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 beconsidered 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.16 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.
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