Jaime Bellemare PSC 384 Research Paper May 3, 2011 Queer Exclusion in U.S.

Immigration Law INTRODUCTION From 1965 until 1990 the U.S. Immigration and Nationality Act explicitly denied LGBTQ persons admittance to the United States. Before 1965, language barring LGBTQ individuals from immigrating may have not been clearly solidified in legislation, however, Boutilier v INS set a first precedent saying queer immigrants were not welcome. LGBTQ people may have won the right to immigrate to the United States in 1990, but still face unfair treatment in access to immigration benefits. Once the discriminatory ban was repealed, government officials took it upon themselves to create laws that would specifically affect the LGBTQ community and individuals wanting to immigrate to the US. Despite the fact that the United States repealed the ban on LGBQ immigrants back in 1990, queer immigrants have been purposely blocked from gaining ground in immigration rights. LGBTQ immigration rights are often separated from discussions around immigration reform. Proposed legislation to provide immigration rights to LGBTQ individuals often relies on single-issue politics. This type of identity politics, which addresses the exclusion of LGBTQ immigration rights as separate from the exclusion of immigration rights in relation to race and class is ineffective and actually harmful to the LGBTQ community. By implementing new and stricter policies and legislation around immigration, the US has found ways to actively exclude LGBTQ individuals from immigration without having to outwardly ban the immigration of homosexuals to the United States.

THE IMMIGRATION AND NATIONALITY ACT Modern Immigration law is based on the Immigration and Nationality Act of 1952. At the time this act was created, regulating immigrant quotas based on nationality was a primary concern and so, the Immigration and Naturalization Services (INS) was created (Cornell, Legal Information Institute). The INS became responsible for deciding who was allowed to stay in the United States and who would be deported. Although homosexuality was not specifically mentioned in U.S. immigration law until 1965, courts interpreted the laws to exclude homosexuals from the right to immigration (Boutilier v. INS). Boutilier v INS is one of the most prominent LGBTQ immigration legal cases. In 1955 a man from Canada was admitted to the United States temporarily, he came to the U.S. again in 1959 and applied for citizenship in 1963. It was at the time of his application for citizenship when the INS began to look into Boutiliers past. An arrest in 1959 on a sodomy charge lead the INS to look deeper into Boutiliers sexual history, despite the fact charges had eventually been dismissed. Boutilier was openly homosexual which lead to the INS denying his application for citizenship under the grounds that sexual deviation was included under the Immigration and Nationality Act of 1952 which restricted persons with psychopathic personalities from immigrating to the US (Boutilier v INS). Boutilier fought the decision as he was faced with deportation. Although the term psychopathic personalities was vague and therefore allowed room for interpretation, the INS argued that whether or not the term intended to include homosexuality or not, it did in fact include sexual deviation. At the time sodomy was a criminal act and was therefore accepted to be included under this category. Despite efforts to challenge the

constitutionality of the argument, the court ruled in favor of the INS in 1967setting a precedent that homosexuals would not be granted immigration rights (Boutilier v. INS). Prior to the 1952 Immigration Act which classified homosexuality as a psychopathic personality, the 1917 Immigration Act excluded persons who were mentally defective from immigrating to the United States (Young, 2009). Taking the decision made in Boutilier v INS into account, it is likely that at the time homosexuals would be classified under this category. The year of 1965 indicated progress in the eyes of many, as many nationality quotas were lifted and Chinese immigrants were accepted in the United States on a much larger scale since The Chinese Exclusion Act (Daniels, 2008). This same year, however, homosexuals were defined as sexual deviants under immigration policy.

THE REPEAL OF EXCLUSION The ban on queer immigrants was not lifted until 1990 (Young, 2009). However, in 1981 a Federal district judge in San Francisco ruled that the government could not exclude people from entering the US because they were homosexuals (AP, 1981). A non-citizen who self identified as homosexual was trying to visit the US when he was excluded from entry because of his sexual orientation (541 F. Supp. 569). Along with him, a lesbian and gay organization sought to fight the INS and the homosexual exclusion policy on the basis that is violated first amendment rights (541 F. Supp. 569). The judge ruled that an individuals sexual orientation could not be used for exclusion because it violated first amendment rights to freedom of association and speech (541 F. Supp. 569). This position was supported in a 1983 subsequent case in which the Immigration and Naturalization

Services repealed, but the ban was not formally lifted until 1990 (714 F.2d 1470). Representative Barney Frank sponsored an amendment to the 1990 immigration bill that removed anti-gay language from the family unity act allowing LGBQ people to immigrate to the United States and making it possible for the HIV/AIDS ban to be lifted in the future (Nealon, 1990). However, in 1993 the HIV/AIDS ban was codified into law making repeal much more difficult.

