IE HIV comment

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November 14, 2007 Department of Homeland Security 111 Massachusetts Avenue, NW, 3rd Floor Washington, DC 20529 by email: [e-mail] RE: DHS Docket No. USCBP– 2007–0084 Dear Sir/Madam: Immigration Equality submits these comments in opposition to the proposed regulations on short-term waivers for the HIV ground of inadmissibility. Although the regulations purport to offer a “streamlined,” “categorical” waiver for short-term HIV-positive travelers, in fact, the regulations are neither “streamlined” nor “categorical.” Immigration Equality is the only national organization which focuses on immigration issues for lesbian, gay, bisexual, transgender, and HIV-positive individuals. Each year we assist over 1200 individuals with legal information, run a pro bono asylum project and maintain an informative website. Among inquiries for legal information, nearly 300 involve foreign nationals living with HIV. Our legal staff has written law review articles on HIV and immigration, and presented at national conferences, including the American Bar Association HIV Conference on these issues. As such, we are one of the country’s leading experts on HIV and immigration. The Proposed Regulations Continue to Needlessly Stigmatize Individuals with HIV Since 1993, HIV has been the only medical condition which is specifically designated in the Immigration and Nationality Act as a ground of inadmissibility. The proposed regulations would continue ...

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• Publié par: Iddu
• Nombre de lectures: 14
• Langue: English

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November 14, 2007

Department of Homeland Security

111 Massachusetts Avenue, NW, 3rd Floor

Washington, DC 20529

by email:

[e-mail]

RE: DHS Docket No. USCBP– 2007–0084

Dear Sir/Madam:

Immigration Equality submits these comments in opposition to the proposed regulations on

short-term waivers for the HIV ground of inadmissibility.

Although the regulations purport to

offer a “streamlined,” “categorical” waiver for short-term HIV-positive travelers, in fact, the

regulations are neither “streamlined” nor “categorical.”

Immigration Equality is the only national organization which focuses on immigration issues for

lesbian, gay, bisexual, transgender, and HIV-positive individuals.

Each year we assist over 1200

individuals with legal information, run a pro bono asylum project and maintain an informative

website.

Among inquiries for legal information, nearly 300 involve foreign nationals living with

HIV.

Our legal staff

has written law review articles on HIV and immigration, and presented at

national conferences, including the American Bar Association HIV Conference on these issues.

As such, we are one of the country’s leading experts on HIV and immigration.

The Proposed Regulations Continue to Needlessly Stigmatize Individuals with HIV

Since 1993, HIV has been the only medical condition which is specifically designated in the

Immigration and Nationality Act as a ground of inadmissibility.

The proposed regulations would

continue this needless policy of treating HIV differently from all other illnesses by now making

HIV the only medical ground of inadmissibility for which short-term, non-immigrant waivers are

governed by regulation.

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In the fourteen years that have transpired since the ban was codified,

there have been extraordinary advances in treatment options and a much greater understanding

of how HIV is transmitted.

At this stage of the epidemic, there is simply no medical justification

to continue to treat HIV as an untreatable, contagious illness when it is neither.

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1

Ironically, waivers for immigrant visas or adjustment of status would continue to be

governed by DHS/INS policy memoranda and would not include some of the more stringent

requirements of the new “streamlined” visitor waiver including a showing that the applicant is

taking all necessary medication and that the applicant is not afflicted with “contagious”

symptoms.

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Indeed, the proposed regulations even use the term “contagious,” stating that the waiver

applicant must demonstrate that she is “not currently exhibiting symptoms indicative of an

active, contagious infection associated with acquired immune deficiency syndrome.”

This

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The Proposed Regulations Will Make Things Worse for HIV-Positive Foreign Nationals

Immigration Equality opposes the HIV ground of inadmissibility.

HIV is not an illness which is

casually transmitted and, with advances in medical treatment, it has become an illness which can

be medically managed.

Immigration Equality understands that the Department of Homeland

Security (DHS) does not have the authority to overturn the ban, however, it does have the power

to set the terms of its own waivers and these regulations, if passed as written, will make travel

more restrictive for HIV-positive non-immigrants, not easier.

Last year President Bush directed DHS to initiate rulemaking to establish a streamlined,

categorical waiver for up to 60 day for B-1 and B-2 visa applicants to the United States.

