A-8312899
Decided by Board July 11, 1956
Psychopathic personality, homosexual — Deportability under sections 241 (a) (1) and 212 (a) (4), Immigration and Nationality Act.
(1) The excluding provisions of section 212 (a) (4) of the Immigration and Nationality Act relating to persons of psychopathic personality include homosexuals and sexual perverts.
(2) In the instant case, the respondent's admissions of homosexual tendencies and homosexual acts prior to entry plus the certification, based on those admissions, of the United States Public Health Service that he is a person of psychopathic personality are sufficient to support the charge that he is deportable under section 241 (a) (1) of the act as having been excludable at the time of entry on December 13, 1954, as a person afflicted with psychopathic personality.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (1) ( 8 U.S.C. 1251 (a) (1), 1952 ed.) — Excludable at entry as an alien afflicted with a psychopathic personality, section 212 (a) (4) ( 8 U.S.C. 1182 (a) (4), 1952 ed.).
BEFORE THE BOARD
Discussion: This case is before us on appeal from the decision of of the special inquiry officer dated June 21, 1955, holding respondent deportable on the warrant charge. Respondent, a 27-year-old native and citizen of Canada, initially entered the United States for permanent residence at Detroit, Michigan, on April 24, 1952. His last entry occurred at Detroit, after a week's visit in Canada, on December 13, 1954, when respondent was admitted as a returning resident alien upon presentation of his Alien-Registration Receipt Card. The warrant charge refers to this entry.
The warrant charge arose as a result of the respondent's arrest on December 13, 1954, by the Detroit police for investigation in connection with a larceny charge, which apparently was subsequently dropped. The special inquiry officer noted that respondent reportedly admitted to a Mr. L---- B---- that he "consorted with homosexuals," although there is no documentary or testimonial evidence to this effect.
Sec. 212 (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * (4) Aliens afflicted with psychopathic personality * * *.
Respondent made a statement to the Immigration Service on December 16, 1954 (exhibit 3), in which he testified as follows: He denied being a homosexual, but admitted that he had homosexual tendencies which began at the age of 23 years (or 1951); he admitted having sexual relations with a man or men on several occasions (fellatio or fellation, since respondent was the so-called passive party to the act); that the last time he had indulged in such activity was about 4 months before.
On December 16, 1954, Dr. M---- M---- M---- of the United States Public Health Service certified respondent as a person who was afflicted with a psychopathic personality at the time of last entry on December 13, 1954, because respondent "admits homosexuality for the past three years and admits committing acts of fellatio with other men."
Dr. L---- S---- W---- of Detroit stated in a letter, dated January 10, 1955, that he interviewed respondent at his lawyer's request and gave his impression of respondent's case. Dr. W---- stated:
(Respondent) is judged to be of average and perhaps superior intelligence and was cooperative during the interview but it is my impression that he was not entirely frank in all respects. He was tense and understandably emotionally unstable when seen. While there are some evidences of psychopathic tendencies in this man, his work record until the very recent past has been good according to the information given and this, in some measure, should help to mitigate the former.
Most of his difficulties seem to be of recent origin and psychiatric treatment might prove of some benefit to him.
At the warrant hearing, held in Detroit on January 6, 1955, in which respondent was represented by counsel, the respondent admitted signing exhibit 3 and admitted the correctness of this sworn statement. Respondent did not comment upon it, although he did comment on the Public Health Service certification. Respondent stated "That is incorrect. I recall very clearly stating that I had homosexual tendencies. There is a great deal of difference between homosexuality and homosexual tendencies. That doctor should know that." Respondent testified that he was examined by Dr. M---- following the making of this statement.
