HIV Exclusion, Criminal Record Issues, and REAL ID Concerns

Prior to July 30, 2008, people with HIV were excluded from immigrating to, or even visiting, the United States. On July 30, 2008, President Bush signed into law the President’s Emergency Plan for AIDS Relief, which repealed the ban on HIV-positive tourists and immigrants in the United States. When an HIV positive person wanted to travel to the United States or apply for legal permanent resident status, she or he needed to still obtain a waiver of inadmissibility. On January 4, 2010, the HIV ban was finally lifted, and new regulations published by the Department of Health and Human Services became law.1 These regulations officially remove HIV from DHHS' list of “communicable diseases of public health significance.” This means that a person can now enter the United States without disclosing his or her HIV status, and there is no longer a requirement for HIV testing of lawful permanent resident applicants.2 The website of the National Immigration Project of the National Lawyers Guild contains information of the 2010 change in policy, including government memoranda.

As this major change is implemented, many questions arise about how this will impact people, and there have been inconsistent results.3 Some doctors still use the old medical forms, which do require HIV testing and disclosure, but the Centers for Disease Control are working to ensure that physicians do not test for HIV or request disclosure. Individuals who were denied lawful permanent residency only because the applicant was HIV positive after July 2009 (when the final regulations were published) can move to reopen their applications.4

Because there is still a great deal of inconsistency and confusion about what the lifting of the HIV travel ban actually means for individuals, many groups have published FAQs to share the information that is currently known. Immigration Equality, a national organization working to end discrimination in immigration law and reduce the negative impact on LGBT individuals and families, has produced a helpful web document in English and Spanish about what the end of the HIV ban actually means for individuals.


For Applicants
An applicant is ineligible for a visa or admission if convicted of a crime involving “moral turpitude” or in violation of any law of a State, the United States, or a foreign country related to a controlled substance.5 The Board of Immigration Appeals has defined malum in se crimes (often referred to as crimes of moral turpitude) to be those crimes “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons.”6 Examples of malum in se crimes include serious offenses such as larceny, rape, and murder, but also lesser crimes such as fraud or furnishing false information to a police officer.7 An individual currently in the U.S. but ineligible for admission should not apply for naturalization because immigration authorities will start proceedings to have him or her deported.

For Legal Residents
Individuals who have been awarded legal immigration status remain at risk for deportation if they commit a crime. As a general rule, most crimes that are considered malum in se (see above) are deportable offenses.8 Legal permanent residents, who would like to travel abroad, need to consider whether reentry would succeed. One of the harshest consequences of changes to the immigration law in 1996 was to apply some of the strictest provisions retroactively.9 This means that anyone who has any criminal convictions should speak with an experienced immigration attorney before doing anything which would lead to a review of their immigration record. Actions which can trigger review (and possible removal proceedings), include: international travel, any application with DHS such as applying for naturalization or applying to replace a “green card,” contact with the police (arrests, traffic stops), and contact with border patrol agents within 100 miles of the U.S. Border. Any foreign national who has a criminal conviction is strongly advised to consult with a qualified immigration attorney to determine what effect the conviction(s) may have on their immigration status.

The REAL ID Act is a federal law enacted in 2005. It mandates security, authentication, and issuance procedures standards for state driver licenses and ID cards, which must be followed in order for the ID’s to be considered valid for “official purposes.” The Secretary of Homeland Security defines “official purposes” as presenting state driver licenses and identification cards for boarding commercially operated airline flights and entering federal buildings and nuclear power plants. The REAL ID Act has created potential problems for asylum seekers and transgender people trying to legitimately acquire or change identification.10

Asylum officers are now given broad discretion in requesting that "the applicant should provide evidence which corroborates otherwise credible testimony,”11 including proof of persecution and additional proof of identification from those in their home country. This kind of proof can be very difficult to obtain. REAL ID gives asylum officers the right to reject asylum based on material inconsistencies. In many cases, inconsistencies in documents, such as different first names or gender references may simply reflect the applicant's efforts to navigate different systems as a transgender person. However, these inconsistencies may be flagged by asylum officers nonetheless. Inconsistencies like these are very common, since people seeking asylum can be fearful and distrust officials, or lack understanding of the system and cultural codes of conduct. Furthermore, the REAL ID system gives immigration judges the power to reject an asylum applicant's case based on their demeanor,12 such as appearing uncomfortable or laughing nervously, which are things people might inadvertently do while recounting serious or traumatic details.

State Identification Documents
REAL ID requires the states to adopt stricter laws regarding the issuance of state ID cards. This could make it more difficult for transgender people to obtain legitimate identification, especially if the state in which they were born does not re-issue birth certificates (such as Ohio, Tennessee, and Idaho).13 These requirements force states to make electronic copies of all documents used to support a license or state ID application, and so the state will also make copies of documents used to change the name and/or gender marker on a license. These electronic copies will then be available in a national database to an undefined group of people, which gives rise to privacy concerns.

  1. Centers for Disease Control and Prevention, Medical Examination of Aliens - Removal of Human Immunodeficiency Virus (HIV) From Definition of Communicable Disease of Public Health Significance, Department of Health and Human Services, 42 CFR Part 34, Docket No. CDC-2009-0003. Last visited June 14, 2013). 

  2. Id. 

  3. Immigration Equality, “HIV Issues: The HIV Ban” online summary. Last visited June 14, 2013. 

  4. United States Immigration Services, Memorandum: Public Law 110-293, 42 CFR 34.2(b), and Inadmissibility Due to Human Immunodeficiency Virus (HIV) Infection, November 24, 2009. Last visited June 14, 2013. 

  5. 8 U.S.C. § 1182(a)(2)(B). 

  6. Matter of Franklin, 20 I. & N. Dec. 867 (BIA 1994). 

  7. Padilla v. Gonzales, 397 F.3d 1016, 1020-21 (2005), (Holding that moral turpitude may be involved whenever a crime entails dishonesty). 

  8. INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). 

  9. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208. 

  10. Information in this section is obtained from The Real ID Act: Bad Law for our Community, National Center for Transgender Equality & Transgender Law Center. Last visited June 14, 2013. 

  11. 8 U.S.C.S. § 1158(b) (1) (B) (ii) (Lexis Advance 2013) 

  12. “Real ID Act of 2005” (PL 109-13, May 11, 2005) Text from: Public Law 109-13, 109th Congress, 119 Stat. 303. Available From: U.S. Gov. Printing Office. Last visited June 14, 2013. 

  13. Birth Certificate Laws, Movement Advancement Project. Last visited June 14, 2013.