Recent Development in HIV Positive Immigration Asylum and Petitioned Cases: Consequences in Light of September 11th
While the post September 11th environment has been bleak for many noncitizens, HIV positive immigrants have found our immigration laws to be unwelcoming for much longer. Pursuant to section 212(a)(1)(A)(i) of the Immigration and Nationality Act (“INA”):
“alien(s) who (are) determined … to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome … are ineligible to receive visas and ineligible to be admitted to the United States.”A January 29, 2002 panel discussion titled “Recent Developments in HIV Positive Immigration Asylum and Petitioned Cases: Consequences in Light of September 11th” in New York City, sponsored by the Association of the Bar of the City of New York and Gay Men’s Health Crisis (“GMHC”), specifically addressed four main areas of HIV/AIDS advocacy work and how it relates to immigration laws and benefits. The four areas of focus were: 1) HIV/AIDS and how it relates to one’s ability to apply for immigration relief, including family and employment based applications, 2) issues regarding access to care and treatment for the HIV/AIDS population in the developing world, 3) impact of the USA Patriot Act and other recent legislation on HIV positive individuals, and 4) access to public benefits for the HIV/AIDS immigrant community in the US.
More generally, the panel also discussed the broader HIV/AIDS pandemic and identified themes for further thought, which will be intermittently discussed in this article. The panel included distinguished members from the HIV/AIDS global advocacy community, immigration law practitioners, an Immigration Judge, human rights and public health advocates, as well as New York City HIV/AIDS community advocates.
I. The HIV Bar
Vishal Trivedi, an accredited representative in GMHC’s legal department, presented issues regarding family and employment based immigration, and the HIV ground of inadmissibility, more commonly referred to as the HIV Bar. Pursuant to INA Section 212(g)(1), an HIV positive intending immigrant must file Form I-601, Application for Waiver of Grounds of Inadmissibility, to establish the following: first, he or she must show a qualifying relative (spouse, parent, or unmarried son or daughter or minor adopted child) who is a U.S. citizen or legal permanent resident, second, he or she poses a minimal public health threat of the spread of the disease, and last, he or she will not become a public charge or dependent on US government benefits, such as Medicaid, in order to pay for their medications.
One can demonstrate a minimal public health threat by obtaining a physician’s letter, which should be filed concurrently with the Form I-601. The physician’s letter should state that the HIV positive intending immigrant has received counseling and is aware of the modes of transmission of the disease. If the intending immigrant is outside the US, and has not yet received treatment or counseling in the US, it was suggested by Mr. Trivedi to obtain a letter from a US physician which would state that the HIV positive intending immigrant, “upon entry”, will immediately receive treatment and counseling, and thus poses a minimal threat to the public health.
The public charge issue, addressed on Form I-601, deals with the intending immigrant’s ability to afford his or her medical expenses at no cost to the US government. The most effective way of showing this is by obtaining private health insurance in the United States. One must be careful to consult the health insurer’s policies, since some do not cover pre-existing conditions for the first year of insurance. Another possible alternative to obtaining costly private health insurance is to look for employment with health insurance benefits that cover HIV medications and other HIV related treatment. Again, if one is not in the US and is applying for an immigrant visa at an American consulate abroad, it is still necessary to prove that one will not become a public charge and obtain government assistance in order to pay for your medical expenses. This presents added difficulties since it is almost impossible to obtain private health insurance in the US while the immigrant is abroad.
For more details regarding the HIV Waiver, our website (www.cyrusmehta.com) contains an article titled, HIV Inadmissibility, Waivers and Advocacy (May 14, 2001).
II. Asylum, Withholding of Removal, and Convention Against Torture Relief
There are, however, other grounds of relief for which HIV positive immigrants, may qualify on account of their health status. These are: Asylum, Withholding of Removal, and Convention Against Torture, Article 3 relief.
Judge Jeffrey S. Chase, at the New York City Executive Office of Immigration Review (“EOIR”), Pradeep Singla, of the Lesbian and Gay Immigration Rights Task Force (“LGIRTF”), who serves as Legal Director for the New York City based organization, and Norma Avril Tinubu, who is a staff attorney at GMHC, led the panel discussion on these areas.
