,

1952.) *

*.

6. Psychopathic personality.

a. The legal term "psychopathic personality" is equivalent to the medical

designation "personality disorder," which may he broadly defined as follows:

"These disorders are characterized by developmental defects or pathological

trends in the personality structure, with minimal subjective anxiety and little

or no distress. In most instances, the disorder is manifested by a lifelong

pattern of action or behavior (acting out), rather than by mental or emotional symptoms." * * *

b. Under this legal category will be classified those applicants who are diagnosed as sexual deviates. (p. 6-5)

The Senate Committee Report No. 1137 (82d Cong., 2d

January 29 1952) reporting for the Committee on the Judiciary on

the bill which became the Immigration and Nationality Act of

1952 comments:

Existing law does not specincal y provide tor the exclusion of homosexuals

and sex perverts. The provisions of S. 716 which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in

the instant bill. The Public Health Service has advised that the provision

for the exclusion of aliens afflicted with psychopathic personality or a mental

defect which appears in the instant bill is suff iciently broad to provide for

the exclusion of homosexuals and sex perverts. This change of nomenclature

is not to be construed in any way as modifying the intent to exclude all aliens

who are sexual deviates. (Emphasis supplied.)

412

The House Committee on the Judiciary submitted :Report No.

1365 (Sid Cong.. 2d sees., February 14, 1952) which includes at

page 46 the report of the Public Health Service on the medical

aspects of this legislation. The latter report discusses the term

"psychopathic personality" as follows:

Some comments should be evnressed regarding the term "psychopathic personality." Although the term "psychopathic personality," used in classifying

certain types of mental disorders, is vague and indefinite, no more appropriate expression can be suggested at this time. The conditions classified within

the group of psychopathic personalities are, in effect, disorders of the per.onality. They are characterized by developmental defects or pathological

trends in the personality structure manifest by lifelong patterns of action or

behavior, rather than by mental or emotional symptoms. individuals with

such a disorder may matlifes,t a diturhanCe of intrinsic personality patterns,

exaggerated personality trends, or are persons ill primarily is terms ofs ociety

and the prevailing culture. The latter or sociopathic reactions are frequently

symptomatic of a severe underlying neurosis or psychosis and frequently include those groups of indivlauala euffprinz from addiction or sexual deviation.

Until a more definitive expression can be devised, the term "pr±schopnthie personality" should be retained.

We are, of course, bound by the definition of psychopathic personality in the 1952 act, as it appears in the legislative history and

the Manual for the Medical Examination of Aliens, as set forth

above. Dr. _A— described what he considered to be a psychopathic

personality, but it is clear that his definition is different from that

decreed for us by the authorities quoted above.

The special inquiry officer read to Dr. A

from House Report

No. 1365, quoting the. Public Health Service definition of "psychoagreed with this

pathic personality" and asked whether Dr. A

replied that he did not entirely

discussion and concept. Dr. A

agree with it, that "in the light of clinical experiences, you cannot

make a universal conclusion, so to speak. You have to treat each

case individually and not in the form of a statistic. * * * We want

to put them into definitions, into classes, and into laws * * '*, and

when we deal with human beings, it's impossible * * if we keep

in mind the quantitative factor, then we can understand whether

or not he approximates the degree of what in the old times they

used to call psychopathic personality, or the degrees of what I

choose to term psychosexual infantilism." Dr. A— came around

to stating that he disagreed with the terminology of the Act and

prefers to use a term of his own, "psychosexual infantilism." The

term psychopathic personality used in the Act, and defined for us

in the legislative history of the Act, is not one we can use or reject,

or substitute a term we prefer. If we were to accept Dr. A — 's

definition of the term it seems apparent that almost no one would

be. classified as a psychopathic personality, because his definition

contemplates a person who is incurable and refuses to seek treat-

ment. If one has refused to seek treatment ; it is impossible to say

he is incurable. Only a person who had submitted to extensive

treatment and had not benefited thereby would come within Dr.

A 's definition. It is our opinion that the application of the law

was not intended to be so narrowed. The definition of psychopathic

personality offered by Dr. L was more nearly akin tb the standard prescribed by the law and the legislative history of the law.

and Dr.

