The Bush administration is trying to pull a fast one — rushing through draconian proposed new regulations that will restrict even further the entry of HIV-positive people into to the US, just one year after having promised to ease them.
On November 6, the Department of Homeland Security (DHS) issued stringent proposed new regulations for HIV-positive travelers coming here which are "pretty regressive" and "extremely troubling," according to Nancy Ordover, assistant director for federal affairs and research at the Gay Men’s Health Crisis (GMHC).
But the 30-day deadline for public comment imposed by DHS means a cut-off date of December 6 for reactions to the new regs, leaving little time for the AIDS advocacy community to mobilize.
That, Ordover told Gay City News, is a departure from standard practice for proposed new federal regulations; the time frame for public reaction is "usually much longer," she said.
The US is one of only 13 countries that completely ban incoming travel across their borders by the HIV-positive. The others, according to a list established by the leading German AIDS service organization, Deutsche AIDS Hillfe, for the most part have undemocratic regimes. They are Iraq, China, Saudi Arabia, Libya, Sudan, Qatar, Brunei, Oman, Moldova, Russia, Armenia, and South Korea.
A waiver to the ban is required for HIV-positive travelers to or through the US. Even when a traveler’s US stay merely involves changing planes, a waiver is needed.
Last year on World AIDS Day, President George W. Bush pledged to issue "streamlined" new regulations with a "categorical waiver" that would make it easier for the HIV-positive to receive exemptions.
"Unfortunately, despite using the terms ‘streamlined’ and ‘categorical,’ in reality these regulations are neither," said Victoria Neilson, legal director of Immigration Equality, which works on behalf of LGBT and HIV-positive asylum seekers and immigrants.
Neilson told Gay City News, "This is a big disappointment, given the rhetoric of the Bush administration that the US was making it easier — because the new regs simply add more heavy burdens for the HIV-positive traveler."
Among other provisions, under the new rules proposed by DHS, a visitor would need to travel with all the medication he would need during his stay in the US; prove that he has medical insurance that is accepted in the US and would cover any medical contingency; and prove that he won’t engage in behavior that might put the American public at risk. The maximum term for any waiver would be 30 days.
The new regulations purport to speed up the waiver application process because consular officers would be empowered to make decisions without seeking DHS sign-off. However, by using this "streamlined" application process, waiver applicants would have to agree to give up the ability to apply for any change in status while in the US, including applying for legal permanent residence.
The purpose of fast-tracking the new regs and setting a super-tight December 6 deadline for public comment before they take effect was to catch the AIDS community — busy with preparations for World AIDS Day on December 1 — unawares. To a certain extent, the ploy has worked.
When Gay City News telephoned the usually well-informed Kate Krauss — who has worked for several AIDS advocacy organizations and now coordinates the Health Action AIDS Campaign for Physicians for Human Rights — to find out what she thought of the proposed new regs, she hadn’t yet heard of them.
"Wow, they just flew right by me — they haven’t been on my radar screen at all," she said.
After having been provided by Gay City News with a copy of the proposal, Krauss was appalled.
"Under the proposed regulations, the US travel ban remains a cruel violation of human rights for people with AIDS," Krauss said, adding, "People with HIV would be made to jump through even more hoops than before, and the rules would make it particularly difficult for people from very poor nations to visit the US, with requirements for wealth, medical care, medications, and documentation that the applicant is HIV-positive."
Moreover, Krauss said, "People could be penalized if they became sick while visiting the United States and, if found to be out of compliance with these regulations, barred from ever visiting the US again. If President Bush cares about the human rights of people with AIDS, he should just ask Congress to abolish the travel ban. Anything else is just rewriting an unjust policy."
GMHC’s Ordover pointed out, "As written, the rule could leave individuals with HIV who obtain asylum in the US in a permanent limbo; forever barred from obtaining legal permanent residence, and therefore cut off from services, benefits, and employment opportunities."
Ordover added, "It seems very disingenuous that the government is claiming to make things easier for people with HIV, but it’s really compelling them to forfeit their rights."
As a result of the hasty release of the proposed regs and the arbitrarily truncated time frame for public comment, only a few AIDS advocacy organizations have so far taken a critical posture, and this only began to happen at the end of last week.
GMHC was the first organization to release a lengthy analysis of the new regs, which it did last Friday, and began preparing a sign-on statement protesting them which it will ask other AIDS advocacy groups and immigrant rights organizations to join.
But things were fairly sluggish at AIDS Action Council, the largest Washington, DC AIDS lobby, which bills itself as "the national voice on AIDS" and represents more than 3,000 local service organizations. When Gay City News this Monday asked Ronald Johnson, AIDS Action’s deputy executive director, for his organization’s position on the new regs, he would only say, "we are in the process of developing our comments" and "we are still looking at the fine print."
Johnson added, "We’ll probably follow GMHC’s analysis."
When this reporter suggested to Johnson that AIDS Action organize a national conference call with executive directors of AIDS advocacy organizations to mobilize them quickly against the harsh new regs, he said they’d "think about it."
Fortunately, GMHC is already in the process of organizing such a conference call for next week, Ordover told Gay City News.
However, said Ordover, "these regulations are in general a distraction — what we really need to move forward on is getting the HIV-positive travel bar overturned completely."
In addition to her other duties at GHMC, Ordover is co-coordinator of Lift the Bar, a coalition of HIV, immigrant, human rights, and LGBT service and advocacy organizations working to overturn the HIV ban.
At a Congressional hearing last November, Ordover detailed the negative consequences of the travel ban.
"The HIV bar rarely makes the news, and when we do hear about it, it’s usually because someone trying to attend some major event or forum being held in the US can’t get into the country," Ordover said. "This is not unimportant — the International AIDS Conference hasn’t been held on US soil for 16 years and the HIV bar is the reason. Despite our efforts in the global fight against HIV and AIDS, our standing in the international community has been grievously compromised by this policy."
Ordover, who noted that one-third of GMHC’s clients are immigrants, also pointed out, "Many people first learn they are HIV-positive after they get to the US. Many contract HIV here. Some find out their status when they get the results of their Immigration Service medical examination."
Under the current DHS regs in force, she said, "Visitors either are actively deterred from seeking HIV testing and treatment, or avoid contact with providers out of fear of putting their immigration status in permanent limbo or worse. If they are low-income or poor, they either don’t have recourse to the full slate of public programs and services they need to stay healthy or may be unaware of what services they are entitled to. At GMHC we view this policy as a violation of human rights and a threat to public health inside and outside the US." The proposed new regs do nothing to change this.
And, Ordover added, "The truth is, the bar undermines public health and drives up the cost of health care. It forces HIV-positive immigrants to go underground, discourages immigrants who don’t know their status from getting tested, from seeking preventive care, from seeking any care until they end up in the emergency room with full blown AIDS — all things that undermine individual health, public health and that ultimately put more strain on the public coffers."
Individuals who wish to protest the harsh new DHS regs on HIV-positive travel may submit comments online at click — but to do so you must include the docket number of the proposed regs, USCBP-2007-0084. Organizations wishing to join in signing on to the statement GMHC is preparing in protest of the new regs should contact Nancy Ordover at [email protected] or 212-367-1240. Doug Ireland can be reached through his blog, DIRELAND, at click.
Doug Ireland, a longtime radical journalist and media critic, runs the blog DIRELAND.