At the warrant hearing, Dr. M---- was questioned as to whether respondent had admitted to him that he was a homosexual or had admitted that he had homosexual tendencies. Dr. M----replied, "To the best of my recollection the alien stated that he was a passive partner in acts of fellation with other men. Therefore, the reply to the question is that he did commit acts of homosexuality." Dr. M---stated that, while respondent was accompanied to his office by an Immigration Service officer, the alien made the admissions directly to him. Dr. M---- further stated under questioning by respondent's counsel that his interview with respondent consumed perhaps a little more or perhaps a little less than five minutes, although he could not recall the exact amount of time involved. Dr. M---- testified that his diagnosis and certification were based solely on respondent's statements.
Respondent in his testimony again referred to his statements found in exhibit 3, and said, "They are true, but on occasion overexaggerated due to the position I was in at the time the statement was taken." Under further questioning he revealed that his comment about overexaggeration related primarily to the fellatio offense. However, he again affirmed that his admission in exhibit 3 of homosexual acts was true.
After the special inquiry officer handed down his decision on June 21, 1955, holding respondent deportable on the warrant charge, counsel moved for reopening of the record to permit inclusion of a letter from Dr. P---- A---- W----, a psychiatrist in Beverly Hills, California, who had had a consultation with respondent on February 7, 1956. This request was denied on February 13, 1956, by the special inquiry officer and the letter of Dr. W---- is, therefore, not a part of the record.
We have before us conflicting views on the issue of whether the alien was a person afflicted with a psychopathic personality at the time of his last entry on December 13, 1954. Since the question arises in deportation, as distinguished from exclusion proceedings, the Board is required to evaluate all the evidence of record, including the certificate of the United States Public Health Service and any other evidence of record, in determining whether the charge is sustained.
See Appendix.
Cf. United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806 (1949).
In exhibit 3, respondent denied being a homosexual but admitted homosexual tendencies at the age of 23 or in 1951, prior to his last entry on December 13, 1954. He also admitted having had sexual relations with a man or men (fellation) on several occasions, the last time being about mid-August 1954, or before his last entry. During the warrant hearing, respondent admitted the correctness of these statements but attempted to assert a distinction between homosexuality and homosexual tendencies, the latter of which he then admitted. He also stated that even though the statements were true, they were "overexaggerated" because of the "position" he was in at the time the statement was taken.
Dr. M---- certified that respondent was afflicted with a psychopathic personality at the time of entry, since respondent had admitted homosexual acts dating back 3 years and had specifically admitted committing acts of fellation. Counsel, in an effort to refute the warrant charge, submitted a letter from Dr. W---- which was not entirely favorable to respondent and certainly did not affirmatively support counsel's contention that the alien was not a person afflicted with psychopathic personality at the time of entry on December 13, 1954.
While respondent has denied that he is a homosexual, he has admitted both "homosexual tendencies" and homosexual acts which place him medically or psychiatrically in the category of a homosexual or a person with a psychopathic personality as the term is used in immigration parlance. This evidence, plus the certificate of the Public Health Service, is sufficient proof to support a conclusion of deportability under the warrant charge.
Counsel, in his brief, has paraphrased a number of recent, popular treatises relative to the question of homosexuality. However, these sources are descriptive, rather than medically definitive, on this point and, hence, are not particularly persuasive. Counsel also argues at length that the act of fellatio was not a crime at common law. Since the warrant charge is not drawn under section 241 (a) (4), this question is not relevant. Counsel's reference to sections 213 and 236 (d), concerning medical board examinations, is equally unresponsive in the instant situation.
Counsel, in his brief, also refers to pages 343, 344, 345 of S. Rep. No. 1515 (81st Cong., 2d sess., April 20, 1950 [Pursuant to S. Res. 137, 80th Cong., 1st sess., as amended]), in support of his view that respondent's admitted homosexual activity or homosexual inclinations are not encompassed by the term "psychopathic personality" and, therefore, are not covered by the warrant charge. We feel that counsel may have failed to view the comments found on pages 343, 344, and (especially) 345 in their proper perspective. In this 1950 report, it was stated that:
The present clauses excluding mentally and physically defective aliens, with three exceptions, are sufficiently broad to provide adequate protection to the population of the United States, without being unduly harsh or restrictive. The subcommittee believes, however, that the purpose of the provision against "persons with constitutional psychopathic inferiority" will be more adequately served by changing that term to "persons afflicted with psychopathic personality," and that the classes of mentally defectives should be enlarged to include homosexuals and other sex perverts. * * * (p. 345, S. Rep. No. 1515.)