Judge Chase focused his comments on the lack of case law on HIV-based claims for asylum. Eligibility for asylum is codified in Section 208 of the INA. To be eligible for asylum, an individual must show that he or she is a refugee, as defined by section 101(a)(42) of the INA. A refugee is defined as a person “who is unable or unwilling to avail himself or herself of protection in that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
On December 7, 2000, the Department of Justice and the INS, jointly issued a Proposed Rules memorandum found in Federal Register Vol. 65, No. 236. The purpose of the rule is to clarify vague and divergent judicial and agency interpretations of asylum claims filed on the more ambiguous fourth category or “membership in a particular social group”. Although the INS earlier issued guidelines to address novel claims to asylum, which do not have precedents, asylum case law dealing with issues of HIV status or sexual orientation, is minimal.
The memorandum and Judge Chase’s presentation focused on the evolving definition of a refugee as well as the subjective and objective test for an applicant’s claim of persecution. Judge Chase also cited recent, novel asylum cases, which have posed particular challenges to traditional notions of asylum or the practice of seeking protection in a foreign country. Presently, successful claims to asylum based on sexual orientation or to avoid an African tribal practice known as female genital mutilation (“FGM”) have changed the way we judge a legitimate fear of persecution.
Two groundbreaking cases, Pitcherskaia v. INS, 118 F. 3d 641, 645 (9th Circuit 1997) and Matter of Kasinga, 21 I. & N. Dec. 357 (BIA 1996) questioned the notion that actions which rise to the level of persecution, must include the subjective intent of the persecutor to harm or punish. Pitcherskaia involved a lesbian woman who was forced to undergo psychiatric treatment in order to “cure” her of her disease - homosexuality. In this case, the court discussed whether the intent of the officials was not to harm her but to help her change and become “normal”. Also, in Kasinga, the applicant was seeking refuge from family members who were going to force her to undergo FGM, a cultural ritual performed on women in her tribe. Again, from the tribe, or persecutor’s perspective, FGM was not intended to punish her but to “initiate” her into the practices of the tribe. Both applicants viewed the actions of these officials and tribal leaders, based on their membership in the social groups of homosexuals and women, as persecution based on the cruelty and physical and psychological damage which these practices would cause them. More importantly, both applicants saw themselves as being members of a particular social group based on immutable characteristics fundamental to their nature. In the former case, her homosexuality could not be altered; in the latter, she was a woman and could not become a man to avoid FGM, and thus sought asylum.
In essence, the two decisions redirected previous analysis of what constitutes persecution. Although the “persecutors” may not have viewed their actions as “persecution”, the persecution claim was judged objectively or “on what a reasonable person would deem offensive.” (Pitcherskaia) These actions are considered persecution for the purposes of an asylum claim if, as the memorandum states, “the applicant at hand would experience or has experienced the procedure as serious harm, not whether the perpetrator means it as punitive.” As such, the decision also suggests that the applicant’s testimony and written statement are the best sources of evidence in determining whether he or she has or would experience the treatment as persecution as defined by the INA.
For an HIV-positive individual, it has long been understood that denial of medications, due to a country’s lack of resources, is not sufficient to prove persecution. However, if an individual has suffered severe mental, physical and medical persecution due to HIV status, those factors may be grounds for asylum. Some examples of possible factors to explore when one is dealing with an HIV claim is if the person’s daily functions are prohibited due to social ostracism, police abuse, isolation, or civil discrimination, such as mandatory testing policies which result in job loss, and extreme mistreatment and abuse. Also important is the society’s perception of HIV positive individuals. Are they imputed to be sexual minorities or sex workers or homosexuals? Do police and government practices known as “social cleansing” threaten the life and freedom of these individuals?
Possible HIV-based claims may also include if officials forcibly test HIV positive individuals against their will. Or if the government, or private individuals who the government is unable or unwilling to control, deny treatment of a non-HIV related illness due to the patient’s HIV status. Again, although it is difficult to make blanket statements regarding which claims would be viable, it is advised that if a reasonable person judging the facts of the case determines that objectively speaking, the treatment suffered by the individual based on HIV status is sufficiently offensive to shock the conscience, then it could meet the standard for asylum.
In general, if there is proof of past persecution then there is a presumption of future persecution, and it is incumbent upon the government (INS) to show with a preponderance of the evidence that the country’s circumstances have changed to a degree where the person should no longer fear returning.