A difference of opinion also exists between Dr. L

stated that it

A

as to the definition of a homosexual. Dr. L

is a difficult thing to define, that no single distinction allows people

to be characterized into two groups, one being heterosexual or

normal and the other being homosexual or abnormal, but that, to

the best, of his ability, "Homosexuals are those individuals who

manifest characteristically a preference both in their overt sexual

activity and in their mental or psychic sexual fantasies * * * a

preference for the same sex. * * * According to the Manual for

Medical Examination of Aliens and the nomenclature of the American Psychiatric Association, most homosexuals would be considered

as sociopathic personalities with sexual deviation. I couldn't say

categorically that all homosexuals would fall in this category because I haven't seen all homosexuals. I'm sure there might be some

exceptions." Dr. L stated that a homosexual who might not be

a psychopathic personality might be one who had occasional or isolated homosexual experience, or who responded with homosexual

behavior when he was in an all male environment such as the

Army or in prison. He denied, in response to a question of counsel,

that there was any similarity between such situations and a hypothetical situation posed by counsel where "an arresting officer makes

himself available by means of what we have legally defined as an

entrapment." Dr. L

also stated that lie does not feel that there

is any such thing as a psychoneurosis causing homosexuality.

The meaning of "homosexual" is discussed in United States v.

Flores-Rodriguez. 237 F.2d 405 (C.A. 2, 1956), although the case

arose under the 1917 act. The court there concluded that the alien,

a convicted and admitted homosexual, came under the term "mentally

defective" as also used in section 212(a) (4) of the 1952 act, and concluded that Congress did not intend to admit "a sex deviate so

afflicted with such a defect of mentality as to publicly solicit an

unnatural act." The concurring decision of Circuit Judge Frank

quoted the Senate Report and the Public Health Service Report

referred to above. "Psychiatrists have differing perspectives when

they are (a) classifying patients, (b) diagnosing patients with reference to possible 'cure,' and (c) discussing the legal 'responsibility'

of those accused of crime. A psychiatrist with one perspective may

use a psychiatric term in a manner different from another psy—

414

chiatrist with another different perspective,' said Judge. Frank.

He believed the 1917 act may not have included sex deviates, but

there was no question in the minds of any of the Court that the

1952 act does include such persons.

The record shows that respondent is definitely within the class

of "homosexuals," as the term is commonly understood, and within

's psychiatric parlance

the contemplation of law. Within Dr. A

respondent may not be a true homosexual, but the record establishes that he is not a young boy, that lie has been engaged in these

activities for some years, on many occasions, and with many part

ners. This is not a case of a psendoliomosexual, as described by

both specialists, who engaged in such activities because he found

himself in unusual circumstances. If this man is not a homosexual, we would find it difficult to hold that anyone is a homosexual. Since Congress unquestionably intended to include homosexuals in the class of aliens afflicted with a psychopathic personality, we can make no finding except that respondent is subject to

deportation under section '241(a) (1) of the Immigration and Nationality Act in that, at the time of entry, he was within a class

of aliens excludable by the law existing at the time of such entry, to wit, an alien afflicted with a psychopathic personality under

section 212(a) (4) of the Act.

Counsel's basis for his appeal with regard to the second charge

2 I. & N. Dec. 285, 287 (B.I.A., March 1,

is Matter of J

1945; Sol. Gen., May 29, 1945). The J

case establishes the

rules to be observed in finding that an alien has admitted the commission of a crime involving moral turpitude. Respondent made a

binding admission under the rules of the J case. The Solicitor

General's restatement of the elements of a binding admission, 2

I. & N. Dec. 285 at 288, contains the repeated admonition that the

admission must. be "clear," but there is no provision in the formula

that, the elements of an admission must occur in any particular

sequence. The alien was advised of the acts committed by him

which were stated to constitute gross indecency and sodomy. Respondent clearly and repeatedly admitted the acts which constitute

the essential elements of the crime. His admission was unequivocal.

There is no question that the crimes of gross indecency between

male persons and sodomy are crimes involving moral turpitude

by the language of the Michigan statutes, and the decisions of this

Board, and under such court decisions as are available. As long

ago as February 26, 1944, the Board held that a violation of section 338 of the Michigan Penal Code involves moral turpitude, as

the offense of fellatio is comprehended within the definition of the

statute (Matter of S

, unreported, 56152/594). The decision of

the special inquiry officer cites Matter of 1i7

, 5 I. & N. Dec. 578

415

(B.I.A.. Dec. 23, 1953), wherein, on reconsideration, the Board found

that a statement by an alien under oath to a Service officer that he

had been a person of homosexual habits and that he had been

addicted to practicing masturbation with other male persons was

an unequivocal admission of the commission of the crime of gross

indecency in violation of that section of the Michigan statute; that

the element of moral turpitude was present; and that the alien was

deportable on the basis of his competent and binding admission.

Most recently, we decided in Matter of 11-- ,.(Nov. 29, 1956, 7

I. & N. Dec. 359), that the offense of gross indecency in violation

of section 206 of the Canadian Criminal Code, practically identical

to the statute here under consideration, is a crime involving moral

turpitude, citing cases. We considered similar statutes of other

States where the acts were not defined by statute, or even set out

in the record of conviction because of their obscenity and grossness,

and we found that the absence of definition as to the nature of the

crime in the Canadian statute did not prevent a conclusion that an

-admission of the commission of the crime involved moral turpitude

when the conduct admitted by respondent was vile, depraved and

•contrary to the tenets of society. Holdway v. Barber (D.C., N.D.

