Administrative Discretion Gone Awry: The Reintroduction of the Public Charge Exclusion for HIV-Positive Refugees and Asylees

Yale Law Journal

Volumn 106, Issue 2, 1996, Pages 389-422

  Kidder, Rebecca ^a  

^a NONE

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EID: 0347138894     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797213     Document Type: Article

References (222)

1. The exclusion laws were amended in 1990 to change "dangerous contagious diseases" to "communicable disease[s] of public health significance." 8 U.S.C. § 1182(a)(1)(A)(i) (1994). A list of those diseases is provided at 42 C.F.R. § 34.2(b) (1987).
2. See Medical Examination of Aliens (AIDS), 51 Fed. Reg. 15,354 (1986) (to be codified at 42 C.F.R. § 34.2(b)(8)) (proposed Apr. 23, 1986).
3. See 133 CONG. REC. S7410 (daily ed. June 2, 1987); Medical Examination of Aliens, 52 Fed. Reg. 32,540 (1987) (to be codified at 42 C.F.R. § 34). Congress amended the Supplemental Appropriations Act by a vote of 96 to 0 to direct the Secretary of Health and Human Services to list HIV as an excludable disease. See 133 CONG. REC. S7415 (daily ed. June 2, 1987) (Rollcall Vote No. 142). These regulations were finalized in June 1987. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,532 (1987) (to be codified at 42 C.F.R. § 34).
4. See 133 CONG. REC. S7410 (daily ed. June 2, 1987); Medical Examination of Aliens, 52 Fed. Reg. 32,540 (1987) (to be codified at 42 C.F.R. § 34). Congress amended the Supplemental Appropriations Act by a vote of 96 to 0 to direct the Secretary of Health and Human Services to list HIV as an excludable disease. See 133 CONG. REC. S7415 (daily ed. June 2, 1987) (Rollcall Vote No. 142). These regulations were finalized in June 1987. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,532 (1987) (to be codified at 42 C.F.R. § 34).
5. See 133 CONG. REC. S7410 (daily ed. June 2, 1987); Medical Examination of Aliens, 52 Fed. Reg. 32,540 (1987) (to be codified at 42 C.F.R. § 34). Congress amended the Supplemental Appropriations Act by a vote of 96 to 0 to direct the Secretary of Health and Human Services to list HIV as an excludable disease. See 133 CONG. REC. S7415 (daily ed. June 2, 1987) (Rollcall Vote No. 142). These regulations were finalized in June 1987. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,532 (1987) (to be codified at 42 C.F.R. § 34).
6. See 133 CONG. REC. S7410 (daily ed. June 2, 1987); Medical Examination of Aliens, 52 Fed. Reg. 32,540 (1987) (to be codified at 42 C.F.R. § 34). Congress amended the Supplemental Appropriations Act by a vote of 96 to 0 to direct the Secretary of Health and Human Services to list HIV as an excludable disease. See 133 CONG. REC. S7415 (daily ed. June 2, 1987) (Rollcall Vote No. 142). These regulations were finalized in June 1987. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,532 (1987) (to be codified at 42 C.F.R. § 34).
7. Medical Examination of Aliens (AIDS), 52 Fed. Reg. at 32,543. Ignorance about the genesis and transmission of HIV led the Centers for Disease Control to list Haitians as a high risk group along with homosexuals, intravenous drug users, and hemophiliacs. See Elizabeth Mary McCormick, Note, HIV-Infected Haitian Refugees: An Argument Against Exclusion, 7 GEO. IMMIGR. L.J. 149, 153-54 (1993). Haitian national origin was removed as a risk factor in 1985, as knowledge increased about transmission of HIV. See id. at 156-57. There was uncertainty about the costs and health implications of HIV in 1987. One commentator has noted that, [n]early all exclusions have been enacted at times of a high degree of nativism, racism, or anti-communism. Furthermore, the enactments often coincide with economic depressions and serve the domestic political needs of elected officials. The exclusions say more about the fears of the native-born than they do about the immigrant groups targeted. Robert J. Foss, The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration, 29 HARV. C.R.-C.L. L. REV. 439, 445 (1994). Given that HIV was first associated with Haitian national origin in 1982, that there were fears about the U.S. economy in 1988, and that 1988 was an election year, it is not difficult to see why the general exclusion of HIV-positive immigrants was passed.
8. Medical Examination of Aliens (AIDS), 52 Fed. Reg. at 32,543. Ignorance about the genesis and transmission of HIV led the Centers for Disease Control to list Haitians as a high risk group along with homosexuals, intravenous drug users, and hemophiliacs. See Elizabeth Mary McCormick, Note, HIV-Infected Haitian Refugees: An Argument Against Exclusion, 7 GEO. IMMIGR. L.J. 149, 153-54 (1993). Haitian national origin was removed as a risk factor in 1985, as knowledge increased about transmission of HIV. See id. at 156-57. There was uncertainty about the costs and health implications of HIV in 1987. One commentator has noted that, [n]early all exclusions have been enacted at times of a high degree of nativism, racism, or anti-communism. Furthermore, the enactments often coincide with economic depressions and serve the domestic political needs of elected officials. The exclusions say more about the fears of the native-born than they do about the immigrant groups targeted. Robert J. Foss, The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration, 29 HARV. C.R.-C.L. L. REV. 439, 445 (1994). Given that HIV was first associated with Haitian national origin in 1982, that there were fears about the U.S. economy in 1988, and that 1988 was an election year, it is not difficult to see why the general exclusion of HIV-positive immigrants was passed.
9. Medical Examination of Aliens (AIDS), 52 Fed. Reg. at 32,543. Ignorance about the genesis and transmission of HIV led the Centers for Disease Control to list Haitians as a high risk group along with homosexuals, intravenous drug users, and hemophiliacs. See Elizabeth Mary McCormick, Note, HIV-Infected Haitian Refugees: An Argument Against Exclusion, 7 GEO. IMMIGR. L.J. 149, 153-54 (1993). Haitian national origin was removed as a risk factor in 1985, as knowledge increased about transmission of HIV. See id. at 156-57. There was uncertainty about the costs and health implications of HIV in 1987. One commentator has noted that, [n]early all exclusions have been enacted at times of a high degree of nativism, racism, or anti-communism. Furthermore, the enactments often coincide with economic depressions and serve the domestic political needs of elected officials. The exclusions say more about the fears of the native-born than they do about the immigrant groups targeted. Robert J. Foss, The Demise of the Homosexual Exclusion: New Possibilities for Gay and Lesbian Immigration, 29 HARV. C.R.-C.L. L. REV. 439, 445 (1994). Given that HIV was first associated with Haitian national origin in 1982, that there were fears about the U.S. economy in 1988, and that 1988 was an election year, it is not difficult to see why the general exclusion of HIV-positive immigrants was passed.
10. Medical Examination of Aliens (AIDS), 52 Fed. Reg. at 32, 543. The concern that other nations would export undesirable aliens to the United States was one of the primary reasons immigration exclusions were originally passed. See HOUSE COMM. ON THE JUDICIARY, GROUNDS FOR EXCLUSION OF ALIENS UNDER THE IMMIGRATION AND NATIONALITY ACT, H.R. Doc. No. 89-263, at 6 (1988) [hereinafter EXCLUSION HISTORY].
11. Medical Examination of Aliens (AIDS), 52 Fed. Reg. at 32, 543. The concern that other nations would export undesirable aliens to the United States was one of the primary reasons immigration exclusions were originally passed. See HOUSE COMM. ON THE JUDICIARY, GROUNDS FOR EXCLUSION OF ALIENS UNDER THE IMMIGRATION AND NATIONALITY ACT, H.R. Doc. No. 89-263, at 6 (1988) [hereinafter EXCLUSION HISTORY].
12. See Philip J. Hilts, Clinton to Lift Ban on H.I.V.-Infected Visitors, N.Y. TIMES, Feb. 9, 1993, at A17.
13. The exclusion was signed into law as part of the National Institute of Health Revitalization Act of 1993, Pub. L. No. 103-43, 107 Stat. 122, 210 (1993). From 1987 to the present, the Immigration and Naturalization Service (INS) has enforced the HIV exclusion primarily by requiring a serologic HIV test for aliens applying for immigrant visas, refugee visas, and adjustment to permanent resident status. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,607-08 (1987). Although the primary way the INS discovers that an alien is HIV-positive is through a required medical examination, it may exclude any alien whose HIV status becomes known to an immigration officer. See Memorandum from Office of the Commissioner, INS, to All Regional Commissioners, All District Directors, and All Officers in Charge (Sept. 18, 1990), reprinted in 67 Interpreter Releases 1089, 1100-01 (Fed. Publications) (1990); see also SANA LOUE, IMMIGRATION LAW & HEALTH: PATIENTS AND PROVIDERS 9-17 (1995).
14. The exclusion was signed into law as part of the National Institute of Health Revitalization Act of 1993, Pub. L. No. 103-43, 107 Stat. 122, 210 (1993). From 1987 to the present, the Immigration and Naturalization Service (INS) has enforced the HIV exclusion primarily by requiring a serologic HIV test for aliens applying for immigrant visas, refugee visas, and adjustment to permanent resident status. See Medical Examination of Aliens (AIDS), 52 Fed. Reg. 21,607-08 (1987). Although the primary way the INS discovers that an alien is HIV-positive is through a required medical examination, it may exclude any alien whose HIV status becomes known to an immigration officer. See Memorandum from Office of the Commissioner, INS, to All Regional Commissioners, All District Directors, and All Officers in Charge (Sept. 18, 1990), reprinted in 67 Interpreter Releases 1089, 1100-01 (Fed. Publications) (1990); see also SANA LOUE, IMMIGRATION LAW & HEALTH: PATIENTS AND PROVIDERS 9-17 (1995).
15. Pub. L. No. 96-212, 94 Stat. 102, 104 (codified as amended in scattered sections of 8 U.S.C.). The Refugee Act explicitly covers refugees, who are, by definition, aliens applying for a refugee visa from abroad with a United States Consulate or regional director. See 8 C.F.R. § 207 (1995). The Refugee Act also grants the Attorney General discretion to admit asylees, who are aliens located in the United States when they apply for protection. See 8 U.S.C. § 1158 (1994); 8 C.F.R. § 208 (1995). Both refugees and asylees must meet the definition of a refugee. A refugee is a person who "is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101 (a)(42) (1994). The main difference between refugees and asylees is that refugees are overseas and asylees are in the United States when they apply for protection. In addition, the Refugee Act delegates authority over asylees to the Attorney General, so the standards governing admission of asylees, while parallel to the refugee provisions, are within the discretion of the Attorney General. Refugees and asylees who apply for adjustment to permanent resident status are also eligible for a waiver of the HIV exclusion. See id. § 1159(c). This Note only discusses the application of the INS HIV Rule to refugee applicants and applicants for permanent resident status. The term refugees encompasses both groups unless otherwise indicated.
16. 8 U.S.C. § 1157(c)(3) (1994).
17. See Cable from James A. Puleo, INS Assistant Commissioner for Examinations, to INS Field Offices (Mar. 2, 1988), reprinted in 65 Interpreter Releases 239 (Fed. Publications) (1988) [hereinafter Puleo Memo].
18. See 8 U.S.C. § 1255a(d)(2) (1994).
19. 8 C.F.R. § 245a(3)(d)(4) (1995).
20. See id. See generally Bettina M. Fernandez, Comment, HIV Exclusion of Immigrants Under the Immigration Reform and Control Act of 1986, 5 LA RAZA L.J. 65 (1992) (arguing that HIV exclusion waiver criteria undermine purpose of IRCA amnesty legislation); Court E. Golumbic, Comment, Closing the Open Door: The Impact of the Human Immunodeficiency Virus Exclusion on the Legalization Program of the Immigration Reform and Control Act of 1986, 15 YALE J. INT'L L. 162, 177-79 (1990) (discussing application of HIV exclusion to IRCA amnesty applicants).
21. See id. See generally Bettina M. Fernandez, Comment, HIV Exclusion of Immigrants Under the Immigration Reform and Control Act of 1986, 5 LA RAZA L.J. 65 (1992) (arguing that HIV exclusion waiver criteria undermine purpose of IRCA amnesty legislation); Court E. Golumbic, Comment, Closing the Open Door: The Impact of the Human Immunodeficiency Virus Exclusion on the Legalization Program of the Immigration Reform and Control Act of 1986, 15 YALE J. INT'L L. 162, 177-79 (1990) (discussing application of HIV exclusion to IRCA amnesty applicants).
22. See Puleo Memo, supra note 10, at 239; UNITED NATIONS HIGH COMM'N ON REFUGEES, A GUIDE TO THE U.S. INS HIV WAIVER APPLICATION PROCESS FOR THE RESETTLEMENT OF REFUGEES 1 (1995) [hereinafter UNHCR Memo]. The INS has enforced the HIV Rule against refugees without the benefit of a formal regulation promulgated in accordance with the notice and comment requirements under the Administrative Procedure Act. See Angela M. Bean & Robert S. Hilliard, Representing Clients with HIV, in 2 AMERICAN IMMIGRATION LAW ASSOCIATION IMMIGRATION & NATIONALITY LAW HANDBOOK 492, 495 (4th ed. 1993).
23. See Puleo Memo, supra note 10, at 239; UNITED NATIONS HIGH COMM'N ON REFUGEES, A GUIDE TO THE U.S. INS HIV WAIVER APPLICATION PROCESS FOR THE RESETTLEMENT OF REFUGEES 1 (1995) [hereinafter UNHCR Memo]. The INS has enforced the HIV Rule against refugees without the benefit of a formal regulation promulgated in accordance with the notice and comment requirements under the Administrative Procedure Act. See Angela M. Bean & Robert S. Hilliard, Representing Clients with HIV, in 2 AMERICAN IMMIGRATION LAW ASSOCIATION IMMIGRATION & NATIONALITY LAW HANDBOOK 492, 495 (4th ed. 1993).
24. See Memorandum from Alexander T. Aleinikoff, Executive Associate Commissioner of the INS, Regarding Immigrant Waivers For Aliens Found Excludable Under Section 212(a)(1)(A)(i) of the Immigration and Nationality Act Due to HIV Infection (Sept. 6, 1995), reprinted in 72 Interpreter Releases 1347 (Fed. Publications) (1995) [hereinafter Aleinikoff Memo].
25. See 8 U.S.C. § 1182(a)(4) (1994) (stating that "[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is excludable"). However, 8 U.S.C. § 1157(c)(3) (1994) specifically exempts refugees from this provision. See also infra note 20.
26. See infra Sections I.B-C.
27. See Aleinikoff Memo, supra note 15, at 1353.
28. Id.
29. The refugee exclusion waiver provision states that "[t]he provisions of paragraphs (4), (5), and (7)(A) of section 1182(a) of this title shall not be applicable to any alien seeking admission to the United States under this subsection." 8 U.S.C. § 1157(c)(3). Section 1182(a)(4) provides for the exclusion of persons seeking admission to the United States on the ground that they are "likely at any time to become a public charge." Id. § 1182(a)(4). Section 1182(a)(5) is the labor certification requirement. See id. § 1182(a)(5). Section 1182(a)(7)(A) requires all immigrant applicants to provide documentation that will establish their identity, including a valid passport. See id. § 1182(a)(7)(A).
30. See Deborah J. Bartz, Comment, The United States HIV Exclusion: Endangering Refugees' Human Rights, 17 HAMLINE L. REV. 155, 1474 (1993).
31. Aleinikoff Memo, supra note 15, at 1353.
32. See id. at 1351.
33. David Martin, General Counsel for the INS, could not explain the inconsistency in a brief interview, nor could Kelly Ryan, Associate General Counsel at the State Department. See Interview with David Martin, General Counsel, INS, in New Haven, Conn. (Apr. 18, 1996) (notes on file with the Yale Law Journal); Telephone Interview with Kelly Ryan, Associate General Counsel, Department of State (Apr. 26, 1995) (notes on file with the Yale Law Journal).
34. Puleo Memo, supra note 10, at 239.
35. See Aleinikoff Memo, supra note 15, at 1351, 1353.
36. See id. at 1351; UNHCR Memo, supra note 14, at 2.
37. See Aleinikoff Memo, supra note 15, at 1351; UNHCR Memo, supra note 14, at 2.
38. See Aleinikoff Memo, supra note 15, at 1351; UNHCR Memo, supra note 14, at 2.
39. See Aleinikoff Memo, supra note 15, at 1351; UNHCR Memo, supra note 14, at 2.
40. Aleinikoff Memo, supra note 15, at 1349.
41. See generally U.S. COMM. FOR REFUGEES, WORLD REFUGEE SURVEY (1995) (documenting impoverished conditions under which most refugees survive after fleeing persecutors).
42. See Jesse Green & Peter S. Arno, The 'Medicaidazation of AIDS, 264 JAMA 1261, 1261 (1990); discussion infra Subsection III.B.2.
43. Indeed, at least on East Coast district had no policy regarding evidence sufficient to meet the burden of proof other than health insurance. Given that the District Director had not adjudicated any applications for an HIV waiver to date, he indicated that he did not think the issue warranted attention until an application was actually under review. See John Weiss, Remarks at the Connecticut AILA Meeting (Nov. 30, 1995) (notes on file with the Yale Law Journal).
44. See EXCLUSION HISTORY, supra note 5, at 6 (discussing 18 Stat. 477 (1875)); see Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1480 (1995); James F. Smith, A Nation That Welcomes Immigrants?: An Historical Examination of United States Immigration Policy, 1 U.C. DAVIS J. INT'L L. & POL'Y 227, 229-30 (1995).
45. See EXCLUSION HISTORY, supra note 5, at 6 (discussing 18 Stat. 477 (1875)); see Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1480 (1995); James F. Smith, A Nation That Welcomes Immigrants?: An Historical Examination of United States Immigration Policy, 1 U.C. DAVIS J. INT'L L. & POL'Y 227, 229-30 (1995).
46. See EXCLUSION HISTORY, supra note 5, at 6 (discussing 18 Stat. 477 (1875)); see Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1480 (1995); James F. Smith, A Nation That Welcomes Immigrants?: An Historical Examination of United States Immigration Policy, 1 U.C. DAVIS J. INT'L L. & POL'Y 227, 229-30 (1995).
47. See EXCLUSION HISTORY, supra note 5, at 6.
48. Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084; see also EXCLUSION HISTORY, supra note 5, at 10.
49. The Act of February 20, 1907, added the exclusion of persons with physical and mental defects. See Pub. L. No. 59-96, § 2, 34 Stat. 898, 898-99 (1907); see also EXCLUSION HISTORY, supra note 5, at 14. The Act of February 5, 1917, added the term "vagrants" to the public charge exclusions. See Pub. L. No. 64-301, § 3, 39 Stat. 874, 875; see also EXCLUSION HISTORY, supra note 5, at 21. Waivers were available, however, for some immediate relatives. The Act of March 3, 1903, provided a waiver for those persons suffering from "any contagious disorder" if they were immediate family members of immigrants who had applied for citizenship and could prove the "disorder was contracted on board the ship in which they came." Pub. L. No. 57-162, § 37, 32 Stat. 1213, 1221.
50. The Act of February 20, 1907, added the exclusion of persons with physical and mental defects. See Pub. L. No. 59-96, § 2, 34 Stat. 898, 898-99 (1907); see also EXCLUSION HISTORY, supra note 5, at 14. The Act of February 5, 1917, added the term "vagrants" to the public charge exclusions. See Pub. L. No. 64-301, § 3, 39 Stat. 874, 875; see also EXCLUSION HISTORY, supra note 5, at 21. Waivers were available, however, for some immediate relatives. The Act of March 3, 1903, provided a waiver for those persons suffering from "any contagious disorder" if they were immediate family members of immigrants who had applied for citizenship and could prove the "disorder was contracted on board the ship in which they came." Pub. L. No. 57-162, § 37, 32 Stat. 1213, 1221.
51. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212, 66 Stat. 163, 182 (1952). While the 1952 INA marks the first time public health and public charge concerns were clearly separated, in reality it was the culmination of a trend toward separation and refinement of immigration exclusion law. For instance, the Public Health Service kept active tuberculosis as a mandatory exclusion, but provided that tuberculosis which had been inactive for over one year was only a ground for exclusion if it affected an alien's ability to earn a living. See H.R. REP. NO. 82-1365, at 48 (1952), cited in EXCLUSION HISTORY, supra note 5, at 75. Similarly, the exclusion of people with disabilities that might affect their ability to support themselves became waivable if they could prove they would not have to earn a living. See S. REP. NO. 81-1515, at 345 (1950), cited in EXCLUSION HISTORY, supra note 5, at 75. In these two examples, Congress and the INS separated public health exclusions from the public charge rationale tor exclusion. This refinement was codified in the 1952 INA which included a separate exclusion applicable to any alien certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living. Immigration and Nationality Act § 212(a), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). This increasing refinement in exclusion law can be attributed, in part, to the increasing bureaucratization of immigration law as the INS gained more control over the immigration process. See generally SELECT COMM'N ON IMMIGRATiON AND REFUGEE POL'Y, 96TH CONG., HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 61-66 (1980).
52. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212, 66 Stat. 163, 182 (1952). While the 1952 INA marks the first time public health and public charge concerns were clearly separated, in reality it was the culmination of a trend toward separation and refinement of immigration exclusion law. For instance, the Public Health Service kept active tuberculosis as a mandatory exclusion, but provided that tuberculosis which had been inactive for over one year was only a ground for exclusion if it affected an alien's ability to earn a living. See H.R. REP. NO. 82-1365, at 48 (1952), cited in EXCLUSION HISTORY, supra note 5, at 75. Similarly, the exclusion of people with disabilities that might affect their ability to support themselves became waivable if they could prove they would not have to earn a living. See S. REP. NO. 81-1515, at 345 (1950), cited in EXCLUSION HISTORY, supra note 5, at 75. In these two examples, Congress and the INS separated public health exclusions from the public charge rationale tor exclusion. This refinement was codified in the 1952 INA which included a separate exclusion applicable to any alien certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living. Immigration and Nationality Act § 212(a), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). This increasing refinement in exclusion law can be attributed, in part, to the increasing bureaucratization of immigration law as the INS gained more control over the immigration process. See generally SELECT COMM'N ON IMMIGRATiON AND REFUGEE POL'Y, 96TH CONG., HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 61-66 (1980).
53. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212, 66 Stat. 163, 182 (1952). While the 1952 INA marks the first time public health and public charge concerns were clearly separated, in reality it was the culmination of a trend toward separation and refinement of immigration exclusion law. For instance, the Public Health Service kept active tuberculosis as a mandatory exclusion, but provided that tuberculosis which had been inactive for over one year was only a ground for exclusion if it affected an alien's ability to earn a living. See H.R. REP. NO. 82-1365, at 48 (1952), cited in EXCLUSION HISTORY, supra note 5, at 75. Similarly, the exclusion of people with disabilities that might affect their ability to support themselves became waivable if they could prove they would not have to earn a living. See S. REP. NO. 81-1515, at 345 (1950), cited in EXCLUSION HISTORY, supra note 5, at 75. In these two examples, Congress and the INS separated public health exclusions from the public charge rationale tor exclusion. This refinement was codified in the 1952 INA which included a separate exclusion applicable to any alien certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living. Immigration and Nationality Act § 212(a), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). This increasing refinement in exclusion law can be attributed, in part, to the increasing bureaucratization of immigration law as the INS gained more control over the immigration process. See generally SELECT COMM'N ON IMMIGRATiON AND REFUGEE POL'Y, 96TH CONG., HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 61-66 (1980).
54. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212, 66 Stat. 163, 182 (1952). While the 1952 INA marks the first time public health and public charge concerns were clearly separated, in reality it was the culmination of a trend toward separation and refinement of immigration exclusion law. For instance, the Public Health Service kept active tuberculosis as a mandatory exclusion, but provided that tuberculosis which had been inactive for over one year was only a ground for exclusion if it affected an alien's ability to earn a living. See H.R. REP. NO. 82-1365, at 48 (1952), cited in EXCLUSION HISTORY, supra note 5, at 75. Similarly, the exclusion of people with disabilities that might affect their ability to support themselves became waivable if they could prove they would not have to earn a living. See S. REP. NO. 81-1515, at 345 (1950), cited in EXCLUSION HISTORY, supra note 5, at 75. In these two examples, Congress and the INS separated public health exclusions from the public charge rationale tor exclusion. This refinement was codified in the 1952 INA which included a separate exclusion applicable to any alien certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living. Immigration and Nationality Act § 212(a), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). This increasing refinement in exclusion law can be attributed, in part, to the increasing bureaucratization of immigration law as the INS gained more control over the immigration process. See generally SELECT COMM'N ON IMMIGRATiON AND REFUGEE POL'Y, 96TH CONG., HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 61-66 (1980).
55. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212, 66 Stat. 163, 182 (1952). While the 1952 INA marks the first time public health and public charge concerns were clearly separated, in reality it was the culmination of a trend toward separation and refinement of immigration exclusion law. For instance, the Public Health Service kept active tuberculosis as a mandatory exclusion, but provided that tuberculosis which had been inactive for over one year was only a ground for exclusion if it affected an alien's ability to earn a living. See H.R. REP. NO. 82-1365, at 48 (1952), cited in EXCLUSION HISTORY, supra note 5, at 75. Similarly, the exclusion of people with disabilities that might affect their ability to support themselves became waivable if they could prove they would not have to earn a living. See S. REP. NO. 81-1515, at 345 (1950), cited in EXCLUSION HISTORY, supra note 5, at 75. In these two examples, Congress and the INS separated public health exclusions from the public charge rationale tor exclusion. This refinement was codified in the 1952 INA which included a separate exclusion applicable to any alien certified by the examining surgeon as having a physical defect, disease, or disability, when determined by the consular or immigration officer to be of such a nature that it may affect the ability of the alien to earn a living, unless the alien affirmatively establishes that he will not have to earn a living. Immigration and Nationality Act § 212(a), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). This increasing refinement in exclusion law can be attributed, in part, to the increasing bureaucratization of immigration law as the INS gained more control over the immigration process. See generally SELECT COMM'N ON IMMIGRATiON AND REFUGEE POL'Y, 96TH CONG., HISTORY OF THE IMMIGRATION AND NATURALIZATION SERVICE 61-66 (1980).
56. The public health exclusions were listed under INA §§ 2.2(a)(1)-(6), Pub. L. No. 82-414, 66 Stat. 163, 182 (1952). The public charge exclusions were listed as INA §§ 212(a)(7)-(8) & 212(a)(15), 66 Stat. 163. The public charge exclusions included exclusions for physical or mental disability that affected the ability to earn a living, exclusion of "paupers, professional beggars or vagrants," and exclusion of other persons likely to become a public charge. See id.
57. See 42 C.F.R. § 34.4 (1995).
58. See id. § 34.4(b).
59. The Immigration Act Amendments of 1990 reflected a growing belief that a physical or mental disability is not necessarily a threat to the community and does not necessarily make a person incapable of supporting herself. See Peter Margulies, Asylum, Intersectionality, and AIDS: Women with HIV as a Persecuted Social Group, 8 GEO. IMMIGR. L.J. 521, 539 (1994). Congress narrowed the mental and physical disability exclusions to apply only to those mental or physical afflictions that present a threat to the lives or property of others. See 8 U.S.C. § 1182(a)(1)(A)(ii)(I)-(II) (1994).
60. 42 C.F.R. § 34.4(c)(1) (1995).
61. Id. § 34.4(c)(2).
62. This conflation of public health and public charge concerns is premised on the notion that people with disabilities are incapable of supporting themselves. Under the logic of the INS HIV Rule, every alien with a medical disability would be presumptively excludable as a public charge. Such a view of disability would probably conflict with the Americans with Disabilities Act, 42 U.S.C. § 12101 (1994), but a full discussion of this issue is beyond the scope of this Note.
63. See, e.g., Canciamilla v. Haff, 64 F.2d 875 (9th Cir. 1933) (excluding alien as public charge after being committed to state hospital at public expense for epileptic condition); Fernandez v. Nagle, 58 F.2d 950, 950 (9th Cir. 1932) (excluding alien as public charge when committed to "Relief Home for the Aged and Infirm" because alien was "too weak and sick" to work).
64. 30 F.2d 766 (9th Cir. 1924).
65. See id. at 768-69.
66. See United States ex rel. Minuto v. Reimer, 83 F.2d 166, 168 (2d Cir. 1936) ("She was a woman seventy years old with an increasing chance of being dependent, disabled, and sick.") (affirming exclusion order); United States ex rel. Markin v. Curran, 9 F.2d 900 (2d Cir. 1925) (excluding alien as likely to become public charge because she had syphilis and was blind in one eye); United States ex rel. La Fata v. Williams, 204 F. 848 (S.D.N.Y. 1913) (excluding alien as likely to become public charge due to valvular heart condition).
67. Wallis v. United States ex rel. Mannara, 273 F. 509, 511 (2d Cir. 1921) (excluding aliens as likely to become public charges due to cardiac problem and senility).
68. 3 I. & N. Dec. 323 (B.I.A. 1948).
69. See id. at 324. While asylees and refugees are presumably subject to the public charge ground for deportation, this decision significantly decreases the possibility that an asylee or refugee would be put in deportation proceedings on the basis of his or her medical costs. Refugees and asylees are eligible for many forms of public benefits granted to all residents. See Stephen H. Legomsky, Immigration, Federalism, and the Welfare State, 42 UCLA L. REV. 1453, 1458-60 (1995). One other barrier to deportation proceedings is the lack of statutory authority under the Refugee Act to revoke asylum or refugee status on the basis of a refugee's excludability. See infra Section III.A.
70. 14 I. & N. Dec. 583 (B.I.A. 1974).
71. See id. at 590.
72. See Ex parte Wong Nung v. Carr, 30 F.2d 766 (9th Cir. 1929); Markin v. Curran, 9 F.2d 900 (2d Cir. 1925).
73. Any alien "who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance, which shall include infection with the etiologic agent for [AIDS]" is excludable. 8 U.S.C. § 1182(a)(1)(A)(i) (1995). The Secretary of Health and Human Services has listed chancroid, gonorrhea, granuloma inguinale, HIV, infectious leprosy, lymphogranuloma venerum, syphilis in the infectious stage, and active tuberculosis as diseases of public health significance. See 42 C.F.R. § 34.2(b) (1995).
74. See supra note 4.
75. See generally McCormick, supra note 4, at 153-57 (discussing early medical knowledge of HIV).
76. See Christine N. Cimini, Note, The United States Policy on HIV Infected Aliens: Is Exclusion an Effect Solution?, 7 CONN. J. INT'L L. 367, 377-80 (1992) (discussing several studies of HIV transmission). The INS can exclude refugees who pose a threat because of their behavior without recourse to consideration of health care costs. See Aleinikoff Memo, supra note 15, at 1351. The first two prongs of the Aleinikoff Memo require refugees to prove that "(1) the danger to the public health of the United States created by [the alien's] admission is minimal, [and] (2) the possibility of the spread of the infection created by [the alien's] admission to the U.S. is minimal." Id. 62. 467 U.S. 837 (1984).
77. 401 U.S. 402 (1970).
78. See Chevron, 467 U.S. at 844; Overton Park, 401 U.S. at 416.
79. See Chevron, 467 U.S. at 842-43.
80. See Negonsott v. Samuels, 507 U.S. 99, 104 (1993); see also West Virginia Univ. Hosp., Inc. v. Casey, 499 U.S. 83 (1991) (explaining that when statutory language is clear, courts should not look to statements from legislators or congressional committees); Barr v. United States, 324 U.S. 83, 90 (1945) ("If Congress has made a choice of language which fairly brings a situation within a statute, it is unimportant that the particular application may not have been contemplated by the legislators.").
81. See Chevron, 467 U.S. at 863.
82. See id. at 843, 866.
83. See Overton Park, 401 U.S. at 416; see also Chevron, 467 U.S. at 843.
84. See Chevron, 467 U.S. at 843.
85. This Note does not focus on whether the INS HIV Rule would also fail the second step of the Chevron-Overton Park test as an arbitrary or capricious use of administrative agency authority. In the second step of review, the courts determine whether the application of a regulation "was based on a consideration of relevant factors and whether there has been a clear error of judgment." Overton Park, 401 U.S. at 416. Part III discusses the availability of judicial review and some policy reasons explaining why the application of the HIV Rule to refugees is contrary to humanitarian goals, but a more in-depth analysis of the second step of judicial review is beyond the scope of this Note. The INS HIV Rule may indeed be arbitrary if it is not applied to all refugee applicants equally or if it contradicts the general humanitarian purposes of the Refugee Act. While an exploration of this issue may be fruitful, it is difficult to evaluate the impact of the INS HIV Rule because the INS does not systematically compile statistics on waiver grants and denials for refugees. In fact, only three HIV waiver grants have been widely publicized. See Joseph Migliozzi, Note, The INA Asylum Application Procedure for Political Refugees With HIV, 3 REGENT U. L. REV. 95, 117 (1993). Kelly Ryan, Associate General Counsel for the State Department, said that in her experiences at Guantanamo Bay, Cuba, HIV-positive waiver applicants were able to meet the burden of proof by showing that they had private health insurance. Telephone Interview with Kelly Ryan, Associate General Counsel, Department of State (Apr. 26, 1995) (notes on file with the Yale Law Journal).
86. See Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered) sections of 8 U.S.C.); see also CONGRESSIONAL RESEARCH SERVICE, 96TH CONG., REVIEW OF U.S. REFUGEE RESETTLEMENT PROGRAMS AND POLICIES 51 (1980) [hereinafter RESETTLEMENT REPORT].
87. 8 U.S.C. § 1157(c)(3) (1994); see also supra text accompanying note 20.
88. 8 U.S.C. § 1157(c)(3). Some exclusions are mandatory. Aliens who are ineligible to apply for refugee status due to a mandatory exclusion include: controlled substance traffickers; aliens who present a security concern; aliens who have engaged in terrorist activity; aliens whose admission affects foreign policy concerns; and aliens who participated in Nazi persecution or any form of genocide. Id. § 1157(c)(3) & § 1182(a)(2)(C), (a)(3)(A)-(C) & (E).
89. Aleinikoff Memo, supra note 15, at 1354.
90. The structure of the INA makes the public charge exclusion applicable to all immigrants unless a specific waiver of the exclusion is available. See 8 U.S.C. § 1182.
91. See id. § 1182(g). Under this provision, immediate relatives include minor unmarried children, spouses, and parents.
92. Id.
93. See Faith G. Pendleton, Note, The United States Exclusion of HIV-Positive Aliens: Realities and Illusions, 18 SUFFOLK TRANSNAT'L L. REV. 269, 277 (1995).
94. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 201(a)(1)(A), 100 Stat. 3359, 3394.
95. See 8 U.S.C. § 1255a.
96. Id. § 1255a(d)(2)(B).
97. Id. § 1255a(d)(2)(B)(i). Application of the INS HIV Rule as a limitation on the use of Attorney General discretion to grant HIV waivers does not contradict the IRCA waiver provision because the statute already indicates that waiver applicants will have to prove that they will not become a public charge. In the limited case of aged, blind, or disabled applicants, the decision to waive the public charge exclusion is left to the discretion of the Attorney General, so if the Attorney General decides to limit her own discretion, it does not contradict any congressional mandates. But cf. Golumbic, supra note 13 (arguing that application of HIV waiver program under IRCA violates spirit and intent of legislation).
98. 8 U.S.C. § 1161 (1988) (repealed 1994).
99. Id. § 1161(e)(2)(A) (repealed 1994).
100. Id. § 1161(e)(2)(C) (repealed 1994).
101. 8 U.S.C. § 1254a(c)(2)(A)(ii) (1994).
102. See id. § 1254a(b).
103. Id. § 1254a(c)(2)(A)(ii).
104. Id. § 1157(c)(3).
105. H.R. REP. NO. 96-608, at 1 (1979).
106. RESETTLEMENT REPORT, supra note 72, at 21. As one Representative argued: [T]here is a fundamental difference between being an immigrant and being a refugee. An immigrant is a person who would like to come to the United States in search of the American dream . . . . That is also true of the refugee, but a refugee comes not only in search of the American dream but to escape a desperate personal nightmare. That person is coming not only looking for personal opportunity but physical safety, refuge and sanctuary. 125 CONG. REC. 35,818 (1979) (statement of Rep. Mikulski).
107. RESETTLEMENT REPORT, supra note 72, at 21. As one Representative argued: [T]here is a fundamental difference between being an immigrant and being a refugee. An immigrant is a person who would like to come to the United States in search of the American dream . . . . That is also true of the refugee, but a refugee comes not only in search of the American dream but to escape a desperate personal nightmare. That person is coming not only looking for personal opportunity but physical safety, refuge and sanctuary. 125 CONG. REC. 35,818 (1979) (statement of Rep. Mikulski).
108. 125 CONG. REC. 23,231-32 (1979).
109. See 126 CONG. REC. 4504 (1980) (statement of Rep. Sensenbrenner) ("[W]hen this bill was before the House of Representatives on December 20, I opposed this bill on the grounds that it separated out our policy on refugees from our policy on legal immigration . . . . The conference committee report does not solve the problem . . . and should be rejected for that reason."); 125 CONG. REC. 35,815-16 (1979) (statement of Rep. Hamilton Fish) ("This bill represents a statement of a new U.S. policy toward refugees, principally a focus on the humanitarian plight of the refugee."); see also infra Subsection II.B.2.
110. See 126 CONG. REC. 4504 (1980) (statement of Rep. Sensenbrenner) ("[W]hen this bill was before the House of Representatives on December 20, I opposed this bill on the grounds that it separated out our policy on refugees from our policy on legal immigration . . . . The conference committee report does not solve the problem . . . and should be rejected for that reason."); 125 CONG. REC. 35,815-16 (1979) (statement of Rep. Hamilton Fish) ("This bill represents a statement of a new U.S. policy toward refugees, principally a focus on the humanitarian plight of the refugee."); see also infra Subsection II.B.2.
111. See 126 CONG. REC. 4504 (1980) (statement of Rep. Sensenbrenner) ("[W]hen this bill was before the House of Representatives on December 20, I opposed this bill on the grounds that it separated out our policy on refugees from our policy on legal immigration . . . . The conference committee report does not solve the problem . . . and should be rejected for that reason."); 125 CONG. REC. 35,815-16 (1979) (statement of Rep. Hamilton Fish) ("This bill represents a statement of a new U.S. policy toward refugees, principally a focus on the humanitarian plight of the refugee."); see also infra Subsection II.B.2.
112. For a discussion of refugee law history, see generally GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF-OPEN DOOR, 1945 TO THE PRESENT (1986) (detailing history of U.S. refugee policies); Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. REV. 9 (1981) (analyzing U.S. legal responses to refugee and asylum policy after World War II, culminating in enactment ot Refugee Act of 1980); Kathryn M. Bockley, Comment, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C. J. INT'L L. & COM. REG. 253 (1995) (presenting historical analysis of political factors in refugee admission process).
113. For a discussion of refugee law history, see generally GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF-OPEN DOOR, 1945 TO THE PRESENT (1986) (detailing history of U.S. refugee policies); Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. REV. 9 (1981) (analyzing U.S. legal responses to refugee and asylum policy after World War II, culminating in enactment ot Refugee Act of 1980); Kathryn M. Bockley, Comment, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C. J. INT'L L. & COM. REG. 253 (1995) (presenting historical analysis of political factors in refugee admission process).
114. For a discussion of refugee law history, see generally GIL LOESCHER & JOHN A. SCANLAN, CALCULATED KINDNESS: REFUGEES AND AMERICA'S HALF-OPEN DOOR, 1945 TO THE PRESENT (1986) (detailing history of U.S. refugee policies); Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. REV. 9 (1981) (analyzing U.S. legal responses to refugee and asylum policy after World War II, culminating in enactment ot Refugee Act of 1980); Kathryn M. Bockley, Comment, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C. J. INT'L L. & COM. REG. 253 (1995) (presenting historical analysis of political factors in refugee admission process).
115. See S. REP. NO. 96-256, at 15 (1979); H.R. REP. NO. 96-608, at 29 (1979).
116. Act of Oct. 28, 1977, Pub. L. No. 95-145, 91 Stat. 1223.
117. See RESETTLEMENT REPORT, supra note 72, at 17.
118. See generally Bockley, supra note 95 (detailing use of political criteria for admission of refugees under pre-1980 refugee programs).
119. Under the Displaced Persons Act of 1948, an applicant had to provide evidence that she would not displace an American worker and that she would not become a public charge. See Pub. L. No. 80-774, § 2(d), 62 Stat. 1009, 1010, as amended by Act of June 16, 1950, Pub. L. No. 81-555, 64 Stat. 219, and Act of June 28, 1951, Pub. L. No. 82-60, 65 Stat. 96. Similarly, under the Refugee Relief Act of 1953, aliens had to prove they had housing and would not become public charges. Again, they were inadmissible if they had contagious diseases. See Pub. L. No. 83-203, § (a)(14), 67 Stat. 400, 403, as amended by Act of Aug. 31, 1954, Pub. L. No. 83-751, 68 Stat. 1044. The Fair Share Refugee Act also mandated that a refugee-escapee prove she could, "with some assistance, become self supporting," and that she meet the public health exclusion. Act of July 14, 1960, Pub. L. No. 86-648, § (b), 74 Stat. 504, 504-05. Finally, under the INA seventh preference for refugees, an alien had to be admissible as an immigrant, except that the literacy requirements were not applicable. See Immigration and Nationality Act, Pub. L. No. 82-414, § 212(b), 66 Stat. 163, 187 (1952); see also RESETTLEMENT REPORT, supra note 72, at 5-6 (listing all refugee programs and admissions under those programs).
120. 8 U.S.C. § 1182(d)(5) (1994). It is clear, however, that Congress did not foresee the use of the parole provision to admit large groups of refugees. See Anker & Posner, supra note 95, at 15.
121. See Bockley, supra note 95, at 266-78.
122. S. REP. NO. 96-256, at 3 (1979).
123. Id. at 6.
124. The Refugee Act of 1979: Hearings on H.R. 2816 Before the Subcomm. on Int'l Operations of the House Comm. on Foreign Affairs, 96th Cong. 84 (1979)
125. Dale F. Swartz of the D.C. Lawyers Committee for Civil Rights Under the Law explained: The House version, as I understand it, adopts the concept of special humanitarian concern, the purpose being to, in effect, eliminate from our determinations of what groups of refugees we will admit, purely political considerations; that it should be a humanitarian determination not, as it has been in the past by statute, a somewhat humanitarian, somewhat political determination. Id.
126. 125 CONG. REC. 35,816 (1979) (statement of Rep. Fish) (emphasis added): see also id. at 23,237 (statement of Sen. Thurmond); id. at 23,246 (statement of Sen. Kennedy); id. at 35,813 (statement of Rep. Holtzman) ("The committee report states explicitly that the criterion for admitting refugees . . . will be 'special humanitarian concern.'"). The Senate explicitly rejected an amendment offered by Senator Huddleston that would have limited refugee admissions to those of "special responsibility to the United States." Id. at 23,246 (Amendment No. 529).
127. 8 U.S.C. § 1157 (1994). Congress requires the President to admit only refugees of "special humanitarian concern." Refugee Act § 101(b), Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified as amended at 8 U.S.C. § 1157 (1994)). The President conducts annual refugee prioritization based on humanitarian factors in consultation with Congress. See 8 U.S.C. § 1157(a)(3). Under the consultation provision, President Clinton submitted a proposed revision to the worldwide refugee priority system in 1995. See Report to the Congress on Proposed Refugee Admissions for Fiscal Year (FY) 1996, Aug. 1, 1995, available in WESTLAW, U.S. Testimony Library, File No. 1995 WL 455226. If Congress or the President intended to exclude HIV-positive refugees who could not pay for their medical costs, these officials could have excluded HIV-positive refugees from the group of refugees of special humanitarian concern indicated in the priority list. Not only did the President and Congress decline to take this measure, but they also affirmatively indicated that refugees with severe medical problems warranted a high admission priority. Included among the group of refugees who receive first priority for admission are "UNHCR-referred or Embassy identified persons . . . including women-at-risk, victims of torture or violence, physically or mentally disabled persons in urgent need of medical treatment not available in the country of first asylum," and "UNHCR-referred or Embassy identified persons, for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution." Id.
128. 125 CONG. REC. 23,240 (1979); see also RESETTLEMENT REPORT, supra note 72, at 1 ("The major impetus for the legislation was the need to end an ad hoc approach that had characterized U.S. Refugee policy since World War II.").
129. 125 CONG. REC. 23,240 (1979); see also RESETTLEMENT REPORT, supra note 72, at 1 ("The major impetus for the legislation was the need to end an ad hoc approach that had characterized U.S. Refugee policy since World War II.").
130. See 126 CONG. REC. 4501 (1980) (statement of Rep. Rodino) ("I firmly believe that the product of our labors has enabled us to present to the House landmark legislation in an area which for years has been dealt with on an ad hoc, piecemeal basis, many times reacting to a situation when it was upon us."); 125 CONG. REC. 35,820 (1979) (statement of Rep. Chisholm) ("Refugees fleeing persecution regardless of the country they come from, on humanitarian considerations alone, should be equal in standing tor entry into the United States."); id. at 35,813 (statement of Rep. Holtzman) ("[This bill] will mandate equity in our treatment of all refugees . . . it will provide set procedures for admission . . . .").
131. See 126 CONG. REC. 4501 (1980) (statement of Rep. Rodino) ("I firmly believe that the product of our labors has enabled us to present to the House landmark legislation in an area which for years has been dealt with on an ad hoc, piecemeal basis, many times reacting to a situation when it was upon us."); 125 CONG. REC. 35,820 (1979) (statement of Rep. Chisholm) ("Refugees fleeing persecution regardless of the country they come from, on humanitarian considerations alone, should be equal in standing tor entry into the United States."); id. at 35,813 (statement of Rep. Holtzman) ("[This bill] will mandate equity in our treatment of all refugees . . . it will provide set procedures for admission . . . .").
132. See Jason Pardo, Comment, Excluding Immigrants on the Basis of Health: The Haitian Centers Council Decision Criticized, 11 J. CONTEMP. HEALTH L. & POL'Y 523, 538 (1995).
133. 125 CONG. REC. 37,230 (1979) (statement of Rep. Vento); see also id. at 37,234 (statement of Rep. Bruce Vento). Representative Holtzman added: This bill sets up careful and explicit requirements regarding medical screening. There was a question on the floor about exotic and tropical diseases that refugees might have. We have no system now for following up with refugees who come here with medical problems. This bill will set up such a system. Id. at 37,236.
134. See 126 CONG. REC. 4504 (1980) (statement of Rep. Danielson) ("Recent HEW figures . . . indicate that, nationwide, 37.02 percent of the refugees (more than 112,540) were receiving medicaid [sic] . . . ."); 125 CONG. REC. 23,251 (1979) (statement of Sen. Chiles) ("A disproportionate number of the refugees were elderly and disabled, who were pushed out of Cuba. . . . They need a tremendous amount of medical and social services, and that is what we have agreed to provide in the appropriations compromise . . . ."); id. at 35,819 (statement of Rep. Lungren) ("[A] good portion of those refugees who have already been here for 4 years are still on some form of assistance - cash assistance or medical assistance of some sort."); id. at 23,248 (statement of Sen. Cranston) ("The California Department of Social Services does know that 43,000 Indochina refugees presently receive cash assistance. . . . This implies that the refugees are not becoming economical [sic] self-sufficient as originally expected.").
135. 125 CONG. REC. 35,819 (1979).
136. One Representative stated: We in the Congress will have to deal with the socioeconomic impacts of this bill. We will have to deal with overloaded school systems and medical clinics, scarce housing facilities, and rising welfare expenditures in our local communities. Consequently, I believe the Congress should have a major role in determining how many people will enter this country under the provisions or this bill. Id. at 37,204-05 (statement of Rep. Moorehead); see also 126 CONG. REC. 4504 (1980) (statement of Rep. Danielson) ("Our Nation's commitment to resettle these refugees includes providing financial and medical assistance . . . ."); 125 CONG. REC. 23,234 (1979) (statement of Sen. Kennedy) ("[T]here will be residual needs among some refugees beyond 2 years, but the committee believes these needs can be met through the other programs authorized in the bill - such as social service programs - when the 2-year limit on Federal support of cash and medical payments end."); id. at 23,248 (statement of Sen. Cranston) ("The task ahead of us is indeed large and it will be an expensive undertaking. There is no way to mask that fact.").
137. 125 CONG. REC. 23,240 (1979); see also id. at 35,815 (statement of Rep. Holtzman) ("The reason the committee adopted a more generous - and a more realistic - reimbursement formula is that decisions to admit refugees are within the exclusive province of the Federal Government and every effort must be made to minimize the financial impact on State and local governments.").
138. See The Refugee Act of 1979: Hearing on S. 643 Before the Senate Comm. on the Judiciary, 96th Cong. 22 (1979) [hereinafter Senate Hearings]. However, Congress did not limit annual asylum admissions. See 8 U.S.C. § 1158 (1994); see also H.R. REP. NO. 96-781, at 20 (1980) ("It is the intent of the conferees that prior to fiscal year 1983, Congress will review the 50,000 annual numerical limitation and take appropriate action to retain or adjust this figure."); 126 CONG. REC. 4506 (1980) (statement of Rep. Butler) ("[T]he importance of this legislation is for the Congress of the United States to retain control of the number of refugees . . . .").
139. See The Refugee Act of 1979: Hearing on S. 643 Before the Senate Comm. on the Judiciary, 96th Cong. 22 (1979) [hereinafter Senate Hearings]. However, Congress did not limit annual asylum admissions. See 8 U.S.C. § 1158 (1994); see also H.R. REP. NO. 96-781, at 20 (1980) ("It is the intent of the conferees that prior to fiscal year 1983, Congress will review the 50,000 annual numerical limitation and take appropriate action to retain or adjust this figure."); 126 CONG. REC. 4506 (1980) (statement of Rep. Butler) ("[T]he importance of this legislation is for the Congress of the United States to retain control of the number of refugees . . . .").
140. See The Refugee Act of 1979: Hearing on S. 643 Before the Senate Comm. on the Judiciary, 96th Cong. 22 (1979) [hereinafter Senate Hearings]. However, Congress did not limit annual asylum admissions. See 8 U.S.C. § 1158 (1994); see also H.R. REP. NO. 96-781, at 20 (1980) ("It is the intent of the conferees that prior to fiscal year 1983, Congress will review the 50,000 annual numerical limitation and take appropriate action to retain or adjust this figure."); 126 CONG. REC. 4506 (1980) (statement of Rep. Butler) ("[T]he importance of this legislation is for the Congress of the United States to retain control of the number of refugees . . . .").
141. See 8 U.S.C. § 1522(e).
142. See supra Part I.
143. See Matter of Pula, 19 I. & N. Dec. 467, 471 (B.I.A. 1987).
144. See id. at 474.
145. See 8 U.S.C. § 1101(a)(42).
146. See 8 C.F.R. § 207.1(b) (1995).
147. See 8 U.S.C. § 1101(a)(42).
148. See id. § 1157(c)(3).
149. Matter of Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987).
150. See id. at 474 ("[T]he danger of persecution should generally outweigh all but the most egregious of adverse factors.").
151. See id. at 473-74.
152. 8 U.S.C. § 1157(a)(3).
153. Under the asylum procedures, an applicant for asylum does not submit a request for a waiver separate from her request for asylum. See 8 C.F.R. § 208.3(b) (1995). In contrast, if a refugee is excludable, she must submit a waiver request to the officer in charge of deciding whether to grant a refugee visa. See id. § 207.3. However, it is the Attorney General who promulgated these procedures, not Congress. Thus, even if one concludes that the refugee waiver process is one distinct step in the decision to grant or deny a visa, it is one subset of the entire discretionary decision, not a separate decision process altogether.
154. See 8 U.S.C. § 1157(c)(3).
155. See id. § 1182(a)(4) (public charge exclusion); id. § 1182 (a)(5) (labor certification exclusion): id. § 1182(a)(7)(A) (immigrant documentation exclusion).
156. See id. § 1157(c)(3).
157. See id. § 1182(a)(1)(A)(ii)(I).
158. See id. § 1182(a)(7)(A)(i).
159. See id. § 1182(a)(3)(D)(i).
160. See id. § 1182(a)(4).
161. See Anker & Posner, supra note 95, at 48-50, 52-56.
162. See Pardo, supra note 111, at 535.
163. See Bartz, supra note 21, at 160; supra text accompanying notes 6-7.
164. See Jason W. Konvicka, Note, Give Us Your Tired, Your Poor, Your Huddled Masses . . . Except When They Have HIV: An Analysis of Current United States Immigration Policy Regarding HIV-Positive Aliens in Light of Guantanamo Bay, 27 U. RICH. L. REV. 531, 542 (1993); McCormick, supra note 4; Pendleton, supra note 79, at 299.
165. See Norfolk & W. Ry. Co. v. American Train Dispatchers' Ass'n, 499 U.S. 117, 129 (1985) (noting that repeal of antitrust laws by implication disfavored); Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1997) (noting that repeal by implication not permissible unless two statutes are irreconcilable); Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (explaining that repeal by implication should only be upheld where two statutes cannot mutually coexist); Rosenberg v. United States, 346 U.S. 273, 294 (1953) (holding partial overlap of statutes on same subject matter does not justify repeal by implication).
166. See, e.g., United States v. X-Citement Video, Inc., 115 S. Ct. 464, 471 n.6 (1994) (noting views of Congress on meaning of statute passed by earlier Congress not accorded weight in statutory construction); Weinberger v. Rossi, 456 U.S. 25, 35 (1982) (noting post hoc statements by congressional committees are not given significant weight in statutory construction); United States v. Clark, 445 U.S. 23, 33 n.9 (1980) (holding congressional remarks on statute passed by another Congress have little weight in statutory construction); Hazardous Waste Treatment Council v. United States E.P.A., 886 F.2d 355, 365 (D.C. Cir. 1989) (noting that postenactment statements by members of Congress cannot be considered in determining meaning of statute); Tinch v. Walters, 765 F.2d 599, 602 (6th Cir. 1985) (holding views of Congress should be given little weight in statutory construction of statute passed by previous Congress); Quarles v. St. Clair, 711 F.2d 691, 705 (5th Cir. 1983) (noting even explicit postenactment, retrospective statements of legislative intent should not be controlling).
167. See Colorado v. United States Dep't of Interior, 880 F.2d 481, 490 (D.C. Cir. 1989).
168. See Hilts, supra note 6, at A17.
169. See 139 CONG. REC. S1707-08 (daily ed. Feb. 17, 1993). Amendment 37 (proposed by Sens. Nickles, Dole, Kassebaum, Helms, Gramm, Lott, Coats, Mack, Craig, Bond, and Coverdell) required a report of the estimated medical costs to the United States of admitting persons with HIV. This report was to include a breakdown of the costs to States and municipalities and an assessment of how well the public charge provision was working as an exclusion. It also required a separate report on the cost implications of refugees entering, or likely to enter, the United States with HIV, and a comparison of the costs of aliens with other health afflictions with the costs of HIV-positive aliens admitted to the United States. See id. at S1708.
170. See 8 U.S.C. § 1182(c)(3) (1994).
171. See 139 CONG. REC. H2729-33, H2736, H2738-39 (daily ed. May 25, 1993); 139 CONG. REC. H1203-10 (daily ed. Mar. 11, 1993); 139 CONG. REC. S1761-67 (daily ed. Feb. 18, 1993); 139 CONG. REC. S1707-29 (daily ed. Feb. 17, 1993).
172. See 139 CONG. REC. H2729-33, H2736, H2738-39 (daily ed. May 25, 1993); 139 CONG. REC. H1203-10 (daily ed. Mar. 11, 1993); 139 CONG. REC. S1761-67 (daily ed. Feb. 18, 1993); 139 CONG. REC. S1707-29 (daily ed. Feb. 17, 1993).
173. See 139 CONG. REC. H2729-33, H2736, H2738-39 (daily ed. May 25, 1993); 139 CONG. REC. H1203-10 (daily ed. Mar. 11, 1993); 139 CONG. REC. S1761-67 (daily ed. Feb. 18, 1993); 139 CONG. REC. S1707-29 (daily ed. Feb. 17, 1993).
174. See 139 CONG. REC. H2729-33, H2736, H2738-39 (daily ed. May 25, 1993); 139 CONG. REC. H1203-10 (daily ed. Mar. 11, 1993); 139 CONG. REC. S1761-67 (daily ed. Feb. 18, 1993); 139 CONG. REC. S1707-29 (daily ed. Feb. 17, 1993).
175. 139 CONG. REC. S1712 (daily ed. Feb. 17, 1993).
176. Id. at S1719.
177. See 139 CONG. REC. S1762 (daily ed. Feb. 18, 1993).
178. 139 CONG. REC. S1722 (daily ed. Feb. 17, 1993) (statement of Senator Helms). Senator Helms also argued: [U]nder the law anyone granted refugee status is automatically given welfare. . . . [I]f we allow the 300 or so AIDS-infected refugees at Guantanamo entry we are looking at a potential cost to the taxpayers of $20 million in medical bills alone, and that is just the tip of the iceberg. Id. 153. Id. at S1729.
179. See 139 CONG. REC. S6883 (daily ed. May 28, 1993).
180. See 139 CONG. REC. H1204 (daily ed. Mar. 11, 1993).
181. Id. at H1208.
182. Id. at H1209.
183. Id.
184. 139 CONG. REC. H2739 (daily ed. May 25, 1993) (emphasis added). Representative Thomas Bliley noted that "[w]aiver authority under the current law remains unchanged." Id. at H2736.
185. See supra text accompanying notes 153-54 (noting comments of Senators Kassebaum, Kennedy, and Simpson).
186. See DEBORAH E. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES 165-71 (2d ed. 1991) (discussing discretionary nature of asylum).
187. It may be possible to claim that the INS guidelines are a regulation within the meaning of the Administrative Procedure Act and therefore may be challenged on the basis that the INS did not follow the appropriate notice and comment requirements of the Administrative Procedure Act. See Bartz, supra note 21, at 169-70; Bean & Hilliard, supra note 14, at 495. For alternative views on judicial review of waiver denials, see Kerry A. Krzynowek, Note, Haitian Centers Council, Inc. v. Sale: Rejecting the Indefinite Detention of HIV-Infected Aliens, 11 J. CONTEMP. HEALTH L. & POL'Y 541 (1995).
188. See 8 C.F.R. § 207.3 (1995). The UNHCR has indicated that The INS field officer with jurisdiction over the case . . . reviews the HIV waiver application and makes a recommendation. This recommendation is certified to the INS Administrative Appeals Unit (AAU) in Washington, D.C. The AAU makes the final decision, either agreeing or disagreeing with the field officer . . . . There is no appeal from the AAU's decision. UNHCR Memo, supra note 14, at 2; see also Cimini, supra note 61, at 370.
189. See Chinese Am Civic Council v. Attorney Gen., 566 F.2d 321, 324 (D.C. Cir. 1977) (holding that aliens denied refugee status under former INA § 203(a)(7) lacked standing because they had not entered United States). It is unclear whether the INS applies the HIV exclusion to asylum applicants. If the INS does not apply the HIV Rule to asylum applicants, then they do not have a "case or controversy" upon which to base a challenge to the HIV waiver policy of the INS. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (explaining two-part test to determine mootness).
190. 8 C.F.R. § 209.2(f) (1995).
191. See Immigration and Nationality Act § 209, 8 U.S.C. § 1159 (1994).
192. 8 C.F.R. § 207.8; see also Matter of Garcia-Alzugaray, 19 I. & N. Dec. 407 (B.I.A. 1986) (affirming immigration judges' refusal to adjudicate excludability of asylee).
193. See 8 C.F.R. § 208.24(a).
194. See ANKER, supra note 161, at 67 n.339 (noting that asylum may not be revoked unless initial grant was unwarranted or country conditions have changed).
195. While there have not been any reported decisions denying adjustment of status to refugees or asylees as a matter of discretion, the courts have indicated that adjustment of status for other applicants is discretionary. See, e.g., Fulgencio v. INS, 573 F.2d 596, 597 (9th Cir. 1978) (holding that only abuse of discretion justifies overturning decision to deny adjustment); Eun-Hee Lee v. United States, 651 F. Supp. 1264, 1267 (D.D.C. 1987) (noting that adjustment of status is matter of discretion). Although a refugee whose status is terminated is still eligible for withholding of deportation, the burden of proof for this remedy is higher than the burden of proof for asylum status. See INS v. Cardoza-Fonseca, 480 U.S. 421, 444-45 (1987). Thus, if an asylee or refugee has her status revoked, there would be a direct challenge to the international obligation of nonrefoulement. See generally Andrew G. Pizor, Comment, Sale v. Haitian Center Council: The Return of Haitian Refugees, 17 FORDHAM INT'L L.J. 1062 (1994) (discussing right to nonrefoulement after Sale v. Haitian Centers Council decision).
196. Cf. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (noting in context of Environmental Protection Agency that regulations of congressionally created agency are controlling unless arbitrary, capricious, or manifestly contrary to statute). For a discussion of discretion in asylum and refugee law, see ANKER, supra note 161; Arthur C. Helton, The Proper Role of Discretion in Political Asylum Determinations, 22 SAN DIEGO L. REV. 999 (1985); Michael G. Heyman, Judicial Review of Discretionary Immigration Decisionmaking, 31 SAN DIEGO L. REV. 861 (1994).
197. Cf. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (noting in context of Environmental Protection Agency that regulations of congressionally created agency are controlling unless arbitrary, capricious, or manifestly contrary to statute). For a discussion of discretion in asylum and refugee law, see ANKER, supra note 161; Arthur C. Helton, The Proper Role of Discretion in Political Asylum Determinations, 22 SAN DIEGO L. REV. 999 (1985); Michael G. Heyman, Judicial Review of Discretionary Immigration Decisionmaking, 31 SAN DIEGO L. REV. 861 (1994).
198. United States ex rel. Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2d Cir. 1950); see also Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) ("In expounding a statute, we must not be guided by a single sentece or member of a sentence, but look to the provisions of the whole law, and to its object and policy.") (citing United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 (1849)); Burnet v. Chicago Portrait Co., 285 U.S. 1, 6 (1932) (stating phrase must be interpreted in light of purpose of statute); White v. INS, 75 F.3d 213, 214 (5th Cir. 1994) (stating administrative agency interpretations are only entitled to deference when congressional intent is unclear); St. James Hosp. v. Heckler, 760 F.2d 1460, 1465 (7th Cir. 1985) (holding agency rule is arbitrary when agency relies on factors Congress had not intended to consider); Usery v. Kennecott Copper, 577 F.2d 1113, 1117-18 (10th Cir. 1977) (noting administrative regulation should not be followed when it conflicts with design of statute or exceeds administrative authority).
199. See Senate Hearings, supra note 117, at 37 (statement of Sen. Kennedy) ("[I]t is important, as we are trying to gain support with other countries for refugees, for us to have this legislation."); 126 CONG. REC. 4502 (1980) (statement of Rep. Fish) ("It is clearly in our self-interest to continue efforts to encourage participation of other countries in refugee resettlement efforts.").
200. See Mary C. Dunlap, AIDS and Discrimination in the United States: Reflections on the Nature of Prejudice in a Virus, 34 VILL. L. REV. 909, 912-17 (1989); Lynn Acker Starr, Note, The Ineffectiveness and Impact of the Human Immunodeficiency Virus (HIV) Exclusion in U.S. Immigration Law, 3 GEO. IMMIGR. L.J. 87, 106 (1989).
201. See Mary C. Dunlap, AIDS and Discrimination in the United States: Reflections on the Nature of Prejudice in a Virus, 34 VILL. L. REV. 909, 912-17 (1989); Lynn Acker Starr, Note, The Ineffectiveness and Impact of the Human Immunodeficiency Virus (HIV) Exclusion in U.S. Immigration Law, 3 GEO. IMMIGR. L.J. 87, 106 (1989).
202. See supra Section I.D.
203. See supra text accompanying note 173.
204. See Congress' Proposed Immigration Bill: Severe New Restrictions for Asylum Seekers, ASYLUM PROGRAM (Lawyer's Comm. for Human Rights), Oct. 10, 1995, at 1.
205. See Juan P. Osuna, The Exclusion from the United States of Aliens Infected with the AIDS Virus: Recent Developments and Prospects for the Future, 16 HOUS. J. INT'L L. 1, 29-30 (1993).
206. See Green & Arno, supra note 33, at 1261 ("Lifetime medical care costs of individuals with acquired immuno deficiency syndrome (AIDS) average $40,000 to $75,000.").
207. See Fred J. Hellinger, Forecasts of the Costs of Medical Care for Persons with HIV: 1992-1995, 29 INQUIRY 356, 356 (1992) Hellinger has modified this estimate downward by $30,000 per patient, and predicts that costs will continue to decline. Even so, the cost for treating HIV over the course of a lifetime can reach $72,000. See Fred J. Hellinger, The Lifetime Cost of Treating a Person With HIV, 270 JAMA 475, 477 (1993).
208. See Fred J. Hellinger, Forecasts of the Costs of Medical Care for Persons with HIV: 1992-1995, 29 INQUIRY 356, 356 (1992) Hellinger has modified this estimate downward by $30,000 per patient, and predicts that costs will continue to decline. Even so, the cost for treating HIV over the course of a lifetime can reach $72,000. See Fred J. Hellinger, The Lifetime Cost of Treating a Person With HIV, 270 JAMA 475, 477 (1993).
209. See Memorandum from the U.S. Department of State to Charles McCance, Director, Division of Quarantine Center for Prevention Services, Centers for Disease Control 8 (Aug. 3, 1987) (on file with the Yale Law Journal) (&[T]hose designated 'of special humanitarian concern' to the United States by the President . . . exhibit a very low incidence of the AIDS virus.").
210. See Andrew A. Skolnick, Doctors Help HIV-Positive Haitian Refugees Gain Freedom from US Government Detention Camp, 270 JAMA 563, 564 (1993).
211. I arrived at this figure by using the base cost of $500,000 a month for two years. See id.; see also Creola Johnson, Quarantining HIV-Infected Haitians: United States' Violations of International Law at Guantanamo Bay, 37 How. L.J. 305, 327 (1994) (noting that Professor Harold Koh estimated annual cost at $55 million).
212. See Douglas Scott Johnson, Note, The United States' Denial of the Immigration of People with AIDS, 6 TEMP. INT'L & COMP. L.J. 145, 149-50 (1992).
213. See, e.g., Tambara v. Weedin, 299 F. 299 (9th Cir. 1924) (excluding alien as likely to become public charge because he appeared to be deaf); Ex parte Hosaye Sakaguchi, 277 F. 913, 916 (9th Cir. 1922). The Sakaguchi court noted that: If there were in this case any evidence whatever of mental or physical disability or any fact tending to show that the burden of supporting the appellant is likely to be cast upon the public, we should have no hesitation in saying that the conclusion of the board of special inquiry would be unassailable in a court. Id. at 916; see also Margulies, supra note 44, at 539. Yet, because of the long incubation period of HIV, most HIV-positive people are asymptomatic for five to eight years. See Sarah N. Qureshi, Global Ostracism of HIV-Positive Aliens: International Restrictions Barring HIV-Positive Aliens, 19 MD. J. INT'L L. & TRADE 81, 84 (1995); Fernandez, supra note 13, at 84-85. The assumption that people with HIV are incapable of self-support only reinforces ostracism and discrimination against people with HIV. See Dunlap, supra note 174, at 912-17 (1989).
214. A Canadian report found that treatment of immigrants with heart disease emigrating to Canada would cost $23.2 million over ten years, while treating immigrants with AIDS would cost $18.5 million. See Cimini, supra note 61, at 384. The cost of treating nonlymphocytic leukemia over a five-year period is estimated at $193,000 for transplantation and $136,000 for chemotherapy. See H. Gilbert Welch & Eric B. Larson, Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia, 321 NEW ENG. J. MED. 807, 807 (1989). The cost of liver transplantation in 1984 was estimated at $250,000 per life year, and the cost has risen since that time. See 86 J. NAT'L CANCER INST. 415 (1994); see also David V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically Ill Cancer Patients, 269 JAMA 783, 783 (1993) (finding that cost per year of life gained was $82,845 for patients with solid tumors and $189,339 for patients with hematologic cancers); Thomas J. Smith et al., Efficacy and Cost Effectiveness of Cancer Treatment: Rational Allocation of Resources Based on Decision Analysis, 85 J. NAT'L CANCER INST. 1460, 1460 (1993) (summarizing other studies on cost of cancer treatment); Konvicka, supra note 141, at 545-46 (arguing that overall cost of treating heart disease for immigrants is higher than cost of treating HIV). In comparison, the annual costs for arthritis care are above $150 billion and the annual expenditures on cancer care in 1990 were $35 billion. See Costs for Arthritis Care Hit $150 Billion and Keep Rising, AM. MED. NEWS, Dec. 11, 1995, at 16; Smith, supra, at 1460.
215. A Canadian report found that treatment of immigrants with heart disease emigrating to Canada would cost $23.2 million over ten years, while treating immigrants with AIDS would cost $18.5 million. See Cimini, supra note 61, at 384. The cost of treating nonlymphocytic leukemia over a five-year period is estimated at $193,000 for transplantation and $136,000 for chemotherapy. See H. Gilbert Welch & Eric B. Larson, Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia, 321 NEW ENG. J. MED. 807, 807 (1989). The cost of liver transplantation in 1984 was estimated at $250,000 per life year, and the cost has risen since that time. See 86 J. NAT'L CANCER INST. 415 (1994); see also David V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically Ill Cancer Patients, 269 JAMA 783, 783 (1993) (finding that cost per year of life gained was $82,845 for patients with solid tumors and $189,339 for patients with hematologic cancers); Thomas J. Smith et al., Efficacy and Cost Effectiveness of Cancer Treatment: Rational Allocation of Resources Based on Decision Analysis, 85 J. NAT'L CANCER INST. 1460, 1460 (1993) (summarizing other studies on cost of cancer treatment); Konvicka, supra note 141, at 545-46 (arguing that overall cost of treating heart disease for immigrants is higher than cost of treating HIV). In comparison, the annual costs for arthritis care are above $150 billion and the annual expenditures on cancer care in 1990 were $35 billion. See Costs for Arthritis Care Hit $150 Billion and Keep Rising, AM. MED. NEWS, Dec. 11, 1995, at 16; Smith, supra, at 1460.
216. A Canadian report found that treatment of immigrants with heart disease emigrating to Canada would cost $23.2 million over ten years, while treating immigrants with AIDS would cost $18.5 million. See Cimini, supra note 61, at 384. The cost of treating nonlymphocytic leukemia over a five-year period is estimated at $193,000 for transplantation and $136,000 for chemotherapy. See H. Gilbert Welch & Eric B. Larson, Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia, 321 NEW ENG. J. MED. 807, 807 (1989). The cost of liver transplantation in 1984 was estimated at $250,000 per life year, and the cost has risen since that time. See 86 J. NAT'L CANCER INST. 415 (1994); see also David V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically Ill Cancer Patients, 269 JAMA 783, 783 (1993) (finding that cost per year of life gained was $82,845 for patients with solid tumors and $189,339 for patients with hematologic cancers); Thomas J. Smith et al., Efficacy and Cost Effectiveness of Cancer Treatment: Rational Allocation of Resources Based on Decision Analysis, 85 J. NAT'L CANCER INST. 1460, 1460 (1993) (summarizing other studies on cost of cancer treatment); Konvicka, supra note 141, at 545-46 (arguing that overall cost of treating heart disease for immigrants is higher than cost of treating HIV). In comparison, the annual costs for arthritis care are above $150 billion and the annual expenditures on cancer care in 1990 were $35 billion. See Costs for Arthritis Care Hit $150 Billion and Keep Rising, AM. MED. NEWS, Dec. 11, 1995, at 16; Smith, supra, at 1460.
217. A Canadian report found that treatment of immigrants with heart disease emigrating to Canada would cost $23.2 million over ten years, while treating immigrants with AIDS would cost $18.5 million. See Cimini, supra note 61, at 384. The cost of treating nonlymphocytic leukemia over a five-year period is estimated at $193,000 for transplantation and $136,000 for chemotherapy. See H. Gilbert Welch & Eric B. Larson, Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia, 321 NEW ENG. J. MED. 807, 807 (1989). The cost of liver transplantation in 1984 was estimated at $250,000 per life year, and the cost has risen since that time. See 86 J. NAT'L CANCER INST. 415 (1994); see also David V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically Ill Cancer Patients, 269 JAMA 783, 783 (1993) (finding that cost per year of life gained was $82,845 for patients with solid tumors and $189,339 for patients with hematologic cancers); Thomas J. Smith et al., Efficacy and Cost Effectiveness of Cancer Treatment: Rational Allocation of Resources Based on Decision Analysis, 85 J. NAT'L CANCER INST. 1460, 1460 (1993) (summarizing other studies on cost of cancer treatment); Konvicka, supra note 141, at 545-46 (arguing that overall cost of treating heart disease for immigrants is higher than cost of treating HIV). In comparison, the annual costs for arthritis care are above $150 billion and the annual expenditures on cancer care in 1990 were $35 billion. See Costs for Arthritis Care Hit $150 Billion and Keep Rising, AM. MED. NEWS, Dec. 11, 1995, at 16; Smith, supra, at 1460.
218. A Canadian report found that treatment of immigrants with heart disease emigrating to Canada would cost $23.2 million over ten years, while treating immigrants with AIDS would cost $18.5 million. See Cimini, supra note 61, at 384. The cost of treating nonlymphocytic leukemia over a five-year period is estimated at $193,000 for transplantation and $136,000 for chemotherapy. See H. Gilbert Welch & Eric B. Larson, Cost Effectiveness of Bone Marrow Transplantation in Acute Nonlymphocytic Leukemia, 321 NEW ENG. J. MED. 807, 807 (1989). The cost of liver transplantation in 1984 was estimated at $250,000 per life year, and the cost has risen since that time. See 86 J. NAT'L CANCER INST. 415 (1994); see also David V. Schapira et al., Intensive Care, Survival, and Expense of Treating Critically Ill Cancer Patients, 269 JAMA 783, 783 (1993) (finding that cost per year of life gained was $82,845 for patients with solid tumors and $189,339 for patients with hematologic cancers); Thomas J. Smith et al., Efficacy and Cost Effectiveness of Cancer Treatment: Rational Allocation of Resources Based on Decision Analysis, 85 J. NAT'L CANCER INST. 1460, 1460 (1993) (summarizing other studies on cost of cancer treatment); Konvicka, supra note 141, at 545-46 (arguing that overall cost of treating heart disease for immigrants is higher than cost of treating HIV). In comparison, the annual costs for arthritis care are above $150 billion and the annual expenditures on cancer care in 1990 were $35 billion. See Costs for Arthritis Care Hit $150 Billion and Keep Rising, AM. MED. NEWS, Dec. 11, 1995, at 16; Smith, supra, at 1460.
219. See Overview of Aliens' Eligibility for Federal Programs, 14 IMMIGR. L. REP. 109, 109 (1995).
220. The mean Medicare payment in the last year of life for all recipients was $13,316 in 1988. See Ezekiel J. Emanuel & Linda L. Emanuel, The Economics of Dying, 330 NEW ENG. J. MED. 540, 540 (1994). In contrast, the mean Medicaid payments to AIDS patients over the entire course of the illness in 1986 was $11,972. See Roxanne Andrews et al., Longitudinal Patterns of California Medicaid Recipients with Acquired Immunodeficiency Syndrome, 13 HEALTH CARE FINANCING REV. 1, 7 (1991).
221. The mean Medicare payment in the last year of life for all recipients was $13,316 in 1988. See Ezekiel J. Emanuel & Linda L. Emanuel, The Economics of Dying, 330 NEW ENG. J. MED. 540, 540 (1994). In contrast, the mean Medicaid payments to AIDS patients over the entire course of the illness in 1986 was $11,972. See Roxanne Andrews et al., Longitudinal Patterns of California Medicaid Recipients with Acquired Immunodeficiency Syndrome, 13 HEALTH CARE FINANCING REV. 1, 7 (1991).
222. See Bartz, supra note 21, at 157-58.