wit, aliens afflicted with psychopathic personality, under section 212(a) (4) of the Act.

At prior hearings there was introduced into the record a statement. taken from the respondent dated August 30, 1961 to the effect that he was homosexual according to his interpretation of the term "homosexual" which meant to him a person whose sexual perversions are directed to members of his own sex; that he had had his first homosexual experience at the end of 1946 in Winnipeg, Manitoba, Canada; during 1946, 1947 and 1948 he had more than a dozen experiences; after 1948 until 1959 these experiences occurred once or twice a month; in the last two years prior to the making of the statement he had five or six such experiences. Doctor Beittel, a staff psychiatrist of the United States Public Health Service stated that the respondent had been a sexual deviate at least since 1946 and certified that the respondent was a sexual deviate in January of 1960 at least up to the time of his arrest, based upon an interview of approximately 60 minutes, although he concluded that from a psychiatric point of view, the alien could more accurately be described as a sexual deviate manifested by auto-eroticism and homo-eroticism. This witness stated that he was compelled by the directives of the United States Public Health Service Manual to classify the respondent on the basis of his diagnosis of sexual deviate and history of homosexuality as a psychopathic personality.

At prior hearings the respondent produced as a witness in his behalf Doctor Diamond, a specialist in psychiatry, who testified that he had spent eight hours over a period of eight weeks in examining and treating the respondent. His testimony is to the effect that the respondent was not afflicted with psychopathic personality or a character disorder but was suffering from a neurotic conflict over sex, whose symptoms were manifested by his homosexuality. He rejected the description of psychopathic personality as obsolete from a psychiatric viewpoint. He also testified that homosexuality is not an appropriate medical term, that there was no such diagnosis as homosexuality, and that from a psychiatric standpoint the respondent was not a homosexual. This doctor conceded that the respondent's sexual behavior was abnormal and a deviation from acceptable normal standards.

In our previous order of May 6, 1964 we quoted from Senate Report No. 1137 (82nd Congress, 2d Session, January 29, 1952) indicating that the Public Health Service had advised that the provision for the exclusion of aliens afflicted with psychopathic personality or a mental defect is sufficiently broad to provide for the exclusion of homosexuals and sex perverts and that the change of nomenclature

is not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates. Whatever the phrase "psychopathic personality" might mean to the psychiatrist, to the Congress it was intended to include homosexuals and sex perverts.1

We remanded the case in order to have included in the record the pertinent section of the United States Public Health Service Manual for the Medical Examination of Aliens and for characterization of the respondent's disorder by both psychiatrists in the light thereof, to take further testimony as to what pattern determines a sexual deviate or homosexual and to evaluate the evidence to determine whether a preponderance of the evidence establishes the charge.

At the reopened hearing held on October 1, 1964 only Doctor Beittel appeared as a witness. He reaffirmed his position that within the meaning of the pertinent section of the Manual for Medical Examination of Aliens the respondent was afflicted with psychopathic personality.2

The testimony of the psychiatric witnesses has served only to compound the confusion inasmuch as both appear to agree that the phrase "psychopathic personality" has no precise medical meaning and that "homosexual" is not a medical term. This difficulty however is recognized both in the legislative history previously referred to and in the Manual for Medical Examination of Aliens itself. As emphasized in the legislative history, the term "psychopathic personality" was understood to be broad enough to provide for the exclusion of homosexuals and sex perverts and was not to be construed in any way as modifying the intent to exclude all aliens who are sexual deviates. We are not concerned with the niceties of semantic differ

1

Matter of P—, 7 I. & N. Dec. 258; Matter of S-, 8 I. & N. Dec. 409; Matter of R, 9 I. & N. Dec. 393; United States v. Flores-Rodriguez, 237 F.2d 405 (2d Cir., 1956); Harb-Quiroz v. Neely, 291 F.2d 906 (5th Cir., 1961).

2 The Manual for Medical Examination of Aliens (1963) 6-5, which deals with psychopathic personality reads as follows:

(a) The legal term “psychopathic personality” is equivalent to the medical designation "personality disorder," which may be broadly defined as follows: "These disorders are characterized by developmental defects or pathological trends in the personality structure, with minimal subjective anxiety and little or no distress. In most instances, the disorder is manifested by a lifelong pattern of action or behavior (acting out), rather than mental or emotional symptoms." An example of such a certificate is Class A, Psychopathic personality, Inadequate personality.