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The

proposed regulations do not offer any kind of “categorical” waiver, instead they continue to

require an individual, case by case assessment of the applicant’s waiver.

Moreover, the only

“streamlining” under the proposed rule is DHS’s authorization of consulates to approve waivers

without DHS sign-off.

In exchange for this purported streamlining, visa applicants must

relinquish valuable rights and benefits.

HIV-Positive Travelers Will Have to Relinquish Valuable Rights and Benefits by Entering

under the “Streamlined” Waiver

The most troubling aspect of the proposed regulations is the requirement that waiver applicants

give up the possibility of applying to change, extend or adjust their status in the United States.

DHS offers no rationale whatsoever for this significant restriction on HIV-positive travelers.

As

a practical matter, entrants who are only permitted to remain in the United States for 30 days

under the terms of their waivers probably would not have cause to apply for a change or

extension of their non-immigrant visa.

However, as discussed below, the inability to apply for

adjustment of status could be devastating.

The Proposed Regulations Would Violate International Law by Preventing Asylees from

Obtaining Legal Permanent Residence and Citizenship in the United States

Under the proposed regulations, an individual who enters with the “streamlined” HIV waiver

who applies for and receives asylum in the United States would be forever barred from applying

indicates a fundamental lack of understanding about HIV and AIDS as it is the individual with

HIV who may be more susceptible to contracting illnesses which are not contagious to

individuals with healthy immune systems; the opportunistic infections commonly associated

with AIDS including pneumocystis pneumonia (PCP), cytomegalovirus (CMV), and

toxoplasmosis are not easily transmitted to individuals who don’t have compromised immune

systems.

See

“Opportunistic Infections,” at aids.org, http://www.aids.org/factSheets/500-

Opportunistic-Infections.html#anchor50142

3

See

World AIDS Day Fact Sheet available at

http://www.whitehouse.gov/news/releases/2006/12/20061201-2.html

.

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for legal permanent residence, and thus, U.S. citizenship.

Immigration Equality believes that this

rule would violate international human rights law which requires the integration of asylees and

refugees into the society in which they resettle.

The implementation of these regulations would,

in fact, result in HIV-positive asylees who enter under the “streamlined” waiver being treated

differently from HIV-positive refugees who would continue to be able to obtain legal permanent

residence in the U.S., again with no rational basis for the differential treatment.

The Proposed Regulations Would Create Unnecessary Hardship to the U.S. Citizen

Immediate Relatives of HIV-Positive Individuals

Furthermore, this inability to adjust status would mean that an HIV-positive individual who

enters the United States with the “streamlined” waiver could not adjust status even if she has a

United States citizen spouse, son or daughter who qualified her for an immediate relative

petition.

Congress has made a determination that immediate relatives of United States citizens

should be permitted to adjust status from with in the United States even if they have fallen out of

status.

In permitting this exception to the ordinary rules of adjustment Congress has expressed

its will that the lives of United States citizens should not be disrupted by having their spouses

and parents have to return to their countries of origin for lengthy, consular processing.

Here,

HIV-positive foreign nationals and their United States family members would be separated for

no reason other than the fact that the foreign national’s waiver was adjudicated by a consular

officer rather than by DHS.

Because medical treatment options may be less extensive in her own

country, this could have devastating consequences for the foreign national.

Moreover, if the

immediate relative has overstayed for more than six months or a year, she would then be subject

to the three year/ten year bar on re-entry.

In fact, the “streamlined” waiver requires the HIV-positive applicant to meet a higher evidentiary

burden than is currently required of legal permanent resident applicants.

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There is no rational

basis to require a return to the home country for another adjudication of an HIV waiver which

will

include almost exactly the same information as was submitted to the consular officer for the

short-term waiver.

This provision is simply punitive.

Unlike the Visa Waiver Program, HIV-Positive Travelers Receive No Benefit in Return for

4

October 17, 2002 Memo from legacy Immigration and Nationality Service on “Medical

Examinations, Vaccination Requirements, Waivers of Medical Grounds of Inadmissibility and

Designation of Civil Surgeons and Revocation of Such Designation” (hereinafter “INS HIV

Memo”) at page 25,

available at

http://www.immigrationequality.org/uploadedfiles/2002%20HIV%20Immigration%20policy%2

0memo.pdf.

