Rosenberg v. Fleuti

PETITIONER:Rosenberg
RESPONDENT:Fleuti
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

Question

Audio Transcription for Oral Argument – March 26, 1963 in Rosenberg v. Fleuti

Earl Warren:

Number 248, George K. Rosenberg, District Director, Immigration and Naturalization Service, Petitioner, versus George Fleuti.

Mr. Monahan.

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:

[Inaudible]

Philip R. Monahan:

No.

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.

Philip R. Monahan:

And in which he further stated that his socioeconomic relations were consistently good, that he did not frequent homosexual hangouts, had no evident interest in nudes, manifested no irresponsible trends, and had his main social contacts with respected members of the community.

Dr. Harvey further stated that the respondent’s deviation, to use his word, was not sufficient in his opinion to warrant the classification psychopathic personality, and that the formal label should be or would be sexual deviation, homosexuality now under control.

The special inquiry officer at the conclusion of the hearing determined that the addition — the additional charge had been supported because on the undisputed evidence, the respondent was and at entry had been a homosexual.

And he referred to a prior decision of the Board of Immigration Appeals in which the Board, on the basis of a thorough analysis of the legislative history of Section 212 (a) (4) of the 1952 Act had concluded that Congress — that there could be no doubt that Congress intended to exclude homosexuals and sexual deviants within that category.

The petitioner, following an unsuccessful appeal or rather the respondent following an unsuccessful appeal to the Board of Immigration Appeals, sued for injunctive and declaratory relief in the North — in the District Court of the Northern District of California in which he challenged the sufficiency of the Service’s finding of psychopathic personality and in addition contended that the term was unconstitutionally vague as it had been applied in his case.

The District Court finding that — that there was certainly ample evidence to support the finding that he was and in entry had been homosexual held that on the basis of the legislative history, it was clear that he was also a psychopathic personality within the congressional intent.

The Court rejected the contention that the term ‘psychopathic personality’ was unconstitutionally vague with the observation that while it might be true that a criminal statute which employed such a term might be too definite to be sustainable, too indefinite to be sustainable, the same strict standard of definiteness should not be required of a statute which merely defines the classes of aliens who are inadmissible to the country.

The Court of Appeals reversed, holding that the phrase was unconstitutionally vague as herein applied and that resort might not be had to the legislative history.

The Court, while recognizing that the respondent’s deportation had not been ordered on the basis of his miss of — of any conduct in this country, but because of a disqualifying condition at the time of his entry, held nevertheless that the Immigration and Naturalization Service’s reliance in part in making its finding as to the existence of that condition on behavior by the respondent in his country, made the application of Section 212 (a) (4) to his case fundamentally unfair.

The Court’s rationale is set forth in — on page 96 of the record where the Court said, “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 evidenced 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.

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

It is, sir.

The —

Arthur J. Goldberg:

You’ve got the [Inaudible]?

Philip R. Monahan:

The —

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

It is true that it is acknowledged on the record in this case that the respondent was a homosexual at the time of both entries.

The first entry may not be regarded because that occurred before the effective date of the 1952 Act.

It occurred after the — after the passage of the Act, but before its effective date.

Arthur J. Goldberg:

Then you have to rely on it?

Philip R. Monahan:

You have to rely upon the second entry.

Byron R. White:

[Inaudible]

Philip R. Monahan:

Oh no, sir.

No, it’s a matter of what Congress did.

Certainly, Congress could make homosexual conduct in the past deportable, but it did not — has not done so.

Now, to get back to your question, Mr. Justice Goldberg, it is true that there has been ack — acknowledgment of his homosexuality at the time of the pertinent entry in August, 1956 and we do say that it’s rather unrealistic to assume the possibility that the special inquiry officer, while he did consider the homosexual activities in this country, would have reached any other conclusion even if he had ignored those activities on the basis of the respondent’s own acknowledgment and his own psychiatrist’s statement to that effect.

Nevertheless, the Court of Appeals did think that because the service had considered the activities in this country, homosexual activities in this country, in part, in arriving at its determination that at least we do not rest, we do not rest upon the acknowledgment by the respondent of his homosexual condition in 1956.

