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After the Entry Ban, Why Danger Persists for Immigrants Living With HIV in the U.S.

Veteran Advocates Agree, HIV May Not Be an Immigrant's Biggest Problem Anymore

December 18, 2013

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Immigration and HIV Criminalization

"In some circumstances, HIV can be an enormously sympathetic factor for someone's case. And in other circumstances ... it's the basis, essentially, for finding that someone should be removed to another country." -- Cristina Velez

Olivia Ford: I wonder if we could talk about instances in which immigration status has interacted with other modes of criminalization of HIV status. This question comes directly out of reading about In the Matter of Ramirez, a case involving enhanced sentencing based on HIV status in which immigration status was also a factor. I know you were involved with that case, Cristina; would you like to start?

Cristina Velez: Sure. That was a case that HIV Law Project worked on with the Public Law Center, which provided the primary counsel for this individual. Scott Schoettes from Lambda Legal, and Alison Yager from my office, and I joined to draft an amicus brief that was actually on behalf of many AIDS service organizations, that addressed the specific science related to HIV transmission, and the particular circumstances of the case, which happened to be oral sex.

It's funny, because in some circumstances, HIV can be an enormously sympathetic factor for someone's case. And in other circumstances, such as those that came up in Ramirez, it's the basis, essentially, for finding that someone should be removed to another country.

So, In the Matter of Ramirez, the client was a gay man from Mexico who had already previously been granted withholding of removal, based on some horrific persecution that he had suffered there at the hands of authorities. He was called back into immigration court following his prosecution for prostitution, which included an enhancement under California's HIV criminalization law. Specifically, what happened was that this was a man who had struggled for many years with a mental illness, substance abuse and addiction, had fallen on some very hard times and relapsed into some of these behaviors, and had been picked up for prostitution by an undercover police officer who solicited him for oral sex and then discussed using condoms with him. And so the act was never completed.

Our client, who had apparently agreed to purchase condoms and use them, was arrested for prostitution and was given an enhancement for being HIV positive -- which is sort of a separate matter, in that it was unusual for the California HIV criminalization statute to be applied in a case like his, but nevertheless, it was. The Department of Homeland Security called him back into immigration court -- this is years after he had been granted relief. They sought to terminate his relief and forcibly remove him to Mexico. The argument was that this recent prostitution offense was a "particularly serious crime" -- which is a term of art that, in practice, means that the circumstances of the offense make a person a danger to the community.

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And in finding that he was, in fact, a danger to the community, and had committed a particularly serious crime, the immigration judge revealed -- according to us -- a very stunning lack of knowledge regarding HIV transmission methods, and course treatments. Her decision really emphasized the chance for onward transmission to others, and held Mr. Ramirez responsible for that onward transmission.

So we found that this decision was a very dangerous decision, even though it didn't have precedential value. At the time that the decision came down, Mr. Ramirez also lacked legal counsel. Munmeeth Soni of the Public Law Center, who was representing him at the appeal stage, stepped in after this decision had been completed. It showed the confluence of factors that can really disadvantage immigrants with HIV from getting fair hearings in the immigration world. And he was in detention during all this time.

We submitted this amicus brief that addressed really specifically the science behind the judge's decision, and demonstrated that her decision was based on faulty assumptions and faulty information. I believe the Department of Homeland Security had submitted evidence that had been superseded, also. The amicus brief, which was lengthy and very detailed, also countered some of the assumptions that she used in making her decision, but was really mostly dispassionately based on science.

I'm glad to say we were very successful. After the submission of the amicus brief, the Department of Homeland Security followed up with a motion to remand the case back to the immigration court, so that the judge could reverse her decision. They decided to step down and essentially withdraw their argument that Mr. Ramirez had committed a "particularly serious crime."

N. Ordover: End-to-end, how many years was Mr. Ramirez tangled up in this convergence, would you say?

Cristina Velez: Mr. Ramirez was arrested in 2009 after becoming homeless following the loss of his job and the dissolution of his long-term relationship. He was sentenced to 16 months in prison, which is very long for this offense, but it's because of the enhancement, I believe. In May 2012, the Department of Homeland Security moved to reopen his removal proceedings before the immigration court, arguing that his most recent conviction was a "particularly serious crime" sufficient to terminate his grant of withholding of removal (a form of humanitarian relief -- like asylum, but with a higher burden of proof and fewer benefits). They detained him and it wasn't until sometime around June 2013 that the immigration court terminated the proceedings and restored his immigration status.

N. Ordover: Even though, as you say, it had a good outcome, it's still so, so brutal, in and of itself. I always think about all the things it hits up against: the whole tangle of our incredibly brutal immigration laws, and the treachery of them; but also the criminalization of transmission statutes, which are so hard to deal with in the U.S. In a place like Norway, for example, criminalization of HIV exposure is covered by one national law, and advocates are just trying to get that one law repealed. In the U.S., it may or may not exist, depending on where you are. It lives in a lot of different local statutes. It's so hard to get our arms around.

And the other thing, too, is the way that condoms are being used as evidence of prostitution. It's something that's come up a lot around the stop-and-frisk practice and conversation that's happened in New York. It's something that trans women of color in particular in the city have been harassed with -- the mere possession of condoms.

Here's a case where it's all coming together. It's this perfect storm, but also indicates all these directions that we need to focus on, discretely but also together, to really try to take them on at a structural level.

Cristina Velez: I remember talking to Ramirez's attorney when I was working on the amicus brief, and hearing how overwhelmed her office was with the number of transgender people in detention -- that they could not possibly represent them all. And they were placed in a detention center that was far away from other legal services. You talk about a perfect storm: Just simple access to counsel issues are a really key aspect of that, unfortunately.

N. Ordover: The Victoria Arellano case a few years ago [in which a young transgender Mexican woman living with HIV was detained and eventually died in an immigration detention center after being denied HIV care] was a really good -- and by good, I mean horrible -- illustration of all of this and where it ultimately leads, or can lead.

Olivia Ford: The Ramirez case, and the use of condoms as evidence of prostitution, are all compounded by -- or, really, derived from -- the criminalization of sex work itself.

N. Ordover: This criminalization impoverishes our movements, and our communities. In the LGBTQ community, although not only in the LGBT community, we have a lot of community members who are sex workers, or former sex workers, who maybe have some criminal convictions, who've used drugs, and all of these folks are currently barred from entering the U.S. or adjusting their immigration status once they're here. So there are more bans yet to be dismantled.

I'm sure I'm not the only one in this conversation who could think of many people who fit into those categories who have done an enormous amount of work, and have been leaders in immigrant justice movements and in the HIV/AIDS movement.

So, by either pushing them underground or detaining and deporting them, or not letting them into the U.S. in the first place, it's not only their human rights and their health that we're putting at risk, we're actually impoverishing our own communities.

In the heady days after the HIV entry ban was repealed, the International AIDS Society rushed to have the International AIDS Conference, which is held every two years, in the United States, where it hadn't been because of the ban for many, many years. There were many of us, including some of us who had worked very hard on lifting the HIV entry ban and were very happy that it got lifted, who really tried to make the case that it should not be in the U.S. while these other bans were intact. Obviously, we lost that one.

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