IMMIGRATION, ASYLUM, AND DEPORTATION LAW AND POLICY

A nation defines itself by whom it excludes. Even before "homosexuality" entered the English language, U.S. immigration policy sought to exclude sexual and gender minorities on the basis of their "criminal" activities or their presumed inclination to become "public charges." In the twentieth century, immigration policy added a medical basis for exclusion: most sexual "inverts" or "deviates" (as they were later called) were presumed to be psychopathic undesirables and were consequently barred from entering the country or becoming citizens. These exclusionary policies ensnared hundreds of sexual and gender minorities, but millions quietly passed through the portals of immigration and citizenship. Nonetheless, it was only after the Stonewall Riots and the beginnings of a LGBT liberation movement that federal immigration policy retreated from its symbolically anti-LGBT stance. Even today, however, the exclusion of people with AIDS reflects the persistence of earlier policies and practices.

Immigration Exclusions Based on Sexual Disease and Incapacity, 1875–1917

From the beginning the federal government in its national immigration policy sought to identify and exclude aliens who would pollute the physical and economic health of the thriving body politic. The Immigration Act of 1875 forbade the "importation into the United States of women for the purposes of prostitution," as such activity would corrupt the morals, health, and even the economy of the United States. Subsequent immigration statutes broadened that prohibition to include "persons suffering from a loathsome or a dangerous contagious disease," such as venereal diseases; "persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude," including sodomy and gross indecency; and "persons who procure or attempt to bring in prostitutes or women for the purpose of prostitution." Before World War I these exclusions were mostly applied to female sex workers, thousands of whom were barred each year from entering the U.S.

Most male inverts were deported under an entirely different statutory exclusion. In the early twentieth century, Nicholas P., a young Greek immigrant, was arrested for breaking and entering; he allegedly confessed to the Immigration and Naturalization Service (INS) that he had frequented houses of prostitution, had been in the "habit of abusing [him]self, committing masturbation" since age twelve, and had engaged in "unnatural inter-course with men" both in Greece and St. Louis. Based on these admissions, he was deported to Argentina in 1912 as a "public charge." In 1885 Congress had excluded "any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Nicholas P.'s case reflected the INS's early policy of excluding sexual nonconformists on the grounds that they were physically as well as mentally "degenerate," a condition that would ruin them and leave them to the public welfare system. Consistent with popular and medical opinion that sexual inversion and degeneracy rendered people biologically inferior and even subhuman, such minorities were excludable as public charges until World War I. In 1917 the Solicitor of Labor ruled as a matter of law that "moral perverts" were not public charges under the immigration laws, except when tangible proof of their pauper status existed.

Exclusion of "Psychopathic" Immigrants, 1917–1967

The Immigration Act of 1917 retained the previous exclusions for immigrants afflicted with sexual and other diseases and convicted of crimes of moral turpitude, but added a new basis for exclusion: "constitutional pathologic inferiority." This exclusion was in fact just a more sophisticated version of the public charge basis for barring sexual minorities. It reflected then prevailing medical views that sexual inversion or degeneracy was the product of a serious and permanent psychological defect; the danger posed by this defect was not so much that the immigrant would become a public charge, but that he or she would prey on and corrupt innocent U.S. youth. The INS applied the exclusion to sexual "deviates" it had previously deported under the public charge provision. Between 1918 and 1941 an average of three dozen people per year were excluded under this new provision.

The comprehensive revision of exclusions in the Immigration and Naturalization Act of 1952 retained the medical prohibition and expanded it to include persons "afflicted with a mental disorder, epilepsy, or psychopathic personality." Like the earlier laws, the 1952 statute barred persons "who have been convicted of a crime involving moral turpitude" or who had admitted committing acts constituting such a crime. An initial draft of the statute, not the version later enacted, specifically required the exclusion and deportation of "homosexuals and sex perverts." The INS interpreted the 1952 law as though the earlier language had been included; under its authority, the INS excluded dozens of LGBT people from the country each year. Likewise, the agency applied the "good moral character" requirement of the Immigration and Nationality Act of 1940 to deny the applications of LGBT aliens seeking to become U.S. citizens.