Another possible avenue for an HIV-positive individual is Withholding of Removal (“withholding”). Withholding is governed by Section 101 (a)(42) of the INA and requires a higher burden of proof than asylum. To qualify for withholding, the immigrant must show that it is “more likely than not” that the alien would be persecuted on account of one of the five grounds: race, religion, nationality, membership in a particular social group, or political opinion. Unlike asylum, which is discretionary, the adjudicator must grant withholding once the applicant meets the higher burden of proof.
Ms. Norma Tinubu, a staff attorney at the GMHC, discussed relief under the Convention Against Torture (“CAT”), Article 3. CAT protection is also mandatory and not discretionary. If an individual can prove the higher standard of “more likely than not”, that he or she will be tortured, he or she is eligible for relief and can remain in the US. CAT is a possible alternative for someone with no other means of legalizing his or her immigration status, and who is facing deportation. For instance, immigrants who have been convicted of deportable crimes are barred from pursuing more common remedies to legalizing their status in order to remain in the US. In such cases, CAT relief may be the only solution, and should be explored.
There are two avenues for CAT protection. One is Withholding of Removal under CAT, which is more desirable although there is no derivative benefit to family members and it does not lead to permanent resident status in the US. The other form of CAT relief is Deferral of Removal, which is less desirable since it is temporary. The standard for CAT cases is the “more likely than not” that the individual will be tortured if he or she is returned to the home country. The individual must also demonstrate that he or she will be tortured by the government or tortured because of the acquiescence of government officials. Furthermore, a CAT claim does not have to show a nexus between the persecution and one of the five grounds, namely, race, religion, nationality, political opinion or membership in a particular social group.
For an HIV positive individual, possible CAT claim arguments could include: isolation due to infection, subjection to secret testing practices resulting in a loss of job, decreased standard of living due to discrimination, being treated as a social pariah and unable to carry on basic life functions, such as attending school or church, experience with severe social ostracism, or if the cost of medications are prohibitive, and impossible to access. Another possible basis for CAT relief is the criminalization of the individual’s HIV status. For instance, in many countries with limited HIV/AIDS education, a person who is HIV positive or who is perceived to be HIV positive may be categorized as a prostitute or a drug addict, adulterer or homosexual, without regard to the person’s individual circumstances. In societies where HIV/AIDS is criminalized, an individual may qualify for CAT protection to remain in the US.
When evaluating an HIV positive individual’s chances for immigration relief, it is vital that all possible avenues are explored, especially in today’s anti-immigration climate. Avenues including asylum, withholding of removal, or CAT protection, can provide relief.
Advocacy to combat harsh immigration laws includes progressive efforts to change immigration laws to recognize same sex couples. Mr. Pradeep Singla spoke about efforts to bring same sex couples recognition for immigration purposes. As he noted, the US is behind the times in these matters. Many nations such as the Netherlands, the UK, Australia, and Denmark, already recognize and afford same sex partners varying degrees of benefits under immigration laws in their countries. Along with Congressman Jerrold Nadler’s office who introduced legislation on February 14, 2000 to extend immigration benefits to committed same sex partners, the advocacy in this area is on-going and determined.
III. Human Rights and Global Access to HIV/AIDS Treatment
The panel then turned its discussion to the global battle against HIV/AIDS and human rights violations afflicting HIV ravaged communities around the world. Ms. Joanne Csete, Program Director for Human Rights Watch’s HIV/AIDS and Human Rights Division, identified other victims of the HIV/AIDS pandemic. Ms. Csete’s human rights work has taken her to countries where rates of HIV/AIDS infection are highest including Rwanda, Burundi, the Congo, and the Dominican Republic.
Ms. Csete’s comments reiterated global concerns created by the HIV/AIDS pandemic. As previous speakers pointed out, the problem is not being contained within geographic borders and the devastating effects around the world are destroying societies and causing a public health disaster of a kind not seen since the Bubonic Plague (“Black Death”) killed a third of Europe’s population in the 14th Century. In the US, HIV/AIDS medications are available and so is education on treatment, adherence to treatment, and prevention. This is not the case in most countries around the world. Thus, countries in Africa, Latin America, and Asia that are not equipped to handle the spread of HIV, are being devastated.
