trierfin Decision- #1538

trierfin Decision- #1538

Marna or LeRooltzum

In Deportation Proceedings

A-7128195

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Decided by Board December 1,1165

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(1) Existence of a pattern of homosexual activity over en extended. period of

time Derore and after respondent's entry In 1949 establishes that he 'was a

homosexual at the time of that entry and since a homosexual comes within

the meaning of the term "constitutional psychopathic inferiority" of section

3, Immigration Act of February 5, 1917, as amended, as it was interpreted

at time of the above entry, respondent is deportable as an alien who was ley - •

eludable at time of entry in 1949.

(2) In view of the favorable factors in respondent's case: his 20 years of residence in the United States, his war service, his steady employment, and his

efforts to gain self-control; the unavailability of alternative relief; and the

possibility he may be eligible for naturalization, action on the motion for

termination of the proceedings to enable respondent to apply for naturalize.tion will be held in abeyance pending a preliminary determination by the

Service of his eligibility for naturalisation_

OHABOE43 :

Order: Act of 1952--Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable

at entry--section 212(a) (4) (8 U.S.O. 118200(4)3

—afflicted with psychopathic personality.

Lodged: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Section 3,

Act of February 5, 1917—afflicted with constitutional psychopathic inferiority.

This is an appeal from the special inquiry officer finding respondent deportable on the lodged charge and granting voluntary departure; we find the charge sustained. The Service chaiges that respondent, a. 41-year-old single male

alien, a native and citizen of Canada, admitted to the United States

on Febr

uary 7, 1949 with a permanent resident visa, was a person

of constitutional psychopathic inferiority at the time of his entry.

Respondent contends he was not excludable under the laws and

regulations existing at the time of his entry. In the event he is

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Interim Decision #1538

found deportable, he requests that proceedings be terminated to

enabled him to apply for naturalization.

The history and facts are fully stated in.previous orders. Briefly,

after respondent's original admission for permanent residence, he

visited. Canada for short periods about every eighth week. Shortly

after...his last return on January.1, 1960, he was arrested in Michigan

for soliciting for an immoral act;' he was convicted, but upon a. new

trial was found not guilty. Following the arrest, respondent was

questioned by the Service and examined by a United States Public

Health Service psychiatric consultant. The Service instituted deportation proceedings on the ground that the respondent was a

homosexual and had been excludable as a psychopathic personality

at the time of his return in 1960. • Ordered deported by a special

inquiry officer, his appeal to this Board dismissed, respondent sought

judicial review. Oh July 12, 1961, the court found respondent had

been properly ordered deported (LaRochelle v. Baba, E.D. Mich.,

Civ. No. 20135). Review was again sought; the court vacated the

order of deportation .and remanded the ease to the Service for a

determination under Rosenberg v. Fleuti, 374 U.S. 449 (1983), as

to whether the respondent's return on January 1, 1960 constituted

an "entry" for immigration purposes (LaRocheRe v. Sahli, E.D.

Dfich., Civ. No. 20435 (November 13, 1963) ). (If there were no •

"entry," respondent would not have been subject to the qualitative

provisions of the law upon his return from Canada.)

At the reopened deportation hearing the special inquiry officer did

not sustain the charge in the order to show cause : he found that

the respondent's return to the United States had followed a casual

visit to Canada and did not therefore constitute an "entry" for

immigration purposes under Flouti. A new charge was lodged

which alleged that respondent was deportable because he had been

excludable as a person of constitutional psychopathic inferiority at

the time of his entry as an immigrant on February 7, 1949; the

special inquiry officer sustained this charge: he found that respondent was a homosexual and that it was the purpose of the law to

exclude homosexuals and sexual perverts as persons who were in the

constitutional psychopathic inferior category.

We shall now consider issues raised by the lodged charge. Counsel

contends the Service is estopped from considering whether the respondent was medically admissible in 1948 because his admission

for permanent residence in 1949 after he had passed a Government

medical examination prevented the Government from any medical

attack on his eligibility to have entered then. It is pointed out thit

had the medical groimd been pressed in exclusion proceedings, re437

Interim Decision #1538

spondent could have had a medical board act as the one to decide

his application and that this right is lost in deportation proceedings.

The contention is rejected. Congress indicated its intention to make

deportable those who were medically inadmissible at the time of

entry but who nevertheless succeeded in entering the United States;

moreover, the deportation proceeding is the recognized forum for

trying the issue (S. Rep. No. 1137, 82d Cong., 2d Sees. 21 (1952);

see Quires v. Neelly, 291 F.2d 906 (5th Cir., 1961); US. ew rel.

