Before GOODRICH, STALEY and HASTIE, Circuit Judges.
This is an appeal from a judgment of the District Court for the District of New Jersey setting aside an order for the deportation of the appellee.
The relevant facts are undisputed. Appellee is a 21-year-old German alien who last entered the United States in June or July 1953. On February 27, 1957, he was convicted of the offense of open lewdness in the County Court of Passaic County, New Jersey. Pursuant to the New Jersey Sex Offenders Act*fn1 he was committed prior to sentencing to the Menlo Park Diagnostic Center for a complete physical and mental examination. The report of his examination indicated that his conduct, which constituted the offense, represented a compulsive and repetitive form of behavior toward which he had been impelled since the age of 18. The county court on March 29, 1957, after consideration of the report and recommendation of the diagnostic center, ordered and adjudged that appellee "be confined in the New Jersey State Reformatory at Annandale, sentence be suspended and defendant is placed in the custody of the Probation Officer for a period of three years, and one of the conditions of Probation be that the defendant is to take psychiatric treatment."
Deportation proceedings were thereafter instituted and a hearing was held before a Special Inquiry Officer in which all the salient facts were admitted. On June 13, 1957, the appellee was ordered deported under Section 241(a)(4) of the Immigration and Nationality Act of 1952, 66 Stat. 204, 8 U.S.C. § 1251(a)(4). The order was founded upon the alien's conviction of the offense of open lewdness within five years of his entry. The appellee appealed this decision to the Board of Immigration Appeals, and on October 23, 1957, the appeal was dismissed. Subsequently, on November 25, 1957, the appellee filed a complaint in the district court seeking a declaratory judgment under 28 U.S.C. § 2201 that the order for his deportation was null and void, and for temporary and permanent injunctive relief against its enforcement. The district court set aside the deportation order. In its opinion*fn2 the district court concluded that appellee's reformatory sentence was not within the purview of Section 241(a)(4).
Section 241(a)(4) of the Immigration and Nationality Act of 1952, supra, provides for the deportation of any alien who
"is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more * * *."*fn3
In deportation cases where a state crime is involved we have to look to the law and procedure of the state to interpret what happened in the state courts. Pino v. Nicolls, D.C.Mass.1954, 119 F.Supp. 122, affirmed 2 Cir., 1954, 215 F.2d 237, reversed on other grounds Pino v. Landon, 1955, 349 U.S. 901, 75 S. Ct. 576, 99 L. Ed. 1239; United States ex rel. Freislinger on Behalf of Kappel v. Smith, 7 Cir., 1930, 41 F.2d 707. Although the appellee was tried and convicted for the offense of open lewdness,*fn4 it is important to note that the sentence was imposed pursuant to the New Jersey Sex Offenders Act.*fn5
The most recent opinion of the New Jersey Supreme Court interpreting this relatively new and novel piece of legislation is State v. Wingler, 1957, 25 N.J. 161, 135 A.2d 468. The opinion is primarily directed to those provisions of the Act that authorize confinement. However, in commenting upon the constitutionality of the Act, the Court stated, 135 A.2d at page 476, that
"They [sex offenders] are given special beneficial treatment designed to advance their interests as well as those of society."
In a dissenting opinion, that takes issue with the majority's interpretation of the confinement provisions of the Act, Judge Heher states the philosophy that underlies the Act.
"We have no occasion now to consider whether there is a scientific and factual basis for the 'clinical finding' that this 'offender's conduct' was 'characterized' by a 'pattern of repetitive, compulsive behavior'; it suffices here to say that when the Diagnostic Center makes the statutory findings, it becomes the peremptory 'duty' of the court to 'submit the offender' to a 'program of specialized treatment for his mental and physical aberrations,' a course of action in no sense penal, but rather regenerative for his eventual social adjustment and integration, and meanwhile protective of society itself against such 'repetitive, compulsive behavior,' due to 'mental and physical aberrations.' It is a sociolegal measure wholly devoid of the punitive, in essence preventative and reformative, in keeping with the teachings of sociological and psychological experience. * * *" (135 A.2d at page 480)
"He was not 'sentenced' as a criminal, to expiate his crime in a penal institution, but rather was 'submitted', as a sexual psychopath, to a program of 'specialized treatment' for his 'mental and physical aberrations.'" (135 A.2d at page 482)
This analysis is borne out by the very terms utilized in the statute itself. Section 6 of the Act*fn6 speaks of the "disposition" to be made of the person when the prerequisite clinical findings are made by the diagnostic center. On the other hand, Section 9*fn7 directs the court to "impose sentence" on such person in the manner provided by law ...