Calif., 1957), unreported, upheld our decision in Matter of H

supra, agreeing that the conviction involved moral turpitude. A

similar statute, wherein the offense is not defined, is considered in

Matter of Z , 7 I. & N. Dec. 253.

Following the lodging of the second charge the special inquiry

officer granted an adjournment of the hearing for the purpose of

permitting counsel and respondent to meet the lodged charge. At

the reopened hearing, December 19, 1958, counsel asked respondent

if he knew at the time he made the statement of June 19, 1958,

what the terms "gross indecency" and "crime against nature" or

"sodomy" were, and if he could have defined the meaning of these

terms. The alien stated that he did not know what they meant at

the time he made the statement and that. he could not define the

terms then nor now. He stated that he did not know what the

special inquiry officer was talking about when he read the Michigan

statutes relating to these offenses. At the time he made his statements of June 19, 1958, not only did the respondent answer the

-questions of the investigator, but when he was asked whether or

not he had at any time engaged in acts of sodomy, and the investigator defined these acts for him, the alien volunteered, "I have

done that to somebody but I never let them do it to me." The

special inquiry officer concluded that from his observation of the

respondent during the hearing, from respondent's demeanor and

manner of response, the special inquiry officer believed him to be

mentally alert, observant , and of sufficient understanding to com-

416

prebend the questions put to him, and found that respondent's

testimony that he did not understand the investigator is unworthy

of belief. Our reading of the record leads us to the same conclusion. it should be remembered that this alien is from Canada and

does not have the handicap of dissimilarity of language that exists

in many of these cases.

Counsel complains that respondent's statement is not used as evidence of an offense, but that the statement itself constitutes the

very grounds for deportation. That is the effect of this peculiar

provision of the immigration laws. The subsection providing for

the "admission of the commission of a crime" was present in the

1907 act and was carried over into the 1910, 1917 and 1952 acts..

(Senate Committee Report No. 1515, 81st Cong., 2d sess., p. 350.)

The fact that an alien can make an admission which, in itself,

renders him deportable, even though he may not have been convict e d of the. precise crime which he admits, may be unique and seem

severe, but it has been part of the immigration statutes for many

years. It is because of its severity that the rules of the

case, supra, were established and are adhered to.

We have sustained the use of preliminary statement given by the

alien voluntarily in Matter of P , 5 I. & N. Dec. 306; Matter of

4 I. & N. Dec. 475; Matter of P— , 4 I. & N. Dec. 684, and.

decisions discussed therein. The present regulation, 8 CFR 242.14,z'

is the equivalent of the old regulations, 8 CFR 150 and 151, set forth

in footnotes 1 and 2 to Matter of F , 4 I. & N. Dec. 475.

Sehoeps v. Carmichael, 177 F.2d 391 (C.A. 9, 1949), held a recorded

statement of an alien made under oath was admissible under the

regulation, and referred to the regulation as "sensible." Exhibit a

shows that respondent was informed that any information he gives

should be voluntary, that it might be used by the Government in

any proceeding that might be instituted against him. He was

asked if he was willing to make such a statement. He was placed

under oath and informed as to the meaning and penalties for

perjury. These warnings and admonitions serve to preserve his_

constitu tional rights, The failure to advise him of the right to

counsel at the taking of a preliminary statement does not render

the hearing unfair or invalidate the use of the statement. We

find nothing in the record upon which to base a finding that his

statement was not free and voluntary.

.

5 CFR 24234:

(c) Use of prior statcracnis. The special inquiry officer may receive in evidence any oral or written statement which is material and relev a nt to any

issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.

1

417

Lodging of the additional charge was proper within the regulations?

It is our conclusion that respondent was given a fair hearing;

that he is deportable on both the lodged charge and the charge

set forth in the order to show cause; and that the appeal must be

dismissed.

Order : It is ordered that the appeal of the alien be and is hereby

dismissed.

It is further ordered that the appeal of the examining officer be

sustained, and so much of the special inquiry officer's order as

finds the alien not subject to deportation on the charge stated in

the order to show cause be reversed, and the alien is found to be

subjeet to deportation under section 241(a) (1) of the Immigration

and Nationality Act, in that, at time of entry, he was an alien

afflicted with psychopathic personality under section 219(a) (4) of

the Act.

It is further ordered that the portion of the order of the special

inquiry officer finding the alien deportable on the lodged charge be

and is hereby approved.

28 CFR 242.16 (d) provides, in part:

(d) Additional charges. An examining officer who has been assigned to a

case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent.

418