Clive Michael Boutilier v. The Immigration and Naturalization Service

363 F.2d 488, 1966 U.S. App. LEXIS 5547

• Court: Court of Appeals for the Second Circuit
• Decided: July 8, 1966
• Docket: 30274_1
• Status: Published

Opinions

KAUFMAN, Circuit Judge:

Although a relatively young segment of contemporary society prides itself on its readiness to cast off conventional and tested disciplines and to experiment with nonconformance and the unorthodox merely to act out its contempt for traditional values, certain areas of conduct continue to be as controversial in modern and beau monde circles as they were in bygone and more staid eras. Homosexual behavior, despite Sigmund Freud¹ and other noted authors,² remains such a fervently debated issue that too often emotions on both sides obscure reason. But, the craft of judging requires a personal detachment — as far as it is humanly possible — so that issues which are apt to overwhelm the emotions may be approached in the dispassionate manner fitting for a judicial determination. See Learned Hand, “Fifty Years of Federal Judicial Service,” published in Handbook for Judges (1961). Our function in this case, therefore, is not to approve or disapprove of the conduct we are examining; nor is it necessary for us to determine the mores of the community. Rather, our duty is simply to interpret a statute and to make the traditional determination as to its application.

I.

Clive Michael Boutilier petitions for review of a final order of the Board of Immigration Appeals directing his deportation to Canada as one who upon entry into this country was a homosexual and, thus, was afflicted with a “psychopathic personality” within the meaning of section 212(a) (4) of the Immigration and Naturalization Act of 1952 (Act), 8 U.S.C. (1964 ed.) § 1182(a) (4).³ For the reasons set forth below, we uphold the order of the Board and dismiss the petition for review.

The basic facts, which were not seriously disputed, lend themselves to simple statement. Boutilier, a native and citizen of Canada, was admitted into the United States for permanent residence on June 22, 1955 at the age of 21. Since that time, with the exception of short trips outside the country, he has continuously resided here and has been gainfully employed as a building maintenance man, most recently by a large company in Manhattan. Boutilier's mother and stepfather also live in New York and .three of his five brothers and sisters reside in the United States.

In September 1963, as part of Bou-tilier’s application to file a petition for citizenship, he submitted an affidavit to a naturalization examiner forthrightly admitting that he had been arrested in October 1959 on a charge of sodomy, in violation of New York Penal Law, McKinney’s Consol.Laws, c. 40, § 690. Boutilier noted that he had been discharged on his own recognizance and that the charge was reduced to simple assault and ultimately dismissed when the complaining party failed to appear in court. Boutilier freely acknowledged that the circumstances leading to the arrest involved acts of anal sodomy and fellatio with a minor — a 17-year-old male.

This affidavit was forwarded to the Immigration Service and, in January 1964, an Immigration Officer informed Boutilier that the government desired additional information. Submitting another sworn statement, Boutilier revealed the full history of his sexual deviate behavior. He stated that his first homosexual experience occurred in Canada when he was approximately 14 years of age; the act was involuntary and Bou-tilier played a passive role. However, from the time he was 16 until he came to the United States 5 years later, Bou-tilier voluntarily engaged in homosexual activity on an average of 3 or 4 times a year.⁴ These experiences all involved fellatio and Boutilier was generally the active participant. After Boutilier entered this country in 1955, his homosexual conduct continued with approximately the same frequency. Indeed, Boutilier shared an apartment with a male with whom he had sexual relations and, as the result of Boutilier’s admitted homosexual condition and a Selective Service psychiatric examination, he was classified 4-F by the Selective Service System.

Immigration officials dispatched this second and more complete statement to the United States Public Health Service for its expert views as to whether there were grounds for concluding that Bou-tilier was excludable from the United States when he entered in 1955. After reviewing this document, the Public Health Service issued a certificate stating that, on the basis of the information furnished, it was of the opinion that Boutilier “was afflicted with a class A condition, namely, psychopathic personality, sexual deviate, at the time of his admission to the United States for permanent residence on June 22nd, 1955.” ⁵

Armed with this certificate and the supporting documents, the government commenced deportation proceedings. At hearings held before a Special Inquiry Officer, Boutilier declined an opportunity for an in personam examination by Public Health Service doctors. He did, however, introduce two letters⁶ from privately retained psychiatrists which were received in evidence without objection by the government.⁷ In addition, it was substantially agreed between the parties that this additional material would not cause the Public Health Service to change its certification and, accordingly, no purpose would be served by calling a Public Health Service doctor to testify. Based on the evidence and stipulations, the Special Inquiry Officer concluded that Boutilier had been a homosexual at the time of entering the United States and, thus, was excludable as one afflicted with a “psychopathic personality.” On this basis, the Special Inquiry Officer ordered Boutilier deported, noting that the phrase “psychopathic personality” as used in section 212(a) (4) of the Act is not a medical formulation but is a legal term of art evincing a Congressional purpose to exclude from this country any alien who is shown to be a homosexual. After an unsuccessful appeal to the Board of Immigration Appeals, Boutilier asks us to vacate the order of deportation.

