George Fleuti, Appellant-petitioner, v. George K. Rosenberg, District Director of Immigration and Naturalization Service, Los Angeles, California, Appellee-respondent, 302 F.2d 652 (9th Cir. 1962)

George Fleuti, a resident alien, was ordered deported by the Immigration and Naturalization Service on the ground that at the time of his entry he was a "psychopathic personality." Having exhausted his administrative remedies, Fleuti brought this action in the district court to review that order. The district court entered judgment upholding the order of deportation, and Fleuti appeals.

For the reasons indicated in the margin we consider the case as before us for initial review, pursuant to 8 U.S.C.A., § 1105a, and 5 U.S.C.A., § 1031 et seq., rather than on appeal from a district court judgment.¹  Fleuti will be regarded as the petitioner and George K. Rosenberg, District Director of Immigration and Naturalization Service, Los Angeles, as respondent. Under the circumstances of this case our reviewing function is substantially the same as was that of the district court which initially reviewed the deportation order.

Fleuti contends that the order is invalid because not based upon reasonable, substantial and probative evidence. He further contends that execution of the order would violate the Due Process Clause of the Fifth Amendment because, as applied to him, the statute in using the term "psychopathic personality" is void for vagueness.

Fleuti is a native and citizen of Switzerland. He was admitted to the United States for permanent residence on October 9, 1952. He remained in this country until August, 1956, when he visited for a few hours in Ensenada, Mexico. He then re-entered as a returning resident alien and has remained in this country since then.

The charges upon which the deportation order is based were filed against Fleuti on August 5, 1959. It was alleged that Fleuti is deportable because, at the time of his 1956 entry, he was within a class of aliens excludable by the law existing at the time of such entry, namely aliens afflicted with "psychopathic personality." The statutes cited as authorizing deportation on such a showing are sections 241(a) and 212(a) (4) of the Immigration and Nationality Act, 8 U.S. C.A. §§ 1251(a) and 1182(a) (4).² 

It was not stated in the formal charges what specific physical or mental condition Fleuti had at the time of his 1956 entry which brought him at that time within the class of aliens afflicted with "psychopathic personality." Attached to the charges, however, was a sheet on which certain factual allegations were listed, as set out in the margin.³  It is thereby indicated that the particular condition thought to bring Fleuti within the stated class was his alleged affliction with the desire for, and regular indulgence in, homosexual practices over a long period of years.

It is an established principle of federal adjudication that questions of constitutional law are not to be dealt with in advance of the necessity of deciding them. See Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 72, 81 S. Ct. 1357, 6 L. Ed. 2d 625. It would therefore at first blush appear that we ought to first consider Fleuti's contention that the deportation order is not based upon adequate evidence, on the theory that if this question is decided in his favor we need not reach the constitutional question which he poses.

The difficulty in following this course, however, lies in the fact that: (1) in order to determine whether the evidence is sufficient it is necessary to decide what is meant by "psychopathic personality"; (2) this term is not defined in the statute and respondent relies upon the legislative history in order to establish the meaning of the term;⁴  but (3) if the statute, judged on its face and as applied to Fleuti, is void for vagueness, access may not be had to the legislative history in order to establish its meaning.⁵ 

It is therefore necessary for us to proceed at once to the constitutional question.

The question of whether a statute is void for vagueness most frequently arises in criminal prosecutions.⁶  In such cases the underlying principle is said to be 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, 98 L. Ed. 989.

But the Supreme Court has also applied this principle in civil proceedings, and in so doing has expressly ruled that a criminal penalty need not be involved. See Small Company v. American Sugar Refining Company, 267 U.S. 233, 239, 45 S. Ct. 295, 69 L. Ed. 589, where the court said, referring to other decisions in which the principle had been applied:

"* * * It was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all."

In Jordan v. DeGeorge, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886, the court examined, for vagueness, a statute which had been invoked in ordering deportation of that appellant. The court stated that it would do so notwithstanding the fact that it was not a criminal statute.⁷  In that case the deportation had been ordered because a proscribed event had occurred after the alien entered this country, namely, "conviction in this country of any crime involving moral turpitude." The particular crime which was held to involve moral turpitude was conspiracy to defraud the United States of taxes on distilled spirits.

In the case before us, deportation has been ordered not because of any event occurring or act committed after Fleuti's last entry in August, 1956, but on the ground that, at the time of that entry, he was excludable as a "psychopathic personality."

However, in proving that, at the time of such entry, Fleuti was a "psychopathic personality," the Immigration and Naturalization Service has not relied exclusively upon evidence concerning Fleuti's condition prior to entry.⁸  It presented evidence showing not only that Fleuti had regularly engaged in homosexual practices prior to his first entry in 1952, but that he had continued such practices after that entry and also after his second entry in 1956.⁹  The finding that he was a "psychopathic personality" at the time of the 1956 entry is therefore based in part upon post-entry behavior.