(b) Under this legal category will be classified those applicants who are diagnosed as sexual deviates. In the medical examination of aliens this is a difficult diagnosis to establish. However, the examiner should assist the consular officer when possible when evaluating an applicant thought to come in this category.

ences indulged in by psychiatrists. The words, "psychopathic personality" have become words of art which, whatever else they might mean, include homosexuality and sex perverts and the term is applied as it is commonly understood. We conclude that the government has borne the burden of establishing that the respondent is deportable on the charge stated in the order to show cause.

3

The main thrust of counsel's argument is that the statute upon which the proceeding is based is unconstitutional and unconstitutionally applied as determined by the court in Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir., 1962). However, on appeal, the constitutional question was bypassed, the decision below vacated and the case was decided on other grounds by the Supreme Court. The constitutional question therefore remains unresolved and this is not the proper forum in which to try that question. The appeal will be dismissed. ORDER: It is ordered that the appeal be and the same is hereby dismissed.

a

Harb-Quiroz v. Neely, 291 F.2d 906 (5th Cir., 1961); Matter of S-, 8 I. & N. Dec. 409.

*Rosenberg v. Fleuti, 374 U.S. 449, 10 L.ed. 2d 1000 (1963).

MATTER OF PUST

In Deportation Proceedings

A-11228634

Decided by Board June 8, 1965

Respondent, who did not participate in any political activities in conjunction with his membership in the Yugoslavian Communist-controlled "People's Youth" (Narodna Omladina), and its subgroups, and whose membership was more or less automatic as a part of his attendance in the Yugoslavian grade school and high school, commenced when he was about 11 years of age while in grade school, and enabled him to attend school tuition free, which otherwise would have been financially impossible, is eligible for the exemption contained in section 212 (a) (28) (I) (i), Immigration and Nationality Act, since his membership, of a passive and quiescent nature, commenced when he was under 16 years of age and was for the purpose of obtaining an essential of living, to wit, a grade school and a high school education. CHARGE:

Order: Act of 1952-Section 241(a)(2) [8 U.S.C. 1251(a)(2)]—Remained longer-nonimmigrant.

The case comes forward on appeal by the trial attorney from the decision of the special inquiry officer entered February 12, 1965, ordering that the respondent's application for adjustment of status pursuant to the provisions of section 245 of the Immigration and Nationality Act, as amended, be granted.

The record relates to a native and citizen of Yugoslavia, 27 years old, male, who last entered the United States at the port of New York on the SS "Vulcania," and was admitted as a visitor for pleasure. His status was subsequently changed to that of a student and he was authorized to remain in the United States until April 20, 1963. The respondent has thereafter remained without authority and is concededly deportable.

The respondent has applied for adjustment of status pursuant to the provisions of section 245 of the Immigration and Nationality Act, as amended. He married a lawful permanent resident of the United States on September 7, 1963 and a third preference quota

visa petition under the Yugoslav quota was approved September 17, 1963 and is immediately available. He is otherwise statutorily eligible for adjustment of his status under section 245 if he is not inadmissible to the United States in connection with membership in a Communist controlled youth organization in Yugoslavia. This latter possibility presents the issue in the case.

The testimony of the respondent is that as an incidence of school attendance in Yugoslavia it was necessary to become a member of the various groups which were controlled by the Communist party. The name of the over-all youth organization was Narodna Omladina or People's Youth. At the lowest level, in grammer or public school, the respondent had belonged to the Pioneers Organization and when he started high school at the age of 14 in 1952 he automatically became a member of another youth organization known as Solska Razredna Skupnost. He testified that membership in this latter organization was not precisely voluntary because upon reaching the age of 14 or 16 years all the pupils in the school belonged to that organization because through it they enjoyed certain activities like sports or dramatic clubs and in addition, their tuition was paid. The respondent added that it was financially impossible for him to attend school without belonging to the organization and that those who did not join the organization had financial difficulties unless their parents were independently wealthy. He testified that he became president of the Solska Razredna Skupnost Organization, although his age at the time he became president is not disclosed, because of his popularity in various other clubs, such as dramatic and mountain climbing, and he was elected on the basis of his popularity. He asserted that his election had nothing to do with the Communist party but the school officials controlled the students and that since he was a good student and was popular, he was chosen president. The respondent testified that this organization never held political meetings, but that the meetings which were held were in the nature of seminars in which certain students helped other students in their studies and that he was never asked to take part in elections of any type or to influence people to vote in any certain way. Furthermore, he did not take part in any political rallies and that several times a year all school organizations, unions and government employees turned out to provide demonstrations for the arrival of an important person like the president of a foreign country who came into town for special meetings.

The respondent testified that in his case it would have been impossible for him to study at the school he was attending if he had