Leon v. Murff, 250 F.2d 436 (2d Cir., 1957) ; United States v. Holland-American Line, 231 F.2d 373 (2d Cir., 1956) ; Canciamilla v.

Hoff, 64 F.0d 876 (0th Cir., 1933) ; U4'. ex rel. Pozoloweo v Day,

33 Fad 267 (2d Cir., 1929), cert. den. 280 U.S. 594, followed U.S.

es rel. Kressberg v. Day, 37 F.2d 1014 (2d Cir., 1930) ; Gee Skew

Hong v. Nagle, 18 F.2d 248, 249 (9th Cir., 1927) (dictum); U.S.

ex rel. Haft v. Ted, 300 F. 017, S.D. N.Y., 1923, ard 300 F. 918

(24 Cir., 1924) ; United States v. Schwairz, 82 F. Supp. 933, S.D.

N.Y., 1949; Matter of R—, 8 I. & N. Dec. 616; Matter of A—, 8 L

& N. Dec. 12; Matter of P —, 7 L & N. Dec. 258; section 241(a),

(d) and section. 242(b) of the Act; cf. Mammerfrid T. Brownell, 238

F.2d 82 (D.C. Cir., 1956), affirming 145 F. Supp. 55 (D.C., 1956),

cert. den. 352 U.S. 1017; Lasaresaa v. United States, 199 F.2d 898

(4th Cir., 1952) ; Matter of If—, 4 I. &. N. Dec. 532).

Counsel's attack on the court cases on the ground that the jurisdiction of the Service to review medical eligibility of one admitted

for permanent residence was not raised must be dismissed. A review

of the law and cases reveals that Congress provided for the deportation of medically excludable aliens who had succeeded in entering

the United. States. Such deportation was the consistent akhniztistraLive practice, and a, court could have raised the question of jurisdiction on its own. (a similar issue was discussed in Matter of A—,

No persuasive reason for abandoning the administrative

practice has been advanced. Indeed, counsel recognized the fact

that this practice was properly followed at the deportation hearing

(pp. 137, 140).

The Service theory is that when respondent entered in 1949 the

law required the exclusion of constitutional psychopathic inferiors,

that a homosexual was in that category, and that the respondent

having then been a homosexual was excludable as a constitutional

psychopathic inferior. Counsel contends the record does not establish that the respondent was a homosexual. We find to the contrary.

In 1960, when questioned under oath by a Service'investigator, the

respondent who was then 26 stated he had the homosexual habit

for some ten or fifteen years, that driptang brought it out, that he

supra).

438 .

Interim. Decision 4t1538

had engaged in both active and passive sex acts with men, that he

had not engaged in such acts in Canada with anyone for the past

ten years and, somewhat inconsistently and without explanation,

that he had not engaged in such acts ten years' ago. He admitted

having committed a homosexual act within three Dr four weeks of

the questioning (Ex. 4). The summary of, a United States Public

Health Service psychiatric consultant who examined the respondent

in 1960 reveals that respondent stated to him that he became acquainted with homosexuality -while serving in the Canadian Army

during World War II, that his sexual experiences between 1942

and 190 were largely with men, that his homosexual contacts since

his army experience had become more frequent, that In the past five

or six years previous to the questioning the respondent had accepted

the fact that he was a homosexual and dependent upon homosexual

acts for his sexual outlet, that in the same period his male partners

had been found through contacts made in the public, that he had

had sexual relations with women but preferred them with men

(Ex. 2). Respondent reviewed the information in the summary

at the reopened hearing and stated that he found nu factual inaccuracies but that "they are vague" (p. 204). At the reopened

hearing the Government expert witness testified that in his opinion

based upon a review of his record of the respondent's examination

in 1960 and the statement respondent made in 1960 (Ex. 4), respondent was a homosexual (pp. 135-175). The expert witness

who appeared on respondent's behalf testified that respondent had

gone to him for the three years from 1960 to 1068 for treatment

of a homosexual condition, that he had reexamined respondent about

two weeks before the hearing, and that he considered respondent

was cured since he had engaged in no homosexual act since his

treatment (pp.180-202). The witness pointed to respondent's good

record with the Royal Air Force, -his record of 15 years' responsible '

employment at one job, the fact that he supports his parents, and

the facts that the sex incidents took place when respondent was

under the influence of liquor and he was the passive partner. Respondent's answer as to why he had gone to his psychiatrist was

"to get at the basic cause of the homosexuality, which was my

problem; to see what could be done about it, if I could be remedied"

(p. 205). The existence of a pattern of homosexual activity over

an extended period of time before and after respondent's entry in

1949 establishes that he was a, homosexual at the time of this entry.