Now, we submit —

Potter Stewart:

So there would never been any knowledge, I presume of a —

Philip R. Monahan:

It probably —

Potter Stewart:

— of this condition dating back to this man’s — on his — in his twenties if it hadn’t been for this arrest after he got to this country.

Philip R. Monahan:

It probably never would have —

Potter Stewart:

Is that fair to say?

Philip R. Monahan:

It probably never would have come to light —

Potter Stewart:

Yes.

Philip R. Monahan:

— had he not acted in the manner that he did in this country, and I think that that is at the basis of what bothered the Court of Appeals about this.

The fact that his preentry activities in Switzerland probably never would’ve come to light and there never would’ve been any deportation proceeding had he — had it not been for his homosexual activities including his convictions in this country.

Byron R. White:

[Inaudible]

Philip R. Monahan:

That is — that’s precisely the point of the Court of Appeals and we submit that the Court has misapplied the vague — the void for vagueness doctrine.

That rule —

Potter Stewart:

There’s no question but in the opinion of the psychiatrist, this is conduct which this man could have controlled and abstained from, isn’t it?

Philip R. Monahan:

That is — that is correct, sir.

Yes.

Potter Stewart:

If he wasn’t compulsive or anything.

Philip R. Monahan:

He —

Potter Stewart:

Maybe it was but it is no longer.

Philip R. Monahan:

He said that so far as it appears, the conduct was not compulsive.

It was a matter of choice and so far as the record appears that is true.

There is no indication that these were compulsive actions.

Byron R. White:

I take it that [Inaudible]

Philip R. Monahan:

I think not, sir.

I think there’d be no question then.

But it is true that he — he did take into consideration the convictions and activities, the admission of his activities in this country.

Arthur J. Goldberg:

[Inaudible] respondent has no authority to [Inaudible]?

Philip R. Monahan:

He perhaps would but then he would have to say that — that an alien who is knocking at our doors has a right to know on the face of the — of an exclusion statute, on the face of it, not as a matter of legislative history but on the face of it that a person, a homosexual is included within the category of psychopathic personality and he — and he might make that argument.

I do not think he’d be successful because —

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

That’s — that is the step that has been taken.

Philip R. Monahan:

He did get into the country.

He has been here 10 years and his position and the Court of Appeals’ position is as a result of his residence in this country, he has acquired the right to challenge the exclusion, the admissibility statute for lack of precision on its face.

Now the — the fair — the void for vagueness statute — doctrine which has been sometimes referred to as a fair warning statute has always been applied in a case involving behavior governing statutes.

The point is that as the Court has said in the — one of the leading cases, Connolly against the General Construction Company, a statute which either forbids or requires the doing of an act in terms so vague that man of common intelligence must guess at its meaning and differ as to its application violates the first essential of due process of law.

And as this Court said more recently and perhaps more succinctly in the Harris case, no person should be held criminally responsible for conduct which he could not reasonably understand to be proscribed, but that rule, the Government contends, has no application in this case.

For here, the statutory ground on which the respondent was ordered deported was not misconduct after an entry, but a condition with which he was unfortunate enough to be afflicted at the time of his entry.

Certainly, Congress has it within its power to enumerate physical and mental defects or disorders which will disqualify an alien for entry and it has done so, Section 212 (a) as in large part, a catalog of such disqualifying conditions.

These can in no sense, be considered as guides to conduct and the application to them of the principle requiring indefiniteness in behavior governing statutes and have no rational justification, we submit.

What the Court of Appeals has done in this case is to extend in a wholly unprecedented manner, the fair warning doctrine, and has converted it into a rule which protects — which would protect resident aliens from inadvertently furnishing evidence to the Immigration officials showing them to have been afflicted with a disqualifying condition at the time of their entry.

Hugo L. Black:

I thought you said you had not – excuse me?

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

Where — where deportability is based upon inadmissibility or excludability at the time of entry, the sole question in a deportation proceeding is whether or not at that time, he was excludable.

So, the answer to Your Honor’s question is yes.

That’s — that is in accordance with the explicit terms of the Immigration law.

Hugo L. Black:

What I’d — I had thought you said at one time, it was — the law didn’t forbid this or didn’t make this a disqualification at the time of entrance?

Philip R. Monahan:

No, I think that Mr. Justice White’s question was whether or not Congress could deport an alien on the basis of past homosexual conduct as such.

