5 December 2007

Border Security Regulations Branch\
Customs and Border Protection\
Attn: Michael D. Olszak\
1300 Pennsylvania Avenue, NW (Mint Annex)\
Washington, DC 20229

Also submitted by email: http://www.regulations.gov

**UNAIDS comment to the US proposed regulation on the *Issuance of a
Visa and Authorization for Temporary Admission into the United States
for Certain Nonimmigrant Aliens Infected With HIV***

**Docket ID:**
[USCBP-2007-0084](http://www.regulations.gov/fdmspublic/webcomponent/library/searchresultslist/wait.jsp)

**Docket Title**: Issuance of a Visa and Authorization for Temporary
Admission into the United States for Certain Nonimmigrant Aliens
Infected With HIV

**Document ID:**  USCBP-2007-0084-0001

**RIN: 1651-AA71**

Dear Mr Olszak,

The Joint United Nations Programme on HIV/AIDS (UNAIDS) appreciates the
opportunity to submit this comment to the US Government, Department of
Homeland Security (DHS), Customs and Border Protection regarding its
proposed regulation on the *Issuance of a Visa and Authorization for
Temporary Admission into the United States for Certain Nonimmigrant
Aliens Infected With HIV.*

By way of introduction, UNAIDS was established by Member States of the
United Nations in 1994 and launched in 1996.[^1] Recognizing that the
HIV epidemic is much more than a health crisis, those who created UNAIDS
did so to mount and support an

expanded response to the HIV epidemic that engages the efforts of many
sectors and partners at international, regional and national levels. In
this regard, UNAIDS brings together the resources of ten United Nations
system agencies that act as the Co-sponsors of the Joint UN Programme on
HIV/AIDS. These are the:

-   International Labour Organization (ILO)

-   UN Children's Fund (UNICEF)

-   UN Development Program (UNDP)

-   UN Educational, Scientific and Cultural Organization (UNESCO)

-   UN High Commissioner for Refugees (UNHCR)

-   UN Office on Drugs and Crime (UNODC)

-   UN Population Fund (UNFPA)

-   World Bank

-   World Food Programme (WFP), and

-   World Health Organization (WHO)

UNAIDS is governed by the UNAIDS Programme Coordinating Board, which
includes representatives from 22 governments**,** including the United
States, which will soon assume the Chairmanship of the UNAIDS Programme
Coordinating Board. The Programme Coordinating Board also includes
members of civil society, including people living with HIV.

The Joint Programme is supported by the UNAIDS Secretariat which has
headquarters in Geneva, Switzerland, and offices in eighty countries.
These comments are provided to the US Government by the UNAIDS
Secretariat.

UNAIDS works closely with the Global Fund to Fight AIDS, Malaria and
Tuberculosis. At the recent Global Fund Board meeting (12-13 November,
2007), the Global Fund Board agreed that ....."the Board strongly
encourages all countries to move rapidly towards elimination of
travel/entry restrictions, including waivers, for people living with
HIV. The Board acknowledges the UNAIDS commitment to create a Task Team
with the aim of eliminating policies and practices that restrict travel
for HIV positive people.**"** [^2] UNAIDS is currently in the process of
establishing such a Task Team and has invited the US Government to
participate. This is the latest development in many efforts to roll back
restrictions imposed by States on the entry or stay of people living
with HIV.

Thus, given UNAIDS' interest in and expertise on all matters relating to
HIV, including restrictions on the entry and stay of HIV positive
people, UNAIDS welcomes the opportunity to provide comments to the US
Government regarding the proposed rule *Issuance of a Visa and
Authorization for Temporary Admission into the United States for Certain
Nonimmigrant Aliens Infected With HIV.*

Before doing so, UNAIDS wishes to reiterate, as it has done on many
occasions, its appreciation to the US Government which has made, and
continues to make, a major contribution to the global HIV response --
the Executive Branch for its global and national leadership, and the US
Congress for appropriating and authorizing funds in the area of HIV. The
Administration's bold leadership in dramatically expanding the global
response to AIDS has saved many lives and prevented many infections.
Furthermore, US global AIDS legislation currently provides major funding
for essential HIV prevention, care, and treatment services in developing
countries worldwide. The US Departments of State, of Health and Human
Services, and the US Agency for International Development, have ably
executed relevant HIV-related Congressional legislation to support the
Administration's leadership.

