(dissenting):
The majority upholds the deportation of a young man who arrived in this country in 1955, who has worked hard and gainfully ever since, who is respected in his work, and most of whose close relatives — including his mother, his stepfather, and three of his five brothers and sisters — reside in this country. The majority does so on the grounds that at the time the petitioner entered this country at the age of 21, he could have been excluded as one “afflicted with psychopathic personality” under § 212(a) (4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (4), since he had had a number of homosexual experiences before coming to this country. The majority manifestly agrees with the Board of Immigration Appeals “that the term ‘psychopathic personality’ is a term of art and that it includes an alien upon mere proof that he is a homosexual.”
Petitioner’s homosexual experiences were revealed not in any proceeding at the time of original entry but solely as a voluntary disclosure some 8 years after entry (September 1963) in connection with a petition for naturalization. The admission of an arrest for sodomy in October 1959 (charge reduced and ultimately dismissed) led to a request for further information which petitioner again supplied voluntarily. The most adverse conclusion which can be derived from petitioner’s statements is that petitioner engaged in sexual activity on a quite infrequent basis with both men and women during the five-year period before his coming to the United States.
Both the procedure and the statutory interpretation used by the immigration authorities in this deportation proceeding are not only offensive to, but, in my opinion, completely lacking in, due process, for interrelated reasons.
*497Appellant was adjudged “afflicted with psychopathic personality” without any formal examination by qualified psychiatrists. The majority states that appellant’s history was referred to the Public Health Service “for its expert views as to whether there are grounds for concluding that Boutilier was excludable * * The word-picture suggests a careful and particularized analysis by distinguished psychiatrists to determine whether appellant was so disturbed as to be “afflicted with psychopathic personality.” Nothing could be further from what actually happened. The Public Health Service simply looked at appellant’s statement in which he admitted having had homosexual experiences before he came to this country, and automatically stamped him a “psychopathic personality, sexual deviate,” following the directive of the Public Health Service manual that under the category of psychopathic personality “will be classified those applicants who are diagnosed as sexual deviates.” This was not the result of process, “due” or otherwise; it was the result of a mere fiat in a Public Health Service manual which labels as “psychopathic personalities” many who upon proper psychiatric examination might be found to possess no psychopathic symptoms.1
This lack of careful case-by-case determination cannot be upheld simply because this is a proceeding to deport rather than a proceeding to exclude. If anything, greater procedural safeguards are constitutionally required in cases of deportation than in cases of exclusion, because of the greater hardship involved in uprooting an alien from a country once he has developed economic and social ties there and slackened or severed those which bound him to his country of origin. Compare United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950) (alien can be excluded without a hearing) with The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903) (alien sought to be deported is constitutionally entitled to a hearing) and Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953) (resident alien seeking re-entry is constitutionally entitled to a hearing); see also Wong Yang Sun v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950) (administrative hearing in deportation case must conform to the requirements of the Administrative Procedure Act).
The lack of careful — in fact the lack of any — medical examination and analysis was not peculiar to the proceedings against the present petitioner, but results from a long-standing statutory interpretation, promulgated by the immigration authorities and embodied in the Public Health Service manual, that mere proof of homosexuality constitutes a demonstration of the existence of “psychopathic personality.” Under such circumstances, it would have been futile for the petitioner to request an examination by a board of Public Health Service doctors.
I cannot impute to Congress an intention that the term “psychopathic personality” in the 1952 amendments of the Immigration and Nationality Act be construed to cover anyone who had ever had a homosexual experience. Professor Kinsey estimated that “at least 37 per cent” of the American male population has at least one homosexual experience, defined in terms of physical contact to the point of orgasm, between the beginning of adolescence and old age. Kinsey, Pomeroy & Martin, Sexual Behavior in the Human Male 623 (1948). Earlier estimates had ranged from one per cent to 100 per cent. Id. at 616-622. The sponsors of Britain’s current reform bill on homosexuality have indicated that one male in 25 is a homosexual in Britain.2 To label a group so large “excludable aliens” would be tantamount to saying that Sappho,3 Leonardo *498da Vinci,4 Michelangelo,5 Andre Gide,6 and perhaps even Shakespeare,7 were they to come to life again, would be deemed unfit to visit our shores. Indeed, so broad a definition might well comprise more than a few members of legislative bodies.8
At most, the legislative history of the 1952 amendments indicates that Congress intended to exclude those who were “sexual deviates” at the time of entry into this country, see S.Rep. No. 1137, 82d Cong., 2d Sess. 9 (1952). The term “sexual deviate” suggests someone with a long-lasting and perhaps compulsive orientation towards homosexual or otherwise “abnormal” behavior. The Public Health Service report on which the House •Judiciary Committee relied in its discussion of the bill as finally enacted, see H. R. Rep. No. 1365, 82d Cong., 2d Sess. 46-8 (1952), indicates a narrower definition of the term “psychopathic personality.” That report states that “psychopathic personalities” are “disorders of the personality * * * characterized by developmental defects or pathological trends in the personality structure manifest by lifelong patterns of action or behavior,” and that those “psychopathic personalities” who are “ill primarily in terms of society and the prevailing culture * * * frequently [evidently not always] include those * * * suffering from sexual deviation.” U.S. Code Cong. & Ad. News, pp. 1700-1701, 82d Cong., 2d Sess. (1952). This legislative history suggests that Congress contemplated an inquiry in each case, to be performed by skilled psychiatrists, into whether the homosexual activity of a given individual amounted to such a “disorder of the personality” as to constitute “psychopathic personality.”
