Out of the Frying Pan and into the Quarantine: Why 8 U.S.C. § 1182 s HIV-AIDS Exclusion Should Not Apply to Refugees Seeking Entry into the United States

Author:Demetrius Lambrinos
Position:Demetrius Lambrinos recieved his JD-MBA with an emphasis on law and economics from the University of Iowa in 2006.

I. Introduction II. Background A. A Short History of 8 U.S.C. § 1182 B. The 1993 Haitian Refugee Crisis and the Subsequent AIDS Quarantine at Guantanamo Bay III. Legal Analysis Of § 1182 A. The HIV Exclusion Violates Public Policy B. The HIV Ban Does Not Stem the Spread of AIDS 1. HIV Testing Increases Health Risks Because of Inherent Flaws in the Testing Procedures a. HIV Test Results are... (see full summary)


    Demetrius Lambrinos, Demetrius Lambrinos recieved his JD/MBA with an emphasis on law and economics from the University of Iowa in 2006. He is currently practicing at the law firm of Zelle, Hofmann, Voelbel, Mason & Gette LLP in San Francisco where he primarily handles issues related to class action antitrust cases. He would like to thank Erin Herbold and everyone at JGRJ for helping make publication of this Note possible.

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"Today¥s real borders are not between nations, but between powerful and powerless, free and fettered, privileged and humiliated. Today, no walls can separate humanitarian or human rights crises in one part of the world from national security crises in the other." Kofi Annan, U.N. Secretary-General, in his 2001 Nobel Peace Prize acceptance speech.1

I Introduction

Pierre Avril was fourteen when he was apprehended by the U.S. Coast Guard and detained at the Guantanamo Bay Naval Base in Cuba.2 Pierre was not an international terrorist or a criminal of any kind; rather, he was a political refugee fleeing persecution in Haiti who also happened to be HIV- positive.3 Pierre, along with 276 other detainees, was imprisoned at Guantanamo Bay for over eighteen months.4

While living at the camp, Pierre and his fellow prisoners were subjected to strict forms of military discipline such as food deprivation and public Page 120 humiliation.5 Two men were reportedly "hog-tied" when they refused to lay face down after a camp protest.6 The camp itself was so filthy and unsanitary that it was overrun with "rats the size of cats."7 Officials operating the camp also forcibly sterilized several female detainees through Depo-Provera injections.8 Many detainees, including Pierre, were permanently traumatized by their detention, and at least four of them have attempted suicide.9 Pierre was finally released, along with the last remaining prisoners at Guantanamo, when a federal district court closed the camp on June 8, 1993.10 Now he lives at a psychiatric correctional facility in New York.11

Joel Saintil, one of Pierre¥s fellow detainees, was among the sickest in the camp.12 Human rights lawyers asked the Immigration and Naturalization Service (INS) to send Joel and other deathly ill detainees to the United States for treatment, but the INS refused.13 Fortunately, the district court ultimately ordered their release,14 but Joel died three days after he arrived in the United States.15

Pierre and Joel were apprehended pursuant to a joint operation carried out between the U.S. Coast Guard and the INS from 1981 to 1991 called the Alien Migration Interdiction Operation (AMIO).16 Over the course of this operation, these agencies apprehended over 25,000 Haitian nationals attempting to cross the Gulf of Mexico and seek asylum in the United States.17 The INS processed the asylum seekers at Guantanamo Bay using a two-step process.18 First, the INS determined which individuals qualified for refugee status in the United States based on whether they had a "credible Page 121 fear" of persecution upon their return to Haiti.19 This standard was intended to be more generous than the "well-founded fear of return" standard, which was generally used to process asylum applications.20 The INS denied entry to Haitians who failed this test, and those who could not find another host nation were sent back or "repatriated" to Haiti.21