II.

Boutilier now urges that an actual medical examination by the Public Health Service was an indispensable prerequisite to its opinion that he was afflicted with a “psychopathic personality.” ⁸ In support of this position, Boutilier relies on section 234 of the Act, 8 U.S.C. § 1224, which directs that certification of the physical and mental condition of “arriving aliens * * * shall be made by medical officers of the United States Public Health Service, who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the special inquiry officers, any physical and mental defect or disease observed * * See also 42 C.F.R. § 34.1. Boutilier urges that if an exclusion proceeding is to be valid, adherence to these procedures is required. See United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806, 69 S.Ct. 921, 93 L.Ed. 1054 (1949).

While this contention possesses surface plausibility, it is spurious and has a fatal flaw: it glosses over the basic and fundamental distinction between exclusion and deportation proceedings. Boutilier’s ouster was directed because he was “ex-cludable” in 1955 as one afflicted with a “psychopathic personality.” But, this is not to say that the process by which his expulsion was ordered was an exclusion proceeding. On the contrary, section 241 (a) of the Act, 8 U.S.C. (1964 ed.) § 1251 (a), expressly provides that “[a]ny alien in the United States * * * shall * * * be deported who * * * at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry * * * ” (emphasis added).

Thus, section 234 and the cases and regulations which Boutilier cites are not in point; they describe requirements which are applicable solely to exclusion proceedings and have nothing to do with deportation procedures — our main concern here and the path to be followed is laid down in section 242(b) of the Act, 8 U.S.C. § 1252(b). We note, in this connection, that Boutilier does not claim that the government failed to comply with the rules and regulations which guide the conduct of deportation proceedings.

The confusion between “exclusion” and “deportation” is also at the root of Boutilier’s argument that he is being expelled on a non-statutory ground. Boutilier asserts that while affliction with a “psychopathic personality” may furnish a basis for exclusion, this term does not authorize deportation. We find no merit in this suggestion. Section 241, as we have noted, authorizes the deportation of any alien who could have been excluded upon entering the United States. While this form of “delayed exclusion” has not been altogether free from criticism, see Note, Limitations on Congressional Power to Deport Resident Aliens Excludable as Psychopaths at Time of Entry, 68 Yale L.Jour. 931, 935 (1959), without the provision, an imprimatur would be placed on deception of immigration officials at time of entry. Developments in the Law: Immigration and Nationality, 66 Harv.L.Rev. 643, 682 (1953). The function served by deportation in cases where the petitioner was excludable is to furnish a backstop or cheek designed to intercept those whom Congress believed should not have been admitted into the United States in the first instance.

III.

Despite Boutilier’s arguments to the contrary, we believe the term “psychopathic personality” as employed in section 212(a) (4) reflects a Congressional purpose to prevent alien homosexuals from obtaining admission into this country. It was employed as a term of art to be interpreted by what Congress intended as a guide, and not to be left to the vagaries and honest but conflicting theories of psychiatry for determination.⁹ The legislative history of the Act of 1952 and of the various bills and resolutions which gave rise to it leaves no room for doubt that Congress intended to exclude homosexuals and would have expressly so provided if the Public Health Service had not advised that the term “psychopathic personality” alone was sufficient to accomplish this result.

Prior to 1952, the Immigration laws employed the language “persons of constitutional psychopathic inferiority,” as those subject to exclusion, section 3 of the Act of February 5, 1917, 39 Stat. 875; but, the 1952 Act changed this terminology to the more modern concept of “psychopathic personality.” Initially, the Senate Committee on the Judiciary reported 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 mental defectives should be enlarged to include homosexuals and other sex perverts.” S.Rep.No.1515, 81st Cong., 2d Sess., 345 (1950).

