Immigration refers to the permanent resettlement of an individual from one country to another, either with legal authorization or without. Travel refers to shorter stays that are intended to be temporary. Both immigration and travel are subject to a variety of restrictions in countries throughout the world, and immigration has often been a source of social and political controversy. The government's ability to restrict entry is rooted in the core principle of national sovereignty that every nation has a basic right to protect itself by controlling its borders.
Among the long-standing grounds of inadmissibility have been health-related reasons, along with disfavored political views, affiliations with terrorist organizations, involvement in international political conflicts, convictions for certain types of crimes, and personal characteristics such as sexual orientation. In the United States, a federal law, known as the Immigration and Nationality Act (INA), sets the terms for who may be admitted and lists several of these grounds.
Since 1987, the United States has banned noncitizens with HIV from entering the country without a special waiver. Regardless of HIV status, every person who is not a U.S. citizen must establish that he or she is admissible to receive official permission, by a visa or otherwise, to enter the United States for any length of time. Few issues in U.S. immigration law have caused as much controversy as this exclusion. The reasons behind it are complex, reflecting ignorance and bias about HIV together with insular instincts that long have shaped the entire body of U.S. immigration law.
The key ground of inadmissibility for people with HIV is found in one provision of the INA, as amended, that requires exclusion of any noncitizen who is determined to have a "communicable disease of public health significance." The law specifies that HIV is such a disease, rendering any noncitizen with HIV inadmissible, absent an official waiver of the ground of inadmissibility. Since 1987, when HIV was added to the exclusion list, the U.S. government has mandated HIV testing of all applicants for immigrant visas, refugee status, legalization, and adjustment of status. Although those seeking nonimmigrant visas, such as visitors' visas, were not subject to mandatory testing, the government has been permitted to test if it suspects that a nonimmigrant is infected.
In 1989, the Immigration Naturalization Service (INS) detained Hans Paul Verhoef, a Dutch citizen who sought to enter the United States to attend an international AIDS conference. Subsequently, a wide range of international organizations, including the World Health Organization, as well as members of Congress and public interest groups condemned the HIV ban as irrational and without public health justification. Additionally, several international organizations announced a boycott of the Sixth International AIDS Conference, held in the United States in June 1990, to protest the U.S. policy. Defenders of the ban, however, urged that the public health would be endangered from the increased risk of HIV transmission by noncitizens and that the U.S. health care system could be bankrupted by the demands of noncitizens with AIDS. In response, the administration of President George Bush created a temporary, ten-day waiver for persons attending academic, professional, or scientific conferences, which did not require that applicants state first whether they are HIV-positive.
In October 1990, the Immigration Act of 1990 (IMMACT 90), which amended the INA, was passed, altering the earlier language of the exclusion provision from "dangerous contagious disease" to "communicable disease of public health significance." The U.S. Department of Health and Human Services then attempted to remove HIV and several other conditions from the exclusion list because such diseases are not transmitted by casual contact, through the air, or through common vehicles such as food or water and because they do not place the general population at risk. A public backlash prevented the removal of HIV from the exclusion list, and in May 1993, Congress approved legislation codifying the exclusion of HIV-infected aliens, which President Bill Clinton signed into law despite campaign promises to the contrary. IMMACT 90 did, however, provide the U.S. attorney general discretion to grant exclusion waivers so long as the waiver applicant satisfies certain criteria pertaining to, for example, stage of illness, length of visit, and insurance coverage. These waivers have been typically issued for athletic events, medical conferences, and short-term visits.
Applicants for immigrant visas (those who seek to remain in the United States) have been held to a much higher standard. Prospective immigrants are eligible to apply for a waiver only if they are the spouse, unmarried son or daughter, or parent of a U.S. citizen or lawful permanent resident. The immigrant waiver application process involves a complete medical exam, an application, and an interview. Under 1996 changes to the immigration law, applicants must meet stringent requirements to prove they have the financial resources to avoid becoming public charges dependent upon the government for health care expenses.
Although the United States has maintained its HIV ban, many other nations have eliminated such restrictions on those entering their borders, following the recommendations of international and domestic public health organizations that a ban is unnecessary and even counterproductive to public health. Indeed, several nations have denounced discrimination against HIV-positive individuals in the immigration context. France and the United Kingdom have admitted noncitizens with HIV as have, for example, Costa Rica, South Africa, and Thailand, all of which lifted HIV exclusion laws and policies.
Russia, Qatar, and the United Arab Emirates are among the few countries that absolutely ban people with HIV from entering their borders. According to a list compiled by the U.S. State Department, a substantial number of countries -- for example, Belarus, China, Guyana, Hungary, and Saudi Arabia -- do not apply an across-the-board ban but instead restrict the entry of people with HIV who seek to remain in the country for more than three to six months or who seek to become students or permanent residents. Other countries require visitors to take an HIV test, but only for lengthy visits, to obtain a work permit, or to apply for citizenship. To defend their restrictions, these countries make arguments similar to those advanced by the proponents of the U.S. HIV ban. In particular, they argue that the introduction of foreigners with HIV is likely to increase transmission within the country. Some hold the view that gay Europeans and Americans, in particular, pose a danger, based on their belief that most Western gay men have HIV and are extremely promiscuous. In addition, the bans' defenders maintain that few or none of those with HIV take adequate precautions to avoid the risk of transmission. To some extent, fear of excessive public health expenditures for foreigners with HIV also motivates the restrictions. Still, the trend has been increasingly for countries to abandon their policies of exclusion.
On a different note, the INS recognized in 1996 that persecution based on HIV may be a basis for granting an individual asylum in the United States. Asylum law provides that a person who is unable to return to his or her home country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion is eligible to seek asylum (and thus remain lawfully) in the United States. People with HIV may qualify for asylum if they can demonstrate that their home government (or a nongovernmental group that their government is unable or unwilling to control) causes "extreme harm" to those who are HIV infected. The INS has noted specifically, however, that inadequate medical treatment and social ostracism by themselves do not amount to persecution. Those who qualify for asylum are eligible to seek a waiver of the HIV exclusion on humanitarian grounds.
Congress, U.S.; Court Cases; Discrimination; International Organizations; Legislation; Migration; Presidency, U.S.; Quarantine
asylum, HIV exclusion, HIV waiver, immigration, refugees, travel
Macko, Lia, "Acquiring a Better Global Vision: An Argument Against the United States' Current Exclusion of HIV-Infected Immigrants," Georgetown Immigration Law Journal 9 (1995), pp. 545-564.
Osuna, Juan P., "The Exclusion from the United States of Aliens Infected with the AIDS Virus: Recent Developments and Prospects for the Future," Houston Journal of International Law 16 (1993), pp. 1-41.
Pendleton, Faith G., "The United States Exclusion of HIV-Positive Aliens: Realities and Illusions," Suffolk Transnational Law Review 18 (1995), p. 269.
Qureshi, Sarah N., "Global Ostracism of HIV-Positive Aliens: International Restrictions Barring HIV-Positive Aliens," Maryland Journal of International Law and Trade 19 (1995), pp. 81-120.
The Encyclopedia of AIDS: A Social, Political, Cultural, and Scientific Record of the HIV Epidemic, Raymond A. Smith, Editor. Copyright © 1998, Raymond A. Smith. Carried by permission of Fitzroy Dearborn Publishers.
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