BOUTILIER v. IMMIGRATION AND NATURALIZATION SERVICE.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Argued March 14, 1967.
Decided May 22, 1967.
Petitioner, an alien who at the time of his entry into the United States was a homosexual, held excludable under 212 (a) (4) of the Immigration and Nationality Act of 1952, as one "afflicted with [a] psychopathic personality," a term which Congress clearly intended to include homosexuals. Pp. 120-125.
363 F.2d 488, affirmed.
Blanch Freedman argued the cause for petitioner. With her on the briefs was Robert Brown.
Nathan Lewin argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan.
Briefs of amici curiae, urging reversal, were filed by David Carliner, Nanette Dembitz and Alan H. Levine for the American Civil Liberties Union et al., and by the Homosexual Law Reform Society of America.
MR. JUSTICE CLARK delivered the opinion of the Court.
The petitioner, an alien, has been ordered deported to Canada as one who upon entry into this country was a homosexual and therefore "afflicted with psychopathic personality" and excludable under 212 (a) (4) of the Immigration and Nationality Act of 1952, 66 Stat. 182. 8 U.S.C. 1182 (a) (4). * Petitioner's appeal from the [387 U.S. 118, 119] finding of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals, without opinion, and his petition for review in the Court of Appeals was dismissed, with one judge dissenting. 363 F.2d 488. It held that the term "psychopathic personality," as used by the Congress in 212 (a) (4), was a term of art intended to exclude homosexuals from entry into the United States. It further found that the term was not void for vagueness and was, therefore, not repugnant to the Fifth Amendment's Due Process Clause. We granted certiorari, 385 U.S. 927 , and now affirm.
The 1964 affidavit was submitted to the Public Health Service for its opinion as to whether petitioner was excludable for any reason at the time of his entry. The Public Health Service issued a certificate in 1964 stating that in the opinion of the subscribing physicians petitioner "was afflicted with a class A condition, namely, psychopathic personality, sexual deviate" at the time of his admission. Deportation proceedings were then instituted. "No serious question," the Special Inquiry Officer found, "has been raised either by the respondent [petitioner here], his counsel or the psychiatrists [employed by petitioner] who have submitted reports on the respondent as to his sexual deviation." Indeed, the officer found that both of petitioner's psychiatrists "concede that the respondent has been a homosexual for a number of years but conclude that by reason of such sexual deviation, the respondent is not a psychopathic personality." Finding against petitioner on the facts, the issue before the officer was reduced to the purely legal question of whether the term "psychopathic personality" included homosexuals and if it suffered illegality because of vagueness.
Prior to the 1952 Act the immigration law excluded "persons of constitutional psychopathic inferiority." 39 Stat. 875, as amended, 8 U.S.C. 136 (a) (1946 ed.). Beginning in 1950, a subcommittee of the Senate Committee on the Judiciary conducted a comprehensive study of the immigration laws and in its report found "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." S. Rep. No. 1515, 81st Cong., 2d Sess., p. 345. The resulting legislation was first introduced as S. 3455 and used the new phrase "psychopathic personality." The bill, however, contained an additional clause providing for the exclusion of aliens "who are homosexuals or sex perverts." As the legislation progressed (now S. 2550 in the 82d Congress), however, it omitted the latter clause "who are homosexuals or sex perverts" and used only the phrase "psychopathic personality." The omission is explained by the Judiciary Committee Report on the bill:
Petitioner stresses that only persons afflicted with psychopathic personality are excludable. This, he says, is "a condition, physical or psychiatric, which may be manifested in different ways, including sexual behavior." Petitioner's contention must fall by his own admissions. For over six years prior to his entry petitioner admittedly followed a continued course of homosexual conduct. The Public Health Service doctors found and certified that at the time of his entry petitioner "was afflicted with a class A condition, namely, psychopathic personality, sexual deviate . . . ." It was stipulated that if these doctors were to appear in the case they would testify to this effect and that "no useful purpose would be served by submitting this additional psychiatric material [furnished by petitioner's doctors] to the United States Public Health Service . . . ." The Government clearly established that petitioner was a homosexual at entry. Having substantial support in the record, we do not now disturb that finding, especially since petitioner admitted [387 U.S. 118, 123] being a homosexual at the time of his entry. The existence of this condition over a continuous and uninterrupted period prior to and at the time of petitioner's entry clearly supports the ultimate finding upon which the order of deportation was based.
