S

                             MATTER OF 5--

                   In DEPORTATION Proceedings

                                 A-8364783
                       Dceidrd by Mara ,July' 21, 1959

Excludability—Afflicted with psychopathic personality—Homosexual—Crime involving moral turpitude—Michigan—Gross indecency, section 338, Michigan
 Penal Code.
(1) A homosexual is within the class of persons afflicted with psychopathic
  personality as contemplated by section 212(a) (4) of the 19,52 act when he
  has engaged in homosexual activities on many occasions over a period of
  time and his behavior is not a response to unusual circumstances such as
  au all male environment.
(2) Violation of section 338. Michigan Penal Code, gross indecency, held to
  involve moral turpitude despite absence of statutory definition of the crime.
CHARGES:

  Order: Act of 1052—Section 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excluaanie
           at time of entry as afflicted with psychopathic personality.
  Lodged: Act of 1952—Section 241(a) (1) [8 . 1T.S.C. 12-51(a) (1)]—Excludable
            at time of entry as having admitted commission of crimes involving moral turpitude; namely, gross indecency and crime against
            nature (Michigan).
                           BEFORE THE BOARD
   Discussion: Respondent. is a 33-year-old unmarried male alien, a
native and national of Canada, whose last entry into the United
States was at Detroit, Michigan, on August 15, 1958, when he entered
as a returning resident. Respondent was admitted for permanent
residence at. Detroit on August 27, 1952. The special inquiry officer
found respondent not deportable on the charge stated in the order
to show cause, but found him deportable on the lodged charge. The
alien appeals from the special inquiry officer's decision, contesting
the finding that he is deportable on the lodged charge.
  The examining officer appeals from so much of the special inquiry
officer's order as finds the respondent deportable on the lodged
charge only, contesting the special inquiry officer's conclusion that
the respondent. is not subject to deportation under section 241(a) (1)
of the immigration and Nationality Act as a person afflicted with
a psychopathic personality under section 212(a) (4) at time of
                                     409
  entry. It is the conclusion of the Board that the alien is deportable
  on both charges.
     On April 12, 1958, respondent was arrested in Detroit for "accosting and soliciting" a male police officer to perform an unnatural
  sex act (oral perversion), in violation of section 448, Michigan
  Penal Code. On his plea of guilty, he was convicted and sentenced
  to pay a fine in lieu of a jail term. Thereafter on June 19, 1958,
  respondent made a sworn statement to an immigration investigator,
  following the usual warning that "any statement you make must
  be of your own free will and may be used as evidence in any
  deportation or other proceedings." The alien stated that he was
  willing to make the statement under oath. It is this statement (exh.
  2) which forms the basis for the lodged charge.
     Respondent was asked if he understands the meaning of the word
 homosexual, and he said, "Yes, I understand the meaning of the
  word, yea." He stated he had homosexual tendencies since he was
  15 or 16 years of age and described the manner and nature of his
 indulgence. He stated that he had engaged in such acts with other
 male persons for "practically four years." He admitted frequenting
 locations known to be gathering places for homosexuals, admitted
 acts of sodomy, stated that he had engaged in such activities sometimes two or three times a month and sometimes not as often. The
 definitions of "gross indecency," section 338, and "sodomy," section,
 153, Public Acts of 1931, Michigan, were read to respondent, and
 he was asked if he admitted the commission of these crimes prior
 to his last entry into the United States on April 1, 1957. Respondent answered, "Yes," to each of these questions.
    After the time of 'making the statement, respondent went to
 Ca.nada with his father and mother and returned on August 15,
 1958. An order to show cause dated October 31, 1058, was served
on respondent, and the hearing was commenced. on November 10,
1958. Respondent denied that he was afflicted with a psychopathic
personality. He admitted that the sworn statement of June 19,
1958, was .made by him and that all the information contained in
the record of that statement was true and correct. He admitted
having been interrogated by Dr. P L , M.D., Psychiatric
Consultant, of the United States Public Health Service. Dr. L
issued a Class A medical certificate certifying that respondent was
efflictecl with "sociopathic personality disturbance, sexual deviation
(homosexuality) - (psychopathic personality with pathologic 9C7111
ality)" at, the time of his last entry. Exhibit 2 and the medical
certificate, exhibit 3, were introduced in evidence, and there was no
objection by respondent or counsel.
   At a continued hearing Dr. L           testified that during his 45-
minute: interview with respondent the facts elicited by him were