This regulation, proposed by the Department of Homeland Security,
presents opportunities for alignment with the Administration's ongoing
global and national leadership in the area of HIV. In particular, it
represents an opportunity for the US Government to provide leadership to
other nations in removing unreasonable and discriminatory restrictions
on the entry and stay of people living with HIV,

UNAIDS also commends the US Government's transparent and inclusive
process of providing notice of proposed regulations and inviting
comments from all stakeholders before implementing regulatory changes.
This open process is consistent with UNAIDS' recommendations to
governments that any policy or regulation regarding HIV should be
created through an inclusive process allowing, most particularly, the
participation of those affected by that policy or regulation, including
people living with HIV. Those affected by this rule largely reside
outside the US.

However, UNAIDS considers itself affected by this rule as: (a) UNAIDS
seeks to promote the Greater Involvement of People Living with HIV in
all aspects of the global AIDS response; (b) UNAIDS staff includes staff
members living with HIV; (c) UNAIDS Programme Coordinating Board
includes civil society members living with HIV; and (d) UNAIDS seeks to
hold international meetings on HIV in the US which will always include
people living with HIV. Furthermore, UNAIDS is of the view that not only
does the proposed and current rule disadvantage people living with HIV
in their ability to enter and remain in the US, it also disadvantages
people in the US who are thereby deprived of contributions to US society
by visitors living with HIV who are not allowed to enter or do not try
to enter because of the rule.

UNAIDS recognizes that legislation and regulations regarding immigration
matters broadly fall within the sovereign power of States, in this case,
the US Government. However, UNAIDS believes that States' sovereign power
on immigration issues should also be line with international human
rights commitments and be appropriately informed by sound public health
concerns. Under international law, States have broad discretion to
exclude, admit, expel and place conditions on the entry and stay of
non-nationals. Furthermore, the International Covenant on Civil and
Political Rights, for example, does not accord non-nationals a right to
entry or residence in the territory of a State party. However,
international human rights law does place constraints on States' actions
with regard to their own nationals and others coming under the
jurisdiction of the State. [^3] [^4] It can do this in a number of ways:

First, international human rights law prohibits States from
discriminating against a person in the enjoyment and exercise of his/her
human rights on the basis of race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth
or other status.[^5] The Commission on Human Rights (now the Human
Rights Council) has confirmed that "other status" includes health
status, including HIV.[^6]

Secondly, though there is no express right to enter a state, there are
other rights that may not be denied through the application of
HIV-related travel restrictions. These include:

-   the principle of *non refoulement*, that no refugee should be
    *refouled* to a country where his life or freedom would be
    threatened on account of his race, religion, nationality, membership
    of a particular social group or political opinion or that no
    individuals be returned to a country in which they may be subjected
    to torture[^7]

-   protection of the family and family unity

-   protection of the best interests of the child

-   the right to privacy (which should not be violated through mandatory
    testing and non-confidentiality of status)

-   protection of the rights of migrant workers.[^8]

Finally, even where there is no specific recognized right being
violated, the customary natures of the principles of non-discrimination
and of equality before the law prohibit States from implementing law and
regulations that are in effect discriminatory. International human
rights law places on States and other actors the burden of establishing
that the compelling reasons supporting any such distinctions are
prescribed by law, are necessary, demonstrably contribute to a
legitimate aim, are proportional (the least restrictive means possible)
and are strictly construed.[^9]

In the context of protection of public health and international human
rights, including the principle of non-discrimination, UNAIDS offers the
following three broad comments to the proposed rule which are further
developed in text below. UNAIDS recognizes that several of these issues
and related recommendations require a change in the underlying
legislation from which the proposed rule flows and strongly believes
that such changes in policy are consistent with the US Government's
leadership on AIDS.

