Human Trafficking by Amanda Guerrant: Health

3B Am. Jur. 2d Aliens and Citizens:

§§ 1356-57  General Considerations                  

§§ 1358-61  Health Related Grounds

• § 1358. Communicable disease of public health significance.
• § 1359.  Immigrant's failure to present vaccination documentation.
• § 1360.  Current or past history of physical or mental disorder and associated behavior.
• § 1361. Drug Abuse or Addiction. 

§ 1480.  Waivers of Inadmissibility based on health-related grounds. 

(Cross ref. 3B Am. Jur. 2d Aliens and Citizens § 1470 regarding aliens accompanying another inadmissible alien determined to be helpless).

§ 1506.  

West Key Number Digest: Aliens k46.

Corp. Jur. 2d "Aliens"

§§ 1102-1107 Introduction

§§ 1108-1111 Health-Related Grounds

§§ 1206-1208, 1210-1211, 1220-1223 Waivers 

*Most cases before 1956 are omitted unless they are a Supreme Court decision or have particular relevance today. 

Gee Shew Hong v. Nagle, 18 F.2d 248 (C.C.A. 9th Cir. 1927) (holding a certification from a public health official that an alien is free from contagious disease is not conclusive on an Immigration judge in removal proceedings). 

Matter of F--S--C--, 8 I. & N. Dec. 108, 1958 WL 9877 (B.I.A. 1958).  (Defining "addict" as "a person who habitually uses any habit-forming narcotic drug so as to endanger the public morals, health, safety, or welfare," or who has "lost the power of self-control with reference to his or her addiction.")

Matter of Longstaff, 716 F.2d 1439 (5th Cir. 1983) (holding alien was not properly admitted for permanent residence due to homosexuality).

Hill v. I.N.S., 714 F.2d 1470 (9th Cir. 1983) (holding INS was allowed to detain and examine an alien suspected of mental or physical illness but examination must be conducted by at least one qualified doctor, and INS may not exclude homosexual aliens "without medical certification of psychopathic personality, sexual deviation or mental defect" i.e. based only alien's own statements admitting homosexuality). 

Lesbian/Gay Freedom Day Committee, Inc. v. U.S. I.N.S., 541 F.Supp 569 (N.D. Ca. 1982) (holding INS cannot exclude homosexuals because homosexuality is no longer medically recognized as a certified disorder). 

Boutilier v. I.N.S., 387 U.S. 118 (1967) (holding statute excluding individuals with "psychopathic personality" was intended by congress to include homosexuals, also defines and discusses scope and meaning of "psychopathic personalty" and congressional intent to exclude aliens with mental disabilities) (***This is still good law, in that the Supreme Court has not over-ruled it, but some circuits and district courts do not follow it).

U.S. ex rel. Wulf v. Esperdy, 277 F.2d 537 (2nd Cir. 1960) (holding alien excluded based solely on medical certification cannot appeal because the medical certificate is conclusive and there is no way to rebut it). 

United States v. Flores-Rodriguez, 237 F.2d 405 (2nd Cir. 1956) (holding the term "mentally defective" is broader than intellectual disabilities and it includes homosexuals and others with "lewd proclivities" that are "repugnant to the mores of our society.").

General Rule:

8 U.S.C. § 1182(a)(1), provides that individuals with certain communicable diseases, without proof of vaccination for common preventable diseases, with drug abuse or addictions, or with physical or mental disorders and behavior posing a threat to property, safety, or welfare of the alien or others are inadmissible.  

• For definitions of "drug user" and "drug addict," cross reference 21 U.S.C. § 802. 

Exceptions:

8 U.S.C. §1182(d) a waiver of inadmissibility for health-related grounds may be granted for victims of severe trafficking in persons, if it is in the national interest, and if the health-related inadmissibility was caused by or incident to the trafficking.  Cross reference 8 U.S.C. § 1101(a)(15)(T) for criteria to identify victims of trafficking

Also, under 8 U.S.C. § 1182(d) any grounds of inadmissibility, except participation in Nazi persecutions or genocide, may be waived if the alien is a non-immigrant witness with information about a crime or terrorism.  Cross Ref. 8 U.S.C. § 1101(a)(15)(U) and 8 U.S.C. § 1101(a)(15(S) for criteria to identify qualifying victims of crimes or witnesses. 

8 U.S.C. § 1182(a)(1)(B) provides that waivers are authorized under 8 U.S.C. § 1182(g), which provides that the Attorney General has discretion to grant waivers for Inadmissibility based on health-related grounds.

8 U.S.C. § 1182(a)(1)(C) provides exceptions for:

• Children 10 years old and younger;
• Individuals described in 8 U.S.C. § 1101(b)(1)(F), orphans and adoptive children, or 8 U.S.C. § 1101(b)(1)(G);
• Immediate relatives and aliens not subject to numerical limitations described in 8 U.S.C. § 1151(b).  Including: 
• §1101(a)(27).  Special immigrants. 
• § 1157 and § 1159  Refugees. 
• § 1160 or § 1255a. Special Agricultural workers whose status is adjusted and individuals with Temporary Protected Status. 
• § 1229b(a)  Victims of child trafficking whose removal has been cancelled.
• §1259 Permanent residents. 
• § 1154(a)(1)(A). Immediate relatives.
• § 1181(a). Immigrant Visa holders. 

Waivers: 

Under 8 U.S.C. § 1182(g) discretionary waivers may be granted for communicable diseases if the alien is a spouse, child, or adopted child of a permanent resident or citizen, or if the alien has been granted an immigrant visa and meets any terms or conditions required by the government or has a child who is a citizen or permanent resident.  

Also, under 8 U.S.C. § 1182(g) discretionary waivers may be granted for aliens excluded for mental disorders, but the request for a waiver must be supported with evidence including complete medical history, a medical report of the individual's current condition and prognosis, and a report of a psychiatric exam. 

Additionally, under 8 U.S.C. § 1182(g) an alien who is inadmissible due to not receiving the required vaccinations may qualify for a waiver if: the alien subsequently received the vaccination, an appropriate medical official certifies that vaccination would not be medically appropriate for the individual, or if the vaccination would be contrary to the alien's moral or religious beliefs.  

Title 42 of C.F.R pertains to Public Health issues and Chapter 34 pertains to Medical Examination of Aliens. 

42 C.F.R. § 34.2(b) defines 'communicable disease of public health significance,' referencing the determinations of the CDC director and the revised International Health Regulations published by WHO. 

42 C.F.R. § 34.2(g) defines 'drug abuse' cross referencing 21 U.S.C. § 802. 

42 C.F.R. § 34.2(h) defines 'drug addiction' cross referencing 21 U.S.C. § 802. 

42 C.F.R. § 34.2(n) defines 'mental disorder' cross referencing the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association. 

42 C.F.R. § 34.2(p) defines 'physical disorder' cross referencing the WHO's Manual of the International Classification of Diseases, Injuries, and Causes of Death. 

Waivers for victims:

Title 8 C.F.R. § 212 provides for applications for victims of trafficking and other crimes.

• 8 C.F.R. § 212.16 Applies to T-visa applicants providing instructions on how to file a waiver application and factors USCIS will consider.
• 8 C.F.R. § 212.17 Applies to U-visa applicants providing instructions on how to file a waiver application and factors USCIS will consider.

Waivers in General:

8 C.F.R. § 212.7(b)(2)(i) provides that aliens with mental illness must include in their medical report evidence that they have recovered sufficiently. 

8 C.F.R. § 212.4 provides procedural requirements for various grounds of inadmissibility. 

22 C.F.R. § 40.11 applies to health-related grounds of inadmissibility and provides for waivers.