By Christina T. Holder
Can you imagine needing a life-saving transplant and then having a family member, who is an exact donor match, denied entry into the U.S. for a medical procedure that could save your life? Or being denied your dying wish to see your foreign parent, sibling or child because they could not gain permission to enter the U.S.? For many patients, this is a harsh reality and a violation of their basic human rights.
For three years I was a lawyer with New York Legal Assistance Group (NYLAG) LegalHealth division and provided free civil legal services to New York City hospital patients with low income. Transplant teams sought my assistance when plans for a patient’s transplant were stalled after a family member who was an exact donor match had been denied a visitor visa to travel to the U.S. Palliative care teams sought my assistance for terminally ill patients who wished to see a family member before they died, but the loved one had been denied a visitor visa.
Whether a patient’s family member is able to secure a visitor visa is entirely at the discretion of the U.S. Department of State consular officer who is adjudicating the visa application. If the officer is not persuaded that the family member will return home after their temporary stay in the U.S., the officer will deny the visitor visa under Section 214(b) of the U.S. Immigration and Nationality Act. This law creates an automatic presumption that anyone who applies for a visitor visa actually intends to remain in the U.S. permanently. This presumption of immigrant intent can only be overcome if an applicant demonstrates sufficiently strong familial, social, professional and economic ties to a country other than the U.S.
Citizens of 38 (mostly European) Visa Waiver Program countries are not required to obtain visas for short visits to the U.S. In contrast, citizens of African countries and most Latin American and Asian countries are excluded from the Visa Waiver Program. As a result, patients of African, Latin American and Asian-descent have a much harder time bringing their family members to the U.S. for transplants and end-of-life companionship.
Most of my clients were experiencing poverty. Their family members often could not show proof of financial ties needed to overcome the presumption of immigrant intent. In such cases, I helped the seriously ill client request assistance from their elected representatives, who sometimes then engaged in quiet diplomacy with the State Department on behalf of the constituent. But even with the help of lawyers and elected officials, many visas are denied, and denials cannot be appealed.
The discretionary standard for evaluating immigrant intent is unjust and violates fundamental principles of human rights. The International Covenant on Civil and Political Rights (ICCPR), which the U.S. has adopted, states that no individual should be arbitrarily deprived of his or her life. It also recognizes that family is the fundamental unit of society and is entitled to protection by the government. These basic principles are violated when a patient dies waiting for a donor match to be allowed into the U.S., or is denied the comfort of being with close family before death.
The story of my client Jocelyn (whose name has been changed to protect her identity) illustrates the current system’s flaws. Jocelyn was a naturalized U.S. citizen who became ill with an aggressive blood cancer in her early forties. Her sister in Guyana was determined to be an exact donor match for a stem cell transplant. As the caregiver for their aging mother, Jocelyn’s sister had no income and was unable to obtain a visitor visa. With no other viable donor source available, Jocelyn died awaiting a transplant.
A simple reform to the current visa policy would prevent tragedies like Jocelyn’s from occurring. The discretionary standard for granting or denying a visitor visa should be dispensed with for two categories of visitor visa applicants: Those who are certified by a physician to be an exact donor match for a U.S. citizen or lawful immigrant, and the immediate family members of a U.S. citizen or lawful immigrant who has a terminal illness. A new emergency visa category should be created for these visa applicants, with its own set of conditions to minimize the risk of visitor overstays.
Bipartisan support for legislative and policy reform potentially exists. Just last fall, after congressional hearings and significant opposition, the Trump Administration reversed its decision to end medical deferred action, which allows undocumented immigrants suffering from life-threatening conditions to request to remain in the U.S. with authorization temporarily to obtain medical treatment that is unavailable in their home countries, without which they will likely die. Medical and legal communities had challenged the decision, arguing that no one should be denied life-saving medical treatment just because of their immigration status. The same commonsense notion applies here. Transplant candidates should not die because of the vagaries of consular officers, and terminally-ill patients should be able to die with dignity, surrounded by their loved ones, regardless of their family’s origin. Reforming U.S. visitor visa policy by creating an emergency visa category for donor matches and close family of terminally ill patients would ensure that the fundamental principles of human rights and basic decency are respected.
Christina T. Holder is a public interest counsel at Lowenstein Sandler LLP. She previously worked as a senior staff attorney at the New York Legal Assistance Group.
Originally published in The Hill on March 10, 2020