**1. The US Government should not impose any HIV-specific restrictions
on the short-term entry or stay of people living with HIV as such
restrictions have no public health justification, can be considered
discriminatory, add to stigma and discrimination against people living
with HIV, and can be counterproductive to HIV prevention, treatment,
care and support efforts within the country. Thus, the US Government
policy should be changed to delete any HIV-specific restrictions on the
short-term entry or stay of people living with HIV.**

**2. Alternatively, should the US continue to impose travel restrictions
based on health conditions, it should not single out HIV, as opposed to
other relevant and/or comparable health conditions; it should not
consider all HIV positive people automatically inadmissible; it should
not require HIV positive people to declare their HIV status nor should
their HIV status be marked in passports or travel documents; and it
should not require people living with HIV to "prove" the enumerated
criteria which appear onerous and unreasonable.**

**3. The proposed regulation discriminates against HIV positive persons
entering as short-term visitors in that it does not provide equal
protection under the law by allowing them equal opportunity to change
their status to longer-term stay, and may place an impermissible burden
on other human rights, the exercise of which may require longer stays in
the US. HIV positive people should enjoy freedom of movement as any
other person should under established principles of international human
rights law.**

**4. Alternatively, should the US government adopt the proposed
regulation, the fact that the consular officer in the country of origin
could take a decision without prior approval by the Secretary of
Homeland Security is a welcome step toward greater efficiency than under
the current regulation; however, the US Government should provide for
training of consular officers, should provide for the right of appeal,
and should provide greater explanation as to the meaning of the
conditions for which the visitor must provide evidence.**

**\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--**

**Rationale for UNAIDS' comments**

**1. The US Government should not impose any HIV-specific restrictions
on the short-term entry or stay of people living with HIV as such
restrictions have no public health justification, can be considered
discriminatory, add to stigma and discrimination against people living
with HIV, and can be counterproductive to HIV prevention, treatment,
care and support efforts within the country. Thus, the US Government
policy should be changed to delete any HIV-specific restrictions on the
short-term entry or stay of people living with HIV.**

Before the creation of UNAIDS, the World Health Organization stated that
there was no public health justification for HIV-related travel
restrictions.[^10] In 1988, the World Health Assembly urged "Member
States, particularly in devising and carrying out national programmes
for the prevention and control of HIV infection and AIDS... to protect
the human rights and dignity of HIV-infected people and people with
AIDS, and of members of population groups, and to avoid discriminatory
action against and stigmatization of them in the provision of services,
employment and travel" [^11]

Since this resolution, UNAIDS has learned from accumulated experience
and expertise, as the US government has learned over the years as noted
in the Section VII. "Experience Gained" portion to its proposed
regulation. UNAIDS continues to maintain, founded on public health
principles, that HIV infection should not be considered a condition that
poses a threat to public health in relation to travel, entry or stay.
Although HIV is a transmissible infection, it is not a "disease of
public health significance" in the traditional public health sense, and
as defined under current US immigration legislation and its implementing
regulation. HIV is not "contagious" in that it not transmissible through
air, food, water, or casual contact. Thus, HIV infection is not a
"contagious disease of public health significance", unlike, for
instance, active tuberculosis. In 1991, the US Centers for Disease
Control, based on recommendations from the US Department of Health and
Human Services recommended eliminating the HIV exclusion, proposing that
only active tuberculosis remain on the list of excludable
conditions.[^12]

Decades of experience promoting HIV prevention programmes have made it
clear that it is only HIV education, information, support and services
leading to behavior change, and not border control, that will stop the
transmission of HIV. In the statement of the UNAIDS Executive Director,
Peter Piot, on World AIDS Day, 2006, in which he applauded the Bush
administration for announcing that it was taking action to remove
restrictions on people living with HIV seeking to visit the US, Dr Piot
stated that: "While we all must remain firmly committed to stopping the
spread of HIV, it is proven prevention strategies and behaviour change,
not travel restrictions, that will turn the tide."

