Administrative Discretion Gone Awry: The Reintroduction of the Public Charge Exclusion for HIV-Positive Refugees and Asylees

By Kidder, Rebecca | The Yale Law Journal, November 1996 | Go to article overview

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Administrative Discretion Gone Awry: The Reintroduction of the Public Charge Exclusion for HIV-Positive Refugees and Asylees
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.