Lavoie v. Immigration and Naturalization Service, 23182.

• Decision Date: 09 January 1970
• Docket Number: No. 23182.,23182.
• Citation: 418 F.2d 732
• Parties: Gerard Joseph LAVOIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.2d 732 (1969)

Gerard Joseph LAVOIE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 23182.

United States Court of Appeals Ninth Circuit.

November 21, 1969.

Rehearing Denied January 9, 1970.

Norman Leonard (argued), of Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., for appellant.

David R. Urdan (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., Stephen M. Suffin, Atty., I & NS, San Francisco, Cal., John N. Mitchell, Atty. Gen. of the U. S. A., Washington D. C., for appellee.

Before MADDEN,^* Judge of the United States Court of Claims; MERRILL and CARTER, Circuit Judges.

J. WARREN MADDEN, Judge:

The petitioner, pursuant to Section 106 of the Immigration and Nationality Act, 8 United States Code Section 1105a, seeks review by this court of an order of the Immigration and Naturalization Service, directing petitioner's deportation to Canada. The petitioner is a citizen of Canada who entered the United States for permanent residence on January 26, 1960. On June 2, 1961, he was arrested by a San Francisco policeman and charged with a violation of Section 215 of the San Francisco Municipal Police Code, by being a party to a lewd, obscene and indecent act. He pleaded guilty and was sentenced for the violation.

The San Francisco incident came to the attention of the United States Immigration and Naturalization Service, hereinafter called the Service. On August 30, 1961, the petitioner made a sworn statement before an investigator employed by the Service, from which statement it appeared that he had engaged in numerous homosexual acts during the years 1945 to 1961.

In January, 1962, the Service issued to the petitioner an Order to Show Cause why he should not be deported. The order alleged that he was a sexual deviate at the time of his entry into the United States, and was subject to deportation under Section 241(a) (1) of the Immigration and Nationality Act, 8 U.S.C. Section 1251(a) (1) in that "at the time of entry you were within one or more of the classes of aliens excludable by the law existing at the time of such entry, to wit, aliens afflicted with psychopathic personality under Section 212 (a) (4) of the Act." 8 U.S.C. Section 1182(a) (4)

A hearing was held before a "special inquiry officer" of the Service. That officer, in a written decision, held that a person who had engaged in numerous homosexual acts over a period of at least eleven years, as the petitioner had done, is a sexual deviate and is included within the class which Congress intended to cover by the words "psychopathic personality" in Section 212(a) (4) of the Act. The petitioner appealed from the decision of the special inquiry officer to the Board of Immigration Appeals. The Board ordered the case remanded to the special inquiry officer for purposes not relevant to the instant proceeding. On the remand, the special inquiry officer, after a hearing, in effect made the same decision which he had made before. The petitioner again appealed to the Board. On May 28, 1965, the Board ordered that the appeal be dismissed.

On July 7, 1965, the petitioner filed in this court a petition for review of the deportation order. This court, in Lavoie v. United States Immigration and Naturalization Service, 360 F.2d 27, on April 8, 1966, set aside the deportation order on the ground that the statute on which the order was based was void for vagueness. The Service petitioned the Supreme Court of the United States for a writ of certiorari. The petition was granted on June 5, 1967, 387 U.S. 572, 87 S.Ct. 2069, 18 L.Ed.2d 965, the Court citing Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661, May 22, 1967, in which the Court had held that the statute here in question was not void for vagueness, and remanding the case to this court in order that it "may pass upon the issues in this case not covered by its prior opinion". That action of the Supreme Court disposed of the "void for vagueness problem." But this court in its decision cited above, had expressly found it unnecessary, in view of its decision that the pertinent statute was void for vagueness, to pass upon other issues presented by the petitioner. An additional issue had been raised in the meantime, by the decision of the Supreme Court in the case of Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362, December 12, 1966. The Court said, in Woodby, that "no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true", 385 U.S. 285-286, 87 S.Ct. 488.

Pursuant to the remand to this court from the Supreme Court, this court remanded the case to the Service for reconsideration, in the light of the intervening decision in Woodby, supra, and without limitation upon the authority of the service to consider other issues. The case being again before the Service, the petitioner presented two issues: (1) the claim that a statement obtained by the Service from the petitioner at a time when he was not represented by counsel nor advised of his right to be so represented was not, over timely objections, admissible against him, and (2) the claim that the Service's evidence did not come up to the Woodby standard.

As to the admissibility of the petitioner's statement to the Service's investigator, this court's decision in Ben Huie v. Immigration and Naturalization Service, 349 F.2d 1014 (1965) is controlling. See also MacLeod v. Immigration and Naturalization Service, 327 F.2d 453, (CA 9, 1964); Nason v. Immigration and Naturalization Service, 370 F.2d 865, (CA 2, 1967); and Pang v. Immigration and Naturalization Service, 368 F.2d 637, (CA 3, 1966). The decisions cited above are to the effect that deportation proceedings are civil and not criminal, in nature, and that the rules laid down in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) requiring the presence of counsel during interrogation, and other Sixth Amendment safeguards, are not applicable to such proceedings. Furthermore, the petitioner's statement to the investigating officer was made when he was not in custody and was not induced by coercion, duress or other improper action of any agent of the Government. Our conclusion is that the petitioner's statement was admissible in evidence at the deportation hearing.

The statement above adverted to was that the petitioner, during a period of some eleven years before and up to the time of his entry into the United States frequently and regularly engaged in homosexual acts. As we have recited above, the special inquiry officer, based upon the petitioner's statement described above, and after hearing the conflicting testimony of two psychiatrists, made findings that the petitioner was, at the time of his entry into the United States, a homosexual and as such was a sexual deviate deportable as a member of the class of aliens afflicted with a psychopathic personality, within the meaning of the deportation statute. The special inquiry officer ordered the petitioner's deportation. The petitioner appealed to the Board of Immigration Appeals, which dismissed his appeal. He again sought review by this court, of the deportation order.

We now consider the petitioner's contention that the evidence upon which the Service based its deportation order did not come up to the standard set by the Supreme Court in Woodby v. Immigration and Naturalization Service,...