The United States' HIV Immigration Ban Eliminated? Not So Fast!

In July, Congress passed an amendment that lifted the statutory ban on the admission of people with HIV into the United States as part of the reauthorization of PEPFAR, the global AIDS bill now known as the Tom Lantos and Henry J. Hyde U.S. Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008. Advocates around the world who have worked tirelessly for years on this issue have rightly celebrated this as a significant achievement for people living with HIV/AIDS, immigrant justice and human rights advocates.

Contrary to common perception, however, the ban remains in effect. This win reversed the ban as codified in 1993, but it still lives in regulations promulgated by the Department of Health and Human Services (HHS). In other words, Congress restored authority to HHS, the administrative agency responsible for public health, to determine whether someone's HIV status is grounds for denial of entry. As things currently stand, advocates still have a long way to go before all vestiges of this discriminatory policy are truly eliminated.

A History of the Travel Ban

In 1987, HHS -- working through the Center for Disease Control's Department of Public Health Service -- added HIV to the list of exclusionary "communicable diseases of public health significance" in the Immigration and Nationality Act (INA). Since then, HIV positive immigrants, refugees and travelers have been barred from immigrating, traveling to, or transiting through the United States, unless a discretionary waiver is granted. Furthermore, HIV positive immigrants without a green card who are already in the country have faced tremendous obstacles adjusting their status, and many have been denied access to life-saving health care as a result.

In 1991 and again in 1993, HHS attempted to remove HIV from the list of exclusionary communicable diseases, which would have eliminated the ban. At that time, organized response from conservative politicians and their base in the radical right blocked bringing immigration policy in line with scientific understanding of HIV transmission. In 1992, President Clinton made a campaign promise to lift the ban, but he was forced to renege under pressure from both sides of the aisle. Then in 1993, conservative Senators Don Nickles and Jesse Helms introduced legislation to enshrine the ban in statutory law, stripping HHS and the executive branch of the power to overturn the ban.

Practically speaking, with the ban once again under the purview of HHS, nothing has changed for people living with HIV traveling through or immigrating to the United States. Just as in the past, only in exceptional circumstances -- and usually with good legal help -- can people living with HIV obtain residency in the U.S. via a discretionary waiver. In order to qualify for a green card waiver, an applicant must first prove that they have a close familial relationship -- defined as a parent, child or (heterosexual) spouse -- of a lawful U.S. citizen. Then they must show that their admission into the country will not endanger the public health or create burdensome public health care costs. From 1987 to 1992, while HHS controlled the process, only three such waivers were granted for people living with HIV or AIDS.

Over the past 21 years, the results of this discriminatorily policy have been profound. As Dr. Nancy Ordover, founder of the Coalition to Lift the Bar, summarized during a 2006 congressional hearing:

"The ban has resulted in countless AIDS-related fatalities abroad as individuals are unable to access life-saving medications or are targeted for violence based on HIV status, or real or presumed sexual orientation; and significant health risks inside the U.S., as immigrants, prospective immigrants, and visitors either are actively deterred from seeking HIV testing and treatment, or avoid contact with providers out of fear of putting their immigration status in permanent limbo or worse. If they are low-income or poor, they either don't have recourse to the full slate of public programs and services they need to stay healthy or may be unaware of what services they are entitled to. Simply put, this policy has been a wholesale violation of human rights and a threat to public health inside and outside the U.S."

While the restoration of authority to HHS is a significant step forward in ultimately doing away with the ban, advocates must pressure the agency to remove HIV from the list of "communicable diseases of public health significance." As Dr. Ordover explained in a recent conversation, "HHS is where the ban lived, administratively, for the first six years of its life [1987-1993], and it did plenty of damage there. If the entry ban ends up solely an HHS matter, it will be critical for us to maintain our vigilance and unity, so that the administration doesn't split the ban -- lifting it for travelers and some visa holders, but keeping it in place for long-term visa seekers and immigrants."

Support to Eliminate the Ban

Advocates across the country and worldwide are supporting a full repeal of the U.S. HIV-related travel and immigration ban. To pressure HHS Secretary Michael Leavitt and the new administration to eliminate HIV from the list of communicable diseases, advocates have issued a number of organizational statements of support, action alerts, and sign-on letters calling for just that. Earlier this month, Congressional champions, led by Representatives Henry Waxman (D-CA), Barbara Lee (D-CA), and Howard Berman (D-CA), sent a letter to President Bush urging him to remove HIV from the list of exclusionary communicable diseases.

In the coming months, Secretary Leavitt, in consultation with the Department of Homeland Security, will convene a panel of experts (hopefully including representatives from non-governmental organizations) to review the immigration ban. Additionally, proposed revised regulations will be open to a public comment period. The results of the comment period will be reported to Congress and published in the Federal Register.

Lessons From the Past

A cautionary tale for what may lie ahead: In 1991, then Secretary of HHS Louis Sullivan proposed revised regulations that would have eliminated the HIV ban. However, right wing leaders were able to galvanize their constituency to submit an unprecedented 35,000 letters and postcards opposing the proposal. Only after the public comment period was extended did immigrant rights and the LGBT communities respond in force with over 110,000 letters supporting removal of the ban. Despite this show of support, the highly public and politicized nature of the debate and the strong anti-immigrant fervor of the time (similar to that of today) prevented any action after the comment period ended.

More recently, in November of 2007, the Department of Homeland Security, at the request of the Bush Administration, touted new proposed streamlined rules that they alleged would speed up the process by which HIV positive foreign nationals could get a short-term travel visa into the country. However, the proposed rules, in effect, would have made it even more difficult and problematic for people living with HIV to travel to the U.S.

A Need for Continuing Advocacy

Lifting the ban will be just another beginning. According to Vishel Trivedi, immigration project manager at Gay Men's Health Crisis, "Once we're confident that HHS will remove HIV from the list, we need to focus on more practical aspects of eliminating the vestiges of this discriminatory policy." Immigrations and Customs Enforcement (ICE) will have to identify and release everyone currently in detention because their HIV positive status made it impossible to adjust their immigration status, and all ICE officials, immigration judges, and counselor and embassy personnel abroad must be instructed that HIV is no longer grounds for inadmissibility.

There is also a database controlled by the U.S. Department of Homeland Security and U.S. State Department of all individuals who have applied for an HIV-related discretionary entry waiver that includes their names, countries of origins and other identifying indicators. As Trivedi explained, "The names in this database clearly must be expunged, and the database itself must be destroyed."

In order to truly lift the ban and ensure that the needs of HIV positive travelers and immigrants are met, the advocacy community must come together and focus its attention on HHS to remove HIV from the list of communicable diseases. Once that victory is achieved, there will be ongoing work to remove all other vestiges of this discriminatory, fear-based policy, including meaningful access to health care and HIV prevention for foreign born people living in the United States.

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