HIV Immigration Ban, Travel Restrictions P Current Status

The HIV immigration ban recently passed by Congress and
attached to the NIH Reauthorization Act was signed into law
by President Clinton on June 10. Clinton opposed the HIV
restriction initially, but did not speak actively against it
in Congress. Since Clinton could not veto the bill without
also vetoing the NIH Reauthorization Act, which included
important reforms for AIDS, cancer, women's health, and other
medical research, the AIDS community did not push for a veto.

The news came while we were in Berlin covering the
International Conference on AIDS. When one German told us he
was dropping out of an international research study because
he feared that U.S. authorities might get his name and he
would never be able to visit his friends in the United States
again, we said that was unnecessary to drop out because there
were waiver provisions for short-term visits of up to 30
days, long enough for scientific conferences and for most
personal and business visits; if his future plans did not
call for any longer stay, they would not be disrupted. The
possibility of waivers had not been reported in the German
press account -- and probably not elsewhere in the world's
press either. We decided to publish this information in an
effort to reduce damage to AIDS research and prevention
programs worldwide.

After returning from Berlin we researched the situation
further, and talked to Aimee Berenson, legislative counsel
for the AIDS Action Council in Washington, D.C. We learned
that the new law does not change the existing policy which
allows such waivers, but that there is much uncertainty about
how the Attorney General will use her discretion to continue
these waivers, so no one knows what will be available in
practice in the future.

The new HIV ban consists of less than one sentence. The
previous law, the Immigration and Nationality Act of 1990,
listed as excludable "any alien who is determined (in
accordance with regulations prescribed by the Secretary of
Health and Human Services) to have a communicable disease of
public health significance." The new legislation adds, "which
shall include infection with the etiologic agent for acquired
immune deficiency syndrome." This does not change the U.S.
policy which existed before the law was passed, but freezes
it so that it cannot be changed administratively. The
legislation overrules the U.S. Public Health Service, which
for years has wanted to list only active tuberculosis as an
excludable condition under this section, but was blocked from
removing HIV by the Bush administration. Now HIV must be
listed by an act of Congress, no matter what public-health
officials determine or what the president decides.

Under current practice, customs officials do not seek out
short-term visitors who have HIV. If visitors arrive here and
then declare that they have HIV, or if AZT or other AIDS
drugs are found in their luggage, they are questioned about
the purpose of their trip and whether they have health
insurance. Then they may be given a waiver and released to
continue their trip. We do not know how many waivers are
denied since statistics are not available; also we do not
know how many visitors are excluded without an official
denial by being forced to choose between returning
immediately or waiting in detention, sometimes for weeks,
before their case will be heard. AIDS activists have only
heard of a few cases, but probably never hear about most of
the people who are barred and sent back.

[For applicants for permanent residence -- usually long-term
U.S. residents now trying to legalize their status -- waivers
are much more restrictive. They may be allowed only for
specified family members: "the spouse or the unmarried son or
daughter, or the minor unmarried lawfully adopted child, of a
United States citizen, or of an alien lawfully admitted for
permanent residence, or of an alien who has been issued an
immigrant visa," or for an applicant who "has a son or
daughter who is a United States citizen, or an alien lawfully
admitted for permanent residence, or an alien who has been
issued an immigrant visa." Many cases do not fit this
definition, and families are sometimes broken up. The new law
guarantees that this situation will continue.]

For short-term visitors, Attorney General Janet Reno could
revise the regulations -- such as making waivers automatic
for trips of up to 30 days, so that short-term visitors do
not need to worry about bringing their medicines with them,
and could make their travel plans and business plans without
this uncertainty. But there are also proposals to make the
restrictions more burdensome, such as requiring a large money
bond to prevent people from overstaying their visas. It is
not known if the Attorney General will address these
regulations at all -- and if she does, whether the result
will be better or worse than the current situation.

In short, there is a good chance that persons with HIV will
be able to come to the United States for short trips to visit
family or friends, attend scientific conferences, conduct
business, travel as tourists, or purchase medical care not
otherwise available. But no assurances can be given.

