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Promoting Passage Through Care

How to Best Serve Undocumented Immigrants With HIV

Cobos, Daniel G., BSN, MPH, RN, ACRN1; Jones, Jonathan Winston, MA2

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Journal of the Association of Nurses in AIDS Care: July-August 2008 - Volume 19 - Issue 4 - p 320-324
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Latinos on the United States side of the U.S.-Mexican border often refer to undocumented newcomers as arriving from “el otro lado.” In today's globalizing world, the “other side” is a conceptual state more than a physical location. As services and goods flow freely among nations at unprecedented rates, people too are moving across borders. The United States and society in general can make substantial advances in the realm of human rights by negotiating safe passage for women fleeing gender-based persecution or for HIV-infected men who cannot receive adequate treatment in their country of origin. Although there are no simple answers or policy solutions to immigrant health care issues, an attitude promoting trust and care may help “others” in this society to become empowered. Truly, it is the responsibility of all health care workers to care for patients without reference to immigration status. The arguments that follow are not intended to persuade health care workers to negotiate an individual patient's legal status. This would be unwise. Instead, the term passage signifies the transition from being born en el otro lado to living as a new member of this democratic society. In this regard, the commentary seeks to address the important issues of noncitizens living with HIV infection and how health care workers can partner with these individuals to promote individual health and the public good.

The best estimate of the number of undocumented immigrants living in the United States is 12 million (Passel, 2006). The majority population often views “border-crossing” Mexicans as typical “illegal” or undocumented immigrants. However, the news media and other relevant parties consistently fail to highlight the 25% to 40% of undocumented immigrants who enter legally and overstay their visas (Passel, 2006). Most undocumented immigrants, especially those who face language barriers, find health care acquisition to be an intimidating and overwhelming process (Okie, 2007). Multiple barriers such as language, culture, and ability to pay conspire against seeking health care, as do the fear of deportation as a result of visiting a health care provider and the stigma of HIV infection in many immigrant communities (Madariaga, Schofield, & Swindells, in press).

Most immigrants report work opportunities as their primary motivation for coming to the United States. Recent evidence indicates that more than 96% of undocumented men work (Passel, Capps, & Fix, 2004). This figure actually exceeds the employment rate for legal immigrants to the United States. Quite simply, the majority of undocumented immigrants are younger, healthier additions to the workforce (Passel et al, 2004). Despite anti-immigrant opinion and rhetoric, undocumented immigrants cannot obtain federal benefits such as welfare, food stamps, Medicare, and Medicaid under federal law. Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, section 562 (IIRIRA, 1997), states do have authority to use federal dollars for “emergency” health care; however, this is a matter of state discretion, and practices vary from state to state.

Relevant Legislation

Two important pieces of legislation of 1996 play a critical role in creating the present climate of restriction. The first of these is the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, which greatly restricts immigrant access to many federal programs. The law requires immigrants to wait 5 years after attaining lawful permanent residence, commonly known as a “green card,” before receiving cash assistance, Medicaid, Social Services Block Grants, and other federal means-tested programs (Fairchild, 2004). Immigrants are also required to include information about income and resources of their prospective sponsor(s) in order to calculate eligibility to immigrate (Mohanty, 2006).

Under the second piece of legislation, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996 (IIRIRA, 1997), undocumented immigrants and legal permanent residents began to face new grounds for inadmissibility and deportation. With regard to admissibility, the United States Congress amended Section 212(a)(1)(A)(i) of the Immigration and Nationality Act through IIRIRA section 531 so that any foreign national with a “communicable disease of public health significance,” which includes HIV, is “inadmissible.” Current law bars HIV-infected persons from applying for legal permanent residence unless the individual obtains a specific waiver. This is discussed in greater detail later. Although the purpose of this legislation was to discourage certain immigrants from entering the United States, the legislation often discourages immigrants with HIV infection from seeking care while inside the United States. From a public health perspective, this phenomenon is deeply troubling.

The Kaiser Commission on Medicaid and the Uninsured suggests that immigrants living with HIV infection are often confused by eligibility restrictions and fear of being reported and removed (Fremstad & Cox, 2004). Moreover, many HIV-infected migrants fear being termed a “public charge” should they seek care. Those hoping to apply for lawful permanent residence can be denied if they are likely to be deemed a public charge. This fear may also prevent undocumented parents from seeking health care for their native-born children who are U.S. citizens (Kulgren, 2003).

Despite popular rhetoric, documented and undocumented immigrants contribute greatly to the U.S. economy, although their contributions largely go unnoticed by the general public. Both groups pay property taxes and consumption taxes. During the PRWORA-imposed 5-year waiting period, immigrants are required to pay taxes for public services, many of which they cannot receive (Mohanty, 2006). Moreover, the social security system has created an “earnings suspense file” to account for the W-2 earnings reports with incorrect or false social security numbers. The contribution of unclaimed money for undocumented immigrants from payroll taxes has grown to $7 billion and approximately $1.5 billion in Medicare taxes (Porter, 2005).

HIV Epidemiology in the Immigrant Population

The Latino population is the largest and fastest growing minority group in the United States. Latinos account for a greater proportion of AIDS cases among those living with HIV infection. Of the 1.2 million people living with HIV infection in the United States, approximately 200,000 are Latino (Centers for Disease Control and Prevention [CDC], 2007b). AIDS cases in the Latino population vary by country of origin. Native-born Latinos represent 41% of estimated cases, followed by Latinos born in Puerto Rico, 22%, and Mexico, 22% (CDC, 2007b). There seems to be some variance in transmission patterns when compared with Whites. Heterosexual contact and injection drug rates are higher for Latinos than White men. The most common route of transmission for immigrant women is heterosexual contact. However, injection drug use is more likely to occur in White women than Latinas (CDC, 2007b). Homosexuality remains a taboo in the Latino community. Not surprisingly, several studies have shown that Latino male immigrants, with regard to men who have sex with men, have a higher rate of HIV transmission on average than their native-born counterparts (Kandula, Kersey, & Lurie, 2004). This reflects the results that a large number of infected men who have sex with men do not have knowledge of their HIV infection (Centers for Disease Control and Prevention CDC, 2007a).

Helping native-born citizens obtain health care services can be extremely complicated. In this vein, foreign-born undocumented immigrants and lawful permanent residents face additional significant barriers to accessing health care for themselves and their children. If a patient works under an assumed name, advocating for benefits may make matters worse. The HIV-infected noncitizen may be wary of trusting a health care provider for fear of not receiving care or even being reported to the Department of Homeland Security (DHS). The provider must take steps to assure that the patient will receive the same care as other patients and that the patient's immigration status is not revealed to the authorities.

Issues in Providing Health Care

Beyond treatment and assurance of nondisclosure, what are the basic responsibilities of the provider? Health care providers are not immigration experts and should never attempt to give legal counsel to an undocumented patient. At the very least, the provider should never instruct an HIV-infected patient to contact DHS without first referring the patient to an immigration expert. In addition to seeking guidance from an immigration expert, the patient may want to seek counsel from an expert who is well-versed in the concerns of the HIV-infected noncitizen.

At a minimum, individuals providing health care to noncitizens should assess the patient's legal status and have a fundamental familiarity with immigration regulations and terms. The noncitizen patient may perceive any inquiry with regard to immigration status as threatening. This makes it doubly important for the provider to establish a relationship of trust. After securing trust, the health care provider might ask questions pertaining to immigration documents or whether the patient had immigration documents at some time. The most familiar of these documents is a permanent residence visa, commonly known as the green card, although the color of the card is now pink.

HIV infection results in grounds for inadmissibility but not for immediate removal of noncitizens. An HIV waiver may be granted to the noncitizen depending on the immigration status. To qualify, applicants must be

  • the spouse of a U.S. citizen or legal permanent resident; or
  • the unmarried son or daughter of a U.S. citizen or legal permanent resident; or
  • the minor, unmarried, lawfully adopted child of a U.S. citizen; or
  • the parent of a son or daughter who is a U.S. citizen or legal permanent resident; or
  • eligible to self-petition under the Violence against Women Act (i.e., the abused spouse of a U.S. citizen or legal permanent resident); or
  • a refugee or asylee who falls under a “humanitarian” exception to the HIV bar (Immigration Equality, 2005).

In short, the rules are quite stringent. The HIV-infected noncitizen must also show minimal danger to public health as well as no cost to the government agency. Generally, a letter from the treating physician stating that the applicant is under care along with a form completed by a local public health officer is mandatory.

Seeking Asylum

HIV-infected undocumented immigrants may also seek asylum or withhold deportation on the following grounds: race, religion, nationality, political opinion, or social group. The claim of social group has been used somewhat successfully by gay men, lesbians, bisexuals, and transgender persons. The DHS has recognized HIV infection as an exceptional qualification for social group status. Certainly this remains contested terrain. Most rulings pertaining to social group maintain that the distinguishing trait, such as homosexuality or HIV status, cannot define the social group itself (Macklin, 1999). This qualification means that there must be extraordinary contextual factors related to setting or sociocultural phenomenon that place an HIV-infected gay male, for instance, in a position of demonstrable persecution or imminent persecution. More specifically, at issue is the subtle consideration of whether the individual is persecuted because he is an HIV-infected homosexual or as an HIV-infected homosexual with the latter description carrying the recognized standard for “persecution” under the social group formulation (Jones, 2006). In time, U.S. immigration courts may offer this important human rights question greater attention as such claims under social group become more widespread.

Individuals seeking asylum status are almost always required to apply within the first year of entering the United States. The application can either be submitted to DHS or an immigration judge in immigration court. If denied, the application can be resubmitted to the entity that did not receive the initial application. Until the application is denied, the noncitizen will not be deported. If the application is denied by both the DHS and immigration court, then the removal process will begin.

The applicant will need to collect specific data from various sources showing that persecution is imminent upon return to his or her country of origin or that the fear of persecution is well-founded. This process is rigorous, and counsel from an immigration attorney or advocate familiar with this type of appeal is essential. Although the patient's provider normally does not have the expertise required, the building of trust can assist in helping to obtain statements on the applicant's behalf. Moreover, health care providers may be asked to provide documentation or evidence in support of asylum claims. If asylum is granted, the asylee can apply for lawful permanent residence after 1 year. The HIV ground for inadmissibility may pertain, but an application for an HIV waiver for humanitarian purposes can be submitted.

Final Considerations

The information in this article serves only as a template for promoting passage. The particulars of the law and legal categories, such as the social group formulation, are evolving standards. It is hoped that these categories will become more inclusive over time. As the world becomes increasingly intertwined, the tide of undocumented migrants and asylum-seekers crossing the borders of this country is unlikely to ebb, even in the face of further restrictions. In this vein, it is more important than ever to promote passage through care. Some of these newcomers will be HIV-infected individuals and others may be persons recovering from the mental and physical wounds of abuse or persecution. In every case, emphasis must be placed on ensuring that the “other” becomes another member of this society—a person who is entitled to service and care.


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© 2008Elsevier, Inc.