In-depth: Crime and punishment: Criminalisation and HIV

GLOBAL: In the land of the free - HIV restrictions in the US

Photo: Laura Lopez Gonzalez/PlusNews
A mural depicting a woman in African dress in the Washington DC underground, alluding to the district’s multiracial make-up. The area is home to a large number of African immigrants.
Washington DC, 9 November 2007 (PlusNews) - Life, liberty and the pursuit of happiness are constitutionally guaranteed rights in the United States, but when immigrants go searching for Lady Liberty, HIV status may affect their chances of chasing down the American dream.

In 1987 HIV was declared a "dangerous disease" and became a ground of inadmissibility for immigrating to or, technically, visiting the US, but in 1990 Congress softened its wording - HIV was now not "dangerous" but "communicable" - and under the Clinton administration lifted the ban on accepting HIV-positive refugees.

However, the debate over the legislation continues, according to Todd Pilcher, senior managing attorney at the Whitman-Walker Clinic, one of Washington's most prominent centres for HIV care and treatment.

"In 1990, it was considerably embarrassing to health officials and activists that HIV was a ground of inadmissibility, because we were holding the 6th International Conference on AIDS in San Francisco and many of the people who were trying to come here for it were turned away at the border," Pilcher told IRIN/PlusNews. "Since 1990, we've never hosted an international HIV conference of that level."

Just visiting
An HIV-positive visitor declaring status can apply for a waiver but whether accepted or denied, his name and status are flagged in the Consular Lookout and Support System (CLASS), a database used to perform background checks on visa applicants. With their status on record, visa applicants may be barred from future entries to the US without waivers.
According to a 1990 memorandum, visitors cannot be detained on the basis of carrying prescriptions for HIV treatment, but immigration inspectors have detained people carrying HIV medication
People suspected of being HIV positive can be deported on arrival and barred from re-entering the US within five years.

Source: The Gay Men's Health Crisis Centre

The clinic's legal department was founded in 1986, primarily to help HIV-positive people with legal problems relating to their status, such as employment discrimination, accessing private medical aid and estate planning but, nevertheless, the clinic now had a complex and growing immigration practice.

About 35 million immigrants live in the US, accounting for just over 12 percent of the population, according to a study done by the Migration Policy Institute (MPI) earlier this year. Twelve million of these immigrants are estimated to be illegal.

"For positive people, especially those from developing countries, its very important that they legalise their status here in the United States," Pilcher said. "Some can't return to their home countries because they can't get the medication."

In 1996, a memorandum from the then US Immigration and Naturalisation Service (INS) recognised that HIV-positive status could qualify as a social affiliation, for which people could experience persecution and, hence, could be grounds for asylum.

According to the Department of Homeland Security, which took over responsibilities previously assigned to the INS in 2003, the top three refugee-producing African countries are Somalia, Liberia and Ethiopia.

While Somalia's HIV-prevalence rate is low - 0.9 percent of adults - in 2006 Liberia's national ministry of health estimated prevalence at 5.3 percent, while Ethiopia put its at 6.6 percent. In Liberia and Ethiopia, only a fraction of those needing treatment are receiving it.


A lack of treatment is only one aspect of Raul Hernandez's pending application for asylum. "The requirement for proving grounds for asylum is proving a high degree of fear of mistreatment or harm," said Stephanie Hogan, a lawyer at Holland & Knight, the Washington law firm handling the case pro bono.

"Essentially, our goal will be to demonstrate that fear, using past experiences and what he expects would happen if he was to return. "One of the reasons he fears returning now is because of the availability of the drugs that he needs," said Hogan, speaking for her client, who was unavailable for comment.

"We're making a three-pronged argument: he's HIV positive, he's a gay man, and he'd be declared a political dissident because he left the country."

Growing up in conservative Cuba, Hernandez, 30-something, often experienced intolerance. By the age of 18, he was keeping a home-made weapon by his bedside at his government-run high school. Though never openly gay, his sexual orientation became the stuff of hallway whispers that sometimes escalated into physical violence but, fearing expulsion, he kept quiet.

College was much the same, and in 1992 he left for Brazil on a visitor's permit. "He wasn't intending to stay, but when he went there and saw initially that he didn't face the same types of discrimination and harassment he had known in Cuba, that's when he decided," Hogan said.

After coming to the US with his partner in 2000, Hernandez applied for citizenship under the Cuban Adjustment Act, which provides Cuban citizens with special means to become US permanent residents and has a much lower burden of proof than having to demonstrate grounds for asylum, according to Hogan.

But Hernandez, who subsequently discovered he was HIV positive, found that the HIV ban on immigration also applied to that act, and his only hope of remaining in the US legally was to gain asylum.

For the past six years, the US has limited the number of refugees it accepts to 70,000 annually - a 70 percent decrease from when it first opened its doors to refugees 27 years ago, according to the MPI. Anti-terrorism legislation introduced since 2001 has also added to the woes of potential asylum seekers.

Despite this, the US continues to resettle more refugees overall than any other country in the world: about 60 percent of the cases referred to it by the UN High Commissioner for Refugees in 2005; Canada, the world's second largest receiver of refugees, resettled about 15 percent, according to MPI.

By applying for asylum, Hernandez and Hogan will shoulder a heavier burden of proof when they appear before an asylum officer but Raul's HIV status will become a non-issue.


With the change in refugee legislation, new regulations have come into play for organisations such as Washington's Ethiopian Community Development Council (ECDC), one of 10 national organisations contracted by the US State Department to resettle refugees.

The ECDC's director of operations, Tori Wolan, said the new regulations, coupled with the less stringent regulations regarding status, meant things were often easier for HIV-positive refugees than their immigrant counterparts.

"With the refugees that are resettled, they get treatment - that's part of the deal," she said. "We have to remember that immigrants, although they come with a different status, have to deal with the same problems and don't even have [medical] insurance." In terms of US legislation, refugees are entitled to eight months of state health insurance upon arrival.

Under the current HIV ban, positive foreign nationals can only obtain permanent residency, otherwise known as a "green card", by having the HIV requirement waived, according the Immigration Nationality Act. One of the possible waivers allowed is demonstrating that you have immediate family in the country.

"We have a lot of clients who are trying to get their green cards through family or an employment agreement, or maybe they won the lottery and have to demonstrate that they have a spouse, child or parent in the US that has US citizenship or is a lawful permanent resident, in order to get this waiver," Pilcher said.

For those lucky enough to prove immediate family and receive a waiver, they - like refugees - must demonstrate that their status poses no threat to the national public health. Pilcher called this requirement a relic from the pandemic's early days, when HIV transmission was not well understood.

"It's pretty easy to demonstrate you're not going to be a public health risk but it can be kind of humiliating for our clients," Pilcher said. "Imagine having to ask a 70-year-old Ethiopian female client to sign a statement talking about her HIV, and saying how she lives carefully and that she knows the virus is transmitted through bodily fluids."

For those who can't prove that they have immediate family in the country, there is not much that can be done. "So often they're just not eligible for anything. They entered illegally, or they overstayed, or they don't have a qualifying relative; their only relative may be their same-sex partner, and there's nothing we can do," Pilcher said.

Other times, stigma and humiliation might keep immigrants who apply for asylum quiet - and illegal. Either way, the end result is usually one of two options: deportation, or a life lived on the hidden margins of American society.

"There's a pretty significant underground here of people living day-to-day, hoping never to get caught, hoping for some sort of amnesty, because they'll never be able to go back home," Pilcher said.

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