Immigration and Asylum

Immigration and Asylum

Will I have trouble legally entering the United States as a person living with HIV?

No, you should have no trouble at all. Until October 2009, the U.S. prevented people living with HIV from traveling to the U.S. or immigrating without first obtaining special permission, but Lambda Legal helped to get rid of that ban on HIV-positive travelers and immigrants. HIV status sometimes affects the government’s decision about whether an immigrant is likely to become a “public charge” (someone dependent on public assistance), but as far as we know, this provision has not been used recently to keep people out of the country.

Can being HIV positive give me a basis for obtaining political asylum in the U.S.?

You may be a candidate for asylum if you can prove that you have a reasonable fear of being persecuted by government officials in your home country—or those acting with the approval of the government—based on your HIV status. These are not easy claims to win, because one must show past persecution or a well-founded fear of future persecution.

U.S. immigration courts have determined that inadequate medical care in one’s home country does not amount to “persecution” for purposes of the political asylum laws.

If you do seek political asylum, keep in mind that you must apply within one year of your entry into the United States.

What happens if I find out that I’m HIV positive after the one-year deadline for seeking political asylum?

Sometimes finding out that you’re HIV positive restarts the political asylum clock, because it may be considered “changed (or extraordinary) circumstances.” You don’t have a whole extra year, though, and must file your claim within what would be considered a reasonable amount of time after learning of the changed circumstances. Also, the applicant must still meet the other requirements for a valid claim of political asylum and that is not always easy to do.

What should I do if I encounter problems receiving HIV-related care while in immigration detention?

Anyone in immigration detention is supposed to have access to health care services. This includes screening, prevention, diagnosis and treatment. All important medical information should be communicated in a language that each detainee can understand. Detainees should receive continuous care from the time of entry to the time of transfer, release or removal. They should also be able to request health services on a daily basis and to receive timely follow-up to such requests.

Detention facility staff members are supposed to provide detainees living with HIV with medical care consistent with national recommendations and guidelines. They should also ensure that all medications approved by the Food and Drug Administration (FDA) for the treatment of HIV/AIDS are readily available. Medical and pharmacy staff must ensure that newly admitted detainees are able to continue treatments without interruption. Upon release, the detainee must be provided with a 30-day supply of their HIV medications.

Furthermore, detention facilities are supposed to have written plans to ensure confidentiality regarding a person’s HIV status and medical condition.

(For a full description of the standards that apply, see The U.S. Immigration and Customs Enforcement (“ICE”) Performance-Based National Detention Standards 2011.) 

Unfortunately, many detention facilities do not live up to these standards. Some people living with HIV experience gaps in care and treatment as a result of being detained. They may experience delays in receiving HIV medications when they are admitted or transferred to a facility. They may not have access to appropriate care. Or they may have their right to confidentiality violated during diagnosis or treatment of HIV/AIDS—which can result in harassment or discrimination by others.

If you or someone you know is being detained and experiencing this type of mistreatment—or mistreatment based on their sexual orientation or gender identity—contact Lambda Legal’s Help Desk toll-free at 866-542-8336 for more information and guidance on how to address the problem. Also, Lambda Legal’s “Your Right to HIV Treatment in Prison or Jail” has specific information about your rights to HIV-related care and steps you can take to assert those rights if you are in a prison, jail or detention facility.

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.