Longstaff, Matter of, 82-1218

• Decision Date: 28 September 1983
• Docket Number: No. 82-1218,82-1218
• Citation: 716 F.2d 1439
• Parties: In the MATTER OF Petition for Naturalization of Richard John LONGSTAFF, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1439

716 F.2d 1439

77 A.L.R.Fed. 803

In the MATTER OF Petition for Naturalization of Richard John

LONGSTAFF, Petitioner.

No. 82-1218.

United States Court of Appeals, Fifth Circuit.

Sept. 28, 1983.

Rehearing and Rehearing En Banc Denied Oct. 27, 1983.

Brian K. Bates, Dallas, Tex., for appellant.

Leonard Graff, San Francisco, Cal., for amicus curiae Gay Rights Advocates Nat'l Gay Task Force.

Margaret Perry, Lauri Steven Filppu, Gen. Lit. & Legal Advice Sect., Crim. Div., U.S. Dept. of Justice, Washington, D.C., for appellee.

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

Before RUBIN and TATE, Circuit Judges, and STAGG^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

May a resident alien be denied naturalization because he was a homosexual at the time he was admitted to the United States? The district court, 538 F.Supp. 589, answered this question in the affirmative. We affirm its judgment that the petitioner is ineligible for naturalization because, being excludable on the ground of his homosexuality when he arrived here, he was not lawfully admitted to the United States.

I.

Richard John Longstaff, now forty-three, is a native and citizen of the United Kingdom of Great Britain and Northern Ireland. On November 14, 1965, he was admitted to the United States as a permanent resident. Before he arrived in the United States, Longstaff filled out a form entitled "Application for Immigrant Visa and Alien Registration." To the question:

3(b) Are you now or have you ever been afflicted with psychopathic personality, epilepsy, mental defect, fits, fainting spells, convulsions or a nervous breakdown?

Longstaff answered, "No." The question was based on a provision of the Immigration & Nationality Act (the Act), 8 U.S.C. Sec. 1182(a) (1976 & Supp. V 1981), excluding persons thus "afflicted." Congress intended the term "psychopathic personality" to designate homosexuals as well as persons having psychopathic disorders, as that term is generally understood. However, no evidence suggests that Longstaff knew or had reason to know that "psychopathic personality" was a term of art that included homosexuals and consequently excluded them from admission to the United States. ¹ Longstaff eventually settled in Texas, where he established himself in business. He owns two shops, operated under the trade name Union Jack, selling clothing and offering hairdressing services to both men and women. He has never been charged with any offense other than traffic violations. Reputable witnesses testified that they believe him to be a person of good moral character.

In his fifteenth year of residence, Longstaff sought naturalization as a citizen of the United States. He was recommended by the naturalization examiner, but the district court denied naturalization because it found that Longstaff had violated the Texas Penal Code by engaging in homosexual activity, had exhibited a lack of candor in answering questions about his sexual activities, and had failed to carry his burden of establishing good moral character as required by 8 U.S.C. Sec. 1427(a)(3) (1976). We affirmed on appeal solely on the ground that Longstaff had failed to discharge his burden of proof. In re Longstaff, 631 F.2d 731 (5th Cir.1980) (per curiam). We remanded, however, to afford Longstaff an opportunity to adduce additional evidence of his good moral character. In re Longstaff, 634 F.2d 629 (5th Cir.1980) (on rehearing).

Thereafter, pursuant to the district court's pretrial order, an examiner for the Immigration and Naturalization Service (the INS) interrogated Longstaff. The examiner concluded that Longstaff had met his burden of establishing good moral character; nevertheless, he recommended denial of the petition because Longstaff had engaged in homosexual activity before entering the United States in 1965. He concluded that Longstaff (1) had been excludable under the Act; (2) had not been "lawfully admitted," as the Act requires for naturalization, and (3) could not be naturalized. After a trial de novo, the district court again denied Longstaff's petition for naturalization on this basis. ²

II.

No person may be naturalized unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the Act. ³ The applicant has the burden of proving that he entered the United States lawfully. ⁴ Longstaff argues that, because he was granted a visa and admitted in procedurally regular fashion, he is eligible for naturalization even if, for any reason, he should have been excluded.

