Human Rights Watch respectfully submits this comment to the proposed federal rule change entitled “Issuance of a Visa and Authorization for Temporary Admission into the United States for Certain Non-immigrant Aliens Infected with HIV” (Docket # USCBP-2007-0084, Fr. Doc. E7-21841.)
The Discriminatory Nature of the “HIV Ban”
Human Rights Watch continues to strongly oppose Section 212(a)(1)(A)(i) – (HIV Inadmissibility Clause) of the Immigration and Nationality Act which has, for 20 years, barred HIV+ immigrants already in the US from attaining any recognized legal status except in extremely limited circumstances, barred HIV+ people from coming to the US to immigrate, and barred HIV+ people who are not US citizens or legal permanent residents from traveling to or transiting through the US1.
Under this statutory “HIV ban,” every applicant for permanent residence over the age of fifteen is required to undergo HIV testing. Applicants for non-immigrant entry are questioned on their HIV status, and if they admit to being positive, can be refused admission. If the government suspects them of HIV infection, it can require an HIV test; people entering the U.S. with HIV medications in their luggage can be questioned or expelled. Non-immigrants who are HIV-positive can request (and can be denied) a waiver for short trips.
Furthermore, HIV-positive persons from wealthy countries, who have visa waiver relationship with the United States are not subject to review by consular officers or DHS when traveling to the United States. In contrast, people living with HIV from African, Asian or Latin America/Caribbean countries, must declare their HIV status as part of visa application procedures.
This law is contrary to international human rights protections against discrimination and serves no justifiable public health purpose. The United Nations International Guidelines on HIV/AIDS and Human Rights note that “There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status.”2
The UN Human Rights Committee—the authoritative body responsible for interpreting the International Covenant on Civil and Political Rights (ICCPR) and monitoring states’ compliance with their Covenant obligations—notes that according to the ICCPR, while a State has the authority to expel aliens from its territory in accordance with domestic law, the State must apply the law in accordance with “such requirements under the Covenant as equality before the law (art. 26).”
Furthermore, the Committee notes that “in certain circumstances, an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.”3. The United States is, of course, a party to the ICCPR.
With specific bearing on the US ban on entry of persons who are HIV-positive, in 1995 the UN Commission on Human Rights, at that time the central UN body charged with monitoring rights violations and interpreting standards, made clear that persons with HIV status are categorically protected from discrimination under international human rights law. The Commission held “that discrimination on the basis of AIDS or HIV status, actual or presumed, is prohibited by existing international human rights standards, and that the term ‘or other status’ in non-discrimination provisions in international human rights texts can be interpreted to cover health status, including HIV/AIDS.”4.
The Proposed Revisions
Although the rule does now permit HIV-positive persons to apply for entry to the US at their local consul’s office rather than via the Department of Homeland Security, we are concerned that the benefit of this clause does not outweigh the additional barriers to entry in the proposed changes.
Under the new rule, immigrants with HIV would still be rendered inadmissible and subject to the 212(g) waiver requirements. Moreover, at least four features of the proposed rule increase the difficulty of entry to the US and are of particular concern:
- Restrictions on extension of stay and/or change in status The current policy does not address the issue of extension of stay, but under the proposed rule, waiver seekers would be required to forgo, in writing, the opportunity to apply for an extension of their stay, a change in nonimmigrant status, or an adjustment of status to that of permanent resident. As written, this would mean:
- Travelers would not be permitted to extend their stays in the US beyond 30 days, should the need arise.
- Should an applicant have the opportunity to apply for a work visa, they would have to return home to do so.
- Applicants would not be allowed to apply for a green card within the United States if entering under this waiver.
It is unclear what, if any, notice is required to be provided to persons seeking a waiver that by proceeding with their application they may be surrendering significant options in the future.
- Controlled state of HIV In the past, waiver applicants had to demonstrate that they were asymptomatic. Under the new rule, they would have to “show a controlled state of HIV such that there is no anticipated need for additional medical care” while in the US. The proposed rule defines a “controlled state” as existing when there are no symptoms of “an active, AIDS-related condition that is contagious or that requires urgent treatment.” This provision increases the already unreasonable burden upon low-income persons and persons from countries with limited access to physicians to provide the required documentation.
- Drug supply Under the proposed rule, applicants would have to establish that they have an adequate supply of antiretrovirals (ARVs) to last for the duration of their trip to the U.S. There is no definition of “adequate” and fails to account for emergency or unforeseen circumstances that may place someone outside of compliance with this provision.
- Expertise and authority Consular officers currently evaluate much of the criteria listed above, conferring upon them an unreasonable degree of authority for technical determinations regarding medical care, medication, transmission, and public health. Furthermore, there is no right of appeal from the decisions of the consular officers.
The proposed revisions outlined above increase the discriminatory nature of this legislation by creating additional barriers to legally enter, and remain, in the United States. Human Rights Watch opposes the issuance of the proposed revisions to the HIV Inadmissibility Clause, and urges that Section 212(a)(1)(A)(i) (the “HIV ban”) be repealed in its entirety.
Sincerely,
Joseph Amon, PhD, MSPH
Director, HIV/AIDS Program
Human Rights Watch
New York, NY
[1The harmful effects of the HIV ban on families and individuals were addressed in the Human Rights Watch/Immigration Equality report Family Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law. May 2006.
[2 Office of the United Nations High Commissioner for Human Rights and the Joint United Nations Programme on HIV/AIDS, "HIV/AIDS and Human Rights-International Guidelines (from the second international consultation on HIV/AIDS and human rights, 23-25 September 1996, Geneva),” U.N. Doc. HR/PUB/98/1, Geneva, 1998.
[3Human Rights Committee, General Comment 15, The Rights of Aliens Under the International Covenant on Civil and Political Rights, HRI/GEN/1/Rev.7, para. 9 and para. 5, online at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bc561aa81bc5d86ec12563ed004aaa1b?Opendocument.
[4UN Commission on Human Rights, “The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS),” resolution 995/44, E/CN.4/1995/176.
