This timeline was researched and created by Caroline Perris, J.D. Candidate at UC Davis School of Law, class of 2022

1800s

Emergence of forensic psychiatry as a field. “Forensic psychiatry emerged as a professional activity in the United States during the first third of the nineteenth century when four major factors coalesced: the medicolegal vision of early American physicians, the introduction of new theories about insanity, the concern of early state governments with mental health, and the advent of marketplace professionalism.”[1]

1882

The Immigration Act of August 3, 1882 (first general immigration statute)

    • The 1882 Immigration Act imposed a head tax on noncitizens of the United States who came to American ports and restricted certain classes of people from immigrating to America, including “any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge.”[2]

1891

The Immigration Act of 1891

    • Immigration law was put under federal control and grounds of exclusion expanded to include “idiots, insane persons, paupers or persons likely to become a public charge, and persons suffering from a loathsome or a dangerous, contagious disease.”[3]
    • Medical inspections for arriving foreigners became legally mandated.[4]
    • All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.[5]

1900s

The Immigration Act of March 3, 1903

    • Added to exclusionary grounds “‘epileptics, persons who ‘have been insane within 5 years previous, and persons who have had two or more attacks of insanity at any time previously.”[6]
    • That the physical and mental examination of all arriving aliens shall be made by medical officers of the United States Marine Hospital Service, who shall have had at least two years’ experience in the practice of their profession since receiving the degree of doctor of medicine…or, should medical officers of the United States Marine-Hospital Service be not available, civil surgeons of not less than four years’ professional experience may be employed.[7]
    • The decision of any such officer, if favorable to the admission of any alien, shall be subject to challenge by any other immigration officer, and such challenge shall operate to take the alien whose right to land is so challenged before a board of special inquiry for its investigation.[8]
    • Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry.[9]
    • That such boards of special inquiry shall be appointed by the commissioners of immigration at the various ports of arrival as may be necessary for the prompt determination of all cases of aliens.[10]
    • Such boards shall consist of three members, who shall be selected from such of the immigrant officials in the service as the Commissioner-General of Immigration, with the approval of the Secretary of the Treasury, shall from time to time designate as qualified to serve on such boards.[11]
    • The decision of any two members of a board shall prevail and be final, but either the alien or any dissenting member of said board may appeal, through the commissioner of immigration at the port of arrival and the Commissioner-General of Immigration, to the Secretary of the Treasury, whose decision shall then be final; and the taking of such appeal shall operate to stay any action in regard to the final disposal of the alien whose case is so appealed-until the receipt by the commissioner of immigration at the port of arrival of such decision.[12]

1907

The Immigration Act of February 7, 1907

    • Added to exclusionary grounds Imbeciles,” “feeble-minded,” and persons afflicted with a “mental or physical defect being of a nature which may affect the ability of such alien to earn a living.”[13]
    • That the physical and mental examination of all arriving, shall be made by medical officers of the United States Public Health and Marine-Hospital Service, who shall have had at least two years’ experience in the practice of their profession since receiving the degree of doctor of medicine and who shall certify for the information of the immigration officers and the boards of special inquiry hereinafter provided for, any and all physical and mental defects or diseases observed by said medical officers in any such alien, or, should medical officers of the United States Public Health and Marine-Hospital Service be not available, civil surgeons of not less than four years’ professional experience may be employed in such emergency for such service, upon such terms as may be prescribed by the Commissioner-General.[14]
    • Appeals
      • Board of special inquiry – shall be appointed by the commissioner of immigration at the various ports of arrival as may be necessary for the prompt determination of all cases of immigrants. Each board shall consist of three members, who shall be selected from such of the immigrant officials in the service as the Commissioner-General of Immigration, with the approval of the Secretary of Commerce and Labor.[15]
      • Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or shall be deported.[16]

1911-1920

“The United States excluded the highest number of mentally defective aliens between 1911 and 1920, when 42,129 mentally ill aliens were excluded.”[17]

1915

Billings v. Sitner, 228 F. 315 (1st Cir. 1915)

    • Habeas Corpus case
    • Sitner arrived at Boston May 7, 1913, and was detained for examination before a board of special inquiry according to section 24 of the Immigration Act. 34 Stat. 898, as amended by 36 Stat. 263. The board voted to exclude him on the basis that he was feeble-minded. After the board’s finding, Sitner was mistakenly released but was later redetained.
    • At district court, Sitner introduced medical and other evidence tending to show that he was not feeble-minded, and, testified in person, so that the court could exercise its own judgment as to his mental condition. The court found that he was neither feeble-minded nor physically or mentally defective, within the meaning of section 2 of the act (section 4244), that he was entitled to enter, and ordered his discharge.