IMMIGRATION POLICY AND HIV/AIDS When the Reagan administration finally recognized the HIV/AIDS pandemic in the late 1980s, the government turned its focus to ways in which to control people who had the disease. The distinction between Reagans attempts to control the individuals who had HIV/AIDS rather than controlling the disease itself is a clear indication of how the government viewed the heath crisis. There were few resources used to help those who were already infected or at risk, but rather efforts were focused on protecting those who were not deemed at risk. HIV/AIDS was regarded as a gay disease, and the HIV ban initiated in 1987 turned into law shortly after the immigration ban on homosexuals was lifted, creating a ban that attempted to once again exclude LGBTQ individuals from entering the United States. AIDS was added to a list of diseases used to exclude persons from entering the United States in 1987. The Department of Health and Human Services added AIDS to the list under pressure from the Reagan administration, however, it was noted that there wasnt clear reasoning to do so (AIDS Treatment News, 2011). Not long after, under the Clinton administration, Congress voted unanimously to make this ban into law further

showing the panic created around HIV/AIDS and how it demonized LGBTQ individuals. This was conveniently passed right after the immigration ban on homosexuals was lifted. The Congressional members who supported making the HIV ban reasoned their feelings by saying if individuals with HIV were allowed to immigrate to the US the disease would spread, raising medical costs and financial need, however, this was not supported by any evidence (ACTUP NY). This 1993 decision made HIV the only disease explicitly noted in immigration law (Superville, 2009). In 2008 President Bush signed a bill into law that would lift the HIV/AIDS immigration ban, however, this law was never implemented (Harmon, 2009). The repeal was part of a 5 year AIDS relief bill to provide assistance to those affected with HIV/AIDS in other parts of the world (Mitka, 2008.) Although President Bush is on record discussing repeal of the ban since 2006, the lack of implementation and his position on LGBTQ issues makes it difficult to see the repeal of the HIV/AIDS ban as anything more than a political tool to gain both domestic and international support. In January of 2010 the Obama administration officially lifted the HIV ban. The president announced in late 2009 that he planned to issue an executive order to lift the ban (Superville, 2009). Enforcement of the HIV ban had been lessened from 2008 to 2010 after President Bush removed the ban from statute and gave the Secretary of Health and Human Services control over whether HIV should remain on the list of diseases that bar individuals from immigration to the US (HRC, 2010). President Obama was quoted as saying the HIV ban was rooted in fear rather than fact. (BBC News, 2010). This statement is consistent with many of the opinions expressed by the heath service community when they were

pressured into adding the ban back in 1987. For the first time since the early 90s, a world conference on HIV/AIDS will be held in the US in 2012.

BI-NATIONAL COUPLES AND DOMA Bi-national same-sex couples continue to face immigration difficulties, especially under the federal Defense of Marriage Act, which was issued in 1996. Congress adopted DOMA shortly after the Hawaii Supreme Court ruled that the states marriage laws were in fact discriminatory because they did not allow same-sex couples to marry. In Baehr v Lewin, the Hawaii court system said the discrimination was unjustifiable, but the state appealed (Baehr v Lewin). These rulings made national headlines, fueling conservative forces (Lambda Legal). A 1998 constitutional amendment targeting same-sex relationships was added to Hawaiis law, making it impossible for the court system to argue same-sex couples should be granted the legal right to marry (Lambda Legal). Although Baehr v Lewin was unsuccessful and potentially harmful to the larger LGBTQ rights movement, the courts initial decision put the same-sex marriage discussion on the table. States started passing constitutional amendments to ensure that same-sex marriage would not be allowed within their state lines, and that they would not have to recognize the marriages of same-sex couples from other states. In 1996 DOMA was signed into law, creating a federal law that only recognizes marriage between a man and a woman. This federal law created a new hurdle for LGBTQ individuals who wanted to immigrate to the United States and it continues to do so today. A family member, often a spouse, sponsors majority of those who are granted citizenship within the United States. For samesex couples, these immigration benefits are not accessible even if they have a state issued