Counsel contends that a homosexual is not a constitutional psychopathic inferior merely because he is a homosexual but that to establish that a homosexual is a constitutional psychopathic inferior, it

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Interim Decision #1538

must also be proven that the condition is *Institutional and had

brought the person in repeated conflict with society and authority.

The congressional history of the 1917 Act reveals that the term

"constitutional psychopathic inferiority" was added to the law to "make

the list of excluded classes complete, especially with regard to the

mentally deficient", that the change had "been made only after consultation with person of knowledge and experience", and that the

object of the change. was "to prevent the introduction into the

country of strains of mental defectives that may continue and multiply through succeeding generation." (S. Rep. No. 355, 63rd Cong.,

2d Sess. 5 (1914) ; S. Rep. No. 352, 64th Cong., 1st Sess. 4-5 (1916).)

The Public Health regulations are of tisistsuce. The "Manuel

of the Mental Examination of Aliens" issued by the United States

Public Health Service in 1918 (Washington Government Printing

Office, Miscellaneous Publication No. 18, Treasury Department,

United States Public Health Service) coning the following explanation under the heading "Constitutional Psychopathic Inferiority":

But aside from those showing defective intelligence, there is an hiportent

group in the borderland between sanity and insanity who are "failures of

mental adaptation" and have a tendency to become actively disordered. In

this class are the constitutional psychopaths and inferiors, the moral imbeciles, the pathological liar& and swindlers, the defective delinquents, many of

the vagrants and cranks, and persons with abnormal sexual instincts. The

dividing line between these various types is not well defined, and for purposes of simplicity in classifying the mentally abnormal immigrant they may

all be included in we general class and certified as cases of constitutional

psychopathic inferiority.

A revision of the regulations defined persons of constitutional

pvelopothin inferiority as follows:

There shall be certified as cases of constitutional psychopathic inferiority

all psychopathic characters such as "chronic litigants," "sexual perverts,"

"pathological liars," "dipsomaniacs," "moral imbeciles," and mentally peculiar

persons who because of eccentric behavior, defective judgment, or abnormal

impulses are in repeated conflict with social customs and constituted authorities. Well-marked cases of psychasthenia and hysteria that have developed

on an unstable nervous constitution shall also be certified for constitutional

psychopathic inferiority.

Supplementary instructions in the revision contained the following

statement:

Constitutional Psychopathic Inferiority—The concept constitutional psychopathic inferiority embraces a variety of people of unusual temperament and

uncontrolled antisocial impulses. These people may have subnormal, normal, or

superior intelligence; they may appear to have a pleasing personality, but many

of them have paranoid trends. (Regulations Governing the Afedical Examine-

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Interim Decision #1538

Lion of Aliens, Itemised August, 1930. Miscellaneous Publication No. 5, United

. States Treasury Department, Public Health Seritice, pp. 13, 45)

The history of the 1952 Act, an Act which incorporated section 3

of the 1917 Act, reveals that Congress desired the continued exclusion

of the homosexual and considered. this accomplished when it replaced

the term "constitutional.psychopathic inferiority" with the term

"psychopathic personality"—a replacement made to permit use of

current medical terminology; that the replacement was without other

importance is shown by the fact that no one excludable as a psychopathic personality was mentioned in die discussion relating to

modifications of or additions to.the classes of excludable aliens. (See

Matter of P—, 7 I. & N. Dee. 258; S. Rep. NO. 1137, 82d Cong.,

2d Sees. 8,12 (1952).) It thus appears that consistently from its

inception the term "constitutional psychopathic inferiority" has been

interpreted as applying to one with abnormal sexual instincts. Respondent by his own admission engaged in abnormal sexual acts

over 'an extended period of time; such conduct was in conflict with

social custom; he comes .within the meaning of the term "constitutional psychopathic inferiority" as it was interpreted at the time

of his entry, and he was then excludable.