With approximately one million people living with HIV in the US, the
current and proposed policy is in fact counterproductive from a public
health perspective. Such policies detract from real HIV prevention
interventions, and can drive non-citizens in the US underground and away
from the HIV education and services that could truly help to prevent
further spread. As summarized in the joint statement by UNAIDS and the
International Organization for Migration:

HIV/AIDS should not be considered to be a condition that poses a threat
to public health in relation to travel because, although it is
infectious, the human immunodeficiency virus cannot be transmitted by
the mere presence of a person with HIV in a country or by casual contact
(through the air, or from common vehicles such as food or water). HIV is
transmitted through specific behaviours which are almost always private.
Prevention thus requires voluntary acts and cannot be imposed.
Restrictive measures can in fact run counter to public health interests,
since exclusion of HIV-infected non-nationals adds to the climate of
stigma and discrimination against people living with HIV and AIDS, and
may thus deter nationals and non-nationals alike from coming forward to
utilize HIV prevention and care services. Moreover, restrictions against
non-nationals living with HIV may create the misleading public
impression that HIV/AIDS is a "foreign" problem that can be controlled
through measures such as border controls, rather than through sound
public health education and other prevention methods[^13]

Thus, UNAIDS recommends that the US Government take all action necessary
to ensure that there are no HIV-specific restrictions on the entry and
stay of people living with HIV.

**2. Alternatively, should the US continue to impose travel restrictions
based on health conditions, it should not single out HIV, as opposed to
other relevant and/or comparable health conditions; it should not
consider all HIV positive people automatically inadmissible; it should
not require HIV positive people to declare their HIV status nor should
their HIV status be marked in passports or travel documents; and it
should not require people living with HIV to "prove" the enumerated
criteria which appear onerous and unreasonable.**

Under the proposed regulation, short term travelers with HIV would still
be rendered *inadmissible* and would be limited to admission on a B-1
(entering for a short business related reason) or B-2 visa (visitors for
pleasure) for visits of 30 days or less.

This automatic rendering of inadmissibility and limited admission with
regard to all people living with HIV appears discriminatory, in that
comparable conditions are not subject to the same criteria. HIV
infection should not be singled out but should be treated the same as
comparable conditions **with due regard for HIV's specificities**:
transmitted by certain behaviours only, capable of being avoided by
others, very low risk of transmission by single act of penetrative sex,
and even lower risk of transmission if the infected person is under
treatment by anti-retrovirals.

As UNAIDS and IOM have stated: "Comparable health conditions should be
treated alike in terms of concerns about potential economic costs
relating to the person with the condition. Those living with HIV/AIDS
who seek entry for short-term or long-term stays should not be singled
out for exclusion on this financial basis".[^14]

Nor should all people living with HIV be considered inadmissible
automatically without any rational basis for such an overly broad
categorization. Rather, any rendering of inadmissibility or of limited
admission should be imposed as an exception to a rule of *automatic
admissibility* of people living with HIV (explicit or implicit) and
access to the same durations of stay as enjoyed by any HIV negative
person; and such exceptions should be determined on an individualized
basis according to clearly stated criteria that rationally achieves
legitimate goals with the least burden on the travel of HIV positive
people.

Under the proposal, the applicant would still have to prove, consistent
with the current process that:

> \(a\) The danger to the public health is minimal.
>
> \(b\) The possibility of transmission of HIV is minimal.
>
> \(c\) No cost will accrue to any government agency without prior
> consent.

These requirements of proof suggest a bias against people living with
HIV, assuming they will behave in ways that they will threaten the
public health or incur costs during their short stay. Such a rule
imposed on people who know their status, but not on people who do not
know their status, is irrational, as it would appear that those who do
not know their HIV status might be more likely to engage in behaviour,
out of ignorance of status, that would risk transmission to others, than
those who know their status would.

Requiring HIV positive visitors to prove the three conditions stated
above is also an onerous and unreasonable requirement, requiring them to
prove that something not well defined will *not* occur. Furthermore,
they are being required to prove this when in fact those that might be
threatened by the visitors' behaviour have in their own power the
ability to protect themselves from HIV infection.

Furthermore, the current and proposed provision appears to single out
HIV out for these requirements of proof versus other diseases that pose
an equal or greater threat to public health (asymptomatic TB, flu,
hepatitis, other STIs, etc) or to the public purse.

Finally, requiring people to declare their HIV status and inserting an
indication of their HIV status in their passports or other travel
documents violates the right to privacy and the ethical consideration
that a person's health status is for his or her choosing to divulge on a
consensual basis only. People living with HIV continue to face stigma
and discrimination on the basis of their status and thus should not be
required to "publicize" that status in official and public documents.

