The Administration should rescind mandatory HIV testing and/or discriminatory policies currently in place in the U.S. Foreign Service, the Peace Corps, the Job Corps, the State Department, and the military, when there is no compelling public health justification.
Administration's Response
On April 1, 1996, the Job Corps initiated a pilot program eliminating mandatory HIV testing for residential Job Corps applicants in Region VI. All applicants—residential and nonresidential—will be routinely counseled and offered voluntary HIV testing. After a three-month trial period, if successful, this program will be made national policy for the Job Corps.
Assessment of the Response
The progress by the Job Corps is encouraging and laudable. Unfortunately, the Council received no response from the Administration to our recommendation to eliminate policies of mandatory HIV testing and/or discrimination in the U.S. Foreign Service, the Peace Corps, the State Department, and the military absent a compelling public health justification for such policies.
Followup Action Recommended
The Council requests immediate clarification on the Administration's efforts to eliminate or justify mandatory testing and/or discrimination in the U.S. Foreign Service, the Peace Corps, the State Department, and the military.
The Secretary of HHS should instruct the CDC to (1) review its guidelines that arbitrarily restrict HIV-infected health care workers and that lead to discrimination against them, and (2) ensure that these guidelines are consistent with prevailing scientific and public health knowledge on the issue.
Administration's Response
The Secretary of HHS has asked for a review of these guidelines.
Assessment of the Response
The Council is pleased that the Secretary has asked for a review of these arbitrary guidelines. However, the fact that the review is only now in process makes clear that this review is long overdue, especially in light of the National Commission on AIDS recommendations and other scientific studies and reports issued in the last several years.
Followup Action Recommended
The Council seeks confirmation that the review will be completed and that all changes necessitated by this review will be implemented during the current calendar year.
The Administration should oppose any congressional efforts to require that otherwise qualified military service personnel who test positive for HIV be discharged, including a veto of the Department of Defense Reauthorization Act if such a provision is included. In his veto message, the Council recommends that the President state that the veto is, in part, due to the inclusion of this provision.
Administration's Response
The President and the Administration strongly opposed enactment of the so-called "Dornan Amendment." Through the coordinated efforts of the White House, the Department of Defense, the Department of Veterans Affairs, and the Department of Justice—along with the advocacy of many community groups—repeal of this provision was accomplished before any service member had to be discharged. The Administration will continue to oppose efforts to reimpose this provision.
Assessment of the Response
The Council strongly advised the President to veto for the second time the DoD Reauthorization Act because it still contained the Dornan Amendment. While we opposed his decision to sign the bill, we commend the Administration's vocal opposition to the Dornan Amendment, its bold decision not to defend the law in court, and its leadership in obtaining legislative repeal of this law.
Followup Action Recommended
Continued vigilance will be required as similar amendments have been introduced in Congress.
The Administration should direct the CDC, Immigration and Naturalization Service (INS), and Department of State to monitor and coordinate the HIV testing of immigrants to ensure informed consent, pre- and post-test counseling, and appropriate legal and health referrals and to ensure that waivers of the HIV exclusion are granted on a priority basis when permitted by statute. Also, when permitted by statute, the INS and the Executive Office of Immigration Review (EOIR) should grant stays of deportation, suspension of deportations, extended voluntary departure, deferred action, and asylum based on the social group category of HIV-positive individuals.
Administration's Response
The Office of National AIDS Policy has worked closely with the relevant agencies in the Federal Government to ensure waivers for those attending the Summer Olympics in Atlanta and to permit transit visas for those passing through the United States on their way to the International Conference on AIDS in Vancouver. The Office will also work with the CDC to ensure appropriate oversight of HIV testing of potential immigrants.
While both EOIR and the INS are constrained by the need to approach and evaluate each application for asylum, stay or suspension of deportation, deferred action, or extended voluntary departure on its own legal and factual merits, the waiver process allows the flexibility to balance respect for individual rights with the need to protect the public health.
Because stays of deportation, voluntary departure, and deferred action status are forms of relief granted by an INS district director at his or her prosecutorial discretion, the district director must consider each case on the basis of its individual facts and not on the basis of membership in a social group. Similarly, EOIR's immigration judges and its Bureau of Immigration Appeals are charged by regulation with independent adjudication of individual cases. Thus, it is not possible to render these types of immigration decisions based on social group category. The INS will, however, consider applications for stays of deportation, voluntary departure, and deferred action status submitted by HIV-positive individuals in a manner consistent with applications submitted by aliens seeking to remain in the United States for other medical reasons. This includes reviewing all applications for relief where an individual alleges that deportation may result in his or her being unable to obtain life-sustaining treatment.
Finally, aliens with HIV who are seeking asylum or withholding of deportation may be able to qualify for recognition as members of a "particular social group" if the evidence in the individual case supports such a conclusion. (Courts have interpreted the phrase "particular social group" to mean a group of persons sharing a common, immutable characteristic that group members either cannot change or should not be required to change.) Withholding of deportation is available to persons whose life or freedom would be threatened on account of their membership in a particular social group. Aliens may be admitted on the basis of refugee status if they are able to document a well-founded fear of persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion and if they are able to satisfy the other elements of the statutory definition (the harm must emanate from the government of the refugee's country or an entity the government cannot or will not control, and the persecutor must seek to harm the asylum seeker specifically because of his or her membership in the social group). Finally, because asylum is a discretionary form of relief, the asylum seeker must demonstrate that he or she merits a favorable exercise of discretion. Humanitarian factors, such as an applicant's affliction with a serious medical condition, would generally weigh in the applicant's favor.
In sum, although the INS and EOIR are required to adjudicate requests for asylum, stay or suspension of deportation, deferred action, or extended voluntary departure on their individual merits and cannot grant such discretionary relief in a blanket fashion, where appropriate they will consider HIV infection as a factor weighing in favor of discretionary relief from deportation. Additionally, where consistent with statute, the INS and EOIR will recognize HIV infection as a characteristic that, depending on the practices of the government in the home country, can define a particular social group for purposes of determining eligibility for asylum and withholding of deportation.
Assessment of the Response
The Council is pleased by the Administration's clarification of INS policies regarding the granting of asylum relief from deportation to HIV-positive immigrants. This clarification allows for a more compassionate and sensible approach.
The Council remains concerned that informed consent, pre- and post-test counseling, and appropriate legal and health referrals for HIV-positive immigrants are not being monitored and coordinated by the INS. It is the INS that designates the doctors who conduct medical exams for immigration purposes.
Followup Action Recommended
Since the INS controls these "designated civil surgeons" and only the INS can instruct them to conduct appropriate health and legal service referrals to HIV-positive immigrants, the Council recommends that the INS take responsibility for the proper monitoring and coordination of all aspects of HIV testing, pre-and post-test counseling, and service referrals, using the CDC guidelines developed for these purposes.
The Discrimination Subcommittee will continue to monitor this issue to get further clarification from INS.