The exclusion of HIV-positive immigrants under the Nicaraguan Adjustment and Central American Relief Act and the Haitian Refugee Immigration Fairness Act.

• Author: Cook, Shayna S.

INTRODUCTION

The United States has turned away immigrants infected with the human immunodeficiency virus ("HIV") under the public health exclusion of the Immigration and Nationality Act ("INA")(1) since the mid-1980's.(2) Since Congress codified the HIV exclusion in 1993,(3) any alien applying for an immigrant or nonimmigrant visa, adjustment of status to lawful permanent resident, or refugee status must first have a blood test for HIV.(4) The HIV exclusion is not absolute, however. Each HIV-positive alien can apply for one of two waivers of the HIV exclusion that are available in the INA. When an alien applies for immigrant or permanent resident status, he must disclose his HIV status on the application and, if he is HIV-positive, may simultaneously apply for a waiver of the exclusion. The first waiver, available to general immigrants under the INA, requires the immigrant to have an immediate family member in the United States who is a citizen or lawful permanent resident.(5) The idea behind this requirement is that family members will help to care, financially and otherwise, for HIV-positive relatives, thus relieving the financial burden on the government. The second waiver, available for "special" immigrants such as refugees, gives the Attorney General discretion to waive the exclusion "for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest."(6) In other words, this humanitarian waiver is reserved for groups of immigrants whom Congress allows into the United States for humanitarian reasons. Which of the two waivers an immigrant can apply for depends on what type of immigration status he is seeking, because different waivers are available for aliens applying under various sections of the INA. When a new immigration law is enacted, Congress or the Immigration and Naturalization Service ("INS") must decide which waiver should be available to HIV-positive immigrants applying under the new provision.(7)

The INS recently had an opportunity to decide which of these two waivers should apply to newly enacted legislation. Congress passed the Nicaraguan Adjustment and Central American Relief Act of 1997 ("NACARA")(8) and the Haitian Refugee Immigration Fairness Act of 1998 ("HRIFA"),(9) which allow Haitian, Cuban, and Nicaraguan immigrants and illegal aliens who have been in the United States since December 1995 to adjust their status to that of lawful permanent resident.(10) The humanitarian purpose of these laws, as this Note discusses, was to recognize and respond to the unique situations of these individuals who fled particularly horrific political conditions in their home countries by allowing them to reside permanently in the United States.(11) NACARA and HRIFA (hereinafter "the Acts") constitute exceptions to the general adjustment of status provision under the INA, in that they grant permanent resident status to applicants even if they are inadmissible for many reasons, including illegal entry and potential financial burden on the government.(12) Applicants under the Acts are still subject to some of the inadmissibility provisions that are barriers to adjustment of status, including the HIV exclusion.

In regulations adopted pursuant to the Acts, the Immigration and Naturalization Service requires HIV-positive applicants under the Acts to apply for the waiver of the HIV exclusion that is dependent on the applicant's immediate family relationship with a United States citizen or permanent resident.(13) The INS regulations with respect to waivers of the HIV exclusion do not allow HRIFA and NACARA applicants to apply for the waiver for humanitarian reasons available to other HIV-positive refugees and special immigrants.(14) Seemingly, it would be easier for HIV-positive applicants to assert humanitarian reasons for the INS not to deport them in their waiver applications than to prove the requisite family relationship because HRIFA and NACARA constitute Congress's recognition that the United States should not send these applicants who have been living in the United States since 1995 back to Haiti, Cuba, and Nicaragua. Thus, the INS effectively chose the waiver with more difficult requirements for HIV-positive applicants to meet.

