Respondent Fleuti is a Swiss national who was originally admitted to this country for permanent residence on October 9, 1952, and has been here continuously since except for a visit of 'about a couple hours' duration to Ensenada, Mexico, in August 1956. The Immigration and Naturalization Service, of which petitioner Rosenberg is the Los Angeles District Director, sought in April 1959 to deport respondent on the ground that at the time of his return in 1956 he 'was within one or more of the classes of aliens excludable by the law existing at the time of such entry,' Immigration and Nationality Act of 1952, § 241(a)(1), 66 Stat. 204, 8 U.S.C. § 1251(a)(1). In particular, the Service alleged that respondent had been 'convicted of a crime involving moral turpitude,' § 212(a)(9), 66 Stat. 182, 8 U.S.C. § 1182(a)(9), before his 1956 return, and had for that reason been excludable when he came back from his brief trip to Mexico. A deportation order issued on that ground, but it was discovered a few months later that the order was invalid, because the crime was a petty offense not of the magnitude encompassed within the statute. The deportation proceedings were thereupon reopened and a new charge was lodged against respondent: that he had been excludable at the time of his 1956 return as an alien 'afflicted with psychopathic personality,' § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), by reason of the fact that he was a homosexual. Deportation was ordered on this ground and Fleuti's appeal to the Board of Immigration Appeals was dismissed, whereupon he brought the present action for declaratory judgment and review of the administrative action. It was stipulated that among the issues to be litigated was the question whether § 212(a)(4) is 'unconstitutional as being vague and ambiguous.' The trial court rejected respondent's contentions in this regard and in general, and granted the Government's motion for summary judgment. On appeal, however, the United States Court of Appeals for the Ninth Circuit set aside the deportation order and enjoined its enforcement, holding that as applied to Fleuti § 212(a)(4) was unconstitutionally vague in that homosexuality was not sufficiently encompassed within the term 'psychopathic personality.' 302 F.2d 652.
The Government petitioned this Court for certiorari, which we granted in order to consider the constitutionality of § 212(a)(4) as applied to respondent Fleuti. 371 U.S. 859, 83 S.Ct. 117, 9 L.Ed.2d 97. Upon consideration of the case, however, and in accordance with the long-established principle that 'we ought not to pass on questions of constitutionality * * * unless such adjudication is unavoidable,' Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101; see also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 67 S.Ct. 231, 91 L.Ed. 128; Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60; Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812; we have concluded that there is a threshold issue of statutory interpretation in the case, the existence of which obviates decision here as to whether § 212(a)(4) is constitutional as applied to respondent.
That issue is whether Fleuti's return to the United States from his afternoon trip to Ensenada, Mexico, in August 1956 constituted an 'entry' within the meaning of § 101(a)(13) of the Immigration and Nationality Act of 1952, 66 Stat. 167, 8 U.S.C. § 1101(a)(13), such that Fleuti was excludable for a condition existing at that time even though he had been permanently and continuously resident in this country for nearly four years prior thereto. Section 101(a)(13), which has never been directly construed by this Court in relation to the kind of brief absence from the country that characterizes the present case, reads as follows:
The question we must consider, more specifically, is whether Fleuti's short visit to Mexico can possibly be regarded as a 'departure to a foreign port or place * * * (that) was not intended,' within the meaning of the exception to the term 'entry' created by the statute. Whether the 1956 return was within that exception is crucial, because Fleuti concededly was not excludable as a 'psychopathic personality' at the time of his 1952 entry.