Does HIV Testing Violate Immigrants' Rights?
Posted Sep 24, 1999

In this article, we briefly discuss the issue of whether HIV testing violates the rights of those intending to immigrate into the U.S. Needless to say, we espouse a humanitarian approach to this controversial issue and raise potential legal arguments for those who are suffering, often in silence, as a result of the U.S. immigration policy on this issue.

The relevant question should be: Does our immigration policy prevent or stop AIDS? As millions of dollars fund the INS exclusion, resources are scarce for AIDS education and treatment. Foreign nationals already living in the U.S. -- legally or not -- are forced underground, missing crucial preventative counseling. Other factors for us to consider include: testing costs, and the loss of international commerce, tourists, talented people, and skilled workers.

Under the United States Immigration and Naturalization Act (INA), anyone over the age of fifteen who hopes to adjust status to permanent residence in the United States, or enter the country on an immigrant visa, a non-immigrant visa, or in refugee status must first undergo a medical examination that includes testing for HIV. If the results of the test are positive, an individual may be barred from entering the U.S. or being able to adjust status within the U.S. This policy has stirred controversy since its inception in 1987.

The exclusion policy has been most commonly criticized for violating the international human right of freedom of movement. By banning HIV-positive foreigners, the United States is also vulnerable to discrimination claims. Arguably, disclosure of HIV status for immigration purposes violates Article 17 of the International Covenant on Civil and Political Rights as an invasion of an immigrant's privacy. Article 17 provides that no one "shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation."

The case of Haitian Centers Council, Inc. v. Sale interpreted the INA as merely making people with certain communicable diseases as excludable from admission, but decided that there is no mandatory HIV exclusion for individuals seeking political refuge in the United States. The INA allows for the granting of waivers for humanitarian purposes, to assure family unity, and when it is otherwise in the public interest.

Each of us must learn how to prevent infection with HIV, how to support the people around us who are HIV-infected, and how to make sure that our national, state and local governments deal sensibly with this insidious disease.