Immigrant Rights in the Shadows of Citizenship

Primary Source: Boutilier v.Immigration Service, 1967

79 Primary Source Boutilier v. Immigration Service, 1967 As Scott Long, Jessica Stern, and Adam Francouer argue, Boutilier v. Immigration Service, in 1967, was an important case in the history of lesbian, gay, and transgender immigrant rights. In this case, the Supreme Court drew on psychological research stigmatizing homosexuality and found that homosexuality constituted grounds for exclusion and deportation under the 1952 McCarran-Walter Immigration Act. The pathologization of sexual identity in this case marks the first time that homosexuality is referred to specifically in immigration law. The issues raised by this important case still affect immigrant rights for LGBT people. U.S. Supreme Court BOUTILIER v. IMMIGRATION SERVICE, 387 U.S. 118 (1967) BOUTILIER v. IMMIGRATION AND NATURALIZATION SERVICE. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 440. Argued March 14, 1967. Decided May 22, 1967. Petitioner, an alien who at the time of his entry into the United States was a homosexual, held excludable under 212 (a) (4) of the Immigration and 80 boutilier v. immigration service, 1967 Nationality Act of 1952, as one “afflicted with [a] psychopathic personality ,” a term which Congress clearly intended to include homosexuals. Pp. 120–125. 363 F.2d 488, affirmed. Blanch Freedman argued the cause for petitioner. With her on the briefs was Robert Brown. Nathan Lewin argued the cause for respondent. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson and Philip R. Monahan. Briefs of amici curiae, urging reversal, were filed by David Carliner, Nanette Dembitz and Alan H. Levine for the American Civil Liberties Union et al., and by the Homosexual Law Reform Society of America. MR. JUSTICE CLARK delivered the opinion of the Court. The petitioner, an alien, has been ordered deported to Canada as one who upon entry into this country was a homosexual and therefore “afflicted with psychopathic personality” and excludable under 212 (a) (4) of the Immigration and Nationality Act of 1952, 66 Stat. 182. 8 U.S.C. 1182 (a) (4).* Petitioner’s appeal from the finding of the Special Inquiry Officer was dismissed by the Board of Immigration Appeals, without opinion, and his petition for review in the Court of Appeals was dismissed, with one judge dissenting. 363 F.2d 488. It held that the term “psychopathic personality,” as used by the Congress in 212 (a) (4), was a term of art intended to exclude homosexuals from entry into the United States. It further found that the term was not void for vagueness and was, therefore, not repugnant to the Fifth Amendment’s Due Process Clause. We granted certiorari, 385 U.S. 927, and now affirm. I. Petitioner, a Canadian national, was first admitted to this country on June 22, 1955, at the age of 21. His last entry was in 1959, at which time * “SEC. 212. (a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States. . . .” (4) Aliens afflicted with psychopathic personality, epilepsy, or a mental defect. . . .” Section 241 (a) (1) of the Immigration and Nationality Act, 66 Stat. 204, 8 U.S.C. 1251 (a) (1), provides that: “Any alien in the United States . . . shall, upon the order of the Attorney General, be deported who (1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry. . . .” Boutilier v. Immigration Service, 1967 81 he was returning from a short trip to Canada. His mother and stepfather and three of his brothers and sisters live in the United States. In 1963 he applied for citizenship and submitted to the Naturalization Examiner an affidavit in which he admitted that he was arrested in New York in October 1959, on a charge of sodomy, which was later reduced to simple assault and thereafter dismissed on default of the complainant. In 1964, petitioner, at the request of the Government, submitted another affidavit which revealed the full history of his sexual deviate behavior. It stated that his first homosexual experience occurred when he was 14 years of age, some seven years before his entry into the United States. Petitioner was evidently a passive participant in this encounter. His next episode was at age 16 and occurred in a public park in Halifax, Nova Scotia. Petitioner was the active participant in this affair. During...