UNAIDS maintains, that based on public health grounds and possible
concerns about costs to US government agencies, as well as the health
and well-being of the potential visitor to the US, the only reason the
US (or any government) should be able to question and/or bar entry on a
short-term visa is when a person presents for a visa or entry and is
obviously ill. In this instance, it may be reasonable for the government
to enquire into the nature of the illness and whether the person has
sufficient access to medical care/funds. In such a case, again there
should be an individualized determination, as well as clear criteria
leading to possible outcomes.

For these reasons, UNAIDS recommends that this section of the proposed
rule be deleted.

**3. The proposed regulation discriminates against HIV positive persons
entering as short-term visitors in that it does not provide equal
protection under the law by allowing them equal opportunity to change
their status to longer-term stay, and may place an impermissible burden
on other human rights, the exercise of which may require longer stays in
the US. HIV positive people should enjoy freedom of movement as any
other person should under established principles of international human
rights law.**

If promulgated, the proposed regulation, under Section (6) "Enforcement
of the Authorization Agreement", would require that once admitted to the
US under the categorical waiver of inadmissibility, the applicant must
agree to forgo the opportunity to apply for:

1\. An extension of their non immigrant stay,

2\. A change in nonimmigrant status, or

3\. An adjustment of status to that of permanent resident.

This provision would apply to all applicants automatically.

UNAIDS is of the view that people living with HIV who travel on a short
term visa, or without visa, should have the equal right to apply for any
and all possible changes in immigration status that anyone else does,
including HIV negative people and those who have chronic conditions
comparable to HIV. UNAIDS restates that that there is no public health
interest served by the current policy of excluding HIV positive people
from remaining in the United States for more than short-term stays or
preventing them from coming for multiple stays. Although, the US's
proposed rule may be based on concerns about possible economic costs,
UNAIDS believes that any relevant criteria to be considered through an
individual determination should analyze whether the person will indeed
rely on public funds and whether there are human rights or humanitarian
claims that outweigh any economic considerations.

> "Exclusion on the basis of possible costs to health care and social
> assistance related to a health condition should only be considered
> where it is shown, through individual assessment, that the person
> requires such health and social assistance; is likely in fact to use
> it in the relatively near future; and has no other means of meeting
> such costs (e.g. through private or employment-based insurance,
> private resources, support from community groups); and that these
> costs will not be offset through benefits that exceed them, such as
> specific skills, talents, contribution to the labour force, payment of
> taxes, contribution to cultural diversity, and the capacity for
> revenue or job creation."[^15]

Where there are human rights or humanitarian considerations that justify
a longer stay in the US, these should override economic
considerations.[^16] These might include a number of situations, such as
where a visitor living with HIV is in need of applying for asylum,
uniting with family, or protecting the best interest of a child. In such
situations, visitors should be able to apply for a longer stay in the
US, as necessary. Specifically with regard to the proposed rule, the
following situations may occur:

\(1\) [Prohibits an extension of their non immigrant stay]{.underline}.
If promulgated, travelers would not be permitted to extend their stays
in the US beyond 30 days. The following situations may arise and
therefore UNAIDS opposes this portion of the rule:

-   Short term travelers may need to extend their stays beyond 30 days
    for business reasons or other unanticipated situations beyond their
    control.

-   Short term travelers may need to extend their stays beyond 30 days
    for medical reasons unanticipated beyond their control such as: an
    individual becomes symptomatic during the course of his or stay in
    the US, or gets the flu, or has an accident on Day 28 in the US and
    cannot travel for two weeks

\(2\) [Prohibits a change in nonimmigrant status]{.underline}. If
promulgated, travelers once admitted as tourists for business or
pleasure, would not be able to change their status to another
non-immigrant category. The following situations may arise and therefore
UNAIDS opposes this portion of the rule:

-   A US business may need the short term traveler who entered under the
    categorical waiver to stay and work for the business as a temporary
    worker contributing his/her expertise to the US business and thereby
    strengthening the US economy;

-   A US institute of higher education may invite the individual to
    enroll as a student or exchange scholar thereby enriching the
    classroom for US students and/or adding to the scientific/cultural
    knowledge industry of the US.