It is no bar to our finding that the Government expert witness

stated he could not certify that the respondent was a person of

constitutional psychopathic inferiority in 1919. (The witness did

state that respondent, on the basis of his social history, was a

homosexual and a psychopathic personality.) First,. in deportation

proceedings we are not bound by the medical certificate and there .

is in this record adequate support for the conclusion that respondent

was a person of constituitonal psychopathic inferiority at the time

of entry. Second, the witness' inability to certify respondent as

a person of constitutional psychopathic inferiority must be viewed

in light of his explanation. The witness testified that he could not

certify that anyone was a person of constitutional psychopathic

inferiority, -because this term was no longer used, it having been

replaced by the term "psychopathic personality." He explained that

the term- "constitutional psychopathic inferiority" was abandoned

because it carried with it the assumption that heredity was the

factor giving rise to the abberrant behaviors whereas medical opinion cannot now say on the basis of the present level of medical

knowledge that such behaviors are caused by hereditary (constit!il -: .

factors rather than by environmental. Therefore, one ex- tional)

hibiting certain abberrant behavior is described as a "psychopathic'

personality," the term describing behavior without in the propes'S ■of

naming it, attempting to state the reason for theZehatrior.

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Interim Deci;ion 4 1538

The considerations which control the medical expert do not control us. In determining whether an alien is deportable we are not

permitted to become involved with issues concerning the wisdom

or correctness of congressional action! our task is to see if the

respondent involved is in the class that Congress had in mind-as

the subject of its law; it appears to us on this record that respondent

is such a. person.

Counsel contends the term "constitutional psychopathic inferiority" is void for vagueness. We have no jurisdiction to consider the

validity of an Act of Congress.

When the Service lodged the new charge alleging that respiondent

was excludable at the time of his original entry, counsel moved for

termination of proceedings. The motion was -denied. Counsel contends this denial was error. We find no error. Although the Service was apparently abandoning its original charge, it could in the

same proceeding explore any charge it deemed applicable (8 OFR

216.16(d) ; see Crane v. Boyd, 237 F.2d 927 (9th Gir., 1956)). The

alien cannot dictate to the Government the charge which will be

used in his case (Ntovas v. Ahrens, 276 F.2d 483 (7th Ck., 1960),

cert. den. 364 U.S. 826).

Counsel contends it was error to deny his motion to terminate

proceedings for the purpose of allowing respondent to apply for

naturalization. Counsel points to the fact that the case has been

Pending for five years, that it was not reopened until about a year

after the court had remanded the case for further administrative

proceedings, that respondent has twice undergone the expense of

judicial review of the original charge which has now been abanfinned, that during the pendency of deportation proceedings the

respondent has been unable to visit close relatives in Canada and

engage in family celebrations, that he has lived under the tension

of legal insecurity during this time, that he is now compelled to

await the outcome and expense of further administrative proceedings, and that the morals charge against him was dismissed after

trial. He points to respondent's war service, his steady employment,

his efforts to gain self-control, his 20 years of residence in•the United

States, and the effect his deportation could have on the United

States citizen employer for whom he manages a pattern and model

works. The Service stating that termination of proceedings to

permit naturalization is an extraordinary relief opposes such termination on the ground that the legality of his entry is in issue,

and the respondent's record as a homosexual raises a question as

to whether the court would naturalize him.

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Interim Decision 40538

Further exploration of the request for termination of proceedings

to enable respondent to apply for naturalization is indicated by

the existence of the favorable factors, the lack of alternative relief,

and the possibility that respondent is not ineligible for naturalization (see United States v. Schwan, 82 F. Supp. 933, S.D. N.Y.

(1949)).

So that we may rule upon the request for termination on the basis

of a record which is more adequate than the one before us, we

shall reopen proceedings to enable respondent to submit to the

Service an application to file a petition for naturalization, and to

enable the Service to process the application and make such recommendation as to matters of law and discretion as is deemed appropriate; the. case shall then be returned to the Board with such

briefs as the partiesi may desire to file. We shall then pass upon

the motion for termination of proceedings (see Pignatello V. Attorney General of United States, 850 FM 719 (2d Cir. 1965) ; Natter

of Hroneich, Int. Dec. No. 1473). Our action here should not be

construed as an expression of opinion as to respondent's eligibility

for naturalization or the desirability of granting his application.

ORDER: It is ordered that action -.on the motion be held in

abeyance pending the outcome of the preliminary proceedings on

the alien's application to file petition for naturalization.

443