The Propriety of Denying Entry to Homosexual Aliens: Examining the Public Health Service’s Authority Over Medical Exclusions

This Note defends the position that the PHS has the authority to define homosexuality for the purpose of the section 212(a)(4) exclusion, and that the PHS definition is binding upon the INS. Therefore, the PHS’s decision to refuse to examine aliens for homosexuality precludes the INS from excluding aliens on that basis. Part I of this Note traces the history of the policy of excluding homosexual aliens. Part II maintains that, regardless of the psychiatric profession’s interpretation of ”psychopathic personality,” Congress intended the expression to encompass homosexuality. Part III contends that Congress intended to empower the PHS to change its policy concerning the exclusion of homosexual aliens. Part IV examines the effect of judicial responses to the PHS’s change in policy on the exclusion, deportation, and naturalization of homosexual aliens, as well as the prospect of congressional resolution of this controversy.