Bay Area Reporter - November 29, 2007
Heather Cassell, h.cassell@ebar.com

The proposed regulations, released November 5, are supposed to streamline the process, DHS said. But the proposed rules retain existing barriers and tighten, rather than reduce, restrictions on foreign HIV-positive travelers, according to New York-based Gay Men's Health Crisis. GMHC and immigration advocates said that under the proposal, prospective HIV-positive travelers would be burdened by strict limitations.

The proposed regulations are open for public comment until December 6.

"In its least troubling provisions it makes no changes and leaves intact a very bad policy," said Nancy Ordover, GMHC assistant director of research and federal affairs. "In its most troubling provision it actually adds a burden to HIV-positive travelers and it actually requires people to forgo certain rights and opportunities."

The DHS proposes that prospective HIV-positive travelers prove their knowledge of communicability and routes of HIV-transmission; prove that there would be no "anticipated medical care" during their trip; carry an adequate supply of medications for the duration of their stay; and show proof of U.S. accepted medical insurance and sufficient assets to cover any unforeseen medical care in the U.S.

Once approved, HIV-positive travelers would be allowed a 30-day stay in the U.S, according to GMHC, which didn't change. But customs and border patrol could stamp a person's papers for 60 days. Travelers could unintentionally violate the provisions of their visa if they are not careful, GMHC said.

What troubles HIV/AIDS and immigration advocates most is that under the new regulations individuals would give up rights to extend their visits or adjust their immigration status, which is new. This would technically leave individuals seeking asylum or permanent residency in "a kind of limbo," Ordover said, which could be deadly.

"People have died ... because they could not adjust their immigration status they couldn't qualify for medical benefits, they couldn't qualify for housing, they couldn't qualify for all the things you need, particularly if you are HIV-positive, to stay alive and to stay healthy," said Ordover. "The stakes here could not be higher."

Kathy Drasky, spokeswoman for Out 4 Immigration, added, "There are, in fact, many immigrants in the U.S. right now who are denied a path to citizenship due to the HIV ban, even if they may have contracted HIV here in the United States."

Last year on World AIDS Day, the Bush administration announced it would issue an executive order allowing HIV-positive people to enter the U.S. on short-term visas without seeking a special waiver. The executive order never materialized, according to Drasky. Instead, President Bush directed Secretary of State Condoleezza Rice to request the homeland security secretary to initiate a rulemaking that would propose a categorical waiver for HIV-positive people seeking to enter the U.S. on short-term visas, according to a GMHC fact sheet about DHS's proposed regulations.

If the new regulations are approved they would be difficult to reverse because they would become policy within the Immigration and Nationality Act, according to HIV/AIDS and immigration advocates.

"We would like to see this proposal scrapped and have them start over," said Ordover.

Congresswoman Barbara Lee (D-Oakland) is working on changing the status of the policy. Earlier this year, Lee introduced the HIV Non-discrimination in Travel and Immigration Act of 2007 (HR3337) to the House of Representatives. If passed, the law would amend the Immigration and Nationality Act to remove the provision that doesn't allow HIV-positive individuals into the U.S.

"It defies reason that because of this misguided law, we cannot host an international HIV/AIDS conference in this country," said Lee, who has attended every International AIDS Conference since elected to office in 1998, according to an August 2 news release. "This law is unjust and unnecessary and it is time to change it."

The U.S. has not hosted the conference because of the travel restrictions.

The legislation has been in the Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law since September.

Ordover told the Bay Area Reporter that with Lee's bill the "ban would still be intact," and that the only changes would be that it's removed from being "statutory" in the Immigration and Nationality Act and overseen by DHS to being "administrative" and returned to being governed by the U.S. Health and Human Services, as it was more than 20 years ago.

But Ordover pointed out the significance of the human rights language in Lee's bill.

"At its core this policy is a violation of human rights," said Ordover, "and is a violation of the conventions that the U.S. has signed onto and a violation of the UN guidelines on human rights and HIV/AIDS. That's a very important part of the bill that it references that."

Currently, the U.S. is one of 13 countries - which include Armenia, Brunei, China, Iraq, Qatar, South Korea, Libya, Moldova, Oman, the Russian Federation, Saudi Arabia, and Sudan - that exclude HIV-positive foreigners from traveling within the country and immigrating, based on public health risks, according to Lee and HIV/AIDS and immigration advocates. (AIDSMap.com reported November 13 that China announced it was "committed to remove all restrictions on HIV-positive visitors.")

For 20 years U.S. policy has barred HIV-positive people who are not U.S. citizens or legal permanent residents from traveling to or transiting through the U.S.; barred HIV-positive immigrants from attaining any recognized legal status, except in extremely limited circumstances; and barred HIV-positive people from immigrating to the U.S., according to HIV/AIDS and immigration advocates.

Under current immigration laws, HIV-positive prospective travelers to the U.S. are allowed to apply for 30-day business or leisure waiver through the secretary of Homeland Security. There are a few exceptions to the rule such as it is proven that the overall benefits to the public "outweigh" the public health risk.

HIV/AIDS and immigration advocates say there is no reason to ban prospective HIV-positive travelers from the U.S. Ordover and Tamara Lange, senior staff attorney of the LGBT and AIDS Project of the American Civil Liberties Union of Northern California cited more than 200 organizations around the world from the World Health Organization to the American Public Health Association to the American Medical Association that have challenged bans on HIV-positive individuals' travel and immigration policies that are similar to U.S. policy.

"There simply is no good reason to single out HIV as a basis for inadmissibility," wrote Lange in a November 19 e-mail, "particularly where the plain effect is to target immigrants of color and gay men for exclusion."

To view and comment on the proposed regulations go to http://www.regulations.gov and go to "search for dockets" and enter docket number USCBP-2007-0084. Comments can also be mailed to: Border Security Regulations Branch, Customs and Boarder Protection, 1300 Pennsylvania Avenue, NW (Mint Annex), Washington, DC 20229. All comments submitted must include agency name and the docket number.

071129
BR071115

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