Notwithstanding these rules, thousands of LGBT people entered the United States and became citizens, because the INS was not aware of their minority identities and orientations. But hundreds of LGBT people were prohibited from entry, deported, or denied citizenship because of their illegal sexual activities and the psychopathy ascribed to their identity or orientation. During the Warren Court era of the U.S. Supreme Court (1953–1967), which recognized many new individual rights, a handful of immigrants challenged their exclusions, most of them without success. In Fleuti v. Rosenberg (1963), however, the Ninth Circuit Court of Appeals held the term "psychopathic personality" too vague to be constitutionally applied to "homosexuals" generally. An evenly divided Supreme Court affirmed the Ninth Circuit on technical grounds, but none of the justices was comfortable protecting gay and lesbian people from exclusion. In 1965 the U.S. Congress responded to Fleuti by amending the 1952 statute to exclude aliens "afflicted with psychopathic personality, or sexual deviation, or a mental defect."

In the 1960s Clive Michael Boutilier, a bisexual Canadian man who admitted to having sex with other men as well as women, challenged his deportation under the original 1952 statute. Affidavits from psychiatrists established that Boutilier exhibited no evidence of psychopathy and thus should not be deported under the medical provision of the law. A divided Supreme Court nonetheless affirmed his deportation in Boutilier v. INS (1967). Justice Hugo Black and Chief Justice Earl Warren, the civil libertarians who had sided with the gay immigrant in Fleuti, voted against Boutilier, probably because the 1965 amendment persuaded them that Congress had meant to exclude "homosexuals and sex perverts" all along. Boutilier was subsequently deported, ending a loving relationship he had enjoyed with an American. Because it interpreted a vague law in a sweepingly antigay manner and associated "psychopathic personality" with "homosexuality" or even "bisexuality," Boutilier was arguably the most damaging antigay U.S. Supreme Court opinion of the twentieth century.

Immigration and Citizenship, 1967–2003

The Stonewall Riots of 1969 revolutionized federal immigration policy. Once lesbians, gay men, and bisexuals came out of their closets in great numbers and mobilized to protest prejudice and false stereotypes against them, the legal and medical professions reevaluated the old exclusions. Two years after Stonewall, Judge Walter Mansfield ruled that the 1940 naturalization statute did not require that gay and lesbian people be denied citizenship because of their private consensual activities. Judge Mansfield reasoned that the right to privacy the Supreme Court had accorded married couples in Griswold v. Connecticut (1965) also protected gay and lesbian people's intimate relationships from the prying eyes of immigration officials. Although merely a district court opinion, In re Labady (1971) was followed by similar decisions from other judges in the early 1970s. The American Bar Association agreed with Mansfield's interpretation of privacy law when it urged states to repeal their consensual sodomy laws in 1973. Just as the legal community was changing its views on the privacy rights of LGBT people, the medical community was also abandoning its view that LGBT people have inherent mental defects. Empirical evidence had never supported such a viewpoint, and a growing number of respected psychiatrists and medical scientists rejected the notion that sexual orientation is associated with mental dysfunction. Following an unprecedented referendum on the issue among psychiatrists, the president of the American Psychiatric Association (APA) in 1974 wrote the INS, informing the agency of the APA's official action "delisting" homosexuality as a defect or disease and urged the INS to revise its exclusionary policies accordingly.

