Homeland Security Singles Out and Discriminates Against HIV-Positive People

(New York, December 17, 2007)  The Department of Homeland Security (DHS) is raising the bar for discrimination against HIV-positive people, reports HIV Law Project. Despite promises in 2006 to ease the devastating consequences of the HIV entry bar, in operation since 1993, the DHS has issued new proposed regulations that further restrict HIV-positive people from traveling to and seeking entry into the United States as temporary visitors.

“The new proposed regulations are harsh and unjustified. They are discriminatory and dangerous. They are of such egregious nature that we can only surmise that they were snuck into being without consultation, without compassion, and without the faintest knowledge about HIV and the conditions confronting HIV-positive people around the world,” said Cynthia B. Knox, Deputy Executive Director at HIV Law Project.

In fact, sneaking through is exactly the DHS approach in this regard. Few were made aware of these new proposed regulations and were allowed only 1 month to respond; less time for those who only became aware of these draconian measures at the end of the 30 day review period. In response, HIV Law Project submitted critical analysis and commentary to the DHS. HIV Law Project condemns the new DHS proposed regulations and calls for their immediate removal. 

“They should have sought out our expertise and consultation beforehand,” said Pamela-Denzer-Torres, immigration specialist at HIV Law Project. “The new regulations proposed by the DHS are so poorly conceived that they not only violate the spirit of due process, but also defy their very own logic to the extent that they cannot be implemented without causing dire and irreparable harm.”

As it currently stands, the HIV entry bar already prohibits HIV-positive travelers from entering the United States without a waiver. One specific problem with the new proposed regulations is that waiver seekers will now be forced in advance to forgo an extension of their stay, a change of nonimmigrant status, or an adjustment of status to that of a permanent resident after they arrive in the United States.

There are a host of legitimate reasons why an individual might seek to extend their stay (e.g. an emergency situation) or become a permanent resident (e.g. political asylum). Despite this fact, the new proposed regulations will impose a permanent ban on travelers who are unable, through no fault of their own, to depart the United States within the 30 days allotted to them. DHS logic follows as such: an individual who has an accident and cannot leave due to a hospital stay will be permanently banned from entering United States again.  The individual granted asylum, ironically due to persecution in his or her home country, will be unable to attain legal permanent residency status, and will remain in limbo indefinitely, barred from medical benefits and employment opportunities, and from becoming a productive citizen of United States. The new DHS proposal threatens to create a separate and unequal class of asylees who, but for their HIV status, will remain forever stateless.

Further, in order to demonstrate a “controlled state of HIV,” as determined by the new regulations, travelers to the United States need to provide proof of medical treatment and financial resources that are often not available to them, particularly for travelers from countries where medical care is less accessible. While the proposed regulations claim to address concerns regarding a potential, but indefinable threat to public health, the possibility of transmission, and unknown financial costs to the United States, they do not contain information as to what constitutes evidence of a “controlled state of HIV” or a lack thereof.  Further, guidelines and specialized training for consular officers, border patrol, and overseas personnel, who will be responsible for making determinations regarding medical etiology, medication, HIV transmission, and public health, is frighteningly absent. “The high rate of travelers who will likely be denied a waiver due to arbitrary, capricious, discriminatory, or simply misinformed determinations becomes further problematic because the proposed regulations do not include a right to appeal,” said Ms. Knox.   

Not only are the new DHS proposed regulations discriminatory and unjust in regards to HIV-positive people seeking entry into the United States, but they make no provision for confidentiality in the application process, which poses a serious threat to the well-being of those seeking entry.  Many would-be travelers live in regions where there is a tremendous stigma attached to HIV-positive status. In addition to having their visas stamped with a waiver that denotes their status as inadmissible, applicants will be forced to disclose their status in public, where the visa application process is generally conducted. “In many cases, applicants will be shunned by their communities and families due to their status. In some cases, as we know, the DHS proposed regulations will, literally, cost people their lives,” said Ms. Denzer-Torres.

The HIV entry bar has been a failure since its inception. It undermines public and individual health and drives up the cost of health care. The American Medical Association, the American Public Health Association, and two Secretaries of Health and Human Services have acknowledged that the HIV entry bar is unjustifiable on public health grounds. The new DHS proposed regulations exacerbate these failures.

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For more information, please contact:

Cynthia B. Knox, Esq., 212.577.3001 ext.234 cbknox@hivlawproject.org

Pamela Denzer-Torres, 212.577.3001 ext. 233 pdenzert@hivlawproject.org