February 1, 2006

Border Blues: When You Can’t Go Home Because You Have HIV

A 36-year-old Guyanese man got the OK Monday to stay in the U.S. after a judge agreed that he might be physically attacked in Guyana for being HIV positive and gay—and perhaps even die for lack of treatment. “He once had bricks thrown at him,” explains Sarah Sohn, who defended the case on behalf of Immigration Equality, a New York-based advocacy firm.

It was a rare happy ending. HIV issues are not usually enough to sway U.S. immigration judges, whether in asylum cases or for more last-minute reprieves like the “withholding of removal” granted the man from Guyana (who asked to remain anonymous for fear of retribution if he ever does get sent back).

“It’s definitely a hard thing to win,” says Sohn. “There’s a high burden of proof” for immigrants. Just this week, a judge denied the asylum plea of a positive man from Colombia named Luis Fabriciano Rico, although that decision is being appealed.

Lawyers say more and more HIV-related immigration claims are coming to their attention. “These types of calls were up 50% from 2004 to 2005,” says Jen Sinton, a staff attorney at the New York-based Lambda Legal who works on HIV cases. It’s not clear if the upswing is an overall effect of the Bush administration’s restrictive immigration policies or something specific to HIV—but lawyers say recent rulings can’t possibly have raised callers’ hopes.

HIV-related immigration cases are decided on a case-by-case basis, Sohn stresses, and are heavily dependent upon a judge’s sympathy. (The judge in Monday’s case reportedly got a good look at HIV’s untreated effects in April 2004, when the Guyanese defendant arrived for a hearing 50 pounds underweight and sickly. He explained at the time that he had received only about half of his prescribed HIV meds at the Patterson, NJ immigration detention center where he’d just spent four months.)

Grounds for fear of discrimination are often harder to prove than treatment access problems—ironically, because the fear itself can run so deep. “Sometimes it’s difficult to actually get your clients to talk about these things,” explains Sohn. They may have grown accustomed to being silent about it in their home countries and even gone untreated because of a lack of confidentiality in the local health care system. Possibly adding further to the fear is the knowledge that they wouldn’t have been allowed into the United States in the first place with an HIV diagnosis.

When immigrants finally do face up or stumble on some good advice, it may be too late to change the grounds of their claim or to apply for permanent asylum. The man from Guyana will have to reapply every year for a new work authorization, for instance, and will never be up for full asylum because he resided in this country too long before applying.