                                 410
sufficient to support the certificate he in ned. He recited much the
                                                   -


same information as that set forth in exhibit 2, but in greater detail. Counsel asked Dr. L            on what he based his diagnosis of a
psychopathic personality in the case of respondent, and Dr. L-------
repl ied
       * the main piece of evidence … is the predominant homosexual interests that he clearly aiiinifezit. unit has manifested for a series of years. …
in addition to this, … he was quite accepting of tins kind of sexual adjustment and was generally speaking concerned largely with the legal consequences
of his predicament rather than any moral or ethical or religious consequences
of his adjustment and behavior.
    Dr. L— testified that he considered the time he spent with
 respondent sufficient for the purpose of immigration procedure. That
 is, he did not prescribe an y treatment. and his examination was not
 for the purpose of planning treatment or for determining whether
 respondent could be successfully treated.
    Dr. A      , a physician practicing psychiatry in Detroit, Michigan, and offering extensive qualifications, testified in respondent's
 behalf. He saw respondent nine or ten times in his office and testified that he had thoroughly examined respondent and had formulated
 a theory or concept of respondent's personality and condition, which
he recited. Dr. A stated that from a psychiatric viewpoint
 he does not believe respondent to be a homosexual, but states that
 his diagnosis is "psycho s exual infantilism." Dr. testified
that respondent indulged in the "infantile sexual life'' only when
he was under the influence of alcohol which relieved him of his
inhibitions. Dr. A was asked by the examining officer, "Did
this respondent relate to you a history of homosexual conduct?"
Dr. A replied in the affirmative and read from his notes a
resume of respondent's background, including the fact - that his
first "experience" was in 1954; that he had, engaged in such activities
about once a month since that time, both as the active and passive
partner; and that he claims to have been under the influence of
alcohol on every occasion that he engaged in active homosexuality.
Dr. A stated that he diagnoses respondent as a neurotic rather
than a psychopathic personality, and as a person afflicted With psychosexual infantilism rather than as a homosexual, because lie has
anxieties, fears and concerns about himself, because he de.sirec3 to
cure himself, and because he has actually entered into a relationship
with a woman. In Dr_ A            's terminology, a psychopath has no
such desires and seeks no such help. Dr. A            also testifipd that
in all of these incidents respondent was "lured," and that definitely
in the circumstance of the last arrest "luring" had been present.
   The psychiatrist ranged over a wide area of hypothetical unrelated to the instant case. The hearing became primarily a diseuEsion of the legal meaning of the term "psychopathic personality."
                                        411
   Dr. L         was asked to define a psychopathic personality, and
 replied:
   I believe the term "psychopathic personality" is essentially a descriptive
 term referring to individuals who manifest poor judgment, inability to learn
 from experience, antisocial and dissocial trends in their life pattern, lack of
 adherence to the usual social and moral standards … does not follow, generally speaking, the usual moral and social code … although this same
 person is fully cognizant of the nature of his activities and he is fully responsible for them in the sense that he knows what he is doing and the
 consequences of his acts.
    The term "psychopathic personality" is defined for us in the
 legislative history of the statute and in the Manual for Medical
 Examination of Aliens, issued by the United States Department of
 Health, Education, and Welfare, Public Health Service, Washington, D.C., chapter 6, Mental Diseases and Defects, which states, section A, p. 6-1:
 1. General.
    a. The purpose of this section is to take up separately various excludable
 (class A) mental conditions with the object of clarifying the meanings of the
 terms, and to furnish criteria that will help the examiner determine the proper
 classification of mental conditions according to the terms contained in the law
 and regulations.
    h. A description of the various types of mental illness will be found in the
Diagnostic and Statistical Manual, Mental Disorders (Committee on Nomenclature and Statistics, American Psychiatric Ass'n., Washington, D.C.,
1952.) ….

 6. Psychopathic personality.
   a. The legal term "psychopathic personality" is equivalent to the medical
designation "personality disorder," which may he 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
pattern of action or behavior (acting out), rather than by mental or emotional symptoms." …
   b. Under this legal category will be classified those applicants who are diagnosed as sexual deviates. (p. 6-5)
  The Senate Committee Report No. 1137 (82d Cong., 2d
January 29 1952) reporting for the Committee on the Judiciary on
the bill which became the Immigration and Nationality Act of
1952 comments:
  Existing law does not specincal y provide tor the exclusion of homosexuals
and sex perverts. The provisions of S. 716 which specifically excluded homosexuals and sex perverts as a separate excludable class does 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 suff iciently 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. (Emphasis supplied.)