Even assuming that Congress intended the term “psychopathic personality” to cover anyone who was a sexual deviate at the time of entry, petitioner had no way of knowing that “psychopathic personality” meant what Congress intended it to mean. “Psychopathic personality” may not be so vague as to be meaningless in all applications, as some have suggested, see Note, Limitations on Congressional Power to Deport Resident Aliens as Psychopaths at Time of Entry, 68 Yale L.J. 931 (1959), even though the Public Health Service itself has admitted that the term is “vague and indefinite.” H.R. Rep. No. 1365, 82d Cong., 2d Sess. 46-7 (1952). The term “necessitates a personal estimate of community mores,” ibid, at 943 n. 46; but so does the term “moral turpitude,” held not unconstitutionally vague in Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). Moreover, the term has been given some concreteness by judicial definition. See United States v. Flores-Rodriguez, 237 F.2d 405, 411 (2d Cir. 1956); United States ex rel. Leon v. Murff, 250 F.2d 436, 439 (2d Cir. 1937). However, the courts have said that those afflicted with “psychopathic personality” are “individuals who show a life-long * * * tendency not to conform to group customs, and who habitually misbehave so flagrantly that they are continually in trouble with the authorities.” Flores-Rodriguez, supra, 237 F.2d at 411 (discussing the earlier statutory term “constitutional psychopathic inferiority,” but suggesting that it was largely interchangeable with “psychopathic personality”) ; see Leon, supra, 250 F.2d at 439 (citing a Public Health Service regulation apparently no longer in effect providing that “[t]here shall be certified as *499cases of constitutional psychopathic inferiority all psychopathic characters such as * * * persons who because of eccentric behavior, defective judgment or abnormal impulses are in repeated conflict with social customs and constitutional authorities”); see also Note, 68 Yale L.J. 931, 940 (1959) (“identifying characteristic” of “psychopathic personality” “is a long-standing pattern of culturally unacceptable behavior”). In the present case, there was no evidence to show that petitioner’s sexual deviation was such as to put him in repeated conflict with the authorities. His discussion of his homosexual activities before and after his entry into this country indicates that they were consensual acts between adults, almost always in private places. Contrast Flores-Rodríguez, supra (blatant exhibitionist solicitation in public places). In short, neither the term “psychopathic personality” nor its interpretations by the courts prior to petitioner’s entry gave petitioner “sufficiently definite warning * * * when measured by common understanding and practices,” Jordan v. De George, 341 U.S. 223, 231-232, 71 S.Ct. 703 (1951), that his conduct could serve as a basis for exclusion or deportation.
Had the petitioner known that sexual deviation 9 at the time of entry would be automatic grounds for exclusion, there is considerable reason to believe that he could have modified his behavior so that he could not be considered a deviate at the time of entry. He was young, intelligent, and responsible. While he had engaged in homosexual acts from the age of 16 to the age of 21, he had also had sexual relations with women three or four times during this period. Dr. Montague Ullman, Director of Psychiatric Services in the Maimonides Hospital of Brooklyn and Professor of Psychiatry at the State University of New York, described petitioner’s condition as late as March 1965 in the following terms:
“The patient has sexual interest in girls and has had intercourse with them on a number of occasions. * * * His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interests as well as abstinence with almost equal facility. His homosexual orientation seems secondary to a very constricted, dependent personality pattern rather than occurring in the context of a psychopathic personality.”
Another psychiatrist who examined petitioner, Dr. Edward F. Falsey, concluded that petitioner “is not psychotic” and that “the prognosis in therapy is reasonably good.”
In brief, petitioner has been ordered deported because of the existence at the time of his entry into this country of a psychological condition which he probably would have been able to correct had he had any reasonable warning that the existence o'f the condition could serve as a basis for exclusion or, still more drastic, for deportation after entry. He received no warning. I agree with the Ninth Circuit that to uphold a deportation order under these circumstances is repugnant to due process. Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962), remanded on other grounds, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963); Lavoie v. United States Immigration and Naturalization Service, 360 F.2d 27 (9th Cir. 1966).
. See footnote 11 of the majority opinion.
. N.Y.Times, July 6, 1966, § 1, p. 7, col. 1.
. Whom Plato called the Tenth Muse. Loeb Classical Library, Greek Anthology, Vol. 3, p. 281. See Patrick, Sappho and the Island of Lesbos (1912).
. See The Notebooks of Leonardo da Vinci 189, 223 (P. Taylor ed. 1960).
. Cf. Sonnets of Michelangelo and Campanella (J. A. Symonds trans. 1878).
. Cf. Gide, L'Immoraliste (1902).
. See, e. g., Sonnets 20, 33, 108.
. Cf. remarks of Sir Oyril Osborne, opposing reintroduction into the House of Commons of the current British bill on homosexuality: “If this House were representative of the country, then there would be at least 30 homos in this House.” Upon being asked to name them, however, Sir Cyril stated that in bis 21 years in Parliament he had never encountered “one case of a homo in this House.” N. Y. Times, July 6, 1966, § 1, p. 7, col. 1.
. A term which itself raises problems of vagueness. Deviation from what norm? When so much attention is being focused on sexual practices, see, e. g., Kinsey, Pomeroy & Martin, op. cit. supra, and Masters & Johnson, Human Sexual Response (1966), and when so many efforts, scientific and otherwise, are being made to discover liow the human race can become adjusted to doing what should come naturally, cf. Berlin, Annie Get Your Gun 21 (1947), it must be realized that sexual gratification is often achieved in divers ways which may well deviate from popular conceptions of a norm.