That narrow reading of the term "lawfully admitted" distorts its meaning. Admission is not lawful if it is regular only in form. The term "lawfully" denotes compliance with substantive legal requirements, not mere procedural regularity, as the definition provided by Congress plainly establishes: "the term 'lawfully admitted for permanent residence' means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. ⁵ Section 1429's added requirement "in accordance with all applicable provisions of [the Act]" is not merely redundant, but emphatic and embracive.

The provisions concerning deportation demonstrate that what is essential is lawful status, not regular procedure. An alien is subject to deportation if "at the time of entry [he] was within one or more of the classes of aliens excludable by the law existing at the time of such entry." ⁶ This clause overlaps the provision for deportation of any person who "is in the United States in violation of [the Act] or in violation of any other law of the United States." ⁷ By providing for the deportation of excludable aliens, the Act implies that such persons, though present in the United States, were not "lawfully admitted."

The Act lists thirty-three classes of persons who are "ineligible to receive visas and shall be excluded from admission into the United States." ⁸ It would be paradoxical if a person who was ineligible to receive a visa and should have been excluded from admission became lawfully admitted simply because, by error, he was not excluded. We decline to read a congressional enactment so absurdly. We turn, therefore, to Longstaff's argument that he was not excludable at entry.

III.

Among the classes of aliens ineligible to receive visas and excluded from lawful admission to the United States by the Act are "aliens afflicted with psychopathic personality." ⁹ Before the statute in terms referred to "sexual deviation," as it now does, the Supreme Court held in Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 120, 87 S.Ct. 1563, 1565, 18 L.Ed.2d 661, 664 (1967): "The legislative history of the Act indicates beyond a shadow of a doubt that the Congress intended the phrase 'psychopathic personality' to include homosexuals ...." ¹⁰ Because Congress has plenary power over the admission of aliens, the Act was constitutional even if the term "psychopathic personality" did not give fair warning to the ordinary person that the phrase included homosexuals. ¹¹ Furthermore, the Court held that the statute was constitutional because it applied to characteristics the alien possessed "at the time of his entry" and was not a sanction proscribing later conduct. ¹²

Congress has unbounded power to exclude aliens from admission to the United States. ¹³ Our national immigration policy was for many years based on national origin quotas that reflected racial and ethnic prejudice. Congress can bar aliens from entering the United States for discriminatory and arbitrary reasons, even those that might be condemned as a denial of equal protection or due process if used for purposes other than immigration policy to draw distinctions among people physically present within the borders of the United States. ¹⁴ The constraints of rationality imposed by the constitutional requirement of substantive due process and of nondiscrimination exacted by the equal protection component of the due process clause ¹⁵ do not limit the federal government's power to regulate either immigration or naturalization. ¹⁶ Thus, the Constitution does not require our national immigration policy to be consistent with the prohibition of discrimination by federal agencies ¹⁷ and by state governments and private persons. ¹⁸

Longstaff does not question any of these elementary principles. He contends that the Act does not exclude homosexuals on the basis that they are determined judicially to have such a sexual preference or even on the basis that they state that they have this preference, but that it is designed to exclude only those persons declared by a Public Health Service (PHS) medical officer to be "afflicted" with "psychopathic personality" or "sexual deviation." He premises his argument on the Act's separation of medical from other reasons for exclusion. Because the exclusion of those afflicted with psychopathic personality is contained in a clause enumerating medical bases for exclusion, ¹⁹ Longstaff argues, excludibility for homosexuality must be determined in the same fashion and by the same procedures as excludability for affliction with a mental defect or a dangerous contagious disease. Because these conditions are "subject to medical determination," he contends that only a medical officer has the power to determine whether any of them exists.

The Public Health Service, in a report to the House of Representatives on the medical aspects of the House bill that later became the Immigration and Nationality Act of 1952, suggested grouping together excludable "conditions related to the field of mental disorders and subject to medical determination." ²⁰ For a number of years thereafter, Public Health Service medical officers issued certificates declaring that aliens were excludable for homosexuality as well as for the other...