The Guantnamo Camp

On June 8, a Federal judge ruled that the U.S. must release
the 158 HIV-positive Haitian refugees held for 18 months at
the U.S. naval base in Guantnamo, Cuba. U.S. authorities had
determined that they had a legitimate fear of persecution if
returned to Haiti. But then when they tested HIV-positive,
the U.S. refused to process their applications for political
asylum, because of the U.S. policy of excluding persons with
HIV -- the same policy which Clinton said he wanted to
change, but which the new law makes permanent. The Clinton
administration decided not to immediately appeal (thanks in
part to major public protests against the mistreatment of the
Haitians), and by June 14 the barbed wire at the camp had
come down, and some of the Haitians had already been flown to
the U.S.

Some people have erroneously believed that this decision
overruled the HIV ban. But, as Ms. Berenson explained, the
judge only ruled that if the United States detains people,
then it must provide them with due process (the chance to
pursue their legal case for political asylum) and with
medical care -- and that their HIV status cannot be a basis
for denying them their basic rights. He did not rule on the
constitutionality of the ban itself.

Comment

By sending a high-profile message around the world that
people known to have HIV cannot count on fair treatment,
Congress has created an incentive for everyone in the world
to not be tested for HIV -- and for those who already know
they are positive to avoid the public-health system, avoid
volunteering for medical research, and avoid working with
AIDS-control efforts.

AIDS prevention efforts around the world are centrally based
on trust that people can step forward and cooperate with
public-health programs, without suffering unbearable
consequences as a result. No amount of compulsion or
regimentation will replace what this trust can do. Damaging
trust makes AIDS prevention everywhere work less well.

The ostensible purpose of the new law was to save money by
excluding from the U.S. people who might need medical care at
public expense. The real purpose was to harm the Clinton
presidency so that Republicans will have a better chance of
winning the White House back in 1996. Democrats were slow to
support Clinton because some of their leaders in the Senate
think that they themselves were more worthy than he was to be
president. The ban also reflects hostility against immigrants
(increasing around the world due to economic problems,
especially the growth of a high-tech global economy which no
longer has room for much of the middle class), and hatred of
gays, also increased due to economic problems. The religious
right, obsessed with homosexuality, still sees AIDS as a gay
disease; according to one estimate, it generated several
hundred thousand calls to Congress supporting the ban,
compared to less than a tenth as many opposed.

Having finished its game of political football, Congress can
simply walk away. But the world will pay with money and with
lives for a long time to come.

Notes:

1. For a review of some of the history of the conflict over
the U.S. HIV immigration ban, see AIDS TREATMENT NEWS issue #
128, July 12, 1991; also see notices in several of the
following issues, through September 6, 1991.

2. Another part of the story is that in the recent case, the
AIDS community did a poor job of mobilizing immediate
grassroots political support -- massive calls and letters
from people to their Congressional representatives -- against
the ban. It is widely believed, among AIDS political
specialists outside the Beltway, that the basic problem is
that some of our Washington organizers are not good at
grassroots organizing because they are threatened by it, as
their stock in trade is their inside connections. We are not
close enough to judge the accuracy of this diagnosis.

But we do know that until the AIDS community can both do the
inside work and also organize at least 100,000 calls and
letters to Congress within days on a major national issue, we
will always be vulnerable to this kind of attack, unable to
protect the vital needs of the nationwide and worldwide fight
against the epidemic. And behind the calls and letters, we
must have policies which are widely understood and supported
by the public, and also by activists in many different
causes. To those who say it can't be done, we point out that
it was done, and on this very issue, in 1991, when 117,902
people wrote to the U.S. Centers for Disease Control during a
public-comment period to oppose the same ban which Congress
just now passed into law. 17,833 people supported the ban at
that time. (These figures were provided by the CDC, and were
published in AIDS TREATMENT NEWS issue #134, September 6,
1991.) To those who say we can't spare the energy, since it
must go into other pressing matters of the epidemic, we point
out that different people mobilize for different purposes;
with effective leadership, many would come out to do
political work who otherwise would not be volunteering for
AIDS at all.

Yet even without the 100,000 calls, Congress still bears
institutional responsibility for its actions. To use a deadly
epidemic as a political football, with no regard for the
consequences, is a monstrous disservice.