LOCATION: Clauson's Inn
DOCKET NO.: 248
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Ninth Circuit
CITATION: 374 US 449 (1963)
ARGUED: Mar 26, 1963
DECIDED: Jun 17, 1963
Facts of the case
Media for Rosenberg v. Fleuti
Audio Transcription for Oral Argument - March 26, 1963 in Rosenberg v. Fleuti
Number 248, George K. Rosenberg, District Director, Immigration and Naturalization Service, Petitioner, versus George Fleuti.
Philip R. Monahan:
Mr. Chief Justice, may it please the Court.
This case is here on certiorari to the Ninth Circuit Court of Appeals to review a judgment of that Court, setting aside a deportation order on the ground that Section 212 (a) (4) of the 1952 Immigration and Nationality Act as applied in this case is void for vagueness.
The facts are not in dispute.
The respondent is a 50-year-old native and citizen of Switzerland.
He is unmarried and has no children or dependents.
He was admitted for permanent residence to this country in October of 1952 and has resided here continuously since then with the exception of a period of something less -- something less than a day when he made a trip to Ensenada, Mexico in August 1956 following which he was readmitted to the country at San Ysidro, California as a returning resident alien.
In April, 1959, the Immigration and Naturalization Service issued an order requiring him to show cause why he should not be deported as an alien who prior to entry, and the entry in question was the reentry of August 1956 which I might say parenthetically at this point constituted an entry within the explicit definition of entry in the 1952 Act, why he was not deportable as an alien who prior to entry was convicted of an offense involving moral turpitude, consisting of his conviction on his plea of guilty in the California Superior Court for the County of Los Angeles of a homosexual act committed in February of 1956 for which he was sentenced to a fine of $200.
The respondent appeared at the immigration -- at the deportation hearing with counsel acknowledged the truth of the factual allegations underlying the order to show cause, conceded his deportability, indicated that he desired to be deported to Switzerland and was ordered deported.
He indicated that he did not desire to take any appeal and he did not appeal.
However, in July of that year, on the motion of the prosecuting officer of the Service, the proceeding was reopened on the representation of the Service that because of certain technical Escape Clause in the Act which I -- which is explained in our brief and which I will not attempt to explain here, the offense underlying the outstanding deportation order was not one that was deportable in itself because it came within the definition of a mis -- a misdemeanor classifiable as a petty offense as defined in the immigration laws and therefore in itself was not deportable.
However, the Immigration Service requested that the proceeding be reopened for the introduction of an additional charge of deportability which is the one presently before the Court.
That charge was that he was in it -- he was deportable because he was inadmissible at the time of his August 1956 entry as an alien afflicted with psychopathic personality.
In support of the additional charge, there was received in evidence, a certificate by a physician of the United States Public Health Service certifying that the respondent was a psychopathic personality and had been such at the time of his entry.
Dr. Dahlgren, the Public Health Service physician who signed the certificate was -- testified at the hearing and was subjected to cross-examination, and he testified that -- he acknowledged that he was not a psychiatrist himself but that he had classified the respondent as a person afflicted with psychopathic personality because the official instruction book of the Public Health Service called The Manual for the Examination -- Medical Examination of Aliens, requires that any alien who is a homosexual or sexual deviant, be placed in the category of a psychopathic personality.
He stated on cross-examination that he had no particular opinion or no particular feeling or words to that effect as to whether the respondent would be considered a psychopathic personality under traditional medical standards.
In addition, the record of a second conviction of the respondent, one which preceded in time, the one I've mentioned before, it took place in 1953 which was also based upon a homosexual act as the respondent admitted at the hearing was received in evidence for which -- and the record shows that the defendant or the respondent rather was sentenced to a $100 fine on that occasion.
It was also received in evidence a sworn statement, a sworn statement by the respondent which appears at pages 74 to 75 of the record which the respondent made to an investigator of the Immigration and Naturalization Service in March, I believe, of 1959, and which he acknowledged at the deportation hearing was true, in which the respondent stated that he had had homosexual urgence since he was a young man of 24 in Switzerland and that in the intervening period of 22 years, he had indulged in homosexual activities whenever the opportunity presented itself which he said was on the average of about once a month.
John M. Harlan II:
How was that [Inaudible]
Philip R. Monahan:
This was a voluntary statement made to him to a -- an investigator of the Immigration and Naturalization Service.
John M. Harlan II:
Philip R. Monahan:
It was made in March of 1959 during the course of the Service's inquiry into the man's background, Your Honor.
He further stated in this affidavit that his homosexual activities had begun in Switzerland and that he had never been caught or arrested in Switzerland that they had continued in this country and that he was unfortunate enough to be arrested for them in a public park in Los Angeles.
He acknowledged that both his 1953 and 1956 convictions were based upon homosexual acts.
He stated that he was arrested on a third occasion in Oxnard, California in 1958 for similar activities but those charges were dismissed.
And he stated that since his second Los Angeles arrest or conviction rather in 1956, he had been very careful with respect to his homosexual activities because he had heard that such things were reported to Washington and he felt that the Immigration authorities might be looking for him.
On the respondent's behalf, there was received in evidence a report in the form of a letter to the respondent's then counsel, predecessor of present counsel, I believe, by his personal psychiatrist, Dr. David Harvey, in which Dr. Harvey stated that he had -- had examined the respondent on four occasions between May and August of 1959, and it acknowledged that the respondent had had homosexual activities since the age of 26.
But in which he stated that the man's sexual drive particularly at his age, is thought to be within his range of control especially if he is under the supervision of continuing contact with a psychiatrist.