Undermining Public Health and Human Rights: The United States' HIV Immigration and Travel Ban

Jirair Ratevosian, MPHUS Field Coordinator, Health Action AIDS

CampaignPhysicians for Human Rights

Aaron C. MorrisStaff Attorney

Immigration Equality

Common Immigration Options– Non-Immigrant Visas Common visas

“Tourist” visa Visa Waiver Program Student Visa Work Visa

Visas versus admittance

Common Immigration Options – Immigrant Visas Labor Certification Diversity Visa Lottery Humanitarian Adjustment (asylum,

CRAA, VAWA…) Family Unification

Marriage (opposite-sex only please) Parents or children Siblings

Ban on immigration and travel America! Banning HIV+ immigrants

since 1987 Law versus policy

President Clinton’s proposed exec order Congress passes explicit ban in 1993

Proposed regs stalled in OMB since December

Inadmissibility

Classes of inadmissible immigrants Serious criminals; aggravated felons etc. Terra-ists and People living with HIV

Congress repeals ban in July 2008 DHS – streamlines regs HHS – edits list of diseases

HIV and Non-Immigrant Visas

No HIV test “Communicable Disease of Public Health

Significance” Question Asked 30 Day Waivers

“Humanitarian” reasons such as: attend conferences; receive medical treatment; visit close relatives, conduct business

Designated Event Waivers

“2008 Streamlining?”

In October, DHS issued new regulations for 30 day waivers

Consular officer’s “quick” decision if: Medication Private health insurance No green cards

Redundant, redundant, redundant No immigrant intent No public charge

HIV and Legal Permanent Residence Must undergo medical exam Must qualify for waiver

Either with qualifying relative or As asylee/refugee

Absent a qualifying relative, no green card For employment based applications For diversity visa lottery winners

You qualify for a waiver if you are: The spouse or unmarried son or daughter of a

USC or LPR The minor unmarried lawfully adopted child of a

USC The parent of a son or daughter who is a USC

or LPR Self-petitioning VAWA spouse or child Missing relatives:

Married son or daughter of USC Sibling of USC

Other HIV Waiver Requirements Form I-601 (and fee $545) Demonstrate the danger to public health of U.S.

is minimal Demonstrate that possibility of spread of

infection is minimal Demonstrate no cost incurred by any agency of

U.S. government without prior consent of agency = private insurance Special problems for consular processing

Public charge separate but related issue

Insurance strategy for family cases File adjustment application w/ EAD

application “Window period” during which applicant

can work Get job w/ insurance or Add to family member’s insurance

ADAP as supplement (not enough on its own) to cover pre-existing condition

Other insurance possibilities? Blue Cross Blue Shield Travel insurance Clinical trial program Government is already paying for

healthcare

HIV and Naturalization

No HIV ground to deny naturalization application

No public charge issues for naturalization Possible to have fee waived for

naturalization application (except for finger prints)

Possible HIV-related waiver of English/civics requirement

Permanently Residing Under Color of Law (“PRUCOL”) Not defined in U.S. immigration law Definition used in benefits law – “known to

DHS, DHS is not taking steps to deport him/her” Examples:

Extended voluntary departure (eliminated after 1996)

Deferred action Some pending applications

But receipt of benefits may be a problem for some applications

Not Temporary Protected Status

Travel Restrictions in the Global Context

Slide borrowed from David Hans-U. Haerry, European AIDS Treatment Group

Categories of Restrictions

Countries without restrictions  Countries with entry bar Countries with short term restrictions

For stays less than 90 days, require disclosure of HIV status for short term stays OR demand mandatory HIV testing for short term stays 

Countries with long term restrictions  for stays longer than 90 days, required disclosure of status and HIV

testing when applying for such a permit Countries with contradictory information 

Information received from various sources is either contradictory, not conclusive, or it relates only to particular groups or regions in the country

