Hill v. U.S.I.N.S.

• Decision Date: 07 September 1983
• Docket Number: 82-4423,Nos. 82-4366,s. 82-4366
• Citation: 714 F.2d 1470
• Parties: Carl Basil Angelo HILL, Petitioner-Appellee, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Respondents-Appellants. LESBIAN/GAY FREEDOM DAY COMMITTEE, INC., et al., Plaintiffs-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1470

714 F.2d 1470

Carl Basil Angelo HILL, Petitioner-Appellee, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et

al., Respondents-Appellants.

LESBIAN/GAY FREEDOM DAY COMMITTEE, INC., et al., Plaintiffs-Appellees, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, et

al., Defendants-Appellants.

Nos. 82-4366, 82-4423.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 12, 1983.

Decided Sept. 7, 1983.

James Hunolt, Washington, D.C., for petitioner-appellee.

Jeff T. Appleman, Mary C. Dunlap, San Francisco, Cal., Laurence R. Sperber, Los Angeles, Cal., for respondents-appellants.

Appeal from the United States District Court for the Northern District of California.

Before ELY, Senior Circuit Judge, and SCHROEDER and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

This appeal presents the issue whether Congress intended to require the Immigration and Naturalization Service to obtain a Public Health Service medical certificate before excluding self-declared homosexuals from the United States on the ground of affliction with a psychopathic personality, sexual deviation, or mental defect. We conclude that Congress did so intend. As a result, we hold that the possibility that the Lesbian/Gay Freedom Day organization and its officers will be denied their first amendment rights of free speech and association with homosexual aliens is too speculative to constitute a case or controversy.

I. Hill v. INS

A. BACKGROUND

The Immigration and Nationality Act provides that certain classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States. 8 U.S.C. § 1182(a) (1976). The first seven sub-paragraphs of section 1182(a) describe excludable mental and physical disabilities including affliction "with psychopathic personality, or sexual deviation, or a mental defect". 8 U.S.C. § 1182(a)(4). The predecessor of this sub-section has been interpreted to include homosexuals. Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967). ¹

Congress has plenary power over immigration, Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977), and it is not for us to judge the wisdom of its decision to exclude homosexuals. Our issue is different: whether Congress created a procedure requiring a medical examination and certificate of diagnosis before an alien may be excluded because of psychopathic personality, sexual deviation, or mental defect.

Prior to 1979, the Immigration and Naturalization Service ("INS") would refer individuals seeking entry to the United States who were suspected of being homosexual to an officer of the Public Health Service ("PHS") for a medical examination, just as it would process any applicant suspected of mental or physical defect. If the PHS official concluded that the applicant was homosexual, the official would certify these findings in a "Class A certificate" to the INS officer. ² 8 U.S.C. § 1224 (1976 & Supp. V 1981). This certificate constitutes the evidentiary basis for exclusion. 8 U.S.C. § 1226 (1976).

On August 2, 1979 the Surgeon General of the United States announced a new policy for the Public Health Service. As part of this policy, PHS personnel were ordered not to issue medical certificates solely because an alien is suspected of being homosexual. The old policy was revised for two reasons. First, according to "current and generally accepted canons of medical practice", homosexuality per se is no longer considered to be a mental disorder. ³ Second, "the determination of homosexuality is not made through a medical diagnostic procedure." 56 Interpreter Releases 387, 398 (1979).

In response, the INS initially allowed suspected homosexuals to enter the country conditionally under parole status, see 8 U.S.C. § 1182(d)(5) (1976 and Supp. V 1981), deferring their medical examinations pending resolution of this dispute with the PHS. N.Y. Times, Aug. 15, 1979, at A14, col. 1. The Assistant Attorney General, Office of Legal Counsel of the Department of Justice, acknowledged that the Immigration and Nationality Act (the "Act") ⁴ granted the Surgeon General "discretion to promulgate policies regarding the description and diagnosis of disease," but found that this discretion was limited by Congress' specific intent to bar homosexuals, and suggested that the INS promulgate a uniform policy for investigating suspected homosexuals. 56 Interpreter Releases 569, 572 (1979).