The constitutional requirement of fair warning has no applicability to standards such as are laid down in 212 (a) (4) for admission of aliens to the United States. It has long been held that the Congress has plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden. See The Chinese Exclusion Case, [387 U.S. 118, 124] 130 U.S. 581 (1889). Here Congress commanded that homosexuals not be allowed to enter. The petitioner was found to have that characteristic and was ordered deported. The basis of the deportation order was his affliction for a long period of time prior to entry, i. e., six and one-half years before his entry. It may be, as some claim, that "psychopathic personality" is a medically ambiguous term, including several separate and distinct afflictions. Noyes, Modern Clinical Psychiatry 410 (3d ed. 1948). But the test here is what the Congress intended, not what differing psychiatrists may think. It was not laying down a clinical test, but an exclusionary standard which it declared to be inclusive of those having homosexual and perverted characteristics. It can hardly be disputed that the legislative history of 212 (a) (4) clearly shows that Congress so intended.
But petitioner says that he had no warning and that no interpretation of the section had come down at the time of his 1955 entry. Therefore, he argues, he was unaware of the fact that homosexual conduct engaged in after entry could lead to his deportation. We do not believe that petitioner's post-entry conduct is the basis for his deportation order. At the time of his first entry he had continuously been afflicted with homosexuality for over six years. To us the statute is clear. It fixes "the time of entry" as the crucial date and the record shows that the findings of the Public Health Service doctors and the Special Inquiry Officer all were based on that date. We find no indication that the post-entry evidence was of any consequence in the ultimate decision of the doctors, the hearing officer or the court. Indeed, the proof was uncontradicted as to petitioner's characteristic at the time of entry and this brought him within the excludable class. A standard applicable solely to time of entry could hardly be vague as to post-entry conduct. [387 U.S. 118, 125]
The petitioner raises other points, including the claim that an "arriving alien" under the Act is entitled to medical examination. Since he is not an "arriving alien" subject to exclusion, but a deportable alien within an excludable class Ÿ who through error was permitted entry Ÿ it is doubtful if the requirement would apply. But we need not go into the question since petitioner was twice offered examination and refused to submit himself. He can hardly be heard to complain now. The remaining contentions are likewise without merit.
[ Footnote * ] "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, epilepsy, or a mental defect . . . ." Section 241 (a) (1) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C. 1251 (a) (1), provides that: "Any alien in [387 U.S. 118, 119] the United States . . . shall, upon the order of the Attorney General, be deported who Ÿ (1) 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 . . . ."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE FORTAS concurs, dissenting.
The term "psychopathic personality" is a treacherous one like "communist" or in an earlier day "Bolshevik." A label of this kind when freely used may mean only an unpopular person. It is much too vague by constitutional standards for the imposition of penalties or punishment.
Cleckley defines "psychopathic personality" as one who has the following characteristics:
When it comes to sex, the problem is complex. Those "who fail to reach sexual maturity (hetero-sexuality), and who remain at a narcissistic or homosexual stage" are the products "of heredity, of glandular dysfunction, [or] of environmental circumstances." Henderson, Psychopathic Constitution and Criminal Behaviour, in Mental Abnormality and Crime 105, 114 (Radzinowicz & Turner ed. 1949).
The homosexual is one, who by some freak, is the product of an arrested development:
If we are to hold, as the Court apparently does, that any acts of homosexuality suffice to deport the alien, whether or not they are part of a fabric of antisocial behavior, then we face a serious question of due process. By that construction a person is judged by a standard that is almost incapable of definition. I have already quoted from clinical experts to show what a wide range the term "psychopathic personality" has. Another expert 4 classifies such a person under three headings:
Acting: (1) inability to withstand tedium, (2) lack of a sense of responsibility, (3) a tendency to "blow up" under pressure, (4) maladjustment to law and order, and (5) recidivism.
Feeling: they tend to (1) be emotionally deficient, narcissistic, callous, inconsiderate, and unremorseful, generally projecting blame on others, (2) have hair-trigger emotions, exaggerated display of emotion, and be irritable and impulsive, (3) be amoral (socially and sexually) and (4) worry, but do nothing about it.
Thinking: they display (1) defective judgment, living for the present rather than for the future, and (2) inability to profit from experience, i. e., they are able to realize the consequences intelligently, but not to evaluate them.