And I said, “No, that’s a — Congress certainly could but it had not done so in those terms, homosexual conduct.”

It has used the term ‘psychopathic personality’ and it is necessary to go to the legislative history of that phrase in order to discover the congressional intent to include homosexuals within that category.

Byron R. White:

[Inaudible]

Philip R. Monahan:

That —

Byron R. White:

— prior to the answer which appear [Inaudible] —

Philip R. Monahan:

Oh yes, sir.

Byron R. White:

Does it?

Philip R. Monahan:

This — it was prior to the 1952 Act, four years prior to the entry in question here.

Hugo L. Black:

You say that so far as the doctrine’s vagueness is concerned, as related to disqualifications from entering that it could be written in ancient sensory or anything else, immaterial, whether the person knows it or not.

Philip R. Monahan:

I think that at least that question is not in this case.

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

Because he — he is contending that he has a right as a resident alien not to be deported on the ground of past excludability.

I think that if — I think that the respondent’s contention in the Court of Appeals holding hinges upon the fact that he has been a resident in this country.

Byron R. White:

What if — what if — what about [Inaudible]?

Philip R. Monahan:

I think we would — I think that the Government would, sir.

Byron R. White:

Regardless of whatever [Inaudible]

Philip R. Monahan:

I think that it is a principal of constitutional law that an alien who has never reached our shores —

Byron R. White:

[Inaudible]

Philip R. Monahan:

It doesn’t make any difference at what?

William J. Brennan, Jr.:

If it — if it wasn’t [Inaudible]?

Philip R. Monahan:

I think that would be true as long as the legislative history were clear as to what Congress intended.

John M. Harlan II:

Oh, I was wondering —

Philip R. Monahan:

But that is not this case though.

John M. Harlan II:

You go a step further.

I suppose you would say that Congress passed the statute in 1955 as long after this [Inaudible] for the first time making use the ground of excludability [Inaudible]

Philip R. Monahan:

Making homosexuality?

John M. Harlan II:

Yes.

Philip R. Monahan:

Committed before entry?

John M. Harlan II:

Yes.

Philip R. Monahan:

Oh, yes, yes, yes, sir.

John M. Harlan II:

Is there any constitutional barrier?

Philip R. Monahan:

No — none, sir.

Not under the recent decisions of this Court.

John M. Harlan II:

I assume a fortiori as to that [Inaudible]

Philip R. Monahan:

I think — I think so, yes.

Yes, sir.

Byron R. White:

[Inaudible]

Philip R. Monahan:

Well, I think — I think that is —

Byron R. White:

[Inaudible]

Philip R. Monahan:

I think so, yes sir.

But it — but it is not necessary for the Government to rely upon that to prevail in this case.

That — that would be sufficient.

Byron R. White:

[Inaudible]

Philip R. Monahan:

Well, I want to rely on both.

Philip R. Monahan:

I want to rely upon that point as well as our other points.

Hugo L. Black:

Well, I would suppose that what you’re saying is that alien came in here and have been here 50 years.

Congress passed a law and said 50 years ago, we should have passed the law making them illegal to come in but we didn’t.

But we do now and he has to be deported.

Your argument is that’ll be alright.

Philip R. Monahan:

Yes, sir.

Byron R. White:

Well, is that [Inaudible]

Philip R. Monahan:

That is not this case.

Hugo L. Black:

It hadn’t been that long.

Byron R. White:

[Inaudible]

Philip R. Monahan:

Before his — the entry in question, yes, sir.

And —

Hugo L. Black:

I didn’t say it was this case —

Philip R. Monahan:

No.

Hugo L. Black:

— but the question I asked you, which you answered — assume that you didn’t need to go any further than to say, “Well Congress, anytime they sees it fit and that’s the law and it would be fine retroactively.”

Philip R. Monahan:

Well, it’s just —

Hugo L. Black:

50 years just as well as [Inaudible], I would think.

Philip R. Monahan:

That’s not just my suggestion, Mr. Justice Black.

Hugo L. Black:

But you’re — you’re trying to — you’re trying to put a thought in another ground.

Philip R. Monahan:

No.

I’m suggesting that’s the law as laid down by this Court, in repeated decisions, that Congress does have it within its power.