                                     412
  The House Committee on the Judiciary submitted :Report No.
1365 (Sid Cong.. 2d sees., February 14, 1952) which includes at
page 46 the report of the Public Health Service on the medical
aspects of this legislation. The latter report discusses the term
"psychopathic personality" as follows:
   Some comments should be evnressed regarding the term "psychopathic personality." Although the term "psychopathic personality," used in classifying
certain types of mental disorders, is vague and indefinite, no more appropriate expression can be suggested at this time. The conditions classified within
the group of psychopathic personalities are, in effect, disorders of the per-
.onality. 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 matlifes,t a diturhanCe of intrinsic personality patterns,
exaggerated personality trends, or are persons ill primarily is terms ofs ociety
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 indivlauala euffprinz from addiction or sexual deviation.
Until a more definitive expression can be devised, the term "pr±schopnthie personality" should be retained.

   We are, of course, bound by the definition of psychopathic personality in the 1952 act, as it appears in the legislative history and
 the Manual for the Medical Examination of Aliens, as set forth
 above. Dr. _A— described what he considered to be a psychopathic
 personality, but it is clear that his definition is different from that
 decreed for us by the authorities quoted above.
   The special inquiry officer read to Dr. A        from House Report
No. 1365, quoting the. Public Health Service definition of "psychopathic personality" and asked whether Dr. A            agreed with this
discussion and concept. Dr. A          replied that he did not entirely
agree with it, that "in the light of clinical experiences, you cannot
make a universal conclusion, so to speak. You have to treat each
case individually and not in the form of a statistic. … We want
to put them into definitions, into classes, and into laws … '*, and
when we deal with human beings, it's impossible … if we keep
in mind the quantitative factor, then we can understand whether
or not he approximates the degree of what in the old times they
used to call psychopathic personality, or the degrees of what I
choose to term psychosexual infantilism." Dr. A— came around
to stating that he disagreed with the terminology of the Act and
prefers to use a term of his own, "psychosexual infantilism." The
term psychopathic personality used in the Act, and defined for us
in the legislative history of the Act, is not one we can use or reject,
or substitute a term we prefer. If we were to accept Dr. A — 's
definition of the term it seems apparent that almost no one would
be. classified as a psychopathic personality, because his definition
contemplates a person who is incurable and refuses to seek treat-
  ment. If one has refused to seek treatment ; it is impossible to say
  he is incurable. Only a person who had submitted to extensive
  treatment and had not benefited thereby would come within Dr.
  A 's definition. It is our opinion that the application of the law
  was not intended to be so narrowed. The definition of psychopathic
  personality offered by Dr. L was more nearly akin tb the standard prescribed by the law and the legislative history of the law.
     A difference of opinion also exists between Dr. L             and Dr.
  A
  —       as to the definition of a homosexual. Dr. L         stated that it
  is a difficult thing to define, that no single distinction allows people
  to be characterized into two groups, one being heterosexual or
 normal and the other being homosexual or abnormal, but that, to
 the best, of his ability, "Homosexuals are those individuals who
 manifest characteristically a preference both in their overt sexual
 activity and in their mental or psychic sexual fantasies … a
 preference for the same sex. … According to the Manual for
 Medical Examination of Aliens and the nomenclature of the American Psychiatric Association, most homosexuals would be considered
 as sociopathic personalities with sexual deviation. I couldn't say
 categorically that all homosexuals would fall in this category because I haven't seen all homosexuals. I'm sure there might be some
 exceptions." Dr. L stated that a homosexual who might not be
 a psychopathic personality might be one who had occasional or isolated homosexual experience, or who responded with homosexual
 behavior when he was in an all male environment such as the
 Army or in prison. He denied, in response to a question of counsel,
 that there was any similarity between such situations and a hypothetical situation posed by counsel where "an arresting officer makes
himself available by means of what we have legally defined as an
entrapment." Dr. L            also stated that lie does not feel that there
is any such thing as a psychoneurosis causing homosexuality.
    The meaning of "homosexual" is discussed in United States v.
Flores-Rodriguez. 

