Excerpted From: Logan Bushell, “Give Me Your Tired, Your Poor, Your Huddled Masses”--just as Long as They Fit the Heteronormative Ideal: U.S. Immigration Law's Exclusionary & Inequitable Treatment of Lesbian, Gay, Bisexual, Transgendered, and Queer Migrants, 48 Gonzaga Law Review 673 (2012-2013) (166 Footnotes) (Full Document)


LoganRichardBushellIn 1975, Richard Adams, a United States citizen, petitioned to sponsor his same-sex partner Anthony Sullivan, a citizen of Australia, for permanent residency in the United States. In response, the Immigration and Naturalization Service (“INS”) denied Adams' petition. The legal reasoning for the denial? Adams had “failed to establish that a bona fide marital relationship can exist between two faggots.” At first blush, it may be tempting to excuse the INS' incendiary policy and unabashed language as the action of a rogue INS official or the pardonable byproduct of an intolerant (and long forgotten) time-period. Yet as recently as 2005, the petition of a United States citizen to sponsor his Yugoslavian same-sex partner for a visa was denied because, as the visa officer explained, “they don't give visas to fag couples.” Indeed, these two accounts are not isolated incidents of discriminatorily executed immigration denials. To the contrary, these accounts, and thousands more, poignantly illustrate the U.S. immigration legal system's treatment of lesbian, gay, bisexual, transsexual, and queer (“LGBTQ”) migrants within the U.S. immigration legal system--a policy nearly two centuries in the making.

Despite the inclusionary call for the tired, the poor, and the “huddled masses yearning to breathe free” from other nations, U.S. immigration law is, necessarily, founded in policies of exclusion and preclusion. Indeed, at its core, U.S. immigration law aims to include some and exclude others, effectively shaping and molding a preferred populace. In other words, U.S. immigration laws have historically acted to either embrace desired persons or reject those deemed “undesirable.” From the earliest onset of governmental regulation, immigration laws have carried out this objective by establishing immigration barriers for a myriad of “undesirables.”

Historically, such barriers were often constructed upon racial and ethnic lines, with the intent of constraining which races or ethnicities “could be considered an actual or potential ‘American.”’ Yet while considerations of race and ethnicity have played major roles in shaping U.S. immigration law and policy, so too have considerations of sexuality-- specifically in regards to LGBTQ persons. Indeed, U.S. immigration law and policy has historically regarded LGBTQ migrants as “undesirable” threats to a preferred populace exhibitive of heteronormative ideals. As a result, the history of U.S. immigration law and policy is replete with both explicit and implicit efforts to turn LGBTQ migrants' “sexualities, desires, and lifestyles into objects of interrogation, debate, censure, control, and exclusion.”

The last two decades have brought significant reform to such explicitly discriminatory law and policy. On the surface, such steps may be lauded as progressive and inclusive of LGBTQ migrants. When analyzed more carefully, however, such supposed “advancements” in U.S. immigration law and policy--held out as made on behalf of LGBTQ migrants--often prove merely pretextual. Schematic and procedural requirements, coupled with legislative enactments, regularly replace the eliminated explicit grounds for exclusion with an identical, if not larger, obstacle than had previously existed.

In 1990, for example, a migrant's sexual orientation was officially removed as a basis for exclusion. Years prior, however, U.S. immigration law shifted its focus towards a policy of “family reunification.” As a result of this policy shift, by the time sexual orientation was finally ousted as explicit grounds for exclusion in 1990, migrant sponsorship via direct family relationships was the most common method for becoming a legal permanent resident (“LPR”) within the United States. Yet under this procedural schema, relationships that include an LGBTQ migrant do not qualify as legitimate familial ties for sponsorship purposes. Bolstering this exclusionary definition, Congress passed the Defense of Marriage Act in 1996, defining marriage at the federal level--and therefore for all immigration purposes--as a familial relationship between a man and a woman. The message was loud and clear: families consisting of LGBTQ migrants are not of the desirable and suitable type that U.S. immigration law and policy aim to “unify.” Thus, despite being removed as an explicit basis for exclusion in 1990, sexuality remains an effective impediment for LGBTQ migrants within the U.S. immigration system, revealing the enormous disparity between eliminating “explicit discrimination from the law and ensuring that equal access can be realized” in real-world application.

Affording historical insight, this article first details the most significant developments of U.S. immigration law and policy pertaining to the regulation of sexuality. In so doing, it becomes clear that LGBTQ persons have long been considered “undesirable.” Second, this article examines the manner in which U.S. immigration laws and policies have been used as an effective tool to regulate and exclude LGBTQ migrants for more than 130 years. Third, this article posits that nearly all “progressive” advancements made for the benefit of LGBTQ migrants have been purely pretextual. Indeed, history is chockfull of instances of equally discriminatory changes elsewhere in the law, procedures, or culture following hot on the heels of any progressive advancement. As a result, LGBTQ migrants remain disenfranchised. Lastly, this article argues for a change in this historical pattern. The most recent policy shift appears, on the surface, to benefit LGBTQ migrants. However, unless official legislation solidifies this policy shift, the pendulum is bound to shift back towards discrimination, exclusion, and marginalization.

[. . .]

Heteronormative ideals have long been a concern to the framers of United States immigration law and policy, and sexuality has consistently comprised an important consideration for the regulation of newcomers. Consequently, from the earliest forms of immigration regulation, LGBTQ migrants have been systematically excluded from the immigration process. Time after time, immigration laws and policies have labeled LGBTQ migrants with various forms of derogatory terminology, always with the goal of exclusion and always for the purpose of building a preferred populace. There was no mistaking the message: LGBTQ persons do not belong. Even when progressive measures have been taken in what appears to be advantageous for LGBTQ migrants, such measures prove merely pretextual and fleeting.

Every day LGBTQ migrant families suffer the consequences of the United States' unfair laws that do not permit U.S. citizens and legal permanent residents to petition for lawful permanent residence for their same-sex spouses or partners. While important steps toward equality for LGBTQ immigrant families have recently been taken, it is naïve to assume that history will not repeat itself. Until the Uniting American Families Act is passed, many of these families continue to live with the daily fear of forced separation and marginalization. Indeed, until then, the inclusionary call for the “tired, poor, and huddled masses yearning to breathe free” comes with an exclusionary caveat: “except for those who are LGBTQ migrants.”

J.D., Gonzaga University School of Law, 2013; B.A., University of Utah, 2010. Managing Editor, Gonzaga Law Review, 2012-13.