# trierfin Decision- #1538

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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
436

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.
411

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.
4-12

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

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