Matter of LAVOIE

Interim Decision #1481 Mamma of LAvono In Deportation Proceedings A.-10767234 Decided by Bixird May £8, 1965 The term "psychopathic personality" in section 212(a) (4), Imthigration and Nationality Act, includes sexual deviates ; therefore, respondent's admissions of sexual deviation and homosexuality over a period of years prior to his entry in 1960, coupled with a certification of the United States Public Health Service (based on a diagnosis of his sexual deviation and history of homo- sexuality) that he is a person of psychopathic personality, support a de- portation charge under section 241(a) (1) of the. Act as one excludable at entry under section 212(a) (4) of the Act because afflicted with psychopathic personality. Cues= : Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Exeludable at time of entry—afflicted with psychopathic per- sonality. The case comes forward on appeal from the order of the special inquiry officer dated March 11, 1965 again ordering that the respond- ent be deported from the United States to Canada on the charge set. forth in the order to show cause. The ease was previously before us on appeal from the order of the special inquiry officer dated January 30, 1964 ordering respondent deported on the charge set forth in the order to show cause. The record relates to a native and citizen of Canada, 41 years old, male, single, who entered the United States for permanent residence at Noyes, Minnesota, on January 26, 1960. He last entered the United States at Noyes, Minnesota on or about May 5, 1960 as a returning resident. The order to show cause charges that the respondent was a sexual deviate at the time of his entries and is subject to deporta- tion under section 241(a) (1) of the Immigration and Nationality Act, in that, at time of entry he was within one or more of the classes of aliens excludable by the law existing at the time. of such entry, to Interim Decision. #1481 wit, aliens afflicted with psychopathic personality, under section 212(a) (4) of the Act. At prior hearings there was introduced into the record a statement taken from the respondent dated August 80, 1981 to'the effect that he was homosexual according to his interpretation of the term "homo- sexual" which meant to him. a person whose sexual perversions are directed to members of his own sex; that he had had his first homo- sexual experience at the end of 1946 in Winnipeg, Manitoba, Can- ada; during 1946, 1947 and 1948 he had more than a dozen. experi- ences; after 1948 until 1959 these experiences occurred once or twice a month; in the last two years prior to the making of the statement he had five or six such experiences. Doctor Beittel, a staff psy- chiatrist of the United States Public Health Service stated that the respondent had been a sexual deviate. at least since 1946 and certified that the respondent was a sexual deviate in January of 1960 at least up to the time of hii arrest, based upon an interview of approxi- mately 60 minutes, although he concluded that from a psychiatric point of view, the alien could more accurately be described as a sex- ual deviate manifested, by auto-eroticism and homo-eroticism. This witness stated that he was compelled by the directives of the United States Public Health Service Manual to classify the respondent on the basis of his diagnosis of sexual deviate and history of homosexu- ality as a psychopathic personality. At prior hearings the respondent produced as a witness in his behalf Doctor Diamond, a specialist in psychiatry, who testified that he had spent eight hours over a period of eight weeks in examining and treating the respbnilent. His testimony is to the effect that the respondent was not afflicted with psychopathic personality o_ r a char- acter disorder but was suffering from a neurotic conflict over Des, whose symptoms were manifested by his homosexuality. He rejected the description of psychopathic personality as obsolete from a psych- iatric viewpoint. He also testified that homosexuality is not an appropriate medical tErm, that there was no such diagnosis as homo- sexuality, and that from a psychiatric standpoint the respondent was not a homosexual. This doctor conceded that the respondent's sexual behavior was abnormal and a deviation from acceptable normal standards. In our previous order of May 6, 1364 we quoted from Senate Report No. 1137 (82nd Congress, 9a Session, January 29, 1952) indi- cating that the Public Health Service had advised that the provision for the exclusion. of aliens afflicted with psychopathic personality or a mental defect is sufficiently broad to provide for the exclusion of homosexuals and sex perverts and that the change of nomenclature 225 Interim Decision #1481 is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates. Whatever the phrase "psycho- pathic personality" might mean to the psychiatrist, to the Congress it was intended to include homosexuals and sex perverts: We remanded the case in order to have included in the record the pertinent section of the United States Public Health Service Manual for the Medical Examination of Aliens and for characterization of the zespondent's disorder by both psychiatrists in the light thereof, to take further testimony as to what pattern determines a sexual deviate or homosexual and to evaluate the evidence to determine whether a preponderance of the evidence establishes the charge. At the reopened hearing held on October 1, 1964 only Doctor Belt- tel appeared. as a witness. He reaffirmed his position that within the meaning of the pertinent section of the Manual for Medical Exam- ination of Aliens the respondent was afflicted with psychopathic personality? The testimony Of the psychiatric witnesses has served only to com- pound the confusion inasmuch as both appear to agree that the -phrase "psychopathic personality" has no precise medical meaning and that "homosexual" is not a medical term. This difficulty how- •ever is recognized both in the legislative history previously referred to and in the Manual for Medical Examination of Aliens itself. As emphasized in the legislative history, the term "psychopathic person- ality" was understood to be broad enough to provide for the exclu- sion of homosexuals and sex parvartg and was not to be construed in any way as modifying -the intent to exude all aliens who are sexual -deviates. We are not concerned with the niceties of semantic differ- 1J:fatter of P—, 7 &N. Dec. 258; Matter or 8—, 8 I. a N. Dec. 409; MoUor -01 10—, 9 L & N. Dec. 393; United States v. Slores-Rodrigues, 237 F.2d 405 (2d 1956) ; .Uarb-Quiroz v. Neely, 291 F.2d 906 (5th 01r., 1961), 'The Manual for Medical Examination of Aliens (1963) 6-5, which deals with psychopathic personality reads as follows: (a) The legal term "psychopathic personality" is equivalent to the medical -designation "personality disorder," 'which may be 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 pat- tern of action or behavior (acting out), rather than mental or emotional symp- toms." An example of such a certificate is Class A, Psychopathic personality, inadequate personality. (b) Under this legal category will be classified those applicants who are diag- nosed as sexual deviates. In the medical examination of aliens this is a difficult diagnosis to establish. However, the examiner should assist the con- sular officer when possible when evaluating an applicant thought to come in this category. 226 Interim Decision *1481 ences indulged in by psychiatrists. The words,. "psychopathic per- sonality" have become words of art which, -whatever 'else they might mean, include homosexuality and sex perverts and the term is applied as it is commonly understood.' We conclude that the gov- ernment has borne the burden of establishing that the respondent is deportable on the charge stated in the order to show cause. The main thrust of counsel's argument is that the statute upon which the proceeding is based is unconstitutional and unconstitution- ally applied as determined by the court in Fleuti v. Rosenberg, 302 F.2d. 652 (9th Cir., 1962). However, on appeal, the constitutional question was bypassed, the decision below vacated and the case was decided on other grounds by the Supreme Court.' The constitutional question therefore remains unresolved and this is not the proper forum in which to try that question. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed. I•III•I••I••I•I•111.11. • Harb-Quirov is • Nooly, 291 '.2d 908 (5th Cir., 1901) ; Matter td 11—, L & N. Dee.'409. •12oeestberg v. Pleuti, 874 U.S. 449, 10 L.ed. 2d 1000 . (1963). 227