Hugo L. Black:

Well, if that’s what you’re relying on, I agree with those —

Philip R. Monahan:

We —

Hugo L. Black:

— who asked the questions.

Philip R. Monahan:

We don’t rely upon —

Hugo L. Black:

But that’s enough if you’re right.

Philip R. Monahan:

We don’t rely upon that wholly but we’re — that was one over the strings to our vote.

John M. Harlan II:

The case is not — is on appeal, it’s in the record.

Philip R. Monahan:

It is not a — it is not — is unappealing as that case.

Arthur J. Goldberg:

Do you rely upon [Inaudible]?

Philip R. Monahan:

That is true, but there is a vast body of psychiatric literature which does include homosexuality as a type of psychopathic personality.

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

That if — no —

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

No, I think that it is just not necessary for the Court to reach the question of whether or not the term psychopathic personality in the absence of legislative history shows any congressional intent.

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Philip R. Monahan:

It’s a — yes sir.

As a matter of fact, Mr. Justice Goldberg, the legislative history indicates that the Public Health Service in its representa — in its representations to Congress and what they say is in the appendix to our brief, acknowledged that the term psychopathic personality was a vague one.

But that they said it was broad enough to include homosexuality and it was on the basis of that representation that Congress struck from the original bills which eventuated in the 1952 Act the explicit reference to homosexuality.

Hugo L. Black:

It is your judgment that Congress has as much power to deport as it does to exclude?

Philip R. Monahan:

Many decisions of this Court, Mr. Justice Black which has said that the power of Congress with respect to exclusion and deportation is plenary which I understand means complete, and that the actual decisions of this Court indicate that the Court means just that.

Certainly, the power to deport a person for activities which were not ex — not a basis for deportation when they occurred — in other words, the retroactive making of activities deportable is about as far as one could go in — in —

Hugo L. Black:

That — that would be the equivalent of it, wouldn’t it, making it the same, you can deport — you can deport for any reason, you could keep him out.

Philip R. Monahan:

Yes, sir.

And that — and that is not my own suggestion, Mr. Justice Black —

Hugo L. Black:

I understand.

Philip R. Monahan:

— that is the law of — as laid down by this Court —

Hugo L. Black:

I think you have —

Philip R. Monahan:

— within recent terms.

Hugo L. Black:

I think you have ample statements on which you base your argument.

Philip R. Monahan:

Thank you.

Earl Warren:

Mr. Kwan.

Hiram W. Kwan:

Mr. Chief Justice, may it please the Court.

Counsel for the Government has in effect stated his position to the effect that an alien that is lawfully present in the United States, after having been admitted as a lawful permanent resident is not entitled to due process of law or not entitled to notice.

We disagree with that position.

We feel that the statutes as promulgated by Congress, namely, Section 212 and — which is the exclusion section and Section 241 are mutually exclusive.

Section 212 sets forth the basis of exclusion.

One theory could be that an alien that is outside of the United States prior to entry would not be entitled to know notice whatsoever.

Hiram W. Kwan:

I think the law is in that direction.

However, the entire Section 212 is incorporated by reference into the deportation statute as subsection (a).

In your deportation section, I think that the alien is entitled to notice because he is physically present in the United States.

If that —

William J. Brennan, Jr.:

[Inaudible]

Hiram W. Kwan:

Under the exclusion section and I will label the Exclusion Section 1182 of the U.S.C.A., Section 1182 U.S.C.A. —

Hugo L. Black:

[Inaudible]

Hiram W. Kwan:

— Section 212.

Hugo L. Black:

Are you reading from one of the brief.

Hiram W. Kwan:

No.

Potter Stewart:

It is on page 2 and 3 of the Government’s brief.

Hiram W. Kwan:

Yes.

I say that as far as the exclusion is concerned where you have the alien outside of the United States, Section 212 would apply and he may not be entitled to notice in that instance.

However, whether the deportation action as in this case, the controlling section is 241 or Title 8 United States Court Annotated, Section 1251.

In Section 1251 (a) (1), the — any alien in the United States shall upon order of the Attorney General, be deported who, subsection (1) at the time of entry, was it — within one or more of the classes of aliens excludable by the law existing at the time of such entry.

So it incorporates the exclusion statute by reference.

