Homosexuality and Immigration

Like many areas of American law, immigration law has witnessed a transformation over time from being less to more protective of the rights of sexual minorities as our conception of what constitutes a legitimate reason to deny a person entry into our country has evolved. Ever since the first federal immigration law was enacted in 1875, the United States has based its decisions on whether to admit or expel noncitizens on whether it views such individuals as fit to be included within American society. Hence, foreigners convicted of particularly heinous crimes have always been deemed ‘‘undesirable’’ under our immigration law. Beyond criminality, psychological infirmity has also long been a factor rendering some ineligible for admission, in part because of its relationship to criminal behavior. Thus, noncitizens who admitted engaging in same-gender sexual relations were excluded under our immigration law because they were viewed as suffering from a mental disorder rendering them unfit for admission to our polity, which the 1967 Supreme Court affirmed in Boutilier v. Immigration and Naturalization Service. When modern science removed homosexuality from its roster of psychological ills, the immigration bar against gays and lesbians was effectively lifted; no longer could they be barred solely based on their sexual orientation.

Since then, gay and lesbian noncitizens have sought and gained protection through two primary channels involving favorable readings of existing law: first, by being admitted as asylum-refugees-and-the-convention-against-torture.html">refugees under our asylum law, which is designed to protect noncitizens from political persecution by their home governments; and second, by being allowed to accompany their same-gender partners who have been admitted as nonimmigrants. In 1990, the Board of Immigration Appeals in In re Toboso-Alfonso recognized that homosexuals could constitute a ‘‘particular social group’’ worthy of asylum status to protect them from official persecution in their homeland. In addition, gay partners of nonimmigrants have been allowed to accompany them, which was reaffirmed in 2001 by a State Department directive reminding U.S. consular posts abroad of this option.

These two specific protections for homosexual noncitizens, however, have not led to a more general acceptance of gays and lesbians under our immigration law. Notwithstanding the narrow admissibility granted same-gender partners of nonimmigrants, same-gender foreign couples, as well as partners of U.S. citizens, are prohibited from immigrating to the United States in the way that heterosexual spouses are, even if another country legally recognizes samegender marriages. In its 1982 ruling in Adams v. Howerton, the Ninth Circuit Court of Appeals upheld the traditional reading given to the definition of ‘‘spouse’’ as applying to heterosexual unions only. Congress effectively codified the Adams decision by passing the federal Defense of Marriage Act of 1996, which specifically defines ‘‘marriage’’ as the union between a man and a woman, in turn similarly restricting the immigration law’s definition of ‘‘spouse.’’ Time will tell whether recent state and local initiatives to expand the definition of marriage to include unions between same-gender partners translates into a similar liberalization of federal laws, including U.S. immigration law.

VICTOR C. ROMERO

References and Further Reading

  • Murdoch, Joyce, and Price, Deb. Courting Justice: Gay Men and Lesbians v. the Supreme Court. New York: Basic Books, 2001.
  • Romero, Victor C., The Selective Deportation of Same-Gender Partners: In Search of the Rara Avis. University of Miami Law Review 56 (2002): 537–600.
  • Scaperlanda, Michael A., Kulturkampf in the Backwaters: Homosexuality and Immigration Law, Widener Journal of Public Law 11 (2002): 475–514.

Cases and Statutes Cited

  • Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982)
  • Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967)
  • In re Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990)

See also Aliens, Civil Liberties of; Sex and Immigration

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