FLEUTI

Interim Decision 40754




                              MATTER OF FLEUTI

                       In Deportation Proceedings
                                  A-8382428
                 Decided by Board December 27, 1965
A finding that respondent was a homosexual at the time of entry in October 1952
 and thus deportable under section 241(a) (1), Immigration and Nationality
  Act, as one excludable at entry under section 3, Act of February 5, 1917, as a
  person of constitutional psychopathic inferiority is not established where the
  evidence of 'record reveals that although respondent had an inclination toward
  homoiexuality and had engaged in homosexual relations prior to entry, it
  appears that he can control the inclination and that he had it under control
  before he entered, not having engaged in homosexual relations during the period
  December 1951—October 1952, immediately prior to his entry.

CHARGES :

  Order : Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)3—Excludable
                       at entry in 1959 as alien who has been convicted of a
                       crime involving moral turpitude: sex perversion
                        (1956).
  Lodged: Act of 1952—Section 241 (a) (1) (8 V.S.C. 1251(a) (1) 3—Excludable
                       at entry In 1050 under section 212(a) (4) of the Act.
                       as an alien of psychopathic personality.
         Act of 1952—Section 241(a) (1) (8 V.S.C. 1251(a) (1)3—Excludable
                       at entry in October 1952 under section 3 of the Act of
                       February 5, 1917 as a person of constitutional psychopathic inferiority.

ON BEHALF OF RESPONDENT :                   ON BEHALF OF SERVICE :
  Hiram. W. Kwan, Esquire                    R. A. Vielhaber
  1011 North Broadway                        Appellate Trial Attorney
  Los Angeles, Calif. 90012                  (Oral argument)
  (Oral argument)                            William S. Howell
                                             Trial Attorney
                                             (Brief filed)


   In this Service appeal from the order of the special inquiry officer
officer finding respondent deportable on the second lodged charge and
granting suspension of deportation, the Service contends that suspension of deportation should not have been granted. The only charge we
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need consider as a result of the issues raised is the second lodged
charge. We find respondent is not deportable and we shall terminate
proceedings.
   The facts, including the lengthy history of the case, have been fully
stated by the special inquiry officer. Briefly, respondent, a 53-year-old
single male, a native and citizen of Switzerland, has, except for a threehour visit in 1959 to Mexico, resided continuously in the United States
since his admission for permanent residence on October 9, 1952. He is
charged by the Service with having been excludable at the time of his
admission in 1952 as a person of constitutional psychopathic inferiority
because he was then a homosexual. Counsel contends the evidence does
not establish that respondent was a person of constitutional psychopathic inferiority or a homosexual.
  Under the immigration laws, a person of constitutional psychopathic
inferiority may be one whose history reveals a pattern of anti-social
conduct or conflict with authority or it may be one who is a sex pervert
such as a homosexual (Matter of LaRoohelle, A 7128195, December 1,
                                                  -



1965, Int. Dec. #1538; Matter of Lavoie, Int. Dec. #1481; Matter of
1?—. 9 L & N. Dec. 3931 Matter of 8—, 8 I. R N. Dec. 409; Matter
of P ,7 T. & N. Dec. 258).
    —


  On this record it cannot be said that the respondent is a person of
constitutional psychopathic inferiority by reason of his anti-social
behavior or conflict with authority. The record reveals that the respondent has been employed in a responsible position for the past 11
years by one employer who thinks very highly of him, that he has a
history of devotion to family and interest in others, that ha has sought
psychiatric help and has his problem under control, that apart from
three arrests resulting in convictions on two occasions, he has not been
in trouble with the authorities, that he is well regarded by people who
have known him over an extended period of time, and that a Service
investigation failed to reveal derogatory information other than that
concerning his arrests. The question then is whether the record establishes that respondent was a homosexual at time of his entry in 1952
and therefore then excludable as a person of constitutional psychopathic inferiority; we conclude that it does not.
   A statement taken from the respondent in 1959 (Ex. 6) reveals that
he had no homosexual interests while in his teens; that he was about
24 years of age when he began having sexual relations with male
friends, that these relations occurred once a month or less often, that
he had no arrests outside the United States, and that in the period immediately preceding his entry into the United States (December
1951–Ociober 1952 when he lived in Canada) he had no homosexual
relations.

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    The respondent was convicted on August 27, 1953 for disorderly conduct (lewd and dissolute person), and on March 16, 1956 under section
 288 (a) of the Penal Code for committing a homosexual act. An arrest
 in 1958 (the charge was dismissed) is explained by respondent as arising out of an accusation that he had broken a light bulb (pp. 136, 138).
   A. Government physician with some experience in psychiatric
 matters but without formal training in the field testified (on the basis
 of an examination made of the respondent in 1959, consideration of
 his arrest record and his admissions concerning homosexuality) that
 the respondent was a sexual deviate at the time of his entry in 1952 and
 therefore then properly classifiable under Public Health Service regulations as a person of constitutional psychopathic inferiority (pp. 93-
 95) . (The witness used not the regulations_ in effect in 1952 but those in
  effect at the time of the hearing (p. 89) .)
     Respondent's psychiatrist in a letter dated August 10, 1959 (Ex. 8)
  stated that the diagnosis in respondent's case was that of "sexual
  deviation, homosexuality, now under control." The letter pointed out
  that respondent did not frequent homosexual hang-outs, had no evident
  interest in youths, manifested no irresponsible trends, and had his
  main social contacts with respected members of the community. The
  psychiatrist who has counselled the respondent for about 30 hours since
  May 1959 testified at the hearing that with knowledge of the respondent's arrest record and as a result of his observation and consideration
  of information obtained from the attorneys of both the respondent and
  his employer he had concluded that while the respondent in the past
  had demonstrated a greater than average capacity for interests in
  homosexual relations, he was not a sociopath, a psychopath or a person
  of constitutional psychopathic inferiority (p. 108). The witness
  testified that respondent had stated to him that he had engaged in
  heterosexual relations up to 1959 (p. 112) and that he had found
  respondent's sexual drive was not strong.
     We do not believe that the Service has borne the burden of establishing that respondent was a homosexual at the time of his entry in
  1952. In view of respondent's candor there is no reason to question his
• testimony; this testimony and the statements made by his witness
  reveal that he had engaged in homosexual relations prior to his entry,
  but that he had also engaged in heterosexual relationships, that he does
  not now engage in such relationships, and most important of all; that
  during the rather lengthy period immediately prior to his entry, he
  had not engaged in homosexual relations. While the record reveals•
  respondent had an inclination toward homosexuality, it appears to be
  one respondent can control and that he had it under control before he
  entered. Therefore, we cannot find that the record establishes that he

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was a homosexual at the time of that entry. The second lodged charge
is not sustained and we shall therefore terminate proceedings.
   In view of our action, contentions of the Service addressed to the
issue of discretionary relief need not be discussed except that we may
state our agreement with the -views of the special inquiry officer on this
subject.
   ORDER : It is ordered that the Service appeal be and the same is
hereby dismissed.
   It is further ordered that deportation proceedings'e terminated.




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