dissenting:
The majority has certainly reached a logical conclusion, based upon its intelligent analysis of applicable legislation and jurisprudential authority, that the petitioner Longstaff may be denied naturalization in 1983 because, when he was admitted to the United States in 1965 (following which he has led a constructive life), he was a homosexual and thus could have been excluded from admission to the United States. The majority therefore concludes that Longstaff was not “lawfully admitted” to the United States, a prerequisite for naturalization.
I respectfully dissent. For the reasons extensively detailed by the Ninth Circuit recently in Hill v. United States Immigration and Naturalization Service, 714 F.2d 1470 (9th Cir.1983), I would conclude that a homosexual may not lawfully be denied admission in the absence of a medical certificate to that effect.
I premise my conclusion on the peculiar statutory framework at issue in this case. As the majority states, Congress listed “psychopathic personality” and “sexual deviation” as causes for exclusion in a list of seven medical bases for exclusion. See, 8 *1452U.S.C. § 1182(a) (1976). This list of medical causes for exclusion is further supplemented by twenty-six other non-medical bases for exclusion. Id. Furthermore, 8 U.S.C. § 1224 provides that either medical officers of the Public Health Service or civil surgeons employed by the United States “shall” conduct the physical and mental examination of all aliens suspected of being medically excludable under § 1182(a)(1)-(5), (thus including the grounds of psychopathic personality and sexual deviation). These medical personnel and surgeons are the only persons authorized by the Act to certify the existence of “any ” medical condition permitting exclusion.1
Therefore, the statutory scheme contemplates that medical personnel will diagnose and certify any medical cause for deportation or exclusion. Moreover, as the majority concedes, the apparent practice of the Immigration and Naturalization Service (the “INS”) has been “to exclude for homosexuality only those persons for whom a [medical] certificate was issued.” 716 F.2d 1446.
Nonetheless, the majority concludes that Congress did not intend for a medical certificate attesting to an individual’s homosexuality to be the only competent evidence for exclusion on the basis of “psychopathic personality” or “sexual deviation.” To the contrary, however, I do not believe that it is overly formalistic to find that Congress did intend in its statutory scheme to require medical certification, and only medical certification, of any “medical” cause for exclusion. In this context, it must be remembered that the statute provides that an alien in the United States may be deported if he “at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of [his] entry" into the United States. 8 U.S.C. § 1251(a)(1).
In my view, Congress intended to avoid not only an initial exclusion from admission, but also an ex post facto determination for deportation purposes, from being based solely on the non-medical judgment of bureaucratic agencies that a “medical” cause for exclusion existed at the time of a person’s admission, when that determination is unsupported by a professional judgment by a member of the medical profession. This interpretation is further supported when, as here, the medical condition is indefinite and arguable (or, e.g., where a condition was latent at the time of entry and undiscoverable then by a medical examination); then, medical conditions that allegedly existed at the time of presumably lawful admission could later be administratively misused to deport persons unpopular in actuality for non-medical reasons. Thus, I believe that Congress intended the medical certification procedure to be interposed as an important safeguard against abusive “medical” exclusions or deportations by introducing the independent factor of a professional medical examination into this aspect of the exclusion and deportation process.
Nor does my reading of Congress’ intent differ because homosexuality is no longer recognized by medical experts to be a psychopathic condition. As the majority notes, we are bound by the Supreme Court’s ruling in Boutilier v. Immigration and Naturalization Service, 387 U.S. 118, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967), to the effect that homosexuality is a “medical” condition then included within the phrase “psychopathic personality.” Id. And since this ruling is apparently not dependent on current medical opinion, Boutilier, supra, 387 U.S. at 124, 87 S.Ct. at 1567, I can see no reason to treat homosexuality differently from the other grounds for medical exclusion.
*1453Thus, exclusion or deportation on grounds of homosexuality must be subject to the same safeguards of medical certification as exclusion or deportation on other medical grounds such as “mental retardation” or “mental defect.” Just as Congress was unwilling to rely on a bureaucratic determination that a person has a “mental defect”,2 the statute clearly suggests that Congress was equally unwilling to accept a non-medical determination that a person has a “psychopathic personality” because of homosexuality (the test of lawful admission at the time of Longstaff s entry). The importance of adhering to the congressional intent that only professional medical determinations be made, so as to avoid the improper non-medical administrative classification of a person as “medically” excludable or deportable, requires that the courts respect these stringent statutory standards by not creating procedural exceptions only for certain “medical” conditions.
The INS argues that it should not be required to produce medical certification of homosexuality for exclusion or deportation purposes since such certification is now difficult to obtain. In particular, the INS contends that it should be allowed to rely on other forms of evidence under the statute, because the PHS, pursuant to an order by the Surgeon General, has refused since 1979 to medically diagnose and certify that an individual is a homosexual.
It is basic, however, that this court is without authority to ignore the mandate of Congress’ statutory scheme merely because there is an interagency dispute over the mechanics of statutory enforcement. If this administrative dispute renders the exclusion of homosexuals under the statute ineffective, then it is for Congress, not this court, to alter its statutory scheme requiring medical certification. Absent such congressional intervention, I am unwilling to infer that Congress intended to allow the non-medical personnel of an administrative agency to use “medical” classifications — as is the practice in present-day Russia — to exile persons for newly-discovered mental defects or other “medical conditions.”
Thus, I agree with the Ninth Circuit in Hill, supra, that Congress did so intend to treat medical causes for exclusion or deportation differently from non-medical causes for denial of lawful admission to the United States, and that we must respect the intended illogic of Congress in according such talismanic significance to the presence or absence of a conclusive medical certification as determinative of admissibility or deport-ability.
One final word. The issue before us appears to be simply whether or not the petitioner Longstaff is entitled to naturalization. As the authorities cited by the majority show, however, if the majority’s reasoning is correct, not only is naturalization deniable to Longstaff, but also Longstaff is subject to deportation many, many years after his presumably lawful entry to the United States and his constructive life here.
Of far greater importance than Long-staff’s unfortunate individual plight, and the rather simple factual issues presented by it, is the subjection to deportation of all other persons against whom a governmental agency may assert as a reason for deportation — perhaps (as in the case of Long-staff) many years after presumably lawful entry into the United States — a newly discovered pre-admission “medical” cause for exclusion from entry. This is especially troublesome when the medical condition is one in the diagnosis of which medical experts may differ, and in which medical “diagnosis” as to whether or not the condition existed at time of entry may be wholly speculative. The continued stay in the United States as a resident alien of an individual such as Longstaff (and his eligibility for naturalization) is thus made dependent on the uncertainties and indefiniteness of medical science (as hypothesized by *1454medical and psychiatric expert witnesses) as to a “medical” condition and whether it existed or not at the time of entry.
This spectre, and the avoidance of the possibility of abuse of bureaucratic deportation powers, is what I believe the Congress intended to avoid by conclusively fixing a professionally certified medical cause for exclusion from lawful admission by the showing made as to it at the time of admission to the United States.
. § 1224 of the Act provides that:
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. If medical officers of the United States Public Health Service are not available, civil surgeons of not less than four years’ professional experience may be employed for such service upon such terms as may be prescribed by the Attorney General. * * *
. No more, I believe, did Congress intend to allow agents of the Immigration and Naturalization Service to exclude or deport aliens solely on the basis of a self-admission that “I have a mental defect” or “I have had an attack of insanity” or “I am a moron”, which are some of the other causes for medical exclusion under the Act. Under the statutory scheme, Congress simply did not intend to permit a non-medical determination as to the existence of “medical” causes for exclusion or deportation, including “psychopathic personality” and “sexual deviation.”