Second, the INS invoked 8 U.S.C. ß 1182, which prohibits HIV- positive immigrants from entering the country and allows the INS to administer HIV tests to those "screened-in refugees" who passed the "credible fear" test.22 The INS granted refugee status to HIV-negative individuals who demonstrated a credible fear of return and allowed them entry into the United States.23 Those who passed the "credible fear" test but who tested HIV-positive were interviewed a second time under the more restrictive "well-founded fear" test.24 HIV-positive Haitians who failed the "well-founded fear" interview were repatriated, and the 115 who did demonstrate a well-founded fear of return were detained at Guantanamo in a military quarantine along with their immediate family members.25 In other words, individuals who would have otherwise qualified as official refugees were denied entry to the United States and forcibly detained at Guantanamo Bay because they or their family members were HIV-positive.26

The detainees received harsh treatment at the camp and many were permanently traumatized.27 The officials running the camp also failed to provide the necessary medical facilities despite a public health warning from the Centers for Disease Control and Prevention (CDC).28 Many detainees became ill while at the camp, and half of them have died since their release in June 1993.29

The plight of these refugees, their detainment, their deaths, and their continued suffering should serve as a cautionary tale. U.S. lawmakers have blinded themselves to the burden that ß 1182 imposes not only on Haitians but also on all political refugees and on the international refugee system as a Page 122 whole. This ill-conceived policy creates the possibility of another refugee crisis similar to that experienced in 1991. The statute also fails to meet any of its objectives, is inimical to the proper functioning of the international refugee system, and violates international law.30

This Note argues that ß 1182¥s HIV/AIDS exclusion provision should not apply to individuals who would otherwise qualify for refugee status under current U.S. law. First, this Note provides a basic background of the Haitian refugee crisis and the establishment of the AIDS quarantine at Guantanamo Bay. Second, this Note makes the following arguments against allowing the United States to refuse HIV-positive refugees entry: (1) excluding HIV-positive refugees violates established public policy; (2) excluding HIV-positive refugees does not stem the spread of AIDS; (3) excluding HIV-positive refugees violates international law; and (4) excluding HIV-positive refugees encourages other nations to deny them entry. Finally, this Note concludes by detailing a legislative proposal that exempts qualified refugees from ß 1182 and creates a comprehensive AIDS prevention and education program for all legal immigrants.

II Background

The Department of Homeland Security defines refugees as "aliens who seek residence in the United States to avoid persecution in their country of nationality."31 While the U.S. recognizes all refugees¥ legitimate right to seek asylum, it systematically denies entry to those who are HIV-positive.32The following is a short history of this law.

A A Short History of 8 U.S.C. ß 1182

The Immigration and Nationality Act (INA), 8 U.S.C. ß 1182, has always permitted the federal government to prevent the entry of aliens infected with certain communicable diseases such as tuberculosis, syphilis, cancroid, and gonorrhea.33 Congress included this provision pursuant to its Page 123 authority to keep threatening aliens from entering the country.34

In 1987, the United States Public Health Service (PHS) added AIDS to the list of exclusionary communicable diseases in 8 U.S.C. ß 1182.35 In August of that year, the Senate substituted the term HIV for AIDS.36 While the communicable disease restriction supposedly applies to all aliens, the INS only tests refugees and immigrants seeking permanent legal residence.37Visitors and other non-immigrants, such as diplomats and consular staff, are not tested.38

Immigrants and refugees who test positive for HIV, and who are therefore subject to exclusion, may apply for a discretionary waiver from the INS.39 To qualify for this waiver, however, the applicant must satisfy two requirements.40 First, the applicant must be "the spouse or unmarried son or daughter or the minor, unmarried adopted child of a U.S. citizen or Lawful Permanent Resident (LPR)" or "have a son or daughter or lawfully adopted child who is a U.S. citizen or LPR."41 If this relational requirement is met, the applicant must also show that his or her admission will create a minimal danger to public health, pose a minimal threat of spreading the disease, and not impose burdensome health care costs.42

A cursory analysis of these waiver requirements, however, reveals that most refugees and asylum applicants will fail the relational prong of this test and will thus have no meaningful recourse if they test positive for HIV. In fact, between 1987 and 1992, only three such waivers...

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