The proportion of those affected by HIV/AIDS in countries like South Africa is particularly startling. Statistics show that at the current rate of infection, a 15-year-old has a better than even chance of dying of AIDS. The devastating effects there, and elsewhere, have caused the depletion of all sectors of society, from teachers, doctors and nurses to mothers and fathers.
Ms. Csete noted that in addition to the previously mentioned groups (HIV positive individuals, homosexuals, or those perceived to be homosexuals) who may be eligible for asylum or other relief based on persecution in their home countries, groups such as women and children are also suffering from differing degrees of human rights abuses in their home countries as a direct result of the HIV/AIDS pandemic. For instance, if more children are orphaned (currently there are about 15 million orphans in Africa) and forced to assume roles as head of household and engage in hazardous labor to provide for themselves, they will continue to remain vulnerable to sexual violence, disinheritance, and no formal supervision or care.
Women are also identified as a group who are more vulnerable to human rights abuses as a result of this pandemic. Deplorably, HIV positive women are still discriminated against, and are more limited than men, in their access to available treatment for sexually transmitted diseases and curable HIV related health problems. Since women’s health is more compromised than their male counterparts, they are more vulnerable to contracting HIV or other deadly diseases and infections.
The HIV pandemic has also spawned myths affecting women in unspeakable ways. In Africa, one such myth among HIV positive men is that having sex with a virgin cures HIV/AIDS. Thus, there has been a declining age of female rape victims, and women are becoming even more vulnerable to contracting HIV/AIDS at an earlier age. In addition, men feel safer having sex with younger women since they feel it is less likely to contract AIDS from a child, resulting in more young women becoming victims of sexual violence.
Despite the nightmarish effects the spread of HIV/AIDS is having around the world, equally disturbing has been the response our government and other developed countries have towards providing access to life-saving medications and treatment.
Ms. Karen Kaplan, an HIV Program Officer at the International Gay and Lesbian Human Rights Commission (“IGLHRC”), presented issues regarding global access to healthcare and HIV/AIDS medications in poorer countries. Ms. Kaplan spoke about her organization’s advocacy efforts to strengthen the US’s role in providing low cost medicines abroad. The matter is complicated because it involves the cooperation of pharmaceutical companies who stand to lose profits if drug prices are too low.
In 1995, the World Trade Organization (“WTO”) formed the Trade-Related Intellectual Property agreement, more commonly referred to as TRIPS. TRIPS allows developing nations to use two methods to provide essential medications to their citizens: 1) compulsory licensing, which issues a license for generic production of medicine without the consent of the patent holder, as long as a royalty is paid, and 2) parallel importing which imports drugs to poor countries at the lowest price. The WTO formulated the TRIPS agreement to preserve pharmaceutical companies’ intellectual property rights to drugs they develop. Under TRIPS, countries have until 2006 to develop national legislation implementing this agreement, and once it is implemented, pharmaceutical companies have to patent each product in each country. The country-by-country process is tedious and has resulted in few pharmaceutical companies bothering to patent their medicines, yet they continue to block access to life-saving medicines in poor countries.
In spite of corporate greed, one solution to providing access to treatment has been local production of generic HIV/AIDS medications. Brazil, a leader in generic production of HIV medications, has cut the cost of some medicines by 80%. This reduction in cost allows even the poorest nations to buy medicines for their citizens. The goal for countries like Brazil, India and Thailand, which have also spearheaded generic drug production, is to produce enough generic forms of medications to sell to other countries at affordable prices. Many countries in Africa and Latin America have reportedly contacted generic drug producers to begin negotiating the purchasing of these low cost medicines. Since the process of producing generic forms of drugs can be slow because the producers themselves have limited access to the materials needed to produce such high quantities, advocates should continue to demand the cooperation of the private industry. Once barriers to accessing vital medicines is decreased, longer lives may be expected.
