RE: Proposed Rule on Issuance of a Visa and Authorization for Temporary Admission into the United States for non-immigrants (temporary travelers into the United States) with HIV
Docket Number: USCBP– 2007–0084
Document ID: USCBP-2007-0084-0001
Docket Title: Issuance of a Visa and Authorization for Temporary Admission into the United States for Certain Nonimmigrant Aliens Afflicted with HIV Infection.
Agency Name: Bureau of Customs and Border Protection; Department of Homeland Security
December 5, 2007
Department of Homeland Security
111 Massachusetts Avenue, NW, 3rd Floor
Washington, DC 20529
VIA EMAIL
To: regulations.gov
To Whom It May Concern:
Gay Men's Health Crisis, the Coalition to Lift the Bar, and the twenty-eight other organizations listed below submit these comments opposing the Department of Homeland Security's (DHS) proposed rule for HIV-positive nonimmigrant temporary travelers to the United States as insufficient, unjustifiable, and untenable. While we recognize that DHS may be limited in what redress it can offer HIV-positive travelers and immigrants to the U.S. until Congress acts to remove the HIV entry bar in its entirety, the proposed rule offers no relief and in fact bolsters a discriminatory and dangerous policy. The signatories to these comments oppose any policy or process that singles out HIV-positive people for inequitable treatment and we call on DHS to withdraw its proposal.
At its core, the HIV entry bar is a violation of human rights as enumerated in the International Covenant on Civil and Political Rights, the United Nations Declaration of Human Rights, and U.N. guidelines on human rights and HIV/AIDS. Furthermore, the mechanisms for its enforcement – the existing waiver process and the rule under consideration – betray a profound lack of knowledge about HIV. This is evidenced by the preservation of certain existing provisions and the addition of new criteria present in the DHS proposal.
Under the proposed rule, applicants would have to demonstrate a “controlled state of HIV.” There is no sound reason for why this provision should stand, given that HIV is not transmitted through casual contact. Prospective travelers would also need to show they possess (1) an adequate supply of antiretrovirals (ARVs) to last for the duration of their trip and (2) sufficient assets to cover the cost of any medical attention they may need while in the U.S.
These criteria are unacceptable for a number of reasons. First, neither consular officers nor Customs and Border Patrol personnel are equipped to make determinations regarding medical etiology, medication, transmission of HIV, or public health. Second, there is no appeals mechanism for the applicant who is denied. Finally, requirements concerning medication supply and proof of assets are applied solely to individuals with HIV who are thereby singled out for unequal treatment by DHS and the Department of State.
One of the most disturbing elements of the new rule would force waiver seekers to forgo the opportunity to apply for an extension of their stay, a change in nonimmigrant status, or an adjustment of status to that of permanent resident. We maintain that travelers must be permitted to extend their stays in the U.S. beyond 30 days should the need arise, and applicants should be able to apply for a work visa and, eventually, a green card. Primarily, however, we are concerned about the effect this will have on asylum seekers. While this provision may not foreclose the ability of an individual who enters the U.S. under this new process to apply for asylum, a literal reading of this provision suggests that he or she would never be able to get a green card. Unable to attain legal permanent residency status, this person would remain in limbo indefinitely, barred from medical benefits and employment opportunities.
We are also extremely concerned about issues of confidentiality. We note that
HIV-positive travelers will continue to have their visas stamped with a waiver that denotes their status as inadmissible (were it not for the waiver itself). Furthermore, the proposal makes no mention of how confidentiality will be handled at ports of entry, specifically during primary and secondary inspections.
The HIV entry bar fails even by its own logic: it undermines public and individual health and drives up the cost of health care. It dissuades travelers to the U.S. from bringing their ARVs. It forces HIV-positive immigrants to go underground, and discourages them from seeking care until they end up in the emergency room with full-blown AIDS. It is no wonder that the American Medical Association, the American Public Health Association, and two Secretaries of Health and Human Services have all acknowledged that HIV entry bar is unjustifiable on public health grounds.
The proposed rule exacerbates rather than eases an inhumane and indefensible policy. We urge DHS not to promulgate these amended regulations.
Sincerely,
ActionAid International USA
Action Group for Health, Human Rights, and HIV/AIDS (AGHA) Uganda
African Services Committee
AIDS Action
AIDS Community Research Initiative of America
AIDS Foundation of Chicago
AIDS Legal Council of Chicago
American Civil Liberties Union
Audre Lorde Project
AVERT
Bronx AIDS Services, Inc.
Coalition to Lift the Bar
Community HIV/AIDS Mobilization Project (CHAMP)
East Bay Community Law Center (a clinic of UC Berkeley Law School)
Ecumenical Advocacy Alliance
European AIDS Treatment Group (EATG)
Gay Men's Health Crisis
German AIDS Federation (DAH)
Global Network of People living with HIV/AIDS - North America (GNP+NA)
HIV Law Project
Jamaican Network of Seropositives
National Immigrant Justice Center
National Stonewall Democrats
New York AIDS Coalition
New York Immigration Coalition
North American Council of AIDS Service Organizations
Program for Wellness Restoration
Queers for Economic Justice
San Francisco AIDS Foundation
Sylvia Rivera Law Project
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