On September 9, 1980, the INS adopted "Guidelines and Procedures for the Inspection of Aliens Who Are Suspected of Being Homosexual", which provide that an arriving alien will not be asked any questions regarding his or her sexual preference. If an alien "makes an unambiguous oral or written admission of homosexuality" or if a third person who is also presenting himself or herself for inspection "voluntarily states, without prompting or prior questioning, that an alien who arrived in the United States at the same time ... is a homosexual," the alien may be examined privately by an immigration official and asked to sign a statement declaring he or she is homosexual. A hearing is held before an Immigration Judge and the alien is excluded based on his admissions. No medical certificate is obtained under the new guidelines. 57 Interpreter Releases 440 (1980).

On November 5, 1980, Carl Hill, a subject of the United Kingdom of Great Britain, presented himself as a nonimmigrant visitor for pleasure at San Francisco International Airport. He possessed a valid visitor's visa. Hill made an unsolicited statement to the immigration inspector that he was a homosexual. The inspector then issued Hill a form notifying him that he appeared to be excludable under 28 U.S.C. § 1182(a)(4) (1976).

At the exclusion hearing, Hill again stated he was homosexual and acknowledged his earlier statement to the INS officer. The immigration judge held that Hill could not be excluded from the United States because, despite Hill's statements, the INS had no medical certification that Hill was afflicted with a sexual deviation or mental defect, as was statutorily required.

The INS appealed to the Board of Immigration Appeals, which held that a medical certificate is not required to exclude a self-declared homosexual because such a person fails to carry the burden of establishing that he or she is admissible to the United States. In re Hill, 18 I & N No. 2873 (1981).

Hill petitioned the district court for a writ of habeas corpus. The district court granted the writ, finding that the exclusion of an alien for affliction with a sexual deviation or mental disorder must be based on a medical certificate. The court permitted the INS thirty days in which to institute new exclusion proceedings. When no new proceedings were instituted, Hill was admitted into the United States as a visitor for pleasure. Lesbian/Gay Freedom Committee, Inc. v. United States Immigration and Naturalization Service, 541 F.Supp. 569 (N.D.Cal.1982). The government now brings this appeal.

B. DISCUSSION

In the district court, the Government contended that the case had become moot because Hill has left the country. The court held that the "capable of repetition, yet evading review" exception to the mootness doctrine applied. 541 F.Supp. at 576-77. The Government has not challenged this ruling on appeal. We find no reason to rule sua sponte that the trial court was in error on this point.

The issue presented is whether the INS may exclude self-declared homosexual aliens without medical certification of psychopathic personality, sexual deviation, or mental defect. We conclude that it may not. ⁵ We base our conclusion on the language and structure of the Act, indications of congressional intent in the legislative history, the INS' longstanding and consistent interpretation of the Act, and prior judicial decisions construing the Act.

1. The Language and Structure of the Act

We look first to the text of the Act for "[t]he starting point in every case involving construction of a statute is the language itself." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976) (citations omitted) (construing § 10(b) of Securities Exchange Act of 1934).

The Act does not explicitly state that a medical certificate is required for exclusion under 8 U.S.C. § 1182(a)(4). The language and structure of the Act, however, make it clear that such was the intent of Congress.

The first relevant section in 8 U.S.C. § 1222, which provides in part,

For the purpose of determining whether aliens (including alien crewmen) arriving at ports of the United States belong to any of the classes excluded by this chapter, by reason of being afflicted with any of the diseases or mental or physical defects or disabilities set forth in section 1182(a) of this title ..., such aliens shall be detained ..., for a sufficient time to enable the immigration officers and medical officers to subject such aliens to observation and an examination sufficient to determine whether or not they belong to the excluded classes.

8 U.S.C. § 1222 (1976) (emphasis added). Congress' proviso that aliens suspected of affliction with mental disability "shall be detained" before entering the country to allow for observation and examination is convincing evidence that Congress intended that such examinations take place and be a prerequisite to exclusion on such grounds.

The next relevant section is 8 U.S.C. § 1224, which provides in part,

The physical and mental examination of arriving aliens (including alien crewmen) shall be made by medical officers of the United States Public Health Service, who shall conduct all medical examinations and shall certify, for the information of the immigration officers and the special inquiry officers, any physical and mental defect or disease observed by such medical officers in any such alien.... Medical officers of the...