Administrative Discretion Gone Awry: The Reintroduction of the Public Charge Exclusion for HIV-Positive Refugees and Asylees
Kidder, Rebecca, The Yale Law Journal
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. …