### _Intel= Decision vim

MATTER or lAvoin
In Deportation Proceedings

A-10767234

Decided by Board July 31,1988

(1) Evidence that respondent engaged in repeated homosexual acts 12 to 24 times a year over a period of 11 years preceding his entry into the United States establishes under the clear, convincing and unequivocable standard of Woodby v. Immigration and Naturalization Service, 385 U.S. 276, that he wasa homosexual at entry; accordingly, he is deportable as one who was excludable at entry Gs a person afflicted with ;a/Allopathic personality. (2) Mine to advise respondent of his right to counsel at the time the preliminary sworn statement was made by him does not render such statement inadmissible in evidence in deportation proceedings since there is no right to . counsel during the taking or a statement is the investigskivi stage.

CHARGE:
Order: Act of 1952—Section 241(a) (1) [8 U.S.C. 7251 (a) (1)3—Excludable

at time 

### of entry—atilieted with psychopathic personality.

ON BEHALF OF RESPONDENT : ON Baffair or SERVICE : Norman Leonard, Esquire Stephen M. &oft 1182 Market Street . , Trial Attorney San Francisco, California. 94102 (Brief Bled) (Brief filed)



### The case comes forward on appeal from the order of the special inquiry officer dated May. 20, 1968 ordering that the respondent be deported to Canada on the charge in the order to show cause. The record relates to a native and citizen of Canada, 44 years old, male, single; who entered the United States for permanent residence on January 26, 1960. The facts of the case relating to 'the ground ofexcludability were discussed in prior orders.of the special inquiry officer and of this Board concluding with the order of this Board on May 28, 1965 dismissing the appeal from the order of deportation entered by the special inquiry officer on March 11, 1965. Pursuant to an order entered by the court on January 25, 1968 in the case of Ls voie v. Immigration and Naturalization Service 

### (No. 20, 220) remanding the case

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for its reconsideration in the light of the standards laid down in 

### Woodby v. Immigration and Naturalization Service, 385 U.S. 276, and further ordering that the remand be without limitation upon the authority of the Commission [Board) to consider other issues should the Commission [Board) so desire, this Board on March 4, 1968 granted the Service motion for reconsideration and reopening in the light of the order of the Court of Appeals in this case pursuant to its order.
In 

### Woodby v. Immigration and .Naturalization Service, 385 U.S. 276, the Supreme Court held that no deportation order could beentered unless it was found by clear, unequivocal and convincing evidence that the facts alleged as grounds for deportation were true. Counsel submitted a brief in which he sets forth the issues in the case as follows: (1) Does the evidence in the light of the IV voclby standards support a finding that respondent was afflicted with a psychopathic personality at the time of his entry; and (2) was respondent denied due process of law, or was the statute violated, when incriminatory statements, later used in evidence against him, were obtained from him at a time when he was without counsel and had not been advised that he had a right to counsel. In a sworn statement to a Service investigator on August 30, 1961 the respondent admitted that he was a homosexual ; that is, by his own interpretation, a. person whose sexual urges are directed to members of his own sex; that during the years 1946, 1947 and 1948 he had nomore than a dozen experiences at most; that after 1948 these experiences occurred approximately once or twice a month except for 1960, when he did not have any homosexual experiences at one period oftime for a period of five months; that for the last two years (preceding the sworn statement) he had approximately five or six homosexual experiences. In his sworn statement he stated that he bad intercourse with females about two dozen times during the time he was in the Navy (up to 1945) and approximately seven or eight times after he left the Navy; that the last sexual experience with a female occurred approximately three years prior to the making of the statement. The case of 

### Bautilier v. Immigration and Naturalization Service,

387 U.S. 118, 18 L.Ed 2nd 661 (1967), is remarkably similar on the facts. In that case the alien had a long-continued but somewhat less active history of homosexual relations prior to his entry into the United States and had also engaged in heterosexual relations on several occasions. The court held that the Congress used the phrase "psychopathic personality" not in the clinical sense, but to effectuateits purpose to exclude from entry all homosexuals and other sex perverts. Participating in a continued course of conduct, consisting of

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homosexual relations about three or four times a year during a periodover sir years prior to his entry, constitutes being afflicted with psychopathic personality as certified by United States Public Health Service doctors within the meaning of section 212(a) (4) of the Act. When the alien first presented himself at the border for entrance, he was already afflicted with homosexuality; the pattern was cut, and under it he was

### not admissible. The court observed that section 212 (a) (4) of the Immigration and Nationality Act does not impose the regulations or sanctions on their postentry conduct and that the constitutional requirements relevant to the "void for vagueness" doctrine were inapplicable. In the instant case, we find that "the 

### evidence, that the respondent engaged in repeated homosexual acts 12 to 24 times a year over a 

### period of 11 years which preceded his entry into the United States,clearly, unequivocally and convincingly establishes that he was a homosexual at the time of entry. Evidence as to postentry conduct added nothing to the finding of inadmissibility but was merely corroborative but does not constitute a basis for the finding of inadmissibility or exchidability as a person of the class of

.aliens afflicted with psychopathic personality at the time of entry and excludable as such.

### The second issue raised by counsel was that at the time of the interrogation by an agent of the Immigration. and Naturalization. Seivice he was without counsel and was not advised of his right to counsel which deprived him of due process and also violated the applicablestatute. However, the cases citedbyebifinde arose in criminal prosecutions. Deportation is a civil .proceeding. The statement in question was not obtained by coercion, duress or other improper action on the part of the investigator but was voluntarily made and the respondent has never denied the truth of the statement. 

### When he gave hisitatement he was not in custody. Failure to advise the respondent of his 

### right to counsel at the time the preliminary sworn statement was madeby him does not render such statement inadmissible in evidence in deportation proceedings since there is no right to counsel during the staking of a statement in the investigative stage. 

### Woodby v. Immigration and Naturalization Service, 385 U.S. 276; 

### Nason v. Immigration and Naturalization Service, 370 F. 2c1 865 (2d Cir. 1967) ; 

### Pang v. Immigration and Naturalization Service, 368 F. 2d 687 (3d Cir. 1966) ; 

### Ben Huil v. Immigration. and Naturalization Service, 349 F. pd 1014 (9th Cir. 1965) ; 

### Matter of Steele, Lit. Dee. No. 1752. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

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