The Immigration and Nationality Act and the Exclusion of Homosexuals: Boutilier v. INS Revisited
![handle is hein.journals/inlr5 and id is 103 raw text is: THE IMMIGRATION AND NATIONALITY
ACT AND THE EXCLUSION
OF HOMOSEXUALS:
BOUTILIER v. INS REVISITED
MARC BOGATIN
Section 212(a)(4) of the Immigration and Nationality
(McCarran-Walter) Act' exclude[s] from admission into the United
States . . . [alliens afflicted with psychopathic personality, or sexual
deviation, or a mental defect.2 This and other provisions of the Act
are jointly enforced by the Immigration and Naturalization Service
(INS) and the Public Health Service (PHS).3 Every alien is inspected
by an INS officer4 at the alien's point of entry into the United
States. A PHS medical officer examines each arriving alien suspected
of suffering a physical or mental defect.5 If the PHS examiner diag-
I Ch. 477, 66 Stat. 163 (1952) (codified at 8 U.S.C. §§ 1101-1503 (1976 & Supp. II 1978)
and in scattered sections of 18, 22, 31, 49, 50 app. U.S.C.). The McCarran-Water Act was the
culmination of an increasingly restrictive American immigration policy. Throughout most of the
nineteenth century the federal government pursued a hands-off immigration policy, made feasi-
ble by the need of an evanescent industrial infrastructure for cheap labor and the development
of the frontier. The isolationist mood of the country in the late nineteenth century, along with
an increasingly cyclical economy subject to severe periodic depressions, prompted a movement
to restrict immigration. Immigrants became less desirable as they became associated with the
labor movement, political violence, and the crowding of cities. Hingham, American Immigration
Policy in Historical Perspective, 21 LAw & CONTEMP. PROB. 213, 213-19 (1956). See also
Fuchs, Some Political Aspects of Immigration, 21 LAw & CoNTEMP. PROB. 270 (1956).
The McCarran-Walter Act was passed over President Truman's veto. 1 0. TRELLES & J.
BAILEY, IMMIGRATION AND NATIONALITY AcTS, LEGISLATIVE HISTORIES AND RELATED
DocuMENTs Introduction (1979). President Truman, in his veto message, called the Act a step
backward. H.R. Doe. No. 520, 82d Cong., 2d Sess. 1 (1952), reprinted in 3 0. TRELLES & J.
BAILEY, IMMIGRATION AND NATIONALITY AcTs, LEGISLATIVE HISTORIES AND RELATED
DocumEr (1979). For a symposium on immigration law, see R. ALEXANDER, A DEFENSE OF
THE McCARRAN-WALTER Acr 382 (1956); Wasserman, Immigration and Nationality Act of
1952-Our New Alien and Sedition Law, 27 TEMP. L.Q. 62 (1953).
2 8 U.S.C. § 1182(a)(4) (1976) (The first or does not appear in U.S.C.).
3 Id. §§ 1224, 1225.
4 Id. § 1225(a).
5 The physical and mental examination of arriving aliens (including alien crewmen)
shall be made by medical officers of the United States Public Health Service, who
shall conduct all medical examinations and shall certify, for the information of the
immigration officers and the special inquiry officers, any physical and mental defect
or disease observed by such medical officers in any such alien. If medical officers of
the United States Public Health Service are not available, civil surgeons of not less
than four years! professional experience may be employed for such service upon
such terms as may be prescribed by the Attorney General. Aliens (including alien
crewmen) arriving at ports of the United States shall be examined by at least one
such medical officer or civil surgeon under such administrative regulations as the
Attorney General may prescribe, and under medical regulations prepared by the
Copyright @ 1981 Cardoza Law Review. Reprinted with permission from 2 Cardoza Law
Review 359 (1981).](ViewImageLocal?handle=hein.journals/inlr5&div=7&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Immigration and Nationality Act and the Exclusion of Homosexuals: Boutilier v. INS Revisited
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most