Immigration and HIV Infection

In January, a panel of HIV/AIDS advocates specializing in HIV immigration laws met in New York City to discuss ways HIV-positive individuals can legally immigrate to the United States. The discussion entitled "Recent Developments in HIV-Positive Immigration Asylum and Petitioned Cases: Consequences in Light of September 11th" was sponsored by the Association of the Bar of the City of New York and Gay Men's Health Crisis (GMHC).

The Immigration and Nationality Act (INA) states that "alien(s)who (are) determined... to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome... are ineligible to receive visas and ineligible to be admitted to the United States."

Panelists at the meeting said there are several ways in which an HIV-positive non-citizen can legally immigrate to the US. They include Application for Waiver of Grounds of Inadmissibility, Asylum, Withholding of Removal, and the Convention Against Torture.

For an Inadmissibility application (Form I-1601), an immigrant must:

• Have a qualifying relative (spouse, parent or unmarried son or daughter or minor adopted child) who is a US citizen or legal permanent resident.
• A physician's letter that states he or she is under medical supervision and understands how HIV is transmitted and therefore poses a minimal public health threat.
• Be able to afford his or her medical expenses at no cost to the US government by obtaining private health insurance in the US through legal employment or other means.

For Asylum, an immigrant must show:

• That he or she is a refugee, "who is unable or unwilling to avail himself or herself of protection in that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Denial of medication due to a country's lack of resources is not sufficient to prove persecution. However, if an individual has suffered severe mental, physical and medical persecution due to HIV status, those factors may be grounds for asylum.
• Other factors include social ostracism, police abuse, isolation, or civil discrimination, such as mandatory testing, job loss, and extreme mistreatment and abuse.
• The general rule of thumb for a viable claim is that if a reasonable person judging the facts of the case determines that objectively speaking, the treatment suffered by the individual based on HIV status is sufficiently offensive to shock the conscience, then it could meet the standard for asylum.

For Withholding of Removal, an immigrant must show that it is "more likely than not" that the alien would be persecuted on account of one of the five grounds: race, religion, nationality, membership in a particular social group or political asylum. Unlike asylum, which is discretionary, Withholding of Removal must be granted once the applicant meets the higher burden of proof.

For Convention Against Torture (CAT), an immigrant must prove by a higher standard of "more likely than not" that he or she will be tortured by the government or by the acquiescence of government officials in their country of origin. This may include:

• Isolation due to infection, subject to secret testing resulting in job loss, decreased standard of living, being treated as a social pariah, demonstrating extreme social ostracism, or if medications are impossible to access.
• In societies where HIV is criminalized, an individual may qualify for CAT protection to remain in the United States.

Back to other CDC news for June 7, 2002

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