As a result of this study of the immigration laws, S. 3455 (81st Cong., 2d sess.) was introduced on April 20, 1950, but was not enacted by the Congress. Section 212 (a) of S. 3455 read as follows:
The following classes of aliens shall be excluded from admission into the United States:
(1) Aliens who are idiots, imbeciles, feeble-minded, epileptics, or insane;
(2) Aliens who have had one or more attacks of insanity at any time previously;
(3) Aliens afflicted with psychopathic personality;
(4) Aliens with chronic alcoholism;
(5) Aliens who are paupers, professional beggars, or vagrants;
(6) Aliens afflicted with tuberculosis in any form or with a loathsome or dangerous contagious disease;
(7) Aliens who are homosexuals or sex perverts;
(8) Aliens not comprehended within any of the foregoing classes who are certified by the examining surgeon as having a mental defect, or as having a physical defect of a nature which may affect the ability of such alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living.
With reference to this version of section 212 (a) (7), the United States Public Health Service commented that:
* * * The conditions classified within the group of psychopathic personalities are, in effect, disorders of the personality. 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 manifest a disturbance of intrinsic personality patterns, exaggerated personality trends, or are persons ill primarily in terms of society 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 individuals suffering from addiction or sexual deviation. Until a more definitive expression can be devised, the term "psychopathic personality" should be retained.
* * * * * * *
The language of the bill lists sexual perverts or homosexual persons as among those aliens to be excluded from admission to the United States. In some instances considerable difficulty may be encountered in substantiating a diagnosis of homosexuality or sexual perversion. In other instances where the action and behavior of the person is more obvious, as might be noted in the manner of dress (so-called transvestism or fetishism), the condition may be more easily substantiated. Ordinarily, a history of homosexuality must be obtained from the individual, which he may successfully cover up. Some psychological tests may be helpful in uncovering homosexuality of which the individual himself may be unaware. At the present time there are no reliable laboratory tests which would be helpful in making a diagnosis. The detection of persons with more obvious sexual perversion is relatively simple. Considerably more difficulty may be encountered in uncovering the homosexual person. Ordinarily, persons suffering from disturbances in sexuality are included within the classification of "psychopathic personality with pathologic sexuality." This classification will specify such types of pathologic behavior as homosexuality or sexual perversion which includes sexual sadism, fetishism, transvestism, pedophilia, etc. In those instances where the disturbance in sexuality may be difficult to uncover, a more obvious disturbance in personality may be encountered which would warrant a classification of psychopathic personality or mental defect. (H. Rep. No. 1365, 82d Cong., 2d sess., pp. 46, 47.)
On the other hand, when S. 2550 (82d Cong., 2d sess.) was introduced, the above-quoted subsection had been dropped and section 212 (a), phrased as it later was enacted into law as Public Law 414 (82d Cong., 2d sess.; Act of June 27, 1952; 66 Stat. 163), provided as follows:
Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(1) Aliens who are feeble-minded;
(2) Aliens who are insane;
(3) Aliens who have had one or more attacks of insanity;
(4) Aliens afflicted with psychopathic personality, epilepsy, or a mental defect;
(5) Aliens who are narcotic drugs addicts or chronic alcoholics;
(6) Aliens who are afflicted with tuberculosis in any form, or with leprosy, or any dangerous contagious disease;
(7) Aliens not comprehended within any of the foregoing classes who are certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living;
(8) Aliens who are paupers, professional beggars, or vagrants; * * * (To the same effect, H.R. 5678, 82d Cong., 2d sess.; introduced October 9, 1951, reported with amendments February 14, 1952; H. Rep. No. 1365, 82d Cong., 2d sess.).
