Washington Blade - November 07, 2003
Kevin Spence

"The law in the U.S. is that those that are HIV-positive are inadmissible to the U.S.," said Victoria Neilson, legal director at New York City's Lesbian & Gay Immigration Rights Task Force. "Inspectors at borders or airports have a lot discretion."

Around the country, however, AIDS and gay-rights advocates are challenging federal policy that denies entry visas based on people's sero status. For now, a non-immigrant visa may be granted if the individual will be stateside for less than 30 days, poses no public health risk, is asymptomatic and can pay for medical care if necessary, said Neilson.

Designated events, like the Gay Games or an AIDS conference, for instance, have been used to justify such visas, Neilson said. A letter from a treating physician is mandatory when applying for a waiver.

The situation is far more difficult for immigrants seeking legal permanent residence. As part of the application process, they must undergo a medical exam, which includes HIV testing. They can only obtain a waiver if they have an immediate relative (spouse, parent or child) who is a U.S. citizen or permanent resident. This leaves many gay applicants with no chance of obtaining a green card.

Asylum is best shot for poz foreigners

One client with whom Neilson worked ended up moving to Canada.

Kenji, a gay man from Japan was in a long-term relationship with a U.S. citizen.

While working here on a six-year skilled worker visa, he tested positive for HIV. Despite being an exemplary employee and obtaining sponsorship from his employer, Kenji was unable to apply because of his HIV status.

Without having an immediate relative here, he knew his application would be denied. He moved to Canada; his American partner is now in the process of applying to immigrate to Canada, where a long-term same-sex partner can sponsor him.

Applying for asylum is a tedious and arduous undertaking, often leaving HIV-positive immigrants with no recourse except to return to their homeland or elsewhere. In a few cases, immigrants are granted the right to remain. According to statistics from the BCIS, 45,284 cases have been filed this year so far. Of those, only 11,362, have been approved.

Nationals of Guatemala submitted the most asylum applications in August 2003, followed by Colombia and Haiti.

"If you are granted asylum and the basis is your HIV status, you are eligible to file as well without having to prove your family relationship," said immigration attorney John Nechman of Houston. "For the gay male, that's one of the few options if you are HIV positive."

By definition, an asylum-seeker is an alien unable or unwilling to return to his country out of fear of persecution.

In 2002, Nechman, the only attorney in his jurisdiction to win approval of HIV cases, proved that a Lebanese client with an American partner would be persecuted upon return to Lebanon. In Lebanon, homosexuality is punishable by imprisonment up to 90 days. Torture is widespread and vigilante groups often kill those who are HIV positive, he said. His client, therefore, was granted asylum.

Another client, a transgendered prostitute from Honduras, was also granted asylum after several transgender rights groups advocated on her behalf and showed that they would provide medical treatment for her.

A Mexican man's American boyfriend contacted a doctor who said he'd treat him. In some cases, Mexican paramedics refuse to treat HIV-positive people. The man was granted asylum.

Today, however, Nechman said, it is becoming increasingly difficult for him to win such cases.

"If I had this case this year, I would wonder if I would get that approval." Nechman said the BCIS is becoming more vigilant.

"They're actually picking people out of buses these days."

Ban dates to '93

In 1993, Congress banned HIV-positive immigrants from entry and it became an official part of the Immigration & Nationality Act. On March 1, 2003, what was formerly known as the Immigration & Naturalization Service became a part of the Department of Homeland Security.

Some say the transformation has led to less accountability among government officials.

"We know that's it's required by federal law to be tested for HIV," said Ron Brenesky, secretary of the Unity Coalition, a civil rights organization in Southeast Florida. "But some are being denied. We have no independent organization to determine if the federal government is doing this."

Specifically, he said, he knew a gender-variant individual who was raped by guards at Krome Avenue Detention Center, a notorious holding place for immigrants on the edge of the Everglades. A Cuban rafter was picked-up off the coast of Florida and returned. In both cases, said Brenesky, the individuals could have applied for asylum here based on sexual orientation.

"A person who is HIV-positive and is tested does not get the necessary counseling," he said. "We are creating a tremendous harm when they are again returned to their homeland."

Maribel Reynoso, an immigration attorney with the HIV & AIDS Legal Services Alliance in Los Angeles, said a lot of her clients coming from Mexico are often partnered with men living in West Hollywood.

"It's a lot easier for a woman to immigrate because they do have children and a chance to marry," said Reynoso.

Reynoso recently won asylum for a politically active Zimbabwean.

"This person faced persecution in the past, so it was easier to show he would face it again in the future," Reynoso said. "Even though a majority of the population [in Zimbabwe] is infected with HIV and heterosexual, he was unable to get treatment because he was gay."

Bad situation gets worse

A large number of clients that become infected with the virus are infected here, contrary to the prevailing notion that aliens bring the disease into the country, according to Reynoso. Then they're sent back to their own countries with little or no medical treatment.

Betty Williams, a member of the Policy Committee of the HIV Planning Council of New York City, said that matters may be getting worse for immigrants.

"There are a couple of threats coming down the turnpike," she said referring to the Clear Law Enforcement for Criminal Alien Removal Act of 2003.

She said the Clear Act, if passed, would force local police departments to function like arms of the BCIS.

"[Attorney General John] Ashcroft has tried to get local police to act like INS officials," Williams said. "It would make cities ineligible for the current federal funding for police, unless they go along with Ashcroft's intentions."

The Clear Act would require insertion of immigrant data in the National Criminal Information Center. She says that, in addition to the public safety concerns posed by the bill, it practically ensures the likelihood of civil rights abuses and wrongful arrests. It would exacerbate crime, she said, because more citizens and illegal aliens would be inhibited from reporting crimes out of fear of being reported.

"It has 100 sponsors in the House and Senate. It's very scary. It would act like an amplifier for everything else."

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