Defying Realpolitik: Human Rights and the HIV Entry Bar

This is the story of how we won; of how a coalition of advocates and activists came together and used a rights-based argument to lift a 23-year-old US bar on the entry, residence, and stay of HIV-positive people. We were told our objective was unrealistic and that our tactics wouldn’t work. Yet, after a little over three years of concentrated effort, victory was ours: an important victory and one came too late for too many.

By the summer of 2007 civil liberties, prisoner rights, human rights, and immigrant rights organizations had documented 64 known deaths in Immigration and Customs Enforcement (ICE) custody. Victoria Arellano was the 65th. A transgender woman with AIDS repeatedly and deliberately denied her medication, she died at the San Pedro detention center on July 20, 2007. ¹

We don’t know if Arellano ever tried to adjust her immigration status and was denied or discouraged because of her HIV status or her gender identity or both or neither. We do know that an inability to adjust immigration status increases the likelihood that people in our communities, including people living with HIV and AIDS (PLWHA), will end up in detention. We know, too, that the issue of HIV entry bars and the fallout from those policies have always been inextricably bound up with larger issues of immigrant justice, human rights, structural racism, the dehumanization of LGBTQ people, the delivery of health care, and the global fight against HIV and AIDS.

At this writing, 64 countries are known to impose restrictions on the entry, stay, and residence of HIV-positive foreigners. The cost of these policies has been staggering, even fatal—particularly for migrants, mobile workers, and undocumented immigrants. Progressive HIV & AIDS and LGBTQ movements worldwide have also paid the price for this redlining of people with HIV born outside their borders. These policies can have an immobilizing effect on many undocumented HIV-positive immigrants, justifiably afraid to come forward and be visible community leaders in the fight. It has kept people who should be working together to stem the epidemic and advance the rights and freedoms of LGBTQ people apart.

Finally, it has nurtured the age-old myth of the menacing, diseased alien: the foreigner-as-contaminant. Despicable in and of itself, this characterization fosters—not only in the public at large but also inside our own communities—a false sense of protection and of demarcation, suggesting that HIV is something “outside” and we can keep it that way. The United States, which had first an administrative and then a statutory ban, has, in fact, the highest HIV prevalence in the so-called developed world.

In 1987, the United States decreed HIV-positive noncitizens without legal permanent residence inadmissible except in extremely limited and rare circumstances. Travelers were barred from visiting or even transiting through the country. Non-green card holding people already in the country who tested positive were denied adjustment of their immigration status or any recognizable legal standing. We were six years into the epidemic and three years away from the elimination of the US entry ban on homosexuality. There was nothing coincidental about this overlap. The first years of the epidemic were marked by vicious rhetoric about the “4 H’s:” homosexuals, Haitians, heroin users, and hemophiliacs. Each early policy response to HIV and AIDS, including immigration policy, was informed by animosity toward the first three of these groups. We are still living with the fallout. It is widely acknowledged that this legacy would have been completely different if the first group to get hit with HIV had been, say, the second sons of Forbes 500 executives. With some important exceptions (few and far between), immigration law (and not only US immigration law) has had at its core a concern with who would be included in the nation and who would be denied inclusion. If flawed “public health” claims could be evoked to bolster exclusionist arguments, so much the better.

For six years, the HIV entry bar remained an administrative policy under the purview of the Department of Health and Human Services (HHS). Then, in 1993, it took its place in a long line of legislative enactments that together testify to the elasticity of inadmissibility. In the interim, over 200 LGBTQ, HIV/AIDS, immigrant service, and health-related organizations came forward to oppose the policy, as did two secretaries of the HHS. Advocates, particularly those in the Haitian community, took up critical work in the wake of the forced testing and detention of over 200 refugees at the US base at Guantanamo Bay. Activists succeeded in keeping the International AIDS Conference out of the United States so long as the entry restrictions persisted. ² Finally, two administrations, one Republican and one Democrat, tried and failed to remove the ban. The latter attempt, by then President Bill Clinton, triggered a belligerent backlash from Congress which proceeded to enshrine the entry bar in the Immigration and Nationality Act (INA). The move was championed by Jesse Helms, who decried the administration’s concessions to “the AIDS lobby and to the homosexual rights movement which feeds it … an arrogant and repugnant political group.” ³

