Like all law students since time immemorial, B.Michael had ample opportunity to practice making their legal arguments in writing. Here is one example. Curious how he went about deciding on this topic for his Immigration Law and Procedure class, and also how “out” he was to this professor or others at the time. Readers who went to law school with B.Michael can feel free to weigh in!
November 23, 1983
ARE HOMOSEXUALS HOME FREE AFTER LESBIAN/GAY FREEDOM DAY COM., INC. v. U.S.I.N.S. 541 F.Supp. 569 (S.D. CAL. 1982) aff’d sub nom. Hill v. I.N.S. 714 F.2d 1470 (9th Cir. 1983)?
In order to answer the question of whether homosexuals are home free after Lesbian/Gay Freedom Day Com., Inc. v. I.N.S. supra., we must expand our inquiry and ask “from what?” If the question is home free from being excluded as a self-declared homosexual alien without medical certification of psychopathic personality, sexual deviation or mental defect, for temporary pleasure visits to the United States, then the answer is yes. But the answer is no if the question is whether an injunction is proper to insure that no alien is excluded from entry into the United States in the future on the basis of their homosexuality per se. Homosexuals are also not home free if the question is whether homosexuals who as resident aliens can be denied naturalization because they were homosexuals at the time they were admitted to the United States. An examination of case law, procedures of the Immigration and Naturalization Service (hereinafter INS), and some political/social comments on our society, will help to illuminate how such definitive conclusions can be reached.
The case law and INS procedure which disposes of the first two aspects of our inquiry involve Carl Hill, a 34-year old native and citizen of England. Hill, on November 5, 1980, sought entry into the United States as a non-immigrant visitor for pleasure. On arrival at the airport in San Francisco, he made, as a matter of principle, an unsolicited statement to the immigration inspector that he was homosexual. The Service then issued a “Notice to Applicant for Admission Detained for Hearing Before Immigration Judge” advising Hill that he appeared to be excludable from the United States under the provisions of Section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(4), as “an alien afflicted with a psychopathic personality, sexual deviation or mental defect.” In re Hill, 18 I&N No. 2873 (1981). At the exclusion hearing, the immigration judge concluded that Hill could not be found excludable from the United States as a homosexual under section 212(a)(4) absent a class “A” certification issued by the Public Health Service (hereinafter PHS). The INS then appealed to the Board of Immigration Appeals, which held that a medical certificate is not required to exclude a self-declared homosexual because such a person fails to carry the burden of establishing that he or she is admissible to the United States. In re Hill, Id. Hill then petitioned the district court for a writ of Habeas Corpus. The district court granted the writ, finding that the exclusion of an alien for affliction with a sexual deviation or mental disorder must be based on a medical certificate. The district court permitted the INS thirty days in which to institute new exclusion proceedings. When no new proceedings were instituted, Hill was admitted into the United States as a visitor for pleasure. The district court also joined the case in which citizens of the United States, under the banner of Lesbian/Gay Freedom Day Committee, brought suit contending that the exclusion of homosexual visitors from entering the United States violates their First Amendment right to freedom of speech and association. The district court granted summary judgment in favor of the Committee and its officers on their claim for a permanent injunction and declaratory relief, holding the INS’ policy of per se exclusion of homosexual aliens invalid as contrary to congressional intent and violative of plaintiffs’ first amendment rights. Lesbian/Gay Freedom Day Com., Inc. v. I.N.S., supra. The government appealed. On appeal, the Court of Appeals held that: (1) the Immigration and Naturalization Service may not exclude self-declared homosexual aliens without medical certification of psychopathic personality, sexual deviation or mental defect, and (2) because it was speculative as to whether any aliens would be excluded in the future on the basis of their homosexuality per se, an injunction preventing such was improper. Hill vs. I.N.S., supra.
What then are the missing pieces which allow Hill to be admitted into the United States but prevents the INS from instituting a system whereby self-declared homosexuals are categorically excluded? One piece is the Board of Trustees of the American Psychiatric Association 1973 vote to remove homosexuality from its list of mental disorders. Another piece is the Surgeon General of the United States revision of PHS’ policy. The Surgeon General instructed PHS officers not to accept immigration referrals for medical examinations, when the sole basis for the referral is to establish homosexuality as a grounds for exclusion. The Surgeon General’s decision to revise PHS’ policy was primarily based upon changes in medical thinking, since homosexuality per se, will no longer be considered a mental disease or defect. Lesbian/Gay Freedom Day Com., Inc. v. I.N.S., supra. The effect of the stand which the Surgeon General took left the Justice Department and Immigration Service in the unenviable position of being charged with the enforcement of a law whose tools of enforcement have been withdrawn. In re Hill, supra.