marriage license. This creates a challenge for LGBTQ non-citizens currently living in the United States, especially for those in bi-national relationships. The 2000 US census estimated that 35,820 bi-national same sex couples live together in the United States, making up six percent of all LGBQ couples in the country (Human Rights Watch & Immigration Equality, 2006). Many bi-national couples fear publicly telling their stories because when one renews a visa they must declare that they have no intent on permanently residing within the United States. If an individual is publicly on the record fighting for LGBTQ immigration rights, this can affect whether or not their Visa will be approved in the future. There have been few court cases attempting to challenge the immigration law that prohibits a US citizen in a bi-national same-sex relationship from sponsoring their partner for immigration. This is likely due to the difficult nature of challenging federal immigration law, especially when the stakes are high and could likely result in deportation if the noncitizen is already in the US. In 1980, however, Richard Adams and Anthony Sullivan went to court to challenge the INS in relation to this policy. The two men, one a US citizen and the other a foreign national, went through a commitment ceremony (they stated that they were married) and argued that they should be considered immediate relatives and therefore have the immigration benefits attached to such a marriage (486 F. Supp. 1119). The men argued that to deny them those benefits was unconstitutional under the Due Process and Equal Protection clauses (486 F. Supp. 1119). The court ruled that two individuals of the same sex could not be considered spouses for immigration purposes and that Congresss power in regard to immigration law reserved them the right not to extend federal immigration benefits to the men (486 F. Supp. 1119).

In February of 2011 the Obama administration ordered that the Justice Department stop defending DOMA in court (Rayfield, 2011). Although this was a step in the right direction for same-sex couples, DOMA can still be defended through other governmental outlets. The decision to stop defending DOMA, however, seems to be part of a larger effort by the Obama administration to challenge federal issues of discrimination based on sexual orientation. In March of 2011 the Obama administration went one step further and attempted to order a hold on all immigration cases involving married gay couples (Rayfield, 2011). Although immigration lawyers have said this movement could help stop the deportation of individuals who are in same-sex marriages, US Citizenship and Immigration Services are now saying that there will be no hold and immigration proceedings will carry on as they have in the past (Memmott, 2011). The implementation of DOMA has been an active force in restricting LGBTQ individuals from immigrating to the United States for the past fifteen years, working along with other policies like the HIV/AIDS ban.

UNITING AMERICAN FAMILIES ACT The Uniting American Families Act, previously introduced as the Permanent Partners Act in 2001, is the proposed legislation that would give same-sex couples the right to sponsor one another for immigration purposes in the United States. UAFA would include the term permanent partners in the Immigration and Nationality Acts definition of family (Walters, 2009). In doing this, same-sex couples would be treated the same as different-sex couples in ways of immigration law, but same-sex couples would not need to be married. Although they would still need to prove that they are in a permanent partnership, the Uniting American Families Act recognizes that few same-sex couples have the right to

marry. The legislation, however, would not extend to different-sex couples who are not married (Walters, 2009). Currently, DOMA and the Immigration and Nationality Act prohibit LGBTQ people living in the United States from having a partner in another country (Walters, 2009). The Uniting American Families Act would eliminate this inequality allowing same-sex couples to maintain their rights to due process and equal protection, without the federal government having to recognize same-sex marriages. In this way, UAFA is only a short term fixing, but one that is more politically feasible than trying to implement full federal marriage benefits for same-sex couples. Immigration Equality, the leading group working for LGBTQ immigration rights, believes that UAFA is the best way to move forward in solving the problems around bi-national same-sex couples working through legislative routes rather than through the court system since immigration rights are strongly influenced by Congressional opinion (Immigration Equality, 2009). Although the Uniting American Families Act would only begin to solve the immigration problems facing LGBTQ individuals, it may be an important step in the progression of LGBTQ rights. Currently, twenty-two countries recognize same-sex couples for immigration purposes, many of these top allies of the US (Human Rights Campaign, 2008). The Uniting American Families Act was introduced into Congress in 2007, but has yet to make any significant progress. Many critics of the bill believe it will leave an opening for same-sex marriage to be legalized throughout the country.