1917

The Immigration Act of February 5, 1917

    • Included for the first time “persons of constitutional psychopathic inferiority” and “persons with chronic alcoholism.”[18]
    • Medical officers of the United States Public Health Service who have had especial training in the diagnosis of insanity and mental defects shall be detailed for duty or employed at all ports of entry designated by the Secretary of Labor, and such medical officers shall be provided with suitable facilities for the detention and examination of all arriving aliens in whom insanity or mental defect is suspected, and the services of interpreters shall be provided for such examination. Any alien certified for insanity or mental defect may appeal to the board of medical officers of the United States Public Health Service, which shall be convened by the Surgeon General of the United States Public Health Service, and said alien may introduce before such board one expert medical witness at his own cost and expense.[19]
    • Every alien who may not appear to the examining immigrant inspector at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for examination in relation thereto by a board of special inquiry. In the event of rejection by the board of special inquiry, in all cases where an appeal to the Secretary of Labor is permitted by this Act, the alien shall be so informed and shall have the right to be represented by counsel or other adviser on such appeal. The decision of a immigrant inspector, if favorable to the admission of any alien, shall be subject to challenge by any other immigrant inspector, and such challenge shall operate to take the alien whose right to land is so challenged before a board of special inquiry for its investigation.[20]

1924

S. v. Tod, 300 F. 918 (2d Cir. 1924)

    • An Italian woman was admitted to the Manhattan State Hospital on October 17, 1922, due to a mental breakdown following her arrival in the U.S.
      • The court considered a certificate of the deputy medical examiner of the Bureau of Deportation expressing his opinion that Tod’s disability was not due to causes arising subsequent to entry.

1929

S. ex rel. Powlowec v. Day, 33 F.2d 267 (2d Cir. 1929)

    • Powlowec was a Pole, who came to the U.S. on October 14, 1922, at which time he was duly examined and passed at Ellis Island. He was then 23 years old and got regular employment which he was able to perform until May 10, 1926, when he was taken to Bellevue Hospital in New York, showing signs of mental derangement. Shortly thereafter he was sent to an asylum on Long Island, where he was examined by one Wearne, a psychiatrist. Wearne diagnosed his complaint as ‘dementia praecox, hebephrenic,’ and detained him until November 7th, when he was released in the care of his brother. Before this a deportation warrant for his arrest had issued, on the ground that he was a person of constitutional psychopathic inferiority at the time of entry, and he was given a hearing before an inspector. The evidence against him consisted in part of a certificate of Barton, a deputy medical examiner of New York, containing the same diagnosis, with the grounds for it, and stating that recovery was impossible, and that he was constitutionally a psychopathic at the time of his entry.

1948

United States ex rel Johnson v. Watkins, 170 F.2d 1009 (2d Cir. 1948)

    • The relator, a native and citizen of Sweden, arrived at the Port of New York on March 1, 1948, and applied for admission into the United States as a quota immigrant. Upon arrival she was examined by medical officers of the United States Public Health Service found her to be mentally defective, and made a certificate to that effect. On March 16, 1948, she was accorded a hearing before a Board of Special Inquiry upon her application for admission at which hearing the above-mentioned certificate was received in evidence. This hearing was suspended to permit the relator to appeal from the certificate. On March 26, 1948, the medical board, after considering all the evidence including the certificate and the testimony given by one Dr. Carlton Simon, a psychiatrist chosen by the realtor pursuant to Section 16 of the Immigration Act of 1917, 8 U.S.C.A. § 152, to appear as her expert medical witness before the board, reported that it concurred with the examining surgeons’ certificate.

