Administrative discretion gone awry: the reintroduction of the public charge exclusion for HIV-positive refugees and asylees.

• Author: Kidder, Rebecca

The ignorance, misinformation, and fear that accompanied public awareness of Acquired Immune Deficiency Syndrome (AIDS) in the mid-1980s has had lingering effects upon American immigration policy. The Secretary of Health and Human Services (HHS) first proposed adding AIDS to the list of "dangerous contagious diseases"(1) that are grounds for excluding an alien under the Immigration and Nationality Act (INA) in April 1986.(2) In 1987, Congress and the President prompted the Secretary to finalize regulations that would make Human Immunodeficiency Virus (HIV) infection a public health exclusion.(3) Members of Congress were concerned that other countries would encourage and "support emigration of their [HIV] infected citizens" to the United States.(4) The Secretary agreed that "[w]ith our current state of knowledge about HIV infection, ... the exclusion of applicants with HIV infection is justified."(5)

In 1993, in the face of increasing knowledge about the transmission of HIV, President Bill Clinton announced his intention to order HHS to remove HIV infection from the list of excludable diseases.(6) Congress responded by codifying the HIV exclusion to override the President's decision.(7) As a result, the exclusion of HIV-positive aliens applying for immigrant visas, refugee visas, and adjustment to permanent resident status is still in effect. The HIV exclusion, however, is not an absolute bar to admission for all aliens. Refugees may obtain waivers under the Refugee Act of 1989,(8) which granted the Attorney General discretion to waive some exclusions, including the HIV exclusion, "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." Since 1988, the INS has refused to grant HIV waivers to refugees unless they can prove that the federal government will not have to pay for their medical treatment. In 1988, Associate Commissioner James A. Puleo released a memorandum in which he set forth three criteria that limit the availability of HIV waivers.(10) The third criterion of the memo requires immigration officers to evaluate whether the government will bear the medical costs of admitting a refugee, which this Note will refer to as the INS HIV Rule.

The INS initially applied the INS HIV Rule to illegal aliens applying for permanent resident status under the Immigration Reform and Control Act Amendment to the INA (IRCA)(11) in 1986 through a formal regulation.(12) This regulation only concerns aliens applying for permanent residence under the amnesty provisions of IRCA,(13) but through the Puleo Memo the INS informally extended the HIV Rule to refugee applicants as well as refugees and asylees applying for permanent resident status.(14) Puleo's successor, Alexander Aleinikoff, issued a memo reaffirming the Puleo Memo in 1995.(15)

The INS HIV Rule contradicts the Refugee Act waiver provision, which states that the Attorney General cannot apply public charge exclusions to refugees.(16) While the Immigration and Nationality Act does not define the term "public charge," over one hundred years of case law and legislative history indicate that a public charge is a person who is likely to become dependent on government support for survival.(17) In the 1995 Aleinikoff Memo, the INS recognized that refugees cannot be excluded as public charges even if they become dependent on the government for support.(18) However, the Aleinikoff Memo also reiterates the INS HIV Rule, requiring an alien to show that "there will be no cost incurred by any level of government agency of the United States without the prior consent of that agency."(19) While the INS claims that the HIV Rule is not the public charge exclusion listed under INA section 212(a)(4),(20) it is used to effect the same result. Under no other exclusion provision does the INS require a waiver applicant to prove that she will not become a public charge as a condition for waiver eligibility. In every other instance, the public charge exclusion is considered a separate ground for exclusion.

This Note argues that the INS HIV Rule violates the Refugee Act of 1980 and is therefore an illegitimate use of administrative discretion. Part I examines whether the INS HIV Rule is a public charge exclusion or a public health exclusion and concludes that it is a public charge exclusion.(21) Part II argues that applying a public charge exclusion to refugees is contrary to the plain language and legislative history of the Refugee Act of 1980. It further demonstrates that the 1993 codification of the HIV exclusion did not grant the INS discretion to consider costs for HIV-positive refugees. Finally, Part III discusses the limited avenues of judicial review available to refugees and concludes with a discussion of policy reasons why the INS should abandon the HIV Rule.