As a result, a series of proposed bills were drafted, each of which provided for the exclusion of “aliens afflicted with psychopathic personality” and “aliens who are homosexuals or sex perverts.” See, e. g., S. 3455, 81st Cong., 2d Sess., § 212(a) (1950); S. 716, 82d Cong., 1st Sess., § 212(a) (1951). In S. 2550, 82d Cong., 2d Sess., § 212 (1952), however, express reference to “aliens who are homosexuals or sex perverts” was eliminated for the following reason:

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 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 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.Rep.No.1137, 82d Cong., 2d Sess., 9 (1952) (emphasis added).

While S. 2550 was not enacted, the report accompanying H.R. 5678, the bill which ultimately became the Act of 1952, contained similar reference to observations by the Public Health Service. Commenting on the medical aspects of a predecessor bill (H.R. 2379, 82d Cong., 1st Sess., § 212(a) (1951)), which had placed “homosexuals or sex perverts” in a separate excludable category, the Public Health Service recommended that this separate rubric be eliminated and that the phrase “psychopathic personality”— the terminology ultimately enacted — be employed. The Service noted that this phraseology would satisfy the Congressional objective of excluding homosexuals and perverts because ordinarily sexual deviation was a manifestation of a psychopathic personality. In reporting out the bill, which was to become the 1952 Act, the House Judiciary Committee indicated that, with an exception not here relevant, it had accepted the Public Health Service’s recommendations. H.R. Rep.No.1365, 82d Cong., 2d Sess., 46-48 (1952).

Thus, on the basis of this brief survey of the legislative history of section 212 (a) (4), it seems fairly clear that Congress utilized the phrase “psychopathic personality” not as a medical or psychiatric formulation but as a legal term of art designed to preclude the admission of homosexual aliens into the United States. “[W]hatever the phrase ‘psychopathic personality’ may mean to the psychiatrist, to the Congress it was intended to include homosexuals and sex perverts. It is that intent which controls here.” Quiroz v. Neelly, 291 F.2d 906, 907 (5th Cir. 1961). See also, Ganduxe y Marino v. Murff, 183 F.Supp. 565 (S.D.N.Y.1959), affirmed without opinion sub nom. Ganduxe y Marino v. Esperdy, 278 F.2d 330 (2d Cir.), cert. denied, 364 U.S. 824, 81 S.Ct. 61, 5 L.Ed. 2d 53 (1960) ; United States v. Flores-Rodriguez, 237 F.2d 405, 412-413, n. 2 (2d Cir. 1954) (concurring opinion).¹⁰

Our review of the legislative history of section 212(a) (4) also disposes of Boutilier’s contention that the Public Health Service exceeded its statutory authority by classifying all homosexuals as persons “afflicted with psychopathic personality.” Paragraph 6-b of the United States Public Health Service Manual provides that in the category of psychopathic personality “will be classified those applicants who are diagnosed as sexual deviates.” While some psychiatrists believe that .all homosexuals cannot properly be termed psychopaths,¹¹ Paragraph 6-b also notes that the phrase “psychopathic personality” is a “legal” term. Moreover, as we have observed, since Congress intended to exclude homosexual aliens, the Public Health Service cannot be faulted for implementing this statutory purpose by utilizing an automatic rule which functions in such a way as to accomplish this objective.¹²

IV.

Placing principal reliance on Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962), remanded on other grounds, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), Boutilier vigorously maintains that section 212(a) (4) is void for vagueness and that the order directing his deportation deprived him of due process. The Court of Appeals for the Ninth Circuit has found this argument persuasive and, citing Fleuti, has recently adhered to this view in a per curiam opinion, Lavoie v. United States Immigration and Naturalization Service, 360 F.2d 27 (9th Cir. 1966). At the heart of Boutilier’s argument is the notion that the term “psychopathic personality” lacked sufficient precision to convey adequate warning to him that post-entry homosexual conduct was proscribed. Upon examining the rationale of the void-for-vagueness doctrine, however, we conclude that it is inapplicable to section 212(a) (4).

Although it is a legal fiction that everyone is presumed to know the law, that precept does not always come to the aid of the prosecutor nor work against the transgressor. A corollary of this doctrine is that legislation must be sufficiently precise to afford adequate notice of the standards by which the individuals affected are required to guide themselves. “The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). While the void-for-vagueness doctrine is principally employed in the interpretation and application of criminal statutes, it is also relevant in considering legislation imposing civil sanctions. Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951);¹³ Small Co. v. American Sugar Refining Co., 267 U.S. 233, 45 S.Ct. 295, 69 L.Ed. 589 (1925); Miller v. Strahl, 239 U.S. 426, 36 S.Ct. 147, 60 L.Ed. 364 (1915) ; see generally, Note, Due Process Requirements of Definiteness in Statutes, 62 Harv.L.Rev. 77 (1948).

We do not quarrel with Boutilier’s contention that the term “psychopathic personality” is not a model of clarity. There is no denial that Congress sought assurance that the phrase would encompass homosexuals and sex perverts.¹⁴ And, while the Public Health Service counseled that “psychopathic personality” was sufficiently broad to fulfill the Congressional objective of excluding sexual deviates, the Service candidly advised that, in terms of medical reference, the definition was “vague and indefinite,” and that “no more appropriate expression can be suggested at this time.” H.R.Rep.No. 1365, 82d Cong., 2d Sess., 46-47 U.S. Code Congressional and Administrative News, p. 1700 (1952).

But all this does not establish that section 212(a) (4) is defective under the void-for-vagueness doctrine. The provision was never designed to regulate conduct; its function was to exclude aliens possessing certain characteristics. Had Boutilier, after entering the United States in 1955, commenced leading a life of impeccable morality, section 212(a) (4) would still have been applicable to authorize his deportation. And, we emphasize that the section does not focus on Boutilier’s post-entry behavior but on his condition at the time of entry into the United States. It is beyond contest that he was a homosexual long before leaving Canada. It is not without significance also that in Fleuti, the Court noted “the examining officer chose to rely heavily upon post-entry behavior.” It may well be that the Court found it necessary, therefore, to determine whether the term “psychopathic personality” was sufficiently precise to afford adequate warning to Fleuti. In the case before us, however, while the Special Inquiry Officer credited Boutilier’s sworn statement which described in detail the full history of his homosexual behavior, there is not the slightest indication that the Officer failed to understand that section 212(a) (4) was directed solely at a pre-entry condition. For these reasons, we do not consider Fleuti authoritative, and we believe that the order directing Boutilier’s deportation did not constitute a denial of due process on the void-for-vagueness doctrine or any other grounds. We find that the clear design of Congress was to exclude homosexuals from entry into the country and this it has done in section 212(a) (4) by the use of the words “psychopathic personality.” It is not our function to sit in judgment on Congress’ wisdom in enacting the law. “Courts must reconstruct the past solution imaginatively in its setting and project the purposes which inspired [the law] * * * ” ¹⁵ L. Hand, “The Contribution of an Independent Judiciary to Civilization,” published in The Spirit of Liberty (1953).

We have considered Boutilier’s other contentions and find them to be without merit.

The petition for review is dismissed.

1 . “Homosexuality is assuredly no advantage, but it is nothing to be ashamed of, no vice, no degradation, it cannot be classified as an illness; we consider it to be a variation of the sexual function produced by a certain arrest of sexual development.” Freud, “Letter to an American Mother,” published in 107 Am. Jour.Psyeh., 786-787 (1951).

2 . Kinsey, Sexual Behavior in the Human Male, 628 (1948).

3 . Section 212(a) provides in pertinent part:

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, epilepsy, or a mental defect; * * *.

4 . Boutilier acknowledged that, occasionally, he also engaged in hetero-sexual conduct.

5 . The certificate was signed by Paul G. Smith, M.D., Senior Surgeon, United States Public Health Service, Chief of Psychiatry and by Maria Sarrigiannis, M.D., Medical Director, United States Public Health Service.

6 . One letter was signed by Edward P. Palsey, M.D. and dated March 2, 1964.

It stated:

On psychiatric examination of Mr. Bou-telier [*icj, there was no indication of delusional trend or hallucinatory phenomena. He is not psychotic. Prom his own account, he has a psy-cliosexual problem but is beginning treatment for this disorder. Diagnostically, I would consider him as having a Character Neurosis, believe that the prognosis in therapy is reasonably good and do not think he represents any risk of decompensation into a dependent psychotic reaction nor any potential for frank criminal activity.

The second letter was in the form of a “Clinical Abstract” on the stationery of Montague Ullman, M.D., under date of March 80, 1965. In pertinent part, it stated:

[Boutiiier’s] sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interest as well as abstinence with almost equal facility. His homosexual orientation seems secondary to a very constricted, dependent personality pattern rather than occurring in the context of a psychopathic personality. My own feeling is that his own need to fit in and be accepted is so great that it far surpasses his need for sex in any form.

7 . The government noted, however, that it considered the phrase “psychopathic personality” appearing in Dr. Ullman’s letter to be used in a medical frame of reference and not as a legal term of art.

8 . It could be urged that Boutilier is es-topped from making this contention in view of bis rejection of the government’s offer to have the Public Health Service conduct an in personam examination. But, in view of the serious consequences of a deportation order and the government’s failure to press this point, we shall make our determination on the merits.

9 . It is also interesting that some psychiatrists have recently used the term “sociopath” in lieu of “psychopathic personality.” See Hinsie & Campbell, Psychiatric Dictionary, 600, 682 (Third Ed. 1960). And, psychiatrists, at times, have changed their minds, as to whether “psy-ehopathie personality” constitutes a “mental disease or defect” for purposes of determining criminal responsibility. See Blocker v. United States, 110 U.S. App.D.C. 41, 288 F.2d 853, 860 (1961), Burger, J. (concurring).

10 . Indeed, because of contrary interpretations in the Ninth Circuit, discussed in section IV of this opinion, infra, Congress recently amended section 212(a) (4) to provide expressly what its reports have said over and over again — that “sexual deviates” are excludable. Section 15(b) of the Act of October 3, 1965, 79 Stat. 919. The committee reports of both houses state:

To resolve any doubt the Committee has specifically included the term “sexual deviation” as a ground of exclusion in this bill. H.R.Rep. No. 745, 89th Cong., 1st Sess., 16 (1965). S. Rep. No. 748, 89th Cong., 1st Sess., 19 (1965).

11 . See e. g. n. 6, supra.

Dr. Paul G. Smith who signed the certification of Boutilier’s condition as a “psychopathic personality” testified that modern psychiatric theory does not espouse the proposition that a sexual deviate is ipso facto a constitutional psychopathic inferior or a psychopathic personality. Matter of Anne-Lise Cop-po, a deportation proceeding, file No. A-6845593 — New York (December 8, 1965).

But, as we have noted, in the context of this case, psychiatric definitions are not determinative of the legal jrarport of the term “psychopathic personality.”

12 . We also reject Boutilier’s contention that there was insufficient evidence of his “psychopathic personality at the time of his entry into the United States to justify deportation. Boutilier’s sworn statement describing in detail his homosexual activities in Ganada provided more than ample proof of his excludable condition.

13 . In De George, the Supreme Court determined that the phrase “moral turpitude” appearing in the predecessor of section 241, 8 U.S.C. § 1251(a) was not unconstitutionally vague. Significantly, section 241 which authorizes deportation of aliens wlio are convicted of at least two crimes involving “moral turpitude” attempts, unlike section 212(a) (4), to regulate post-entry conduct.

14 . See discussion of the legislative history of section 212(a) (4), supra.

15 . The dissent, while possessing ad hominem appeal, falls into error by improperly shifting the focus from a legal exegesis to a medical explanation of the term “psychopathic personality.” As Judge Moore noted in his dissent in United States ex rel. Paktorovics v. Murff, 260 F.2d 610, 618 (2d Cir. 1958), “emotional reaction should not blind us to the fact that our immigration policy has been, and still should be, declared by Congress, and enforced by such officers of government as are so designated by Congress.” Unfortunately, our dissenting colleague has failed to follow his own caveat.

Although his plea for “clemency” is quite moving, it is illustrative of the ease with which one can succumb in a case such as this to the temptation of permitting the emotions to overwhelm reason and enacted law. Congress has made its judgment, for better or worse, respecting the exclusion of homosexuals which we are not at liberty to alter. The dissent’s parade of distinguished liis-torical personages allegedly possessing homosexual attributes does not detract one iota from that conclusion. Indeed, under the current version of section 212 (a) (4), see n. 10, supra, there is little doubt that some of these eminent gentlemen would be excludable.

Thus, while the house of horrors erected by our dissenting brother stimulates the imagination and arouses our sympathy, it is largely irrelevant. Congress studiously avoided turning this into a medical problem and did not authorize immigration officials to conduct a detailed psychiatric examination into the nature, frequency and variety of a particular homosexual’s acts; rather, it enacted a deareut rule of law: it determined that pre-entry homosexual behavior was to be a ground for exclusion. And, neither citations to the Sonnets of Michelangelo and Campanella, to the New York Times, nor even to Annie Get Your Gun will aid us in our statutory interpretation or change this simple fact of life.