LAVOIE

                                                    _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 was
   a homosexual at entry; accordingly, he is deportable as one who was exclud-
   able at entry Gs a person afflicted with ;a/Allopathic personality.
 (2) Mine to advise respondent of his right to counsel at the time the pre-
   liminary 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 per-
                       sonality.
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 of
excludability were discussed in prior orders.of the special inquiry offi-
cer 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. Immi-
gration 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 be
entered unless it was found by clear, unequivocal and convincing evi-
dence 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 incrimina-
tory 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 no
 more than a dozen experiences at most; that after 1948 these experi-
ences occurred approximately once or twice a month except for 1960,
when he did not have any homosexual experiences at one period of
time for a period of five months; that for the last two years (preced-
 ing 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 effectuate
its purpose to exclude from entry all homosexuals and other sex per-
verts. Participating in a continued course of conduct, consisting of

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homosexual relations about three or four times a year during a period
over sir years prior to his entry, constitutes being afflicted with psycho-
pathic 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 Immi-
 gration and Nationality Act does not impose the regulations or sanc-
 tions on their postentry conduct and that the constitutional require-
 ments 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 homo-
 sexual 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 psycho-
 pathic personality at the time of entry and excludable as such.
    The second issue raised by counsel was that at the time of the inter-
rogation 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 applicable
statute. However, the cases citedbyebifinde arose in criminal prosecu-
tions. 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 hisitate-
ment he was not in custody. Failure to advise the 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 de-
portation proceedings since there is no right to counsel during the
staking of a statement in the investigative stage. Woodby v. Immigra-
tion 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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