1952

    • The Immigration and Nationality Act of 1952 “formed the basic structure of modern U.S. immigration policy, and continued the practice of excluding mentally defective aliens.”[21]
    • Alien who are narcotic drug addicts,” sec. 212(a)(5), was added to the classes of aliens excluded from admission and the outmoded term “imbeciles” was dropped from sec. 212(a)(1).[22]
    • The McCarran-Walter (1952) Act attempted to solve the “constitutional psychopathic personality” problem by changing the phraseology to “‘psychopathic personality.”[23]
    • The original bill specifically provided for the exclusion of “aliens who are homosexuals and sex perverts” in sec. 212(a)(7). After many conferences with governmental and nongovernmental agencies, however, sec. 212(a)(7) was dropped and “psychopathic personality” became a rather broadly construed term to express Congress’ intent to exclude all aliens who are sexual deviates.[24]

1960-1970s

    • 1967 – The U.S. signed on to the U.N.’s refugee protocol.
    • Medical officers of the United States Public Health Service who had specialized training in the diagnosis of mental illness were selected for duty at ports of entry designated by the Attorney General. 8 U.S.C. § 1224 (1964) (physical and mental examinations).[25]
      • “Whether an alien is found to have or to have had a history of mental illness or not, the medical examiner must report his findings to the Immigration Service by medical certificate or to the consular authority by medical notification.” 42 C.F.R. §§ 34.5-.6 (1970).
    • Some procedural safeguards were available. See 8 U.S.C. § 1226 (1964) (governing exclusion procedure) and 8 U.S.C. § 1252 (1964) (governing deportation procedure).
      • An alien certified as excludable could appeal to a board of medical officers of the United States Public Health Service, which was to be convened by the Surgeon General of the United States for the purpose of reexamining the alien. 42 C.F.R. § 34.14 (1970).
      • An alien may introduce one expert medical witness before the board at his own expense. 42 C.F.R. § 34.14(e) (1970).
      • An alien could have a reasonable opportunity to examine medical certificates and other records involved in the reexamination. 42 C.F.R. § 34.14(f) (1970).

1966

Boutilier v. Immigration & Naturalization Serv., 363 F.2d 488 (2d Cir. 1966)

    • Petitioner immigrant challenged the final order of the respondent Board of Immigration Appeals, which directed petitioner’s deportation as one who upon entry into the United States was a homosexual and, thus, was afflicted with a “psychopathic personality” within the meaning of § 212(a)(4) of the Immigration and Naturalization Act of 1952. Boutilier declined an opportunity for an in personam examination by Public Health Service doctors. He did, however, introduce two letters from privately retained psychiatrists which were received in evidence without objection by the government. Desipte the letters, the Special Inquiry Officer concluded that Boutilier had been a homosexual at the time of entering the United States and, thus, was excludable as one afflicted with a “psychopathic personality.” The court dismissed Boutilier’s petition on the basis that it was without merit.

1969

Lavoie v. Immigration and Naturalization Service, 418 F.2d 732 (1969)

    • Lavoie, a Canadian citizen, was ordered deported on the basis that he was afflicted with a psychopathic personality because he was a ‘sexual deviate’ (homosexual). The Service based its deportation order upon the fact that the petitioner, at the time of entry, was a ‘homosexual.’ The court stated, “If the issue of fact in the case were whether, by scientific psychological standards, the petitioner was properly classified as a ‘homosexual,’ it would be difficult to say that the evidence met the statutory standard applicable to our review. The petitioner’s psychiatrist, Dr. Diamond, having made an extensive examination of the petitioner, testified ‘I do not even regard him as a homosexual in any sense of the word,’ and gave his reasons for his conclusion. The Service’s psychiatrist, Dr. Beittel, in his written report to the Service, had expressed doubt as to whether the petitioner was a homosexual and, in his oral testimony, he said he would not positively state that the petitioner was a homosexual.” Petition was denied.

1980s

The Refugee Act of 1980

    • Created a comprehensive system for granting asylum.

Thousands of Haitians and Central Americans fled to the U.S.