Insofar as the record reveals, continuance of homosexual practices after Fleuti entered this country in 1952, and again in 1956, was not compulsive, but was a matter of choice. It follows that if, by reason of vagueness, the statute failed to advise him that homosexual practices conclusively evidence a "psychopathic personality" Fleuti was substantially prejudiced. As in the case of a vague criminal statute, he would thereby be deprived of notice that unless he refrained from such conduct harsh results might follow.

While the post-entry conduct was not itself the ground of deportation, but was used as evidence of a pre-entry deportable condition, the prejudice would nevertheless be substantial. The examiner might have found the evidence of pre-entry homosexual practices sufficient to support a finding of "psychopathic personality." But whether such a finding would have been entered in 1959, based on pre-entry conduct prior to October 9, 1952, or whether on such facts a charge would even have been brought, is a matter of speculation.¹⁰  The fact that the examining officer chose to rely heavily upon post-entry behavior is some indication that a charge might not have been filed, or a finding entered, on pre-entry behavior alone.

From what has just been said, it will be observed that, for the purposes of this discussion, we regard Fleuti's conduct between his entry in 1952 and his brief absence in 1956, along with his conduct after his re-entry in 1956, as post-entry behavior. If, during the years 1952 to 1956, Fleuti was prejudiced by reason of the vagueness of the statute, he may assert such prejudice now, notwithstanding his temporary leave-taking in 1956. The prejudice occurred while he was a resident alien and his constitutional rights as such, acquired during that period, were not "washed out" by his afternoon visit to Ensenada, Mexico.

The question which remains to be decided is whether the deportation statute, in using the undefined term "psychopathic personality" is void for vagueness, as applied in this case.¹¹ 

In determining whether a statute is vague in the constitutional sense, the test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Jordan v. DeGeorge, 341 U.S. at page 231, 71 S. Ct. at page 707. Or, as stated in United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, and United States v. Petrillo, 332 U.S. 1, 6, 67 S. Ct. 1538, 91 L. Ed. 877, would persons of "ordinary intelligence" be able to know what the statute means.

It has already been pointed out (see note 5 above) that in determining whether a statute is void for vagueness, the statute must be judged on its face, without reference to legislative history. We are mindful of the fact that language which is otherwise vague may be made sufficiently certain by definitive construction, even though the language construed is found in other statutes. Jordan, supra, 341 U.S. at 227, 71 S. Ct. at 705. However, at the time this post-entry conduct occurred, there was no decisional law as to the meaning of the term as used in this or any other federal statute.¹² 

Dr. A. R. Dahlgren, the Public Health Service surgeon who had certified that Fleuti was a "psychopathic personality," testified that he did so because the Public Health Service manual for medical examination of aliens required him to so certify anyone who is a sex deviate. Dr. Dahlgren, who is not a psychiatrist, did not consider whether Fleuti's condition was hereditary, congenital, environmental or otherwise. His finding was merely that Fleuti was a sexual deviate and that "by the instructions which I must follow, I have to place these deviates in this category."¹³ 

Dr. David R. Harvey, Fleuti's attending psychiatrist, was of the opinion that Fleuti's deviation is not sufficient to justify the diagnosis of "psychopathic personality." He stated that the formal label for Fleuti's condition would be that of "sexual deviation, homosexuality, now under control."¹⁴ 

It is apparent that these two doctors, confronted with the identical facts, applied different standards in determining whether Fleuti was a "psychopathic personality." Dr. Dahlgren, feeling himself bound by the Public Health Service Manual, applied the test of whether Fleuti was a sex deviate, apparently ending the inquiry at that point. Dr. Harvey, while not insisting upon a showing of hereditary or congenital condition, considered such additional factors as the extent of the deviation, its effect upon other habits and activities, and whether control over the practice had been manifested.¹⁵ 

It is not surprising that these two doctors gave widely varying meanings to the term "psychopathic personality."¹⁶  Congress was content to let "psychopathic personality" stand for "homosexuals" and "sex perverts," because the Public Health Service advised it that the term is "sufficiently broad" to accomplish this.¹⁷  But the Public Health Service itself considered the term vague, saying in a report which was before the Congress in 1952:

"Although the term `psychopathic personality' is vague and indefinite, no more appropriate expression can be suggested at this time."¹⁸ 

The Public Health Service view that the term is "vague and indefinite" is confirmed by authoritative writers in this field. Expert opinions to this effect, collected at page 940, note 33 of the article referred to in note 15 herein, are quoted in the margin.¹⁹ 

It therefore appears that the medical experts called to apply the term in this particular case are in disagreement as to what it means, the Public Health Service which asked Congress to use the term concedes that it is "vague and indefinite," and authoritative writers state that there is confusion and general disagreement as to its meaning.

The conclusion is inescapable that the statutory term "psychopathic personality," when measured by common understanding and practices, does not convey sufficiently definite warning that homosexuality and sex perversion are embraced therein. Since this statutory term thus fails to meet the test to be applied in determining whether a statute is vague in the constitutional sense, we hold that the statute is void for vagueness, as applied in this case. Enforcement of the order of deportation would therefore deprive Fleuti of the due process of law.

The order of September 22, 1959 for the deportation of George Fleuti is declared to be void, that order is hereby set aside, and enforcement of the order is enjoined.