Gerald Joseph Lavoie, Petitioner, v. United States Immigration and Naturalization Service, Respondent, 360 F.2d 27 (9th Cir. 1966)

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U.S. Court of Appeals for the Ninth Circuit - 360 F.2d 27 (9th Cir. 1966) April 8, 1966

Norman Leonard, of Gladstein, Anderson, Leonard & Sibbett, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MADDEN, Judge of the Court of Claims, and MERRILL and BROWNING, Circuit Judges.


Petitioner seeks review of an order of the Immigration and Naturalization Service directing his deportation to Canada, grounded upon a finding that he was, at the time of his entry to this country, a homosexual and as such an alien "afflicted with psychopathic personality" and thus was of a class excludible by law at that time. §§ 241(a) and 212(a) (4), Immigration and Nationality Act, 8 U. S.C. §§ 1251(a) and 1182(a) (4).

This case is controlled by Fleuti v. Rosenberg, 302 F.2d 652, 658 (9th Cir. 1962), remanded on other grounds 374 U.S. 449, 83 S. Ct. 1804, 10 L. Ed. 2d 1000 (1963), where we held that the term "psychopathic personality" "* * * fails to meet the test to be applied in determining whether a statute is vague in the constitutional sense" and that the statute in its application to homosexuals is therefore void for vagueness.

The order of March 11, 1965, for deportation of Gerald Joseph Lavoie is declared to be void; that order is hereby set aside and its enforcement is enjoined.

MADDEN, Judge (concurring):

I concur in the court's disposition of the case, but I do so only because of the precedent cited in the court's opinion.