We held in Jordan v. De George, 341 U.S. 223 , that the crime of a conspiracy to defraud the United States of taxes involved "moral turpitude" and made the person subject to deportation. That, however, was a term that has "deep roots in the law." Id., at 227. But the grab-bag Ÿ "psychopathic personality" Ÿ has no "deep roots" whatsoever. 5 Caprice of judgment is almost certain under this broad definition. Anyone can be caught who is unpopular, who is off-beat, who is nonconformist. [387 U.S. 118, 132]
Deportation is the equivalent to banishment or exile. Fong Haw Tan v. Phelan, 333 U.S. 6, 10 . Though technically not criminal, it practically may be. The penalty is so severe that we have extended to the resident alien the protection of due process. Wong Yang Sung v. McGrath, 339 U.S. 33 . Even apart from deportation cases, we look with suspicion at those delegations of power so broad as to allow the administrative staff the power to formulate the fundamental policy. See Watkins v. United States, 354 U.S. 178, 203 -205; Kent v. Dulles, 357 U.S. 116 . In the Watkins case we were protecting important First Amendment rights. In the Kent case we were protecting the right to travel, an important ingredient of a person's "liberty" within the meaning of the Fifth Amendment. We deal here also with an aspect of "liberty" and the requirements of due process. They demand that the standard be sufficiently clear as to fore-warn those who may otherwise be entrapped and to provide full opportunity to conform. "Psychopathic personality" is so broad and vague as to be hardly more than an epithet. The Court seeks to avoid this question by saying that the standard being applied relates only to what petitioner had done prior to his entry, not to his postentry conduct. But at least half of the questioning of this petitioner related to his postentry conduct.
Moreover, the issue of deportability under 212 (a) of the Immigration and Nationality Act of 1952 turns on whether petitioner is "afflicted with psychopathic personality." On this I think he is entitled to a hearing to satisfy both the statute and the requirement of due process.
One psychiatrist reported:
[ Footnote 2 ] Report, Committee on Homosexual Offenses and Prostitution (1957).
[ Footnote 3 ] Sigmund Freud wrote in 1935: "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. Many highly respectable individuals of ancient and modern times have been homosexuals, several of the greatest men among them (Plato, Michelangelo, Leonardo da Vinci, etc.). It is a great injustice to persecute homosexuality as a crime, and cruelty too. If you do not believe me, read the books of Havelock Ellis." Ruitenbeek, The Problem of Homosexuality in Modern Society 1 (1963).
[ Footnote 4 ] Caldwell, Constitutional Psychopathic State (Psychopathic Personality) Studies of Soldiers in the U.S. Army, 3 J. Crim. Psychopathology 171-172 (1941).
[ Footnote 5 ] See Lindman & McIntyre, The Mentally Disabled and the Law 299 (1961).
[ Footnote 6 ] There is good indication that Congress intended the term "afflicted with psychopathic personality" to refer only to those individuals demonstrating "developmental defects or pathological trends in the personality structure manifest[ed] by lifelong patterns of action or behavior . . . ." U.S. Public Health Service, Report on Medical Aspects of H. R. 2379, U.S. Code Cong. & Admin. News 1700 (1952). The provision for exclusion of persons afflicted with psychopathic personality replaced the section of the 1917 Act, 39 Stat. 875, providing for the exclusion of "persons of constitutional psychopathic inferiority." The purpose of that clause was "to keep out `tainted blood,' that is, `persons who have medical traits which would harm the people of the United States if those traits were introduced in this country, or if those possessing those traits were added to those in this country who unfortunately are so afflicted.'" The Immigration and Naturalization System of the United States, S. Rep. No. 1515, 81st Cong., 2d Sess., 343 (1950). The Senate subcommittee which had been charged with making an investigation of the immigration laws concluded that "the exclusion of persons with `constitutional psychopathic inferiority' was aimed at keeping out of the country aliens with a propensity to mental aberration, those with an inherent likelihood of becoming mental cases, as indicated by their case history." Ibid. It concluded 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." Id., at 345. Senate Report 1515 accompanied Senate bill 3455, which included among excludable aliens "[a]liens afflicted with psychopathic personality," and "[a]liens who are homosexuals or sex perverts." The bill was redrafted and became S. 716, with its counterpart in the House being H. R. 2379; the material provisions remained the same as in S. 3455. In response to the House's request for its opinion on the new provisions, the Public Health Service noted 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 [387 U.S. 118, 135] 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." U.S. Code Cong. & Admin. News 1700 (1952). The letter setting forth the views of the Public Health Service went on to say, with respect to the exclusion of "homosexuals or sex perverts": "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." Id., at 1701. The bill which was finally enacted, H. R. 5678, provided for exclusion of "[a]liens afflicted with psychopathic personality," but did not provide for exclusion of aliens who are homosexuals or sex perverts, as had its predecessors. The House Report, H. R. Rep. No. 1365, which accompanied the bill incorporated the full report of the Public Health Service (H. R. Rep. No. 1365, 82d Cong., 2d Sess., at 46-48) and indicated that the "recommendations contained in the . . . report have been followed." Id., at 48. This legislative history indicates that the term "afflicted with psychopathic personality" was used in a medical sense and was meant to refer to lifelong patterns of action that are pathologic and symptomatic of grave underlying neurosis or psychosis. Homosexuality and sex perversion, as a subclass, are limited to the same afflictions. [387 U.S. 118, 136]