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1986 Immigr. & Nat'lity L. Rev. 137 (1986)
Exclusion and Expulsion of Homosexual Aliens, The

handle is hein.journals/inlr1986 and id is 215 raw text is: The Exclusion and Expulsion of Homosexual Aliens t Samuel M. Silvers* In September, 1983, two United States Courts of Appeals addressed the question of whether an alien may be excluded from entry into the United States solely because of his or her sexual preference. The Ninth Circuit, in Hill v. Immigration and Naturalization Service,I concluded that under the present legis- lative and administrative framework, aliens may not be excluded on the basis of homosexualityperse. The Fifth Circuit, on the other hand, denied naturalization to the petitioner in In re Longstaff 2 It held that because he was a homosexual at time of his entry into the United States in 1965, Richard Longstaff was exclud- able.3 In Part I, this Note describes the enforcement scheme mandated by the Immi- gration and Nationality (McCarran-Walter) Act (INA).4 Section 212(a)(4) of that statute provides for the exclusion of aliens afflicted with psychopathic personality, or sexual deviation, or a mental defect. Later sections require medical certification by the United States Public Health Service (PHS) before an alien suspected of being excludable under section 212(a)(4) can be excluded or deported. Present Immigration and Naturalization Service (INS) procedures do not require such medical certification. Thus, as the Ninth Circuit held in Hill, the present guidelines used by the INS to exclude homosexual aliens fail to comply with the INA. Part II examines Boutilier v. INS,5 in which the Supreme Court, in 1967, decided that Boutilier, a homosexual, could be excluded under section 212 (a)(4) t Reprinted by permission of the copyright owner from 15 Columbia Human Rights Law Review 295 (1984). * Staff member, Columbia Human Rights Law Review (J.D. expected Columbia University 1985, B.A. Columbia College 1982). 1. 714 F.2d 1470 (9th Cir. 1983). 2. 716 F.2d 1439 (5th Cir. 1983), cert. denied, - U.S. -., 104 S. Ct. 2668 (1984). 3. The immigration and naturalization service is now beginning deportation proceedings against Mr. Longstaff, a United States resident for nineteen years. See N.Y. Times, June 3, 1984 at § 1, at 40, col. 1. 4. Immigration and Nationality Act §§ 101-360, codified at 8 U.S.C. §§ 1101-1503 (1982) and in scattered sections of 18, 22, 31, 49, 50 app. U.S.C. (1982). See especially 8 U.S.C. §§ 1182(a), 1222-1226, 1251, 1427 and 1429. For a comprehensive and periodically revised treatment, see C. GORDON & H. RosENFmLD, IMMIGRATION LAW AND PROCEDURE (1982 AND SUPP.). 5. 387 U.S. 118 (1967)(criticized in Note, The Immigration and Nationality Act and the Exclusion of Homosexuals: Boutilier v. INS Revisted, 2 CARDoZO L. REv. 359 (1981) [hereinafter