In late July, Brian Hastings, chief of law enforcement operations with U.S. Customs and Border Patrol, made a statement that he would separate a child from their parent if such parent is HIV positive, claiming that separation is justifiable "because [HIV] is a communicable disease." And evidence has been mounting that in the midst of the increased detentions at the U.S. border, people with HIV were not being given access to antiretroviral therapy, and several have died in custody. Thus, HIV in tandem with immigration policies continues to be a public health concern -- and much like HIV is criminalized in this country -- so is it used as a catalyst for Immigration and Customs Enforcement (ICE) and Border Patrol to deport people and deny them access to the United States.
But before the Trump administration, HIV has been used as a political weapon against immigrants, and it has in fact influenced U.S. immigration policy since the arrival of the virus in the public consciousness in the summer of 1981.
Haitians Were the First Target of HIV Immigration Bans
In 1982, 34 Haitian migrants came to the U.S. who appeared to have opportunistic infections associated with late-stage HIV or an AIDS diagnosis, and most were reported to be heterosexual men with no known risk factors. As a result, being Haitian itself became a risk factor, as some of the early public health messaging put forward focused on what was called the 4 H's of risk (homosexuals, hemophiliacs, heroin "addicts," and Haitians). Targeting Haitians as a specific risk group, while defended by some U.S. government public health officials, fit into an existing policy to forcibly return any Haitian immigrants arriving in U.S. waters off the Florida coast back to Port-au-Prince; although some were detained in the U.S. indefinitely. Using racism and public fears about Haitians, the Reagan administration ultimately cited the emerging HIV epidemic as a reason to further ban Haitians from entering the country, despite the cause of Haiti's people leaving -- most were fleeing a violent political regime.
In addition to Haitians, the early theory of HIV's entrance into the United States involved a now-debunked idea of Patient Zero -- who was thought to be a promiscuous gay French-Canadian flight attendant named Gaetan Dugas, who was first named in Centers for Disease Control and Prevention (CDC) contact tracing reports in 1981, as several gay men who had contracted HIV named Dugas as a partner. It was even speculated that, being a flight attendant, Dugas had been to Haiti and contracted HIV there, and then transmitted it in the U.S. This theory, made popular by the 1987 book And the Band Played On and its accompanying 1993 Hollywood film, helped further this notion of foreign bodies, whether black or gay, as vectors of disease and a public health threat.
Despite much outcry by both black and LGBTQ actvists over these theories, the damage was done. In 1987, the Reagan administration pressured the U.S. Public Health Service to add HIV to the list of excludable health conditions, despite public protests.
The Immigration Ban Becomes Law
Advocates tried removing HIV from the list of excludable conditions under the 1990 immigration bill, claiming that the CDC should regulate what is classified as a solid medical reason for denying entrance to the U.S., not immigration officials. President George H.W. Bush did sign this into law, removing everything but tuberculosis from the list. However, Republicans in Congress revolted, and the old list of excludable conditions was kept in place. Even though President Bill Clinton promised to make changes to this law during his presidential campaign, the Nickles Amendment passed, 76 to 23, shortly after President Clinton was inaugurated in 1993. By this point, a reported 200 Haitian dissidents who were living with HIV were being detained at Guantanamo Bay by the U.S. government -- and the Rev. Jesse Jackson went on hunger strike in protest. Although the law, declaring HIV a communicable disease of public health significance, did not say that there was zero chance of entering the U.S. if people were HIV positive, it did specify that additional paperwork for a waiver was needed under these circumstances,
It wasn't until 2008 that there began to be a shift. President George W. Bush signed the PEPFAR Reauthorization Bill, which "eliminates a statutory ban prohibiting HIV-positive foreigners from entering the United States, which made HIV the only disease for which there was a de facto statutory ban requiring a special waiver."
Then, under President Obama's administration in 2009, the Department of Health and Human Services (HHS) removed HIV as a "communicable disease of public health significance," thereby removing it from the list of conditions that would make someone inadmissible for entry to the United States. In other words, if you were an immigrant living with HIV, you would no longer be denied the opportunity to become a citizen for this reason if you tried applying for permanent resident or citizenship status. The effect of the policy since 1987 had the impact of effectively dissuading many people from entering the U.S., or certainly dissuaded people from disclosing their HIV status to others or seeking care once they were in the country. The travel ban was lifted in October 2009 and the repeal took effect in January 2010, ending these policies after more than two decades.
However, the damage has not only been done but continues. For example, at least 17 known HIV-positive asylum seekers have died in ICE custody since 2003, when ICE was established. According to ACT UP New York, these included Hector Mosley, Victoria Arrellano, and Walter Rodriguez Castro, to name a few. The most recent deaths included two transgender women from Central America, Roxsana Hernandez and Johana "Joa" Medina Leon. It was recently reported that under federal immigration laws, these two transgender women were entitled to present their case in front of an immigration judge and ask for asylum; however, they were neglected and left to die, even though ICE is required to provide detainees with care and tend to their medical needs.
Just this week, Positive Women's Network -- USA reported that 12 transgender women -- five of whom are living with HIV -- were detained at an El Paso port of entry while seeking asylum. Due to activist calls, they were eventually processed and released.
Unfortunately, the fears about HIV and immigrants haven't gone away. HIV continues to be used as a tool for fueling fears about immigration (and other infectious diseases are also used to stoke fear and to justify anti-immigrant, racist, homophobic, and transphobic immigration policies).
Civil rights attorney and member of the Louisiana Coalition on Criminalization and Health Mandisa Moore-O'Neal noted, "These policies are in place and meant to control the population, which is what we are seeing now. Law enforcement and border patrol agents are both oppressing marginalized communities and using HIV as a tool to [incite] fear in people."