Although a temporary visa applicant is not required to have a close relative who is a

U.S. citizen or legal permanent resident, he will have to make the same showing that he poses no

threat to the public health and that he has private health insurance to cover any potential medical

contingency while traveling in the United States.

The HIV-positive traveler would additionally

be required to demonstrate that he does not suffer from “contagious” symptoms and that he has

all the medication that he needs or prove that he’s not medically in need of anti-retrovirals.

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the Rights They Waive

Although DHS imposes a similar waiver of rights for Visa Waiver Program (VWP) country

travelers, the two are in no way analogous because the VWP does truly offer a “streamlined,”

“categorical” entry with no visa application at all for foreign nationals from VWP countries.

That is, under the VWP travelers get something – the extreme convenience of not being required

to apply for a visa – in return for the rights and privileges they relinquish.

Under the proposed

regulations, an HIV-positive traveler would still have to submit voluminous and intrusive

documentation about his medical condition, treatment regimen, counseling, risk behaviors, and

assets including insurance, in order to travel to the United States and in return would be required

to forgo the possibility of adjusting status from within the U.S.

HIV-Positive Foreign Travelers May Be Required to Give Up Valuable Rights Without

Receiving a Full Explanation

More alarming still is the question in the proposed regulations of whether the consular officer

must inform the traveler in writing of the rights he is giving up or whether an oral statement is

sufficient.

It is hard to imagine that in the very limited time a visa applicant spends with a

consular officer that the officer will fully explain what the traveler is giving up by applying for

the “streamlined” waiver.

Immigration Equality adamantly opposes the suggestion that a foreign

traveler would give up these rights without a full written explanation of the consequences.

As a Practical Matter, the “Streamlined” Waiver Will Become the Only Waiver Available

Likewise, although DHS may counter that the “old,” “non-streamlined” waiver is still available,

as a practical matter, will consular officers explain the different approaches, different evidentiary

requirements, different processing times, and different rights offered to all would-be travelers?

It seems impossible that the already over-burdened and often under-trained consular officers

would be able to do so.

Furthermore, what legitimate reason could a waiver applicant give for

applying under the “old” system that would not demonstrate an impermissible immigrant

intent?

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As a practical matter, the implementation of these regulations will eliminate the prior

waiver system and force HIV-positive travelers to give up the opportunity to adjust status from

within the United States.

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That is, if the reason the visa applicant does not want to make use of the “streamlined”

waiver application is that he intends to apply for asylum or family-based adjustment once he

arrives in the United States, his application for a tourist visa will be denied for “immigrant

intent.”

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Ironically, perhaps the only HIV-positive travelers who would still be in a position to

apply under the “old” system are those waiver applicants who have a second ground of

inadmissibility and are therefore barred from the “streamlined” waiver process.

Thus the only

HIV-positive travelers who are rewarded with the possibility of applying for legal permanent

resident status without having to return to their home countries, are those who have broken some

other rule under the INA and are therefore inadmissible for some reason in addition to being

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The Proposed Regulations Impose New Burdens on Consular Officers with No New

Training

Immigration Equality has heard frequent horror stories of HIV-positive immigrant visa

applicants suffering from arbitrary and unfair imposition of the HIV waiver requirements by

consular officers.

Consular officers have required a showing of hardship to family members

(which is not in the statute, regulations, or policy memoranda), imposed impossible evidentiary

requirements regarding insurance and required postings of absurdly high bond sums, such as

$100,000.

Immigration Equality is very concerned that consular officers will now have all the

authority to grant or deny waivers with no DHS oversight and no requirement for further

training.

The new regulations require comprehensive medical documentation from the applicant which a

consular officer would not have the training to understand.

The applicant must first demonstrate

whether or not it is “medically appropriate” for him to be taking antiretroviral drugs and then

demonstrate that he has an adequate supply of this medication to last for the duration of his stay

in the United States.

There is no explanation of how a consular officer is going to be trained

about the stages of HIV illness and when antiretroviral medication becomes medically indicated.

Instead, the intent of the proposed regulation must be that the traveler would have to submit

documentation from a medical professional in his own country about the state of his illness.