A reading of the applicable portions of the Immigration and Nationality Act, and corresponding legislative history, indicates the intent of Congress that homosexuality be a medical exclusion, and that therefore a medical certificate is required to exclude a homosexual from entry into the United States. The excludable alien statute places person affected with a psychopathic personality, sexual deviation, or a mental defect among six other classes of aliens excludable for medical reasons. The statute governing the detention, observation and examination of arriving alien also reaffirm the medical basis for the exclusion of homosexuals, and point out the requirement of obtaining a medical certificate aliens. Lesbian/Gay Freedom Day Com., Inc. v. I.N.S., 541 F.Supp. 569, 578. Thus with no mechanism for obtaining the required medical certificate, which Congress intended to be used as evidence for exclusion of alien homosexuals, the INS could not promulgate rules, regulations or procedures which would override Congressional mandates.
The outcome of Hill is significant, since self-declared homosexual aliens implicitly obtained the right to enter the United States for short pleasure visits as well as an implicit concession from the courts that homosexuality could not be defined medically as a sexual deviation or mental defect. Hill is a small battle won, which ultimate impact will be determined, as its principles are applied, in subsequent litigation and Congressional reform. A close look at Hill reveals the court’s willingness to rid itself of the responsibility of ultimately deciding who in fact will give homosexual aliens rights under the law of the United States? The court abdicates their responsibility for additional reform of homosexual alien treatment by the INS to Congress. Indeed, the court of appeals in Hill, by vacating the lower court’s holding that Committee members’ first amendment rights were violated, exemplifies the court’s reluctance to decide broader issues without congressional reform.
A look into the third aspect of our inquiry boldly exemplifies the harsh treatment accorded homosexual aliens who have intentions on spending longer durations of time within the United States. Although the court in Hill is virtually silent on this issue, In re Longstaff, 538 F.Supp. 589 (N.D. Tex 1982) enforced. No. 82-1218, slip op. (5th Cir. Sept 28, 1983) deals with the penultimate problem of obtaining naturalization. On naturalization petition of Richard Longstaff, a 43-year old English immigrant who admitted that he was a homosexual and had been since birth, failed to meet his burden of proving that he had been lawfully admitted to the United States for permanent residence, as he fell not only into the category of excludable alien with psychopathic personality, but also was excludable because he committed sodomy in England before his entry into the United States, a crime involving moral turpitude. 538 F.Supp. 589,@ 590. In light of the court’s holding in Hill, how could the court reach such a conclusion in Longstaff? The Court of Appeals, after extensive discussion canvassing both case law and congressional intent, found that although homosexuality is no longer considered a psychopathic condition as established by the opinion of the government’s highest medical officer, the Surgeon General, they are bound by Boutilier v. I.N.S., 87 S. Ct. 1563 (1967) ruling that the phrase “psychopathic personality” is a term of art, not dependent on medical definition, and by the Congressional bar against persons “afflicted with sexual deviation,” homosexuality can now be demonstrated in INS proceedings only by an alien’s unambiguous admission or by the voluntary statement of a Third person, made without either prompting or questioning. Longstaff was thus barred from naturalization by his own truthful statements that he was excludable as a homosexual at the time of his entry, and therefore, was not lawfully admitted for permanent residence. In re Longstaff, No. 82-1218, slip op. The appeals court also stated that their decision is bound according to a law made in the exercise of a power that is plenary. Further stating that if Congress’ policy is misguided, congress must revise that policy, effectively distancing itself from responsibility by stating, “if the result achieved by the policy is unfair to a deserving person who desires to become a citizen of the United States, the injustice must be corrected by lawmakers. In re Longstaff, id.
The dissent noted that Congress intended to avoid not only an initial exclusion from admission, but also an ex post facto determination for deportation purposes, from being based solely on the non-medical judgment of bureaucratic agencies that a “medical cause of exclusion existed at the time of a person’s admission, when that determination is unsupported by a professional judgement by a member of the medical profession. Longstaff, id.
The appeals court in Longstaff, determination of Longstaff’s plight, raises a greater issue, namely the subjection to deportation of all other persons against whom a governmental agency may assert, as a reason for deportation many years after presumably lawful entry in the United States, a newly discovered pre-admission “medical” cause for exclusion from entry. The ramifications are enormous, especially when there are conflicting positions within the medical community as to whether some condition or lifestyle, such as homosexuality, is in fact outside the traditional norm.
The simplest way to distinguish between Hill and Longstaff is to say that Hill’s case involves requirements for excluding aliens from entry into the United States and that Longstaff’s case involves requirements for noncitizens to become naturalized; but such a distinction would be disingenuous. The courts simply left homosexual aliens with conflicting positions, granting them the right to enter the United States for pleasure visits, but have consistently, through various mechanisms, not gone as far as to declare homosexual aliens rights for full citizenship. Perhaps the following quote from a legal sage will shed some light on the direction the court should take:
… when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment…. If judges have… misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors.
B. Cardozo, The Nature of the Judicial Process, 150, 152 (1921).
© B.Michael Hunter 1983