1. Public Charge or Public Health?

   The INS is clearly aware that the public charge exclusion does not apply to refugees. In a 1995 memorandum to all INS District Directors and Field Staff, Associate Commissioner Aleinikoff stated that "the public charge provisions do not apply to refugees," and that "[r]efugees and individuals granted asylum who are applying for adjustment of status under section 209 of the Act are not subject to the public charge ground of excludability."(22) However, Aleinikoff also reaffirmed the INS HIV Rule, which requires refugees to prove they will not burden any government agency.(23) While Congress initially conflated public health and public charge concerns in immigration exclusion law in the early 1990s, since 1952 Congress has treated medical costs as a public charge issue, not as a matter of public health. Judicial precedent confirms that ability to pay medical costs can only be understood as a public charge concern. The INS has not justified the apparent inconsistency between the mandatory waiver of the public charge exclusion under the Refugee Act and the HIV Rule.(24)

   1. The INS HIV Rule: Requiring Evidence of Self-Sufficiency

      The INS has indicated in the Puleo and Aleinikoff memoranda that:

      [T]he discretionary authority of the Attorney General will not be used unless the applicant can establish that (1) the danger to the public health of the United States created by the alien's admission to the U.S. is minimal, (2) the possibility of the spread of the infection created by the alien's admission to the U.S. is minimal, and (3) there will be no cost incurred by any level of government agency of the U.S. without prior consent of that agency.(25)

      According to the INS, the third criterion, the INS HIV Rule, can be met in at least four ways.(26) First, an applicant may provide evidence that she has private health care insurance that will cover her health care costs.(27) Second, an applicant may provide evidence of financial resources that would cover the medical costs of HIV treatment.(28) Third, an applicant may provide a statement of consent to treatment from government health care officials.(29) Last, an applicant may provide a statement from a specific private or government health care or research facility that will assume responsibility for treatment.(30) The INS has noted that "the average cost of medical treatment for an HIV-infected person ... is approximately U.S. $85,500."(31) Given the conditions that create refugees,(32) and the fact that the estimated lifetime cost to the government for treating HIV in the United States ranges from $40,000 to $75,000 per person,(33) the typical refugee would probably have difficulty qualifying for a waiver based on her personal resources. Unfortunately, the INS has not compiled a comprehensive list of its waiver decisions. In addition, a lack of explicit policies on what evidence is sufficient to prove that a refugee will not become a public burden exacerbates uncertainty in the waiver process and makes it difficult to evaluate how the HIV Rule is actually being applied to refugees.(34)

   2. Lessons From the Past: The Separation of Public Charge and Public

      Health Concerns

      Congress and the INS excluded aliens as public charges and public health threats for over one hundred years. The historical development of exclusion policy by Congress and the INS, however, shows an increasingly clear distinction between health and public charge concerns. This distinction indicates that medical costs must be recognized as a public charge concern.

      Congress enacted the first federal immigration exclusion on March 3, 1875.(35) The main purpose of the exclusion was to prevent the emigration of people likely to become dependent on the public coffers for support.(36) Congress passed the first formal public health exclusion in 1891, excluding "persons suffering from a loathsome or dangerous contagious disease."(37) The trend of excluding aliens for public charge and public health reasons continued throughout the early 1900s.(38) Congress enacted public health exclusions to protect the public health and the federal treasury; it was concerned about the financial burden posed by aliens' medical conditions.

      The Immigration and Nationality Act of 1952 refined the public health exclusions to separate the concern that a person with health problems would become a public charge from the concern that a person posed a health risk to the community.(39) The INS structurally separated these public health and public charge concerns by creating separately numbered exclusions in the legislation.(40) Under the 1952 regulations and under present regulations, there are two levels of health exclusion: those warranting the issuance of a Class A Medical Certificate and those warranting a Class B Medical Certificate.(41)

      Doctors issue a Class A Medical Certificate out of a public health concern that an alien poses a threat to herself or the community. If an examining doctor issues a Class A Medical Certificate, the alien is presumptively excludable as a threat to public health and the immigration officer must exclude the alien unless a...