 (C.A. 2, 1956), although the case
arose under the 1917 act. The court there concluded that the alien,
a convicted and admitted homosexual, came under the term "mentally
defective" as also used in section 212(a) (4) of the 1952 act, and concluded that Congress did not intend to admit "a sex deviate so
afflicted with such a defect of mentality as to publicly solicit an
unnatural act." The concurring decision of Circuit Judge Frank
quoted the Senate Report and the Public Health Service Report
referred to above. "Psychiatrists have differing perspectives when
they are (a) classifying patients, (b) diagnosing patients with reference to possible 'cure,' and (c) discussing the legal 'responsibility'
of those accused of crime. A psychiatrist with one perspective may
use a psychiatric term in a manner different from another psy-
                                    414
 chiatrist with another different perspective,' said Judge. Frank.
 He believed the 1917 act may not have included sex deviates, but
 there was no question in the minds of any of the Court that the
 1952 act does include such persons.
    The record shows that respondent is definitely within the class
 of "homosexuals," as the term is commonly understood, and within
 the contemplation of law. Within Dr. A          's psychiatric parlance
 respondent may not be a true homosexual, but the record establishes that he is not a young boy, that lie has been engaged in these
 activities for some years, on many occasions, and with many part
 ners. This is not a case of a psendoliomosexual, as described by
 both specialists, who engaged in such activities because he found
 himself in unusual circumstances. If this man is not a homosexual, we would find it difficult to hold that anyone is a homosexual. Since Congress unquestionably intended to include homosexuals in the class of aliens afflicted with a psychopathic personality, we can make no finding except that respondent is subject to
deportation under section '241(a) (1) of the Immigration and Nationality Act in that, at the time of entry, he was within a class
of aliens excludable by the law existing at the time of such entry, to wit, an alien afflicted with a psychopathic personality under
section 212(a) (4) of the Act.
   Counsel's basis for his appeal with regard to the second charge
is Matter of J           

, 287 (B.I.A., March 1,
1945; Sol. Gen., May 29, 1945). The J               case establishes the
rules to be observed in finding that an alien has admitted the commission of a crime involving moral turpitude. Respondent made a
binding admission under the rules of the J case. The Solicitor
General's restatement of the elements of a binding admission, 

 at 288, contains the repeated admonition that the
 admission must. be "clear," but there is no provision in the formula
 that, the elements of an admission must occur in any particular
 sequence. The alien was advised of the acts committed by him
 which were stated to constitute gross indecency and sodomy. Respondent clearly and repeatedly admitted the acts which constitute
the essential elements of the crime. His admission was unequivocal.
   There is no question that the crimes of gross indecency between
male persons and sodomy are crimes involving moral turpitude
by the language of the Michigan statutes, and the decisions of this
Board, and under such court decisions as are available. As long
ago as February 26, 1944, the Board held that a violation of section 338 of the Michigan Penal Code involves moral turpitude, as
the offense of fellatio is comprehended within the definition of the
statute (Matter of S        , unreported, 56152/594). The decision of
the special inquiry officer cites Matter of 1i7   , 

                                 415
  (B.I.A.. Dec. 23, 1953), wherein, on reconsideration, the Board found
 that a statement by an alien under oath to a Service officer that he
 had been a person of homosexual habits and that he had been
 addicted to practicing masturbation with other male persons was
  an unequivocal admission of the commission of the crime of gross
  indecency in violation of that section of the Michigan statute; that
 the element of moral turpitude was present; and that the alien was
 deportable on the basis of his competent and binding admission.
 Most recently, we decided in Matter of 11-- ,.(Nov. 29, 1956, 

), that the offense of gross indecency in violation
 of section 206 of the Canadian Criminal Code, practically identical
 to the statute here under consideration, is a crime involving moral
 turpitude, citing cases. We considered similar statutes of other
 States where the acts were not defined by statute, or even set out
 in the record of conviction because of their obscenity and grossness,
 and we found that the absence of definition as to the nature of the
 crime in the Canadian statute did not prevent a conclusion that an
 -admission of the commission of the crime involved moral turpitude
 when the conduct admitted by respondent was vile, depraved and
•contrary to the tenets of society. Holdway v. Barber (D.C., N.D.
 Calif., 1957), unreported, upheld our decision in Matter of H
 supra, agreeing that the conviction involved moral turpitude. A
 similar statute, wherein the offense is not defined, is considered in
Matter of Z , 