For

travelers applying from developing countries where CD4 count testing is not readily available

and/or antiretroviral medication is not readily available, it will be impossible to obtain a waiver.

The Proposed Regulations Have No Provisions to Insure the Confidentiality of the

Applicant

Most interviews with consular officers take place in a public space in a very limited time frame.

Under the proposed regulations, the visa applicant would not merely be handing in paperwork

for the officer to forward to DHS, the officer would be making a determination himself, and

therefore, presumably, questioning the applicant about the waiver application.

The proposed

regulations never mention the word “confidentiality” or impose any requirement on the officer to

treat the waiver application or supporting documentation confidentially.

The Proposed Regulations Impose Financial Burdens on HIV-Positive Travelers Which

Are Unlike Those Imposed on Travelers with Any Other Illness

The proposed regulations would continue to treat HIV differently from all other medical

conditions by requiring short-term visitors to prove that they have insurance which is accepted in

the United States which will cover “any medical care that the applicant may require in the event

of illness at any time while in the United States.”

This requirement again demonstrates a lack of

understanding of HIV illness in a traveler who is adherent with antiretroviral medication or for

HIV-positive.

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whom such medication is not medically indicated is unlikely to require HIV-related medical care

while in the United States.

Moreover, there is no comparable burden placed on travelers with

any other medical condition, no matter how expensive treatment for the condition may be; again

HIV is treated differently without any rational basis.

There Is Precedent for a True “Categorical” Waiver

Under current DHS policy, it is possible for certain events, such as AIDS conferences or, last

year, the Gay Games to receive “designated event status.”

If the event receives this designation,

an HIV-positive participant is granted a waiver without being subjected to the individualized

review ordinarily required by DHS for an HIV-positive visitor.

Although the process for

obtaining “designated event status” for the event organizers is elaborate,

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once the status is

obtained, entrants are given a “blanket” waiver and are not required to demonstrate that the risk

to the public health is minimal or that there will be no expense incurred by the U.S. government.

Thus, any argument by DHS that the risk to the public health or public coffers of admitting any

HIV-positive foreign nationals without an individualized determination of the state of their

health and finances, is groundless.

The Proposed Regulations Must Be Significantly Revised

In conclusion, there is nothing “streamlined” or “categorical” about the proposed regulations.

HIV-positive foreign travelers will be subjected to extraordinary scrutiny and give up valuable

rights in seeking a waiver under these new rules.

Immigration Equality calls upon DHS to offer

a true, “categorical” waiver, similar to what currently exists for those who enter under the

“Designated Event Status” waiver, in which a short-term traveler is not required to make any

individualized showing about the state of her health, her medical treatment or her finances, in

order to visit the United States.

The United States professes to be a leader in the fight against the global AIDS pandemic

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.

Last

year, President Bush acknowledged that “the participation of people living with HIV/AIDS [is] a

critical element in the global HIV/AIDS response.”

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Now, a full year after the President’s call

for a broader waiver, DHS has proposed regulations which will only make it more difficult for

HIV-positive travelers to come to the United States, and which will force those travelers who are

able to meet the almost insurmountable evidentiary burden to obtain this waiver, to relinquish

valuable rights in coming to the United States.

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The event organizers must first write to the Department of Health and Human Services,

which, if it approves the event forwards its recommendation to the Department of State, which

then asks the Attorney General to exercise favorable discretion and authorize admission to the

event.

See

“INS HIV Memo”

at footnote 4.

8

See

World AIDS Fact Sheet, at footnote 3.

9

Id.

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It is an embarrassment that DHS did not take this opportunity to bring the United States in line

with the rest of the developed world in not imposing any travel restrictions on people with HIV.

Instead, the United States remains in the company of only 13 countries such as Iraq, Saudi

Arabia, and Sudan in continuing to exclude HIV-positive travelers

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.

These proposed

regulations continue to needlessly treat HIV differently from any other medical condition and

must be revised.

10

See

Peter Wiessner and Karl Lemmen, “Quick Reference, Travel and Residence

Regulations for People with HIV and AIDS,” a publication of Deutsche AIDS Hilfe, available at

http://doc.ilga.org/ilga/publications/publications_in_english/other_publications/travel_and_resid

ence_regulations_for_people_with_hiv_and_aids_2007