Bowing to these professional pressures, the INS in 1976 announced that citizenship would not be denied to anyone simply because he or she had been a "practicing sexual deviate," but retained the discretion to deny citizenship to persons convicted of "homosexual act[s]." As for the exclusion of LGBT people from entering the country, the INS felt bound by Boutilier. Ironically, then, an immigrant could be stopped at the border or subsequently deported if he or she were gay or lesbian ( Boutilier ), but once permanently living in the United States, that same alien could become a U.S. citizen ( Labady ). This compromise led to confusion and no consistent policy. In August 1979 the Public Health Service, which administered the medical exclusions on the grounds of homosexuality for the federal government, announced that it would no longer conduct examinations or issue certificates to exclude LGBT people on the grounds of psychopathic personalities. The Surgeon General justified the change as reflecting "current and generally accepted canons of medical practice with respect to homosexuality." In response to this new complication, the INS adopted a "don't ask, don't tell" policy in 1980: immigration officials were instructed to make no inquiries with regard to immigrants' sexual orientation, but were required to bar those aliens who made "unsolicited, unambiguous oral or written admission of homosexuality." The INS applied this new policy anemically, but it was invalidated by the Ninth Circuit Court of Appeals in Hill v. INS (1983). After Hill, the INS continued to take the position that Boutilier barred LGBT people from entering the country, but agreed to waive the exclusion for those who sought such waivers. After a decade of limping along in this manner, the U.S. Congress in 1990 repealed the statutory provision mandating exclusion of people "afflicted" with psychopathic personality and sexual deviation.

The 1990 immigration law also gave the Secretary of Health and Human Services discretion to determine which communicable diseases would be the basis for excluding immigrants. This appeared to reverse the 1987 Helms Amendment requiring that people afflicted with AIDS be excluded from entry, but Congress in 1993 amended the immigration statute specifically to exclude HIV-infected people. To the extent that HIV has been associated with bisexual and gay men, this new exclusion may be viewed to some extent as a replacement for earlier anti-LGBT exclusions; like them, it has excluded certain sexual minorities without actually naming them. Moreover, other indirect exclusions affect LGBT people. American immigration law has long permitted entry and citizenship to aliens who marry U.S. citizens. Although most other industrialized countries are extending similar rights to long-term gay or lesbian partners, the United States has not, as of 2003. While such discrimination does not target gay and lesbian people as previous actions or laws did, it nevertheless affects the lives of thousands of LGBT people.

In a final immigration irony, however, being a despised sexual or gender minority can have one advantage under U.S. immigration law. The INS and the Board of Immigration Appeals have ruled that federal asylum statutes and treaties require the United States to provide asylum to LGBT people and those infected with HIV if they can prove persecution in their home country because of their status. In Pitcherskaia v. INS (1997), for example, the Ninth Circuit Court of Appeals ruled that Russian efforts to "cure" a lesbian petitioner—in keeping with the same medical exclusion that was the foundation for U.S. policy for several generations—now formed the basis for granting her asylum. In one sense, therefore, sexual minorities have come full circle: their orientation no longer bars them from entering the United States, but sometimes provides a basis for otherwise ineligible aliens to enter as asylum seekers.

Bibliography

Bayer, Ronald. Homosexuality and American Psychiatry: The Politics of Diagnosis. New York: Basic Books, 1981.

D'Emilio, John. Sexual Politics, Sexual Communities: The Making of a Homosexual Minority in the United States, 1940–1970. Chicago: University of Chicago Press, 1983.

Eskridge, William N., Jr. Gaylaw: Challenging the Apartheid of the Closet. Cambridge, Mass.: Harvard University Press, 1999.

Eskridge, William N., Jr., and Nan Hunter. Sexuality, Gender, and the Law. 2nd edition. New York: Foundation Press, 2003.

——. "Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961–1981." Hofstra Law Review 25 (1997): 817, 930–939.

Murdoch, Joyce, and Deb Price. Courting Justice: Gay Men and Lesbians v. The Supreme Court. New York: Basic Books, 2001.

William N. Eskridge Jr.

see alsodiscrimination; federal law and policy; health and health care law and policy; medicine, medicalization, and the medical model; migration, immigration and diaspora.