I think that —

William J. Brennan, Jr.:

Well, not by Congress. This is arguing that the [Inaudible]

Hiram W. Kwan:

I would say the case law requires notice and the alien being in the United States, I think would be entitled to due process of law and thus be given notice.

William J. Brennan, Jr.:

Of what?

Hiram W. Kwan:

Notice of the charges against him.

The grounds of deportation but —

[Inaudible]

Hiram W. Kwan:

Say again?

[Inaudible]

Hiram W. Kwan:

I don’t think that he was given notice in this particular case if we hope that psycho —

[Inaudible]

Hiram W. Kwan:

No.

I don’t raise any question of irregularity there.

[Inaudible]

Hiram W. Kwan:

Yes.

Potter Stewart:

You mean notice that homosexual activity would be the basis for deportation.

Hiram W. Kwan:

Yes.

In other words —

Potter Stewart:

And you say —

Hiram W. Kwan:

— notice of the statute, the basis of the Deportation Acts.

William J. Brennan, Jr.:

Well, is this one [Inaudible]?

Hiram W. Kwan:

Yes.

William J. Brennan, Jr.:

And in looking at 41 [Inaudible] would know generally [Inaudible], they might be deported [Inaudible] by whatever the law was existing at the time of the entry but he doesn’t [Inaudible] what the law was, [Inaudible]

Hiram W. Kwan:

Yes, that is my point.

I say that the alien in the United States, physically present within United States, is in a different position than the alien outside of the United States.

Hugo L. Black:

You say he’s entitled to due process —

Hiram W. Kwan:

Yes.

Hugo L. Black:

— if the case is upheld?

Hiram W. Kwan:

Yes sir.

Hugo L. Black:

And that he is — deporting him, the statute must be not be so vague that it would be held bad under the Due Process Clause.

Hiram W. Kwan:

Yes.

That is my —

Hugo L. Black:

It might that — although that might not be true so far as admitting him into the country.

Hiram W. Kwan:

That’s correct.

If —

Hugo L. Black:

That’s the basis of your argument.

Hiram W. Kwan:

That is the basis of my argument.

Furthermore, an alien outside of the United States has no cause of action.

An alien of —

William J. Brennan, Jr.:

[Inaudible] is that it?

Hiram W. Kwan:

An incorporation of all of 212 which —

William J. Brennan, Jr.:

[Inaudible]

Hiram W. Kwan:

— which consists, including 212 (a) (4) which consist of 33 different subsections, 33 different basis of excludability into Section 12 — 1251 U.S.C.A —

William J. Brennan, Jr.:

Now, let me ask you —

Hiram W. Kwan:

— (a) (1)

William J. Brennan, Jr.:

Now suppose instead of [Inaudible] you would still argue the same —

Hiram W. Kwan:

Yes, I would still argue that the term psycho — psychopathic personality is void as being vague.

William J. Brennan, Jr.:

Well, I don’t seem to [Inaudible].

Hiram W. Kwan:

Well, I’m trying to —

William J. Brennan, Jr.:

It wouldn’t satisfy you if Congress had — had spelled them out.

Hiram W. Kwan:

I would say if Congress spelled it out so that the statute was clear on its face so that men of common intelligence —

William J. Brennan, Jr.:

Now, what do you mean —

Hiram W. Kwan:

can determine that.

William J. Brennan, Jr.:

It was cited 33 subsection.

Hiram W. Kwan:

No, that would not satisfy you.

William J. Brennan, Jr.:

We get right back to the alleged vagueness of the psychopathic personality in 212 (a) (4).

Hiram W. Kwan:

Yes.

I think that the Government is misapplying Section 212 (a), namely, the exclusion statute in this particular case because the case is labeled as a deportation case, that the respondent was physically present here in the United States.

He was lawfully admitted so —

William J. Brennan, Jr.:

So what you’re saying is, it would be alright just to say psychopathic personality for purposes of admission but for purposes of a deportation, it would have to meet psychopathic personality including homosexuality.

Hiram W. Kwan:

No, something more — whatever would be sufficient to give him due notice.

William J. Brennan, Jr.:

Well what — what would satisfy you — assure that the classification of homosexuality is —

Hiram W. Kwan:

I think sexual deviant would be too broad a term.

Certainly, the Government has in its own brief —

William J. Brennan, Jr.:

[Inaudible]

Hiram W. Kwan:

I think I would.

