Interim Decision #1752 

Rama or STEELE 

In Deportation Proceedings 

A.-8199592 

Decided by Board July 11, 1967 

(1) Since evidence or record establishes respondent was a hornosevuol at time 

of his entry for permanent residence in 1952, he is deportable on. the charge that 

he was excludable at entry as a person of constitutional psychopathic inferiority 

[Boutilier v. Immigration and Naturalization Service, 38711i.S. 118 (1967) ]. 

(2) Failure to advise respondent of right to conneel at the time a preliminary 

sworn statement was voluntarily made by him does not render such statement 

inadmissible in evidence in deportation proceedings since there is no right to 

counsel during the baring of a statement in the investigative stage INaaan v. 

Immigration and Naturalization Service, 370 F.2d 805 (1937) 3. 

Ca seers : 

Order: Act of 1952--SectIon 241(a) (1) [8 U.S.C. 1251(a) (1)]—Excludable 

at entry—section 212(a) (4) [8 U.S.C. 1182(a) (4)]—

psychopathic personality. 

Lodged : Act of 1952--Section 241(a) (1) [8 U.B.C. 1251(a) (1)1—Excludable 

at entry—section 2, Act of February 5, 1917—constitutional psychopathic inferiority. 

ON Basis Or BESPONDICRT: Max Frederick Brown, Esquire 

2025 First National Building 

Detroit, Michigan 42:=6 

The respondent appeals from the order of the special inquiry officer 

requiring his deportation on the lodged charge. 

Consideration of this case had been delayed pending the decision of 

the Supreme Court in Boutilier v. Immigration and Naturalization 

Service, 35 L.W. 4453 (May 22, 1967). This decision makes it clear that 

proof. an alien was a. homosexual at the time of entry makes him 

deportable on the charge that he was a psychopathic personality at the 

time of entry. The term psychopathic personality replaced the term 

constitutional psychopathic inferiority in the previous law—the law 

under which the respondent's charge is plated. It would follow then 

'that proof an alien was a homosexual at the time of entry would be 

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Interim Decision #1752 

sufficient to find he was deportable as one who was a. constitutional 

psychopathic inferior (Matter of LaRochelle, Int. Dec. No. 1538). The 

issue before us now is simply whether competent evidence of record 

establishes that the respondent, a 55-year-old divorced male alien, a 

native and citizen of Canada, was a homosexual at the time of his entry 

for permanent residence on January 3, 1952. 

The facts and law have been fully stated by the special inquiry officer. 

In support of its claim that the respondent was a homosexual at the 

time of entry, the Service relies upon the respondent's sworn statement 

of January 3, 1963 in which he admitted that he had homosexual 

tendencies from about the age of 14 and that prior to coming to the 

United States, he had had homosexual relations about every two or 

thrco'monthc in Canada (Ex. 9). 

Dr. Lbwinger, an expert witness presented by the Servith, testified 

that on the basis of an examination made of the respondent which included conduct of the respondent up to the date of the examination 

(April 9, 1963), he concluded that the respondent had shown a lifelong pattern of homosexuality and that he considered the condition 

existed at the time of the respondent's entry in 1952. 

Counsel contends that the respondent's statement is inadmissible 

because he was upset at the time it was taken. The record does not 

establish this. The respondent displayed considerable self-possession, 

his answers are clear, deliberate, full, and to the point. The respondent had not been rushed to an interview: he had advance notice. He 

had not thought the interview important enough to consult an attorney (pp. 4.1-44). 

Counsel believes the statement is inadmissible because the respondent was not specifically advised concerning his right to counsel when 

it was taken. There is no right to counsel during the taking of a statement in the investigative stage (Nason v. Immigration and Naturalization Service, 370 F. 2d 865, 868-869 (1967) ; see Matter of Argyros, 

Lit. Dec. No. 1577; Matter of Pang, Int. Dec. No. 1479). Moreover, 

the respondent does not claim that he was refused the right to call an 

attorney. He apparently could have called one had he wanted one but 

he did not think he needed one (p. 44) . 

The record reveals the respondent was told the statement must be 

made voluntarily and that it could be used by the Government against 

him. We believe the statement was properly admitted in evidence. 

Counsel contends the decision of the special inquiry officer was 

based upon factors which occurred after the 1952 entry: arrests (for 

soliciting, two convictions 1957, one arrest 1962) , psychiatric examination and diagnosis as of the date of the examination, and the respond- 
Interim Decision #1752 

ent's admission that after entry and up to November 1962, he engaged 

in homosexual conduct about two or three times a month. 

The special inquiry officer was concerned with the respondent's 

condition as of the time of entry. Moreover, decision can be made -without reference to post-entry conduct. In view of these facts, and since 

we do not rely upon post-entry conduct, we believe the charge may 

properly be sustained. 

Counsel contends that the statute under which deportation is sought 

is unconstitutional. The contention must be rejected on the basis of 

the decision in Boutilier v. Immigration and Naturalization Service, 

supra. 

The special inquiry officer has dealt in detail with other contentions 

raised by counsel at the hearing. We find no error in the disposition 

of these contentions. We find no prejudicial error committed at the 

hearing. 

ORDER : It is ordered that the appeal be and the same is hereby 

dismissed. 

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