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 HIVpositive 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.”
“They should have sought out our expertise and consultation beforehand,” said PamelaDenzerTorres,
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 wellbeing
of those seeking entry. Many wouldbe travelers live in regions where there is a
tremendous stigma attached to HIVpositive 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.