MATTER OF R.—
In DEPORTATION Proceedings
A-11030269
Decided by Board August 7,1961
Excludability—Section 212(a)(4)—"Exhibitionism."
- Eiallillionita" is a form of aex-ual deviation requiring exclusion of an alien
so afflicted at time of entry under section 212(a) (4) of the Act as a psychopathic personality.
Crntaion:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 1251(a) (1)1—Excludable
at entry under section 212(a) (4) [8 U.S.C. 1182(a) (4)1—Psychopathic personality (sex deviate).
BEFORE THE BOARD
DISCUSSION: This is an appeal from the order of the special
inquiry officer requiring respondent's deportation upon the charge
stated above. The appeal will be dismissed.
Respondent is an alien, a 27-year-old single male, a native and
citizen of Germany, who was admitted to the United States for
permanent residence on January 19, 1957. He made several short
visits to Mexico from 1957 to 1958, the last being for a few hours on
Juno 15, 1960. The Service charges that he was a sex deviate (an
exhibitionist) at the time of his entry and was, therefore, excludable
as a psychopathic personality.
A psychopathic personality is inadmissible to the United States
(section 212(a) (4), Immigration and Nationality Act; 8 U.S.C. 1182
(a) (4) ). A sex deviate is by declaration of Congress classified as
a psychopathic personality (Fleuti v. Hoy, unreported, U.S.D.C.,
S.D. Cal., No. 1275-59-K Civil, Jan. 4, 1961; Matter of S—, 8-409,
Matter of P—, 7-258). The questions, as we see them, are :
(1) Is exhibitionism a sexual deviation ?
(2) Is respondent an exhibitionist ?
(3) Did respondent's condition exist at the time of his last
entry?
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Exhibitionism is defined as:
The display of one's body or parts (even the genitals), fur the purpose, conscious or unconscious, of attracting a sexual interest (United States v. Flores-Rodriguez, 237 F.2d 405, 410, C.A. 2, 1956, quoting Dot.land's American Illustrated Medical Dictionary, 22d ed.).
"Sexual deviation" is not a defined term, however, the history of
legislation with which we are concerned reveals that the term is intended to cover homosexuals and sexual perversions of the nature of
"sexual sadism, fetishism, transvestism, pedophilia, etc." Matter
of P—, 7-258, 261-263. This list of sex perversions reveals that the
prohibited sexual behavior is not restricted to unnatural relations.
"Exhibitionism" appears to he of the same abnormal nature of sexual
bAhavior as fetishism and transvestism and would, thsrsfore, be a
sexual perversion or deviation contemplated by section 212(a) (4)
of the Immigration and Nationality Act. We note also that Dr.
Conrad, a Govermnent witness whose qualifications as a psychiatrist
are conceded, considers an exhibitionist as a sexual deviate.
The special inquiry officer, in a lengthy discussion, concluded
that respondent is an exhibitionist. Respondent argues that he is
not an exhibitionist because he did not expose himself. He admits
that he was engaged in a sexual irregularity which is not relevant
to the charge, and that this occurred while he was in his car on a
public thoroughfare, but alleges that he took pains to hide his action. We do not think that this defense is sustained. Testimony in
contradiction of the defense comes from admissions against interest
made by respondent, the fact that his conduct led to complaints by
the public and to his arrest and conviction on two occasions—once
as a lewd or dissolute person and once for indecent exposure. (We
believe that it is proper to give greater weight to respondent's admissions . against interest rather than his self-serving statements
even though he was not represented by counsel when the admissions
against interest were made (Matter of S—, 8 109, p. 417)).
It is alleged that respondent lacked facility with the English
language at the time he made admissions against interest. The record does not appear to support this contention. Respondent's answers appear quite responsive and were elaborated upon Irmo time
to time. When respondent did not understand, he made known his
lack of understanding. He initialed each page. Corrections were
made by him at his request. Moreover, no objection wan made to
the introduction of the admissions into the record at the hearing,
although counsel was permitted an opportunity to make his objections.
Counsel's contention that respondent's remorse at having done
something wrong (although the action fell short of exhibitionism)
894
may have influenced him to make admissions which were not factual,
has been considered but must be rejected in light of the evidence
of record. We need not be bound by respondent's belief that he was
not attempting to expose himself in view of the objective conditions
which existed.
Counsel takes strong issue with Dr. Conrad's finding that respondent was a sexual deviate. Counsel points to errors in notes made by
the witness when he interviewed respondent. We have carefully
examined these allegations. They do not require extended discussion.
The errors are of a minor nature, e.g., whether respondent was arrested two rather than three times, and whether the arrest was in
Hollywood rather than North Hollywood. The discrepancies were
brought to the attention of Dr. Conrad who did not change his
diagnosis. Counsel complains of error in Dr. Conrad's opinion that
respondent failed to consult a psychiatrist for treatment. We believe that Dr. Conrad properly evaluated the situation. The necessity
for inquiring into the reasons for respondent's pleas of guilty has
not been shown. While Dr. Conrad found significance in the fact
that respondent was living with another male, we note no strong
inference was taken from this and that the fact was considered
merely one item of interest in the taking of a sexual history. We
believe the record establishes that respondent is an exhibitionist.
The question now is whether the deviation existed at the time of
respondent's last entry. We believe it did. The record of several
exposures in 1958 and several in 1960 convinces us that respondent's
behavior is persistent and deep seated. We note that the occurrences in 1960 were after he had received official punishment for
doing the very same type of acts. The last act occurred in February
1960„. Respondent received no medical treatment after this act. His
last entry occurred just a few months after these acts. The persistence of respondent's conduct rules out the possibility that it was
the result of an experiment out of curiosity or the reaction to a
highly upsetting experience. We are satisfied that this deep-seated
a ii iction existed at the time of respondent's last entry. (Of course,
if it existed at the time of any of his entries he would be illegally
in the United States.)
ORDER: It is ordered that the appeal be and the same is hereby
dismissed.
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