1990s

The Immigration Act of 1990

    • The 1990 Act eliminated the majority of mental health exclusion categories and combined the remainder into a single three-part subsection. 32 Section 1182(a)(l)(A)(iii) is a component of this three-part subsection.[26]

Articles Related to Forensic Evaluations in Immigration Cases

    • Bruce Frumkin & Joan Friedland, Forensic Evaluations in Immigration Cases: Evolving Issues, 13 Behav. Sci. & L. 477 (1995).
      • “A clinician’s testimony may help ensure that the immigration judge does not misinterpret an applicant’s statements as being noncredible when there might be another explanation.”[27]
      • “Valuable information is provided when a mental health expert can discuss why an applicant shows little or no emotion, or has gaps in his or her story, when asked to describe the torture or trauma associated with events from the country of origin. Likewise, a mental health professional can delineate the types of memory loss and/or restrictive range of affect oftentimes associated with exposure to extremely traumatic events.”[28]
    • Fernando J. Gutierrez, Psychological Evaluation of Children and Families in the Immigration Context, 19 Legal Rts. J. 17 (1999).
      • “Psychologists are useful in these [political asylum] cases because they can (1) use their expertise to confirm that a person indeed has suffered past persecution or has a well-founded fear of persecution; and (2) use psychological assessment and testimony to confirm that an individual is a member of a particular social group.”[29]
      • “Another way that a psychologist can assist the client, the attorney, and the trier of fact is to interpret the cultural factors that can affect the applicant’s credibility in the asylum context. Cultural differences can make the applicant’s testimony and demeanor appear less convincing and can seriously affect the outcome of the asylum hearing. For example, during proceedings, applicants from different cultural backgrounds may experience difficulty in recalling dates and times of occurrences of significant dates. This may occur for two reasons other than lying: (1) cultural differences in time and date perception, or (2) symptoms of PTSD or depression, interfering with a person’s recall.”[30]
    • Cases
      • Castro De Din v. U.S. I.N.S. 920 F.2d 936 (9th Cir. 1990)
        • The I.N.S. found Maria de Jesus Castro de Din deportable pursuant to 241(a)(11). The Court held that the BIA did not abuse its discretion in accepting the immigration judge’s finding that Castro’s testimony regarding her criminal convictions was not credible, even though Castro presented psychiatric testimony to support her claim.
      • Omoregbee v. I.N.S., 62 F.3d 1425 (9th Cir. 1995)
        • Omoregbee challenged the denial of his motion to remand to apply for suspension of deportation because “1) the BIA failed to consider ‘the psychological hardship and mental anguish he would experience as a torture victim returning to the site of his torture[;]’ and 2) the BIA failed to address Dr. Roth’s opinion that Omoregbee suffers from Post-Traumatic Stress Syndrome and returning to Nigeria would be a significant hardship for him.”

 

[1] James C. Mohr, The Origins of Forensic Psychiatry in the United States and the Great Nineteenth-Century Crisis over the Adjudication of Wills, 25 J. Am. Acad. Psychiatry Law 273 (1997).

[2] Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214.

[3] Act of Mar. 3, 1891, ch. 551 § 1, 26 Stat. 1084.

[4] Id. at § 8, 1085.

[5] Id.

[6] Act of Mar. 3, 1903, ch. 1012 § 2, 32 Stat. 1213, 1214.

[7] Id. at § 17, 1217.

[8] Id. at § 24, 1219.

[9] Id. at 1219-20.

[10] Id. at § 25, 1220.

[11] Id.

[12] Id.

[13] Act of Feb. 20, 1907, ch. 1134 § 2, 34 Stat. 898, 898-99.

[14] Id. at § 17, 903.

[15] Id. at § 25, 906.

[16] Id. at 907.

[17] Jennifer Blakeman, The Exclusion of Mentally Ill Aliens Who May Pose a Danger to Others: Where Does the Real Threat Lie?, 31 U. Miami Inter-Am. L. Rev. 287, 293 (2000).

[18] Act of Feb. 5, 1917, ch. 29 § 9, 39 Stat. 874, 880.

[19] Id. at § 16, 885.

[20] Id. at 886-87.

[21] Blakeman, supra note 17, at 292.

[22] James E. Moore, Mental Illness Exclusions in United States Immigration Procedure, 3 Case W. Res. J. Int’l L.71, 75 (1970).

[23] Id.

[24] Id.

[25] Id. at 71.

[26] Blakeman, supra note 17, at 292.

[27] I. Bruce Frumkin & Joan Friedland, Forensic Evaluations in Immigration Cases: Evolving Issues, 13 Behav. Sci. & L. 477, 483 (1995).

 

[28] Id.

[29] Fernando J. Gutierrez, Psychological Evaluation of Children and Families in the Immigration Context, 19 Child. Legal Rts. J. 17 (1999).

[30] Id. at 20.