Countries without information 

Global Context: HIV related travel & residence regulations

68

21

96

1268 - restrictionsconfirmed

21 - informationcontratictory, restrictionspossible

96 - no restrictions

12 - no informationavailiable

Slide borrowed from David Hans-U. Haerry, European AIDS Treatment Group

•14 States deny entry or require status disclosure even for short term stays•30 countries deport HIV+ foreigners

Name & Shame (2008)

Countries with restrictions Andorra, Armenia, Belarus, Bulgaria, Cyprus, Georgia,

Germany, Greece, Hungary, Israel, Kazakhstan, Lithuania, Moldova, Poland, Romania, Russia, Slovakia, Tajikistan, Turkey, Turkmenistan, Ukraine, Uzbekistan, USA

8 countries bar entry for any reason/length of stay

Brunei, China, Oman, Qatar, South Korea, Sudan, UAE, Yemen.

5 countries deny ST visa (10-90 days) Egypt, Iraq, Singapore, Tunisia, Turks & Caicos

Islands

Deportation - 30 countries

Bangladesh: likely if authorities know serostatus. Hungary: possible if advised by authorities. Jordan: recorded cases of Africans. Korea (North): reason no treatment. Kuwait: immediate; no entry with HIV. Malaysia: possible by law, applies to migrant

workers. Qatar: immediate; incl tourists. Russia: recorded by NGOs, people with HIV have 3

months to leave.

How are restrictions justified?

People with HIV a danger to public health spread the disease a burden for society & health care budgets (medical migration, poor health care system) short life expectancy, not contributing to society HIV comes from outside & we can stop it at border

Does this reflect reality in 2008?

25 years in the epidemic, we know:

HIV is not highly contagious, transmissions are due to specific behaviours (target for intervention)

Safer sex and safer use are everybody’s responsibility

Screening at borders: wrong message, undermining public health efforts on HIV prevention & care.

People facing restrictive measures will hide status, avoid HIV testing & care services.

Statements on public health issue 1987 WHO expert consultation: “no

screening programme of international travellers can prevent the introduction and spread of HIV infection”.

1988 WHO statement: “HIV screening of international travelers would be ineffective, impractical and wasteful…Rather than screening international travelers, resources must be applied to preventing HIV transmission among each population, based on information and education, and with the support of health and social services”.

2008 International Task Team on HIV-related Travel Restrictions:

“There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status. […] Therefore, any restriction on these rights based on suspected or real HIV status alone, including HIV screening of international travellers, are discriminatory and cannot be justified by public health concerns.”

Source: Susan Timberlake; Senior Human Rights and Law Adviser, IAC Mexico 2008

Recommendation: Drop restrictions based on public health concerns Although infectious, HIV cannot be

transmitted by the mere presence of a positive person or by casual contact

Transmitted through specific behaviors which others can protect against

Restrictive measures may actually undermine prevention and therefore public health efforts

Global Effort to overcome restrictions Overcome perception that these protect

public health Overcome ignorance, stigma and

discrimination that informs restrictions Ensure equal access to mobility Ensure entry, stay, residence regulations treat

HIV same as comparable health conditions Support dialogue and joint action by health

officials and immigration/justice officials Expand HIV prevention, treatment, care and

support in sending and receiving countries

Students and Health professionals helped reauthorize PEPFAR

Student chapters mobilized Deans and faculty to submit comments during December 2007 public commenting period

In the critical final weeks and days of the reauthorization process,

thousands of students and health professionals

repeatedly called and wrote and met with targeted

legislators to provide them with essential facts about HIV

Travel ban

Students kept AIDS in the media

What can students and health professionals do? Raise awareness

Reach out to media to cover the issue

Speak out during Public Commenting Period for HSS (stay tuned!)

Write a Letter to the Editor

Keep it short and sweet Pick one or two points that most resonate

with you and expand Include the title of the article

Ex. In response to “Obama Repeals Travel Ban”(1/19), the article fails to mention other steps needed to address the feminization of AIDS.

Include your contact information Identify yourself as a member of PHR Student

Chapter Email the letter to the Letters Editor

Call/email to follow-up

Database www.hivtravel.org