This Note considers the appropriateness of the INS's HIV waiver regulations under HRIFA and NACARA. Courts generally afford administrative agency interpretations of statutes great deference under the Chevron doctrine, unless the agency regulation is contrary to legislative intent.(15) Chevron requires courts to review administrative actions under a two-pronged analysis to determine whether the agency's regulation is an abuse of its congressionally delegated discretion.(16) Under the first prong, a reviewing court determines if Congress clearly addressed the precise question; if it did, and the agency regulation does not match Congress's clear intent, the agency abused its administrative authority.(17) If Congress's intent is not clear, the court turns to the second prong of Chevron, under which it must defer to the agency's construction of the statute as long as that construction is permissible.(18)

Subsequent courts have clarified what "clear" intent under the first prong entails, determining that legislative intent need not be clear on the textual surface and that courts may look beyond the text of the law to determine whether Congress's intent was clear.(19) The Supreme Court has adopted a holistic approach to statutory construction, which requires courts to look beneath the surface of the statute to divine legislative intent.(20) The Fourth Circuit in Brown & Williamson Tobacco Corporation v. FDA synthesized the Court's "holistic approach" to statutory construction as involving four considerations: 1) the plain language of the statute; 2) the overall statutory scheme; 3) legislative history; and 4) a consideration of other relevant statutes.(21)

If, after conducting this multi-faceted analysis under the first prong of Chevron, a statute is still ambiguous with respect to a specific issue, courts move on to the second Chevron inquiry: whether the agency's regulation is based on a permissible construction of the statute.(22) Ambiguity arises only after a reviewing court has looked for Congress's specific intent using all of the traditional tools of statutory construction: plain language, context and structure of the statute, and legislative history.(23) Although courts generally give agencies more discretion if the statute is ambiguous,(24) the regulation must still be reasonable "in light of the language, legislative history, and policies of the statute."(25) The reasonableness inquiry includes an examination of the agency's textual analysis of the statute, including its analysis of legislative history, and a determination of the compatibility of the agency's interpretation to the congressional purposes behind the statute.(26) If the regulation is contrary to Congress's policy goals in enacting the statute, a court will find that it is not a reasonable interpretation of the law and thus an abuse of administrative discretion.(27) In performing this analysis, courts must consider Congress's goals in light of the legislative history of the statute, including compromises between competing goals.(28)

This Note utilizes this holistic approach to statutory construction to argue that the INS regulations regarding the HIV exclusion under the Acts are contrary to clear congressional intent and thus an abuse of administrative discretion. This Note further argues that even if the intent of Congress is not clear and the Acts are ambiguous as to waivers of the HIV exclusion, the INS's regulations for HIV-positive applicants are unreasonable in light of Congress's humanitarian purposes in enacting HRIFA and NACARA. Part I examines the plain language of the Acts, concluding that because Congress did not explicitly address the HIV exclusion in the Acts, it is necessary to look elsewhere to determine legislative intent concerning this issue. Part II discusses Congress's intent behind the Acts and the HIV exclusion itself, concluding that the most important reason behind the HIV exclusion -- cost -- is not relevant under HRIFA and NACARA. Moreover, because Congress intended to create an unprecedented immigration remedy in response to political unrest in these countries, the administrative regulations under the Acts should reflect the congressional goal of giving the applicants -- even the HIV-positive ones -- special treatment. This discussion of legislative intent is relevant both to show Congress's clear intent under Chevron prong one and to evaluate the INS's reasonableness under prong two. Part III considers the INS regulations in light of other relevant immigration statutes and Congress's overall statutory scheme for immigration law. A consideration of relevant statutes is useful in evaluating the regulations under both prongs of Chevron. Part III argues that because the INS treats HIV-positive applicants differently under HRIFA and NACARA than under other immigration laws based on similar legislative purposes, the INS violated Congress's intent to give HRIFA and NACARA applicants the same protection as applicants under analogous laws. This Note concludes that the INS should voluntarily change the waiver requirements in its regulations; courts should find the waiver regulation to be an abuse of administrative discretion and vacate the rule; or Congress should amend the law to specify that the humanitarian waiver is available for HIV-positive applicants.(29)

1. THE PLAIN LANGUAGE OF NACARA AND HRIFA

   The first step in statutory interpretation is to look at the plain language of the statute.(30) Because the Acts do not mention the HIV exclusion or waiver explicitly, the plain language of the Acts does not conclusively demonstrate Congress's clear intent with respect to HIV-positive applicants. As mentioned above, the Acts allow Haitian...