\(3\) [Prohibits adjustment of status to that of permanent
resident.]{.underline} If promulgated, applicants once admitted under
this categorical waiver, would not be allowed to apply for permanent
residence to the US. The following situations may arise and therefore
UNAIDS opposes this portion of the rule:

-   A US business may want to sponsor the individual to work permanently
    for the business given the lack of US citizens in certain industries
    of the US economic sector.

-   A US citizen, e.g. fiancé(e), may want to sponsor the individual for
    family reunification.

-   Once in the US, the individual may need to seek asylum from
    persecution because of a change in government or circumstances after
    arrival in the US

For these reasons, UNAIDS recommends that Section (6) Enforcement of the
Authorization Agreement be deleted.

**4. Alternatively, should the US government adopt the proposed
regulation, the fact that the consular officer in the country of origin
could take a decision without prior approval by the Secretary of
Homeland Security is a welcome step toward greater efficiency than under
the current regulation; however, the US Government should provide for
training of consular officers, should provide for the right of appeal,
and should provide greater explanation as to the meaning of the
conditions for which the visitor must provide evidence.**

Under the proposed regulation, short term travelers would be able to
file a waiver to allow them admission into the United States with the
consular officer in the country of origin, **without** prior approval by
the Secretary of Homeland Security as is currently the process.

If the consular office approves the application, the applicant's
passport would be stamped with a visa that would be valid for 12 months
or less; and the traveler would be allowed into the US for 2 visits not
to exceed 30 days. The proposed regulation also provides that if HIV
positive applicants do not wish to avail themselves of this
"categorical" procedure, applicants would still be allowed to apply
under the current system (i.e., by filing a waiver of inadmissibility
with the US Department of Homeland Security proving that they meet the
stated criteria).

This proposed "categorical" or blanket waiver for travelers with HIV is
an improvement in the sense that it appears to potentially expedite
backlogs and gives discretion to consular officers to approve the
application for entry to the US. In principle, UNAIDS supports this
**limited** portion of the proposed regulation.

However, UNAIDS is of the view that "any policy regarding
HIV/AIDS-related travel restrictions should be clear, explicit, and
publicly available. Implementation of the policy should be consistent
and fair, with discretion guided by clear, written instructions."[^17]

For this reason, we make the following recommendations to improve the
rule as currently proposed:

\(1\) [Training to Consular Officials to guarantee expertise and
authority.]{.underline} Under the proposed regulation, consular officers
will be given the discretion to evaluate the application based on the
listed criteria which involves complex medical, psychological and social
determinations. The current regulation makes no provision for any type
of training for consular officers.

*Recommendation:*

-   UNAIDS recommends training to consular officials to ensure that they
    are equipped to make informed determinations regarding medical
    etiology, medication, transmission, and public health.

\(2\) [Appeals from consular decisions.]{.underline} The United States
has long been in the vanguard in the international community of
establishing principles of due process. However, the proposed regulation
makes no mention of the process or mechanism to appeal a consular
officer's negative decision**.**

*Recommendation:*

-   UNAIDS recommends developing a process for appeal of a consular
    officer's negative determination to waive the ground of
    inadmissibility based on HIV so that the applicant can rebut the
    negative decision, consistent with well-established US due process.

\(3\) [Evidence.]{.underline} As stated above, under the proposed
regulation, applicants must also provide the consular officer with
evidence that:

> \(a\) The danger to the public health is minimal.
>
> \(b\) The possibility of transmission of HIV is minimal.
>
> \(c\) No cost will accrue to any government agency without prior
> consent.
>
> *Recommendation:*

-   UNAIDS recommends that the regulation should list examples of what
    will count as evidence for each of the criteria above as guidance to
    ensure that the application is approved. For example:

    -   As to (a) above, the regulation should clarify what the
        components of this phrase means: i.e. the meaning of "danger",
        "public health" and "minimal" in this context.

    -   As to (b) above, the regulation should clarify what constitutes
        a "possibility of transmission" and the meaning of "minimal"

    -   As to (c) above, the regulation should clarify whether holding
        health insurance from the country of origin is sufficient and/or
        showing other funding sources.

\(4\) [Additional criteria for entry or "safeguards".]{.underline} Under
the proposed regulation, in addition to meeting the above three
criteria, in order to qualify for the categorical waiver, applicants
must also additionally demonstrate:

> \(a\) Medical etiology
>
> \(b\) Understanding of the spread of HIV
>
> \(c\) Limited potential health danger
>
> \(d\) Continuity of care

As current US legislation or regulation does not appear to impose the
same proposed criteria with regard to other medical conditions
comparable to HIV, UNAIDS recommends not implementing this aspect of the
proposed rule. If, however, the rule is promulgated as proposed, UNAIDS
make the following recommendations to improve these criteria as
described below:

> \(a\) [Medical etiology.]{.underline} As an additional criterion to
> the current regulation, under the proposed regulation, short term
> travelers who desire a categorical waiver would have to "show a
> controlled state of HIV infection such that there is no anticipated
> need for additional medical care during the applicant's visit to the
> U.S". The proposed regulation defines a "controlled state" as existing
> when there are no symptoms of "an active, AIDS-related condition that
> is contagious or that requires urgent treatment."
>
> *Recommendation:*

-   The regulation should clarify how the absence of symptoms will be
    demonstrated, e.g. through presentation without obvious symptoms at
    the consular office or through a health care provider's letter or
    affidavit signed by the applicant.

-   Where travelers come from areas where it may be difficult to secure
    medical documentation, the regulation should list what type of
    secondary evidence will suffice.

> \(b\) [Knowledge of HIV.]{.underline} Applicants must also show that
> they have been counseled on and are aware of the communicability and
> routes of transmission of HIV. This is the case in the current
> recommendations.
>
> *Recommendation:*

-   The regulation should clarify what counts as evidence of this
    understanding and how applicants demonstrate it.

> \(c\) [Continuity of Health Care.]{.underline} As an additional
> criterion to the current regulation, under the proposed regulation,
> applicants would have to establish that they have an adequate supply
> of antiretroviral medication (ARVs) to last for the duration of their
> trip to the US, even though many asymptomatic HIV positive people are
> not on medication. As part of this criterion and as currently the
> case, applicants would also have to prove they have sufficient assets
> or insurance acceptable in the US that would cover any medical care
> the applicant may need while in the US.
>
> *Recommendation:*

-   The regulation should clearly specify who is going to check if a
    traveler has an "adequate supply" of their medication, e.g. the
    consular officer in the country of origin, or the Customs and Border
    Patrol officers at the port of entry. As stated above, the
    regulation is silent as to training to consular officials regarding
    health care and drugs, and if it is the Border Patrol who will
    conduct the check, so should Customs and Border Patrol receive
    training regarding HIV and its treatment.

-   It is an undue burden to prove that the applicant has insurance that
    is recognized in the United States. Some US carriers may have
    offices abroad and others may not, but the US should give full faith
    and credit to foreign insurance carriers.

**Conclusion**

Again, UNAIDS commends the US Government for its notice and comment
process for rulemaking and reiterates its appreciation for the
leadership and support that the US Government has shown in the fight
against HIV.

UNAIDS offers these comments to the US Government in the spirit of
international cooperation. In this submission, UNAIDS requests that the
Administration seriously considers these comments, aligns US policy with
its ongoing leadership in the fight against HIV, and uses the proposed
rulemaking and other legal reform strategies as opportunities to
eliminate HIV-specific restrictions on the entry and stay to the US of
people living with HIV.

Sincerely yours,

John D. Hassell\
Washington Director\
Joint United Nations Programme on HIV/AIDS (UNAIDS)\
1825 K Street, N.W. Suite 701\
Washington, D.C.  20006\
<hassellj@unaids.org>

Tel. No.: (202) 223-7611\
Fax. No.: (202) 223-7616

[^1]: United Nations ECOSOC resolution (1994/24 of 26 July 1994)

[^2]: See Global Fund Board Decision Point GF/B167DP25, November, 2007.

[^3]: See UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions,
    1994.
    <http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/activities/health/UNAIDS_IOM_statement_travel_restrictions.pdf>
    See Article 12 of the International Covenant on Civil and Political
    Rights which states that "Everyone lawfully in a State shall, within
    that territory, have the right to liberty of movement and freedom to
    choose his residence. Everyone shall be free to leave any country,
    including his own...No one shall be arbitrarily deprived of the
    right to enter his own country." See also General Comments 15 on the
    position of aliens under the Covenant, in which the Human Rights
    Committee stated that "The Covenant does not recognize the right of
    aliens to enter or reside in the territory of a State party. It is
    in principle a matter for the State to decide who it will admit to
    its territory. However, in certain circumstances an alien may enjoy
    the protection of the Covenant even in relation to entry or
    residence, for example, when considerations of non-discrimination,
    prohibition of inhuman treatment and respect for family life
    arise."( General Comments 15: The position of aliens under the
    Covenant, 11 April 1986, paragraph 5.) (N.B. Authorities cited in
    this UNAIDS/IOM Statement include treaties that are binding on State
    Parties and, if customary law, on other States as well. Reference to
    regional human rights bodies and documents is generally beyond the
    scope of this Statement. Other texts cited are not necessarily
    binding on States.)

[^4]: See Article 2 of the International Covenant on Civil and Political
    Rights. See also the Declaration of the Human Rights of Individuals
    Who are not Nationals of the Country in which They Live.

[^5]: See Article 2 of the International Covenant on Civil and Political
    Rights. See also Article 26 of the International Covenant on Civil
    and Political Rights, which enshrines customary principle of
    non-discrimination without limiting to the rights set forth in the
    Covenant.

[^6]: See *inter alia*, Commission on Human Rights resolutions 1995/44
    of 3 March 1995 and 1996/43of 19 April 1996.

[^7]: See, Article 33 of the 1951 Convention relating to the Status of
    Refugees. The non-refoulement obligation of states is also present
    under the Convention against Torture and Other Cruel, Inhuman or
    Degrading Treatment or Punishment - Article 3 forbids expulsion,
    return or extradition \"where there are substantial grounds for
    believing that \[the person\] would be in danger of being subjected
    to torture.\"

    Though there is no right to asylum, there is the right to seek and
    enjoy asylum (Article 14 of the Universal Declaration of Human
    Rights). These two human rights place an obligation on States to
    grant the status of refugee to a person living with HIV/AIDS once
    the person fulfills the relevant prescribed requirements.

[^8]: See, e.g., International Covenant on Civil and Political Rights;
    International Covenant on Economic, Social and Cultural Rights,
    [www.unhchr.ch](http://www.unhchr.ch/)

[^9]: Goodwin-Gill, Guy, "AIDS and HIV, Migrants and Refugees:
    International Legal and Human Rights Dimensions", in Haour-Knipe M
    and Rector R (eds). *Crossing Borders: Migration, Ethnicity and
    AIDS*. London: Taylor and Francis, 1996, p.50-69. See also General
    Comment No. 18, November 1989, of the Human Rights Committee.

[^10]: 10\. *HIV/AIDS and Human Rights, International Guidelines*,
    United Nations, Geneva, 1998, HR/PUB/98/1, p.50; *Report of the
    Consultation on International Travel and HIV Infection*, Geneva,
    WHO, April, 1987; WHO/SPA/GLO/787.1; *Statement on screening of
    international travellers for infection with HIV*, WHO,
    WHO/GPA/INF/88.3; *Report of the Preparatory Meeting for a
    Consultation on Long-Term Travel Restrictions and HIV/AIDS*,
    WHO/GPA, Geneva, 1994**\
    **

[^11]: WHA Resolution, 41.24 *Avoidance of discrimination in relation to
    HIV-infected people and people with AIDS*.

[^12]: Federal Register, January 23, 1991, CDC Proposed Rule

[^13]: UNAIDS/IOM Statement on HIV/AIDS-Related Travel Restrictions
    (1994), Recommendation No.1

    <http://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/activities/health/UNAIDS_IOM_statement_travel_restrictions.pdf>

[^14]: Ibid[,]{.underline} Recommendation No.5

[^15]:
    > Ibid, Recommendation No.6

[^16]:
    > Ibid.

[^17]: Ibid, Recommendation No.8