.
    Following the lodging of the second charge the special inquiry
 officer granted an adjournment of the hearing for the purpose of
 permitting counsel and respondent to meet the lodged charge. At
the reopened hearing, December 19, 1958, counsel asked respondent
 if he knew at the time he made the statement of June 19, 1958,
-what the terms "gross indecency" and "crime against nature" or
 "sodomy" were, and if he could have defined the meaning of these
 terms. The alien stated that he did not know what they meant at
 the time he made the statement and that. he could not define the
terms then nor now. He stated that he did not know what the
 special inquiry officer was talking about when he read the Michigan
 statutes relating to these offenses. At the time he made his statements of June 19, 1958, not only did the respondent answer the
-questions of the investigator, but when he was asked whether or
 not he had at any time engaged in acts of sodomy, and the investigator defined these acts for him, the alien volunteered, "I have
 done that to somebody but I never let them do it to me." The
 special inquiry officer concluded that from his observation of the
 respondent during the hearing, from respondent's demeanor and
manner of response, the special inquiry officer believed him to be
mentally alert, observant , and of sufficient understanding to com-
                                 416
 prebend the questions put to him, and found that respondent's
 testimony that he did not understand the investigator is unworthy
 of belief. Our reading of the record leads us to the same conclusion. it should be remembered that this alien is from Canada and
 does not have the handicap of dissimilarity of language that exists
 in many of these cases.
    Counsel complains that respondent's statement is not used as evidence of an offense, but that the statement itself constitutes the
 very grounds for deportation. That is the effect of this peculiar
 provision of the immigration laws. The subsection providing for
 the "admission of the commission of a crime" was present in the
 1907 act and was carried over into the 1910, 1917 and 1952 acts..
  (Senate Committee Report No. 1515, 81st Cong., 2d sess., p. 350.)
 The fact that an alien can make an admission which, in itself,
 renders him deportable, even though he may not have been convict e d of the. precise crime which he admits, may be unique and seem
 severe, but it has been part of the immigration statutes for many
years. It is because of its severity that the rules of the
case, supra, were established and are adhered to.
    We have sustained the use of preliminary statement given by the
alien voluntarily in Matter of P , 

; Matter of
           

; Matter of P— , 

, and.
decisions discussed therein. The present regulation, 8 CFR 242.14,z'
is the equivalent of the old regulations, 8 CFR 150 and 151, set forth
in footnotes 1 and 2 to Matter of F , 

.                          .



Sehoeps v. Carmichael, 

 (C.A. 9, 1949), held a recorded
statement of an alien made under oath was admissible under the
regulation, and referred to the regulation as "sensible." Exhibit a
shows that respondent was informed that any information he gives
should be voluntary, that it might be used by the Government in
any proceeding that might be instituted against him. He was
asked if he was willing to make such a statement. He was placed
under oath and informed as to the meaning and penalties for
perjury. These warnings and admonitions serve to preserve his_
constitu tional rights, The failure to advise him of the right to
counsel at the taking of a preliminary statement does not render
the hearing unfair or invalidate the use of the statement. We
find nothing in the record upon which to base a finding that his
statement was not free and voluntary.

  1 5 CFR 24234:
   (c) Use of prior statcracnis. The special inquiry officer may receive in evidence any oral or written statement which is material and relev a nt to any
issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial.

                                     417
   Lodging of the additional charge was proper within the regulations?
   It is our conclusion that respondent was given a fair hearing;
that he is deportable on both the lodged charge and the charge
set forth in the order to show cause; and that the appeal must be
dismissed.
   Order : It is ordered that the appeal of the alien be and is hereby
dismissed.
  It is further ordered that the appeal of the examining officer be
sustained, and so much of the special inquiry officer's order as
finds the alien not subject to deportation on the charge stated in
the order to show cause be reversed, and the alien is found to be
subjeet to deportation under section 241(a) (1) of the Immigration
and Nationality Act, in that, at time of entry, he was an alien
afflicted with psychopathic personality under section 219(a) (4) of
the Act.
  It is further ordered that the portion of the order of the special
inquiry officer finding the alien deportable on the lodged charge be
and is hereby approved.
  28 CFR 242.16 (d) provides, in part:
   (d) Additional charges. An examining officer who has been assigned to a
case may at any time during a hearing lodge additional charges of deportability, including factual allegations against the respondent.




                                  418