Health based exclusion grounds in United States immigration policy: homosexuals, HIV infection and the medical examination of aliens.

The 1990 Immigration Act formally removed homosexuality from its longstanding position on the list of health-based exclusion grounds in United States immigration policy. Since the early 1900s when health-based exclusion grounds were introduced, a long history of excluding homosexuals has persisted. While the 1990 Congress clearly intended to remove the homosexual exclusion, public support for this controversial new policy is tenuous. As the HIV/AIDS pandemic spreads out of control, prejudice against homosexuals runs deeper than ever in American society. Human Immunodeficiency Virus (HIV) is a recent addition to the list of dangerous contagious diseases for which aliens may be excluded from the United States. Compelling social and economic grounds support its inclusion. The nexus between HIV and homosexuality, however, raises questions as to the immigration status of homosexuals and other persons seeking entry into the United States who, although not infected, are at a high risk of contracting HIV> Although the exclusion of HIV-infected aliens may be a reasonable means of combating the spread of HIV within the United States, it must not be used as a rationale to exclude individuals who may be at risk of contracting HIV. The medical examination of aliens must be tailored to meet the 1990 Immigration Act's objective of preventing the exclusion of homosexuals. Section I of this Note examines the factors influencing United States immigration policy as it relates to homosexuals. Section II provides background information on United States immigration policy, including the origins of the power to exclude aliens from entry into the United States and the allocation of this power within the federal government. Section II also focuses on the procedures by which aliens are excluded for health-related reasons. Section III explores both the historic exclusion of homosexuals from entry into the United States and the repudiation of this discriminatory policy in the 1990 Immigration Act. After the rational bases for this policy are discussed, this Note concludes that the policy is rational in light of the overburdened United States public health system. Section IV criticizes, as unreasonably subjective, recent revisions to the medical examination procedure that grant examining physicians broad discretion to designate an alien excludable upon a finding of a "physical abnormality."