However, a setting out with specificity is not required, of course.

However —

Hugo L. Black:

You would have a hard time getting away from that.

As I understand what you’re arguing is this that is just the same as though they had said here that he could be deported if he was a psychopathic personality.

And you say that Congress having said that, that’s too vague to give him knowledge — I wonder if — deport him for being — engaging in the conduct he has.

Therefore, it violates due process just the same as the illustration I gave as it’s been written in ancient [Inaudible]

Hiram W. Kwan:

Yes sir.

Hugo L. Black:

And you claim a that he’d be again in and come for a country as a man, as a man admitted that he’s entitled to due process of law under our cases —

Hiram W. Kwan:

Yes.

Hugo L. Black:

And that would violate the due process —

Hiram W. Kwan:

I think the case —

William J. Brennan, Jr.:

— if it’s too vague.

Hiram W. Kwan:

I think the cases are uniform in that regard.

They may not be — an alien in the United States may not be entitled to substantive due process, but I believe the cases are uniform in granting him procedural due process.

I notice as such would be procedural due process.

I think it’s very, very important in this particular area because you’re dealing with the most important right, that the right of remaining here in United States, your deportation amounts to banishment and — and then in this particular area, you have perhaps five million aliens in United States, and most of the aliens are handicapped and that they have a lesser foundation in English than a person that was reared here or that has been here for a considerable period of time.

Hugo L. Black:

What case do you rely on for your second prong of your argument, he being here in this country and living as a resident alien he’s entitled to due process the same as anybody else procedurally speaking.

Have you any case on which you rely to say that?

Hiram W. Kwan:

Yes, there are a substantial number of cases, the Bridges versus Wixon case.

Hugo L. Black:

Bridges?

Hiram W. Kwan:

Yes.

I would say that substantially all the cases that have held on that point have said that the — a lawful permanent resident was entitled to procedural due process.

Kwong Hai Chew, 344 U.S. holds that, Fong Haw Tan specifically held that, that was in 333 U.S. I think that —

Arthur J. Goldberg:

The basis the Government [Inaudible]

Hiram W. Kwan:

That’s correct.

Arthur J. Goldberg:

[Inaudible]

Hiram W. Kwan:

Oh, the Fifth and the Fourteenth, yes.

Hugo L. Black:

That was first — that was held way back in Yick Wo versus Hopkins, wasn’t it?

Hiram W. Kwan:

Yes and the Kwong Hai Chew is the late case in that respect.

I say that this Section in reference to psychopathic personality is void for vagueness because it is uniformly been so held.

I think the legislative history is of that particular section indicates that.

Prior to that time, the Section was constitutional psychopathic personality.

I suppose constitutional meant something that was born as compared to an environmental influence, but the authorities especially on medical authorities are greatly at variance as to this term of psychopathic personality.

Our expert indicated that the respondent was not a person within that area.

I think that the government expert would have probably held independent of his instructions to the same effect, that he was not a psychopathic personality.

Your experts does vary in the case of U.S. versus Flores cited in both briefs.

Judge Frank discussed that in the concurring opinion, however, that case involved a perjury conviction.

I think that the statute should be held unconstitutional because there’s no particular standard with which that — men of common intelligence can be guided that is set up in this bigger statute.

Hiram W. Kwan:

Government counsel would have the Court incorporate the legislative history into the section to give it.

I don’t think that would be a good rule because in my — in my view, the statute should be complete by itself, and if there’s some interpretation, some slight interpretation, then perhaps the legislative history should be looked but not to have say detail as far as the statute is concerned and the entire body of the section in legislative history.

As far as the entry is concerned, I think that the law is rather clear on the fact that a reentry carries with it the same type of prejudices or the same type of legal effect that a new entry would have.

I would like to see that changed.

Certainly, once an alien comes to United States, he — he gets roots here and there are substantial rights that should be protected.

Potter Stewart:

That’s a matter though a very clear statutory definition of the term entry, is it not?

Hiram W. Kwan:

Yes, I think so.

If the entry is a voluntary one, then the alien exposes himself to a greater risk.

The Ninth Circuit in its opinion said, however, that the second entry did not serve to wipe out or wash out his rights of due process as counsel for the Government seems to indicate.

Thank you.

Earl Warren:

Very well.