New HIV waiver worse than ban?

AIDS activists say proposed new rules for HIV-positive people trying to cross the US border are even more restrictive than the status quo.

And the status quo ain’t pretty, says Martin Rooney, who was denied entry to the US for a shopping trip Nov 11.

“I feel violated, like I was raped at the border,” says Rooney, who was pulled over after he told a US border guard he was on disability with HIV, in answer to the guard’s query about what he did for a living.

Rooney says he was fingerprinted and photographed by an agent wearing gloves. “I was treated like an absolute terrorist,” says the founder of Out in Surrey and Emperor I of the Imperial Sovereign Court of Surrey.

Under the proposed new rules, HIV-positive travellers are eligible for a waiver to the US’ ban on all HIV-positive entrants —a waiver many consider overly restrictive and hard to acquire.

The new rules stem from a declaration President George W Bush made on World AIDS Day 2006 instructing “the secretary of homeland security to initiate a rulemaking that would propose a categorical waiver for HIV-positive people seeking to enter the United States on short-term visas.” The statement went on to say the new rules would “streamline” the application process.

At the time, AIDS activists were cautiously optimistic but wary about what shape the new rules would take.

The US has barred HIV-positive travellers and potential immigrants from entering the country since 1987. Congress codified this policy in 1993, as part of the Immigration and Nationality Act (INA), meaning it would take an act of Congress to reverse the ban completely.

Only 12 other countries around the world, including Russia, Iraq, China and Saudi Arabia ban HIV-positive people from crossing into their space.

The Bush administration’s new regulations would allow American consular officers to sign off on waiver applications without approval of the Department of Homeland Security, thereby theoretically streamlining the process. But waiver applicants would have to agree to give up the ability to apply for a change in status while in the US, including applying for legal permanent residence.

Applicants would also have to travel with all of their HIV meds needed during the trip, prove they have medical insurance accepted in the US, and prove they won’t engage in behaviour that might put the American public at risk.

“To streamline the waivers, it’s more restrictive than ever,” says Rooney, adding it would be prohibitively expensive for many to purchase medical insurance for a cross-border shopping trip.

But it’s the assumption that he would put others at risk that Rooney finds particularly offensive. “It’s not like I’m going to walk into the mall and breathe on someone and they’ll get HIV,” he says.

“There is an obvious moral judgment around your behaviour. It’s like a scarlet letter,” agrees Janet Madsen of Vancouver’s Positive Women’s Network.

The American government is limited in what it can do to change the rules without an act of Congress, says Dr Nancy Ordover of the Gay Men’s Health Crisis (GMHC) in New York City.

But the White House could have worked within the system to make a positive change, she points out. “They could have sent their own legislation to the Hill, invited a senator or member of congress to introduce a bill and take this out of the INA. I don’t care what the return address is. I want the policy gone.”

Ordover says she wasn’t expecting the new rules to be more restrictive than life under the old ban.

Many activists suspect the timing of the announcement of the new rules, made Nov 6, was intentional. Announced less than a month before World Aids Day on Dec 1, it could have been meant to fly under the radar of AIDS activists.

Indeed, the new proposed rules have eluded Canadian officials.

Eugenie Cormier-Lassonde of Foreign Affairs says “people are not aware of the bill” in her department. Calls to the Canada Border Services Agency were not returned before press time.

Even local AIDS activists feel blindsided by the announcement.

Neither Madsen nor Phillip Banks of AIDS Vancouver were aware of the proposed rules until contacted by Xtra West.

“There’s a general feeling in the community that it has been restrictive in the past, which has lead people to lie,” says Banks, adding that it’s dangerous to lie at the border since that can result in incarceration and being banned from the US.

Another bone of contention is the relatively short 30-day period allowed for public comment on the proposed rules.

“This is on the very low end,” says Ordover, adding that many proposals are left open for comment for months.

“By the time people hear about it, the time to comment is almost gone,” says Ordover.

She says GMHC has spoken with about 30 organizations, mainly in the US, to encourage them to submit their own comments on the new proposed rules or sign on to GMHC’s comments.

Meanwhile, Rooney is mobilizing the international court system to speak out. He is hopeful, noting the court “has been very successful in getting bills stopped” in the past.

Until Dec 6, the public can comment on the proposed rules online at www.regulations.gov. The docket number is USCBP-2007-0084.