IV. The USA Patriot Act and Legislative Changes Affecting HIV positive Immigrants post-September 11
Panelist Cecilia Volk, an advocate for the rights of HIV positive individuals, presented her work to document the effects of the USA Patriot Act (“Patriot Act”) and various justice department memoranda and interim rules shaping immigration and other laws since September 11th. The result of these Justice Department directives has been an erosion of immigrants’ rights. The well publicized indefinite detention of individuals swept up for interrogation after the terrorist attacks in New York and Washington DC, were among the largest infringements on individual rights the US has ever seen. Thousands of Arab Americans and others were rounded up and subjected to lengthy investigations and detentions. Ms. Volk’s work has been, in part, to determine that conditions in detention centers will not damage or adversely affect HIV positive individuals’ health. Although the number of HIV positive individuals who were detained as a result of 9/11 is unclear, the conditions in INS detention centers have always been deplorable, and efforts to guarantee certain conditions, like access to medications, and non-discrimination due to HIV status, have been stepped up since then.
For an HIV positive individual the importance of access to medications, social and family networks of support, and mental health providers cannot be overemphasized. Many INS detainees brought into custody before and after 9/11, report being clumped together in inhumane, cage-like cells. Almost all have limited or no access to family, friends, and legal counsel. There is a growing consciousness that many individuals who should not be in jail are, because the process of moving them out is slow and not an INS priority. Many innocent individuals have languished in INS detention centers for months, and even years. Others have simply been arbitrarily moved around and their attorneys and families and friends have discovered only after the fact, that their client or relative or friend, who was being detained in New York, is now in Louisiana.
The effects of a lengthy detention on an individual who is HIV-positive is life threatening. An individual who is taking medicines to prevent HIV-related symptoms or who relies on life-sustaining medications to combat infections or other HIV-related diseases requires specific conditions to make adherence and proper recovery possible. Ms. Volk’s efforts include a letter to the Justice Department addressed to Attorney General John Ashcroft, advocating for the rights of the HIV/AIDS positive in detention centers. Her efforts, in collaboration with other organizations, have been to demand that HIV positive immigrants in detention are getting the access to medications they need and that they are provided suitable living conditions, which include proper nutrition and the right to maintain the confidentiality of their status. This effort is on-going and it requires the support of the entire HIV/AIDS advocacy community.
V. Benefits and Services for HIV/AIDS Immigrants in the US
Ms. Yanira Gomez-Lopez, an accredited representative and provider of legal services at GMHC, offered information on immigrant access to public benefits in New York. She stated that most of the rules changed in 1996, with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act (“PRWORA”). PRWORA severely limited access to government food stamps and financial assistance programs to non-citizens. Ms. Gomez-Lopez also emphasized the need to coordinate with an immigrant’s legal counsel if they are considering receiving public benefits and they have unresolved immigration issues, because receipt of such benefits can trigger public charge issues.
With few exceptions, receipt of public benefits can jeopardize an individual’s immigration case. As previously stated, if an HIV positive immigrant is in need of an I-601 waiver for their HIV, they have to show ability to pay their own health costs, and receiving benefits undermines this. However, some programs such as the AIDS Drug Assistance Program (“ADAP”) provides free HIV/AIDS medications, with much higher income guidelines than Medicaid or other federally-funded health care programs for the poor. Thus a person can earn a substantially good salary (in New York State a person can earn approximately $40,000 a year) and still be eligible for ADAP and receive free HIV/AIDS medications in the US. More importantly, non-citizens are also eligible to receive ADAP. It is not clear exactly how receiving ADAP could negatively impact an immigration case, yet if public charge issues do arise, it is important to note that ADAP is not only for the destitute. ADAP guidelines vary from state to state, so consult your state’s ADAP office for more detailed information.
HIV/AIDS around the globe continues to threaten the stability of societies that are not equipped to deal with the disease and its devastating effects. While HIV has almost become a chronic and manageable disease in many developed countries like the US, it continues to be a rapid death sentence in developing countries. HIV need not be a death sentence if access to treatment and medical care is ensured. Providing these life-saving technologies and medical advancements to the rest of the world’s population is not impossible, yet as many on the panel pointed out, it is clear the US must lead in the effort to repair some of the devastating effects of HIV/AIDS in Africa, Asia, Latin America, and here in the US as thousands come to our borders in search of life-saving treatment.
About The Author
Rosalba Novoa is a legal assistant at Cyrus D. Mehta & Associates, PLLC. Prior to joining the firm, she worked as immigration paralegal for the HIV Law Project, a not-for-profit in New York City, which provides free legal assistance to HIV positive New Yorkers.
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is a trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Chair of the Immigration and Nationality Law Committee of the Association of the Bar of the City of New York. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-425-0555 or firstname.lastname@example.org.