Relative to this omission from section 212 (a), S. Rep. No. 1137 (82d Cong., 2d sess., January 29, 1952) contained the comment that:
Existing law does not specifically provide for the exclusion of homosexuals and sex perverts. The provisions of S. 716 which specifically excluded homosexuals and sex perverts as a separate excludable class do 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 sufficiently 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.
S. 716, introduced by Senator McCarran on January 29, 1951, constituted a refinement or modification of Senator McCarran's original S. 3455, as a result of conferences with interested governmental and nongovernmental agencies. H.R. 2379, introduced by Congressman Walter, was the companion House bill.
Hence, the changed phraseology from constitutional psychopathic inferiority to psychopathic personality, found in the Immigration and Nationality Act of 1952, merely reflected modernized medical terminology, which had come into use in psychiatric circles, with this phraseology representing no change in the scope of the basic exclusion concept. Rather, the change was a descriptive device in an effort to more accurately designate the medical category in which the particular alien belonged (Cong. Record, vol. 98, No. 81, p. 5171, May 13, 1951).
It is noted in passing that the 1952 Diagnostic Manual of American Psychiatric Association lists under Sociopathic Personality Difficulties: Sexual Deviation (Homosexual, formerly listed as a person with a pathological personality) and Antisocial Behavior (formerly called constitutional psychopathic inferiority). See also, Appendix.
For these reasons, the order of deportation is affirmed and the appeal dismissed.
Order: It is hereby ordered that the appeal be dismissed.
APPENDIX
Homosexuality or inversion may be defined as a perversion characterized by the desire for sexual relations with members of the same sex. Homosexuality may be latent or overt. When overt, it it usually divided into two types — pseudohomosexuality (behavior brought on by circumstances, as in the case of prisoners or sailors) and genuine homosexuality. This latter category is subdivided into characteristics which are acquired (psychosexual homosexuality, resulting from early environmental influences) and inborn (constitutional).
Most authorities will admit that some homosexuality may be due to mental factors during the course of the individual's life, while others think that all homosexuality rests on that psychological basis, with this latter view representing a strong present trend. Among the environmental factors, education and occupation seem (from the evidence available) to have an influence on the development of masculinity and femininity, although nothing conclusive has yet been established on this score. The existence of a society of homosexuals in every large city, where the adolescent or the curious may be influenced, is, therefore, a definite consideration, since homosexuality is to a large extent an acquired abnormality.
In estimating the percentage of homosexuality, it is very important to remember that homosexuality is not a way of acting, but a way of thinking. Therefore, the fact that an individual performs a homosexual act does not immediately classify him as a homosexual, for a heterosexual individual can perform homosexual acts. Homosexuality is a way of thinking and the important characteristic is the desire to have sexual contacts, because an individual can be a homosexual and never perform an act.
The homosexual seems to have a compulsive need for accomplishment and friendship, not in the broad sense of needing a group of friends, but in the more restricted sense of needing a friend. They are usually introverts, shy personalities, people who seem to be akin to the psychotics of the schizophrenic type. They are, as a rule, unhappy and disturbed individuals characterized by basic anxiety abetted by loneliness, fears and indecisiveness. The disturbance is often due to repression, a factor which is more common in homosexuals than in heterosexuals.
(Cavanaugh, J.R., and McGoldrick, J.B., Fundamental Psychiatry, 1953, pp. 521-528; Odenwald, R.P. and VanderVeldt, J.H., Psychiatry and Catholicism, 1952, pp. 380-390; Moore, Thomas V., "The Pathogenesis and Treatment of Homosexual Disorders," Journal of Personality, 14:1, pp. 47-83 (Sept. 1945).)