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Limited Justice for HIV-Positive Immigrant

July 1997

On January 1996, at a local health clinic in Newark, New Jersey, Sergio,* a Brazilian man in his thirties, learned that he had tested positive for HIV. The news filled him with stress and anxiety. He was not just worried about the fate of his health condition without health insurance; as a gay man with HIV, undocumented since he overstayed his tourist visa in 1988, he also feared being deported by the Immigration and Naturalization Service (INS) to Brazil to a virtually accelerated death.

"In Brazil, there is such intense hatred against actual or suspected homosexuals by the government, its police, death squads, and society that I was forced to flee to the United States to escape further persecution," he explained. Sergio had experienced a tormented childhood because his peers ostracized and attacked him as a "faggot." Adolescence and adulthood only raised the stakes for his survival. One night in early 1986, Sergio was raped at gunpoint by an undercover military police officer. In March 1987, he was picked up by the police along with his friends and thrown into a cell with criminals who gang-raped them with the commanding officer's encouragement. In 1988 two police officers ordered him to perform oral sex at gunpoint. Terrorized in public as a homosexual, he even faced death threats at home from his younger brother. Without legal recourse or hope of governmental protection, he fled to the United States seeking freedom and safety, because he had heard about relatively better treatment of gays in this country.

"Now that I am HIV-positive, I believe that they will try to hurt me in any way possible by not treating me in the hospital, refusing me employment and not protecting me from police or gang violence," he stated.

Immigration Law ABC's

Desperate for a resolution to his immigration predicament, Sergio confided his nightmarish story to the American Friends Service Committee (AFSC) Immigrant Rights Program in Newark. He was even worried that he could be deported by virtue of his HIV status or because of his homosexuality. Sergio learned that the HIV ban that Congress enacted in 1993does not provide for the deportation of people with HIV/AIDS, but that it bars persons with "a communicable disease of public health significance" such as HIV/AIDS from entering the United States unless they get a "waiver." The law also requires HIV testing - not for temporary visitors, but for applicants for permanent residency (green cards). If an applicant tests positive, he or she must seek a waiver showing that: they have a U.S. citizen or permanent resident spouse, parent or child; the danger to U.S. public health is minimal; the possibility of spread of the infection is minimal; there will be no cost incurred by any U.S. government agency, i.e., the applicant has private health insurance.

Sergio also learned that the exclusion of gays from the U.S. ended in 1990, when, thanks to the advocacy of openly gay Congressmember Barney Frank, Congress repealed this McCarthy-era provision. With AFSC's assistance, Sergio filed for asylum with the INS Asylum Office. They spent roughly 35 hours preparing his asylum application and 12-page declaration, securing a declaration from a human rights expert on the Brazilian government's pattern and practice of inflicting or tolerating persecution against gays and people with HIV/AIDS, and preparing documentation detailing the more than 1,200 murders of homosexuals in Brazil last year.

Claims Based on HIV Status Alone Not Very Successful

Sergio testified in detail about his harrowing experiences on August 11, 1996 at the Lyndhurst, New Jersey Asylum Office. Because he was uncomfortable about testifying about the sexual violence in front of a male officer, Sergio requested that he be interviewed by a female officer. Two days later, the INS Asylum Office granted Sergio's application for asylum, determining that he had established a well-founded fear of persecution based on sexual orientation. Though Sergio had asserted dual grounds of persecution as a gay man and as a person with HIV, the INS granted the case based on sexual orientation alone. It is likely that this was because of the existence of solid legal precedent recognizing the eligibility of gays for asylum in the form of an Executive Order from Attorney General Janet Reno in June 1994 and the fact that approximately 100 such cases have been granted since that date.

In February 1996, the President's Advisory Council on HIV/AIDS issued recommendations to the INS regarding assylum eligibility for people with HIV/AIDS. The response by the INS has been to require all HIV-based claims to be reviewed by headquarters in Washington with strict guidelines over what kind of governmental or societal mistreatment towards people with HIV/AIDS rises to the level of persecution. The INS typically does not consider social ostracism and denial of medical care to amount to persecution. Thus far there have been only two successful asylum claims based solely on persecution based on HIV status alone.

Sergio's asylum status is indefinite and has given him employment authorization and the right to apply for permanent residence (a green card) after one year. For such purposes, he would have to seek an HIV waiver on humanitarian or public interest grounds, though as an asylee he is not required to have a U.S. citizen or permanent resident relative to qualify for the waiver.

Welfare Reform Impact Varies

The new welfare reform law also allows an asylee to access federal public assistance such as Social Security Disability and Food Stamps for up to five years if one needs to do so. Ironically, this (asylum status) is preferable to permanent residence status, for under the new law permanent residents are mostly barred from these aid programs for five years unless they can prove they have worked for 10 years in the United States. Complicating matters is the fact that if Sergio seeks government assistance he may jeopardize his application for the HIV waiver and for permanent residence since INS may consider him "likely to become a public charge." However, Sergio may want to seek permanent residence because it will enable him to travel freely without having to seek advance parole, i.e., permission to re-enter the United States. Also, without permanent residence status, Sergio will not be able to apply for U.S. citizenship.

Like most gay men who have been recently granted asylum, Sergio has no desire to travel abroad and has no plans ever to return to visit Brazil. After eight long years dodging the INS, Sergio became "legal" almost overnight. "I can't tell you how thankful I am for having found real safety in the United States. I'm getting the medical treatment I need, my stress is down, and my T-cell count has gone up. I'm finally working legally," he explained.

Sergio's experience is shared by thousands of undocumented people with HIV/AIDS nationwide. Like Sergio, some may legalize their status by being granted asylum. Many will remain too afraid to take the risk that their cases will not be granted, since an undocumented person whose case is not granted is referred to an immigration judge for deportation or "removal" proceedings. Options for most immigrants, especially gay, lesbian, and HIV-positive immigrants, have narrowed considerably with the passage of the Welfare Reform Act, the Anti-Terrorism Act of 1996 and the Immigration Reform Act of 1996. These laws make it more difficult to legalize status, and greatly restrict access of permanent residents to public assistance that might be vital to their survival in the United States.

New Law Equals Increased Hardships

In one shocking example, the new immigration law will make asylum nearly impossible for most potential asylum seekers who are currently in the United States. Under the new law, every individual who has been in the United States for more than one year on April 1, 1998 will become ineligible to apply for asylum (with exceptions made for "exceptional circumstances" or "changed country conditions"). This means that if Sergio had delayed filing his case until after April 1, 1998, simply because he labored under the popular misconception that he was deportable because of his HIV status and sexual orientation, he would have become ineligible for asylum, despite the fact that he had a very strong and well-documented claim of persecution.

The new law destroys family-based immigration, long the bedrock of U.S. immigration policy, by imposing a support requirement on sponsoring relatives. This requirement means that a sponsor must earn 125% of the federal poverty-line income. This will make family unification nearly impossible for many poor families, especially families with relatives with HIV/AIDS.

Moving forward in a punitive and mean-spirited way, the new law also renders "overstays" ineligible for legal status by imposing three- and ten-year bars to immigration for those individuals who have overstayed their allotted time of admission by 180 or 365 days respectively, beginning April 1, 1997. For hundreds of thousands of individuals who are currently awaiting their family-based immigrant visas and who are out of status, these "time bars" may effectively make it impossible for them to legalize their status without leaving the United States and remaining abroad for three or 10 years. The law has limited exceptions for abused spouses and children and a limited waiver for cases involving "extreme hardship" to the U.S. citizen or permanent resident spouse or child.

As a result of this law there has been a panic as many consider returning to their countries before September 27, 1997 to avoid the 180-day time bar. Not surprisingly, marriage-based immigration applications and applications for citizenship have also increased tremendously, creating a near-impossible stress on the system and huge backlogs. (Of course, INS is aware of the heightened desperation and the obvious increase in marriage-based cases and subjects them to scrutiny. Marriage fraud is a federal felony punishable by five years imprisonment or $250,000 in fines.)

Aggressive reforms legislated in 1996 have left much of the immigration process in a state of mayhem and confusion. It is unclear how INS will apply the three- and 10-year time bars to those who remain in the United States. Some predict that only those who leave after having been in unlawful presence for more than 180 days will be affected, while those who remain will be able to adjust to permanent residency under a provision known as Section 245(I) of the Immigration and Nationality Act with the payment of a fine of $1000. The problem is that this provision expires on September 30, 1997 and must be renewed by Congress.

Because of this uncertainty, many intending immigrants are planning to leave the U.S. before the end of September in the hopes that this will preserve their opportunity to apply for their immigrant visas at U.S. consulates abroad once their visas become available. Consular processing can be a nightmare for people with HIV/AIDS because of the protracted period of separation it usually entails while waivers are decided. For example, consider Rajid, a U.S. citizen of Indian descent living in Jersey City, who in February 1997 finally reunited with his Indian wife Seta at Kennedy Airport after waiting 14 months for INS in New Delhi to adjudicate her HIV waiver.

Personal Extreme Hardship Based on HIV Status Won't Suspend Deportation

The new law also eliminates "suspension of deportation," a form of relief under which an immigration judge could instantly confer permanent resident status on an applicant. "Suspension" was a last-ditch attempt to obtain permanent residence for many people with HIV/AIDS, but if denied the applicant could be subjected to deportation. People with HIV/AIDS sometimes opted for suspension when they could not immigrate through their families, because they could not afford private medical insurance necessary for the HIV waiver and could not prove that they were not likely to become a public charge. For suspension of deportation, the applicant had to prove that he or she had maintained physical presence in the U.S. for at least seven years, was of good moral character, and that deportation would cause extreme hardship to the applicant and/or to the applicant's U.S. citizen or permanent resident spouse, parent, or child.

Suspension applicants with HIV/AIDS routinely met the burden of "extreme hardship" by proving that deportation would cause them extreme hardship because of their HIV status alone: because of lack of medical care and legal, medical, and societal treatment of people with HIV/AIDS in their home country that would adversely affect their well-being. As in an asylum case, applicants brought evidence to prove that people with HIV were subjected to quarantines, prohibited from marrying, denied basic health care needs, brutally attacked or murdered by AIDS-phobic neighbors and had no legal protection against disclosure of their HIV status or discrimination based on HIV status.

Gay and lesbian "suspension" applