Nov 07, 2003  |  By: KEVIN SPENCE  | COMMENTS     

NEW YORK — For those who are HIV-positive and born outside the United States, the newly created Bureau of Citizenship & Immigration Services has uncompromising guidelines. For some, remaining in this country — or even arriving — is next to impossible.

“The law in the U.S. is that those that are HIV-positive are inadmissible to the U.S.,” said Victoria Neilson, legal director at New York City’s Lesbian & Gay Immigration Rights Task Force. “Inspectors at borders or airports have a lot discretion.”

Around the country, however, AIDS and gay-rights advocates are challenging federal policy that denies entry visas based on people’s sero status. For now, a non-immigrant visa may be granted if the individual will be stateside for less than 30 days, poses no public health risk, is asymptomatic and can pay for medical care if necessary, said Neilson.

Designated events, like the Gay Games or an AIDS conference, for instance, have been used to justify such visas, Neilson said. A letter from a treating physician is mandatory when applying for a waiver.

The situation is far more difficult for immigrants seeking legal permanent residence. As part of the application process, they must undergo a medical exam, which includes HIV testing. They can only obtain a waiver if they have an immediate relative (spouse, parent or child) who is a U.S. citizen or permanent resident. This leaves many gay applicants with no chance of obtaining a green card.

Asylum is best shot for poz foreigners
One client with whom Neilson worked ended up moving to Canada.

Kenji, a gay man from Japan was in a long-term relationship with a U.S. citizen. While working here on a six-year skilled worker visa, he tested positive for HIV. Despite being an exemplary employee and obtaining sponsorship from his employer, Kenji was unable to apply because of his HIV status.

Without having an immediate relative here, he knew his application would be denied. He moved to Canada; his American partner is now in the process of applying to immigrate to Canada, where a long-term same-sex partner can sponsor him.

Applying for asylum is a tedious and arduous undertaking, often leaving HIV-positive immigrants with no recourse except to return to their homeland or elsewhere. In a few cases, immigrants are granted the right to remain. According to statistics from the BCIS, 45,284 cases have been filed this year so far. Of those, only 11,362, have been approved.

Nationals of Guatemala submitted the most asylum applications in August 2003, followed by Colombia and Haiti.

“If you are granted asylum and the basis is your HIV status, you are eligible to file as well without having to prove your family relationship,” said immigration attorney John Nechman of Houston. “For the gay male, that’s one of the few options if you are HIV positive.”

By definition, an asylum-seeker is an alien unable or unwilling to return to his country out of fear of persecution.

In 2002, Nechman, the only attorney in his jurisdiction to win approval of HIV cases, proved that a Lebanese client with an American partner would be persecuted upon return to Lebanon. In Lebanon, homosexuality is punishable by imprisonment up to 90 days. Torture is widespread and vigilante groups often kill those who are HIV positive, he said. His client, therefore, was granted asylum.

Another client, a transgendered prostitute from Honduras, was also granted asylum after several transgender rights groups advocated on her behalf and showed that they would provide medical treatment for her.

A Mexican man’s American boyfriend contacted a doctor who said he’d treat him. In some cases, Mexican paramedics refuse to treat HIV-positive people. The man was granted asylum.

Today, however, Nechman said, it is becoming increasingly difficult for him to win such cases.

“If I had this case this year, I would wonder if I would get that approval.”

Nechman said the BCIS is becoming more vigilant.

“They’re actually picking people out of buses these days.”

Ban dates to ‘93
In 1993, Congress banned HIV-positive immigrants from entry and it became an official part of the Immigration & Nationality Act. On March 1, 2003, what was formerly known as the Immigration & Naturalization Service became a part of the Department of Homeland Security.

Some say the transformation has led to less accountability among government officials.

“We know that’s it’s required by federal law to be tested for HIV,” said Ron Brenesky, secretary of the Unity Coalition, a civil rights organization in Southeast Florida. “But some are being denied. We have no independent organization to determine if the federal government ...