Here's how the law stands: Section 212(a)(1)(A)(i) of the INA states that any foreign national with a "communicable disease of public health significance" is "inadmissible." This means that people living with HIV, no matter how healthy they are -- presumably including those who came to the White House to share with the American public their stories on World AIDS Day -- are to be denied green cards, unless they qualify for a limited or categorical waiver.
In the early 1990s when HIV/AIDS was less understood, public fear fueled policy. The Public Health Service (PHS) a division of the Department of Health and Human Services sought to decide whether HIV should be placed on the list of excludable diseases -- and concluded that it should not. Public health officials testified before Congress that the U.S. is "virtually the only major country to try to bar HIV-infected travelers," and since "sexually transmitted diseases are not spread by casual contact" or "through the air," public education would prevent transmission better than closed
Despite PHS' expert testimony, Congress opposed the recommendation and codified HIV/AIDS as an excludable illness, and in an unprecedented move, wrote the HIV exclusion directly into the Immigration and Nationality Act (INA). Other diseases such as active tuberculosis and leprosy are also
inadmissible, but as the PHS recognizes, these are spread through open air, or casual contact, unlike HIV.
With HIV written directly into the INA, it will take real leadership and an act of Congress to overturn or to amend this policy. Without such action, the HIV community must rely on waivers to enter or remain in the United States. But entry waivers are very difficult to obtain, and if obtained bar future travel to the U.S. Residency waivers are even more difficult to obtain as hardship to a parent, spouse or child must be shown, so must proof of insurance coverage and knowledge of how HIV is transmitted. A new approach is needed.
Sadly, despite the President Bush's call for a more compassionate approach to HIV/AIDS, and for a categorical waiver, the policy had regressed over the years and recent immigration proposals threaten to worsen policy towards HIV-positive immigrants. Even those folks who visited with the president and the first lady on World AIDS day will now be barred from ever coming to the United States again without a waiver.
President Bush was correct to say that the system needs some compassion. Instead of the proposed "categorical waiver" the president should take the lead by recommending the implementation of blanket waivers both for immigrant and non-immigrant HIV-positive foreign nationals in the United States. He should follow the recommendation of the health experts and end the inhumane exclusion policy in favor of education.
Adam Francoeur is program coordinator for the New York-based Immigration Equality
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Albion Monitor December
27, 2006 (http://www.albionmonitor.com)
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