The bar remained there, in the INA, until 2008, with the INA poised as a defender of “public health” and guardian of the public purse. In reality of course, the policy failed even by its own logic. It jeopardized individual and public health. Travelers were dissuaded from bringing their antiretrovirals (ARVs) through customs for fear of being turned around at the ports of entry and so risked interruption of their treatment regimens and subsequent development of drug resistance. HIV-positive immigrants were, in effect, driven underground, ineligible for public medical benefits, and often reluctant to put their immigration status in limbo by seeking out any type of care until they ended up in the emergency room with full blown AIDS—a much costlier and more hazardous health care alternative. These realities exposed the fallacies of the public health/public purse subterfuge, and so the HIV bar’s origins and resilience are best explained by two essential political truths: Nobody ever lost an election by defaming or disfranchising immigrants, and anti-immigrant sentiment has always found a responsive chord in a majority that harbors—indeed celebrates—acrimony toward the international community and a practiced enmity toward racial and sexual outsiders (so much so that said majority will tolerate grievous violations of their human rights).

What follows is a brief description of how advocates and activists addressed both fact and fiction to bring the issue of HIV entry bars back to the surface and how, after years of neglect and resignation, succeeded in getting the US bar removed from statute and administrative policy. Fundamentally, it came down to the deployment of the right language at the right time, recognition of the interdependency of constituencies, and a willingness to pursue a human-rights-based approach even as we addressed economic and public health claims.

Words Matter

For a long time, conversations on US restrictions on HIV-positive travelers and immigrants were kept separate though they were from the outset inseparable; both groups were proscribed in a single sentence of the INA which stated that, “any alien — (i) who is determined […] to have a communicable disease of public health significance, which shall include infection with the etiologic agent for acquired immune deficiency syndrome,” was ineligible to receive a visa or to be admitted to the United States. Often, the immigration bar never even entered into the discussion. In fact, this policy and similar policies elsewhere in the world continue to be referred to by many as “travel bans.” This verbiage has long erased the policies’ most vulnerable victims (immigrants and other mobile populations). The “travel ban” concept has also trivialized the significant dangers the bans have posed to even short-term travelers. For example, those few permitted to visit the United States for 30 days or less on special waivers had their passports branded with a waiver stamp: a mark of inadmissibility thereafter visible at every port of entry in the world. Even for travelers, this was no mere matter of vacation plans thrown off course, but an invasion of privacy that placed the bearers in serious jeopardy.

It became critical to dislodge the old terminology and challenge old formulations about the policy; to talk not of travel bans, but of entry bars involving barriers at two points of entry. The first, obvious and literal: people with HIV were prohibited from entering the United States. The second, encountered on this side of the US border: entry into the workforce and the healthcare system were also barred to those unable to adjust their immigration status, as was their full participation in civic life and their access to housing and welfare benefits. The image that often came to mind in these discussions was that of getting caught in a vestibule between two doors. This much more complex and precise construction of the magnitude of the entry bar opened up more opportunities for coalition work.

1. Raised in the United States, undocumented, deported, Arellano fell into ICE’s hands while trying to cross back into the United States. She was housed in the men’s dormitory—a common and dangerous outrage for transgender women in custody, though her fellow detainees put themselves on the line trying to get her the treatment and care she needed (and paid a price for it). She died shackled to her bed. Her mother reported at the time that her body was wracked by pneumonia and meningitis. ICE (in)actions suggest the purposeful withholding of medical care as means of administering corporal punishment.[↑]
2. The IAC, which has not been held on US soil in over 20 years because of the entry ban, is scheduled for Washington, DC, in 2012 in the wake of the policy’s removal. Other entry bans persist, however, including those on sex workers, people who use drugs, and those with criminal convictions. Despite efforts on the part of advocates and activists, as of this writing it remains unlikely that the International AIDS Society will bow to calls to move the IAC out of the United States.[↑]
3. See 139 CONG. REC. S1697-02, S1721 (daily ed. Feb. 17, 1993). Cited in Daniel M. Bernstein’s paper, HIV/AIDS AND LAWFUL PERMANENT RESIDENCY:An Analysis of the HIV Bar, Waivers, and Prospects for Change, 1999.[↑]