THE DREAM ACT

Representations of LGBTQ immigration battles in media and political spheres often neglect to address undocumented immigrants currently living in the United States. Many LGBTQ individuals live in the US without proper documentation in fear of being deported and torn away from their families. This undocumented status makes it difficult for individuals to come forward and fight for immigration rights, but it also makes it difficult to financially support ones family because of work regulations (Human Rights Watch & Immigration Equality, 2006). The DREAM Act of 2009 was a proposal created to allow individuals age 35 and younger, living in the United States without documentation to obtain lawful residency (DREAM Activist, 2009). There are certain requirements that individuals would need to meet in order to qualify for the program. Those who meet the requirements would then be given six years to obtain a two-year college degree1 or complete two years of military service. As this legislation was proposed and represented in the media, it was framed as a way to legalize illegal immigrants and without mention of the LGBTQ community. However, many LGBTQ immigration activists largely supported the DREAM Act and many of the undocumented youth pushing this bill were LGBTQ identified (Anonymous, 2010). In July of 2010 a group of queer undocumented youth gathered outside of the Los Angeles offices of Senator Dianne Feinstein to take part in a hunger strike to raise awareness and support the DREAM act. Members of the group spoke about the challenges of being queer and undocumented and the importance of getting the DREAM act passed in Congress The Dream Act also would repeal section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, allowing undocumented students to receive tuition benefits.
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(Arellano, 2010). The executive director of Immigration Equality, Rachel Tiven, was quoted as saying that supporting passage of the DREAM act was an important first step in addressing all of the obstacles and inequalities that LGBTQ immigrants and their families face under our current immigration system (Anonymous, 2010). Unfortunately, mainstream LGBTQ organizations and the media did not get the message that the DREAM act was an important LGBTQ issue. In fact, the DREAM act was voted on in Congress the same day as legislation to repeal Dont Ask, Dont Tell. The two pieces of legislation were presented as if they had no connection and were instead pitted against one another. While mainstream LGBTQ rights activists were celebrating the approval to repeal Dont Ask, Dont Tell, LGBTQ activists who were also present to witness the congressional voting on the DREAM Act were asked to leave. The celebration around the Dont Ask, Dont Tell victory was said to have created a disturbance, violating the policies of congressional proceedings. LGBTQ activists supporting the DREAM act were met with disappointment because not only did the DREAM act not pass, but they also had to leave the congressional hearing under the assumption that they were not affiliated with the legislation. While the LGBTQ community united around the repeal of Dont Ask, Dont Tell the DREAM act loss was hardily, if at all, represented as a loss for the LGBTQ community. The framing of the DREAM act as unaffiliated with the LGBTQ community is another way in which LGBTQ individuals have been purposely kept from gaining immigration rights in the United States.

RACE, CLASS, AND QUEER IDENTITIES Discussion around LGBTQ immigration rights is often limited to single issue and identity politics. In discussing how LGBTQ individuals are treated under immigration law, we must look at all ways in which people have been kept out of the US and all attempts at immigration reform. The mainstream LGBTQ movement often focuses on bi-national couples and how lack of same-sex marriage rights affects LGBTQ individuals looking to immigrate to the United States. Outside of the Uniting American Families Act and the marriage debate, however, there are many LGBTQ individuals looking to immigrate to the United States or who are in the United States without legal documentation. To discuss LGBTQ immigration reform separate from comprehensive immigration reform ignores the presence of LGBTQ people fighting for entry into the US whose sexuality may not be at the center of their immigration fight. That does not mean, however, that these immigration battles are not LGBTQ battles. Often, LGBTQ rights leaders forget the immigration battles that LGBTQ individuals face because of race, class, nationality, etc. As organizations like HRC are run and supported mainly by white, middle to upper class men, the concerns of other LGBTQ communities often go unrepresented. Legislation like the Uniting American Families Act may help some individuals gain entry into the United States, but they rely on privileged notions of class and marriage/partnerships. Many LGBTQ immigration activists actually believe that UAFA will be a distraction from larger comprehensive immigration law, further discriminating against particular groups of LGBTQ people (Nair, 2009). As seen in the case of the DREAM Act- the limited spectrum of issues taken up by the mainstream LGBTQ

movement ignores the needs of LGBTQ persons and often adds to the hardships of undocumented, lower income, queer people of color.

CONCLUSION The exclusion of LGBTQ individuals from the right to immigrate to the United States may have been repealed in 1990, but the US has continuously implemented new policies to actively limit the immigration rights of LBGTQ people. Once the ban on homosexuals was repealed the government quickly implemented the HIV/AIDS ban. At the time, HIV/AIDS was largely associated with the LGBTQ community and although there was no medical reason to implement such a ban, it was signed into law. With the signing of DOMA in 1996, the United States only further strengthened their ability to keep queer bodies out of the United States. Today, as LGBTQ rights groups and progressive politicians work toward helping LGBTQ individuals obtain immigration benefits, the requirements of financial stability and a permanent partnership only further discriminate against LGBTQ individuals who do not fall into this privileged category. In order to make true progress for LGBTQ immigrants, comprehensive immigration reform is needed to address all of the factors that actively discriminate against individuals seeking entrance or legal residency in the US. The reluctance to work on comprehensive immigration reform is just another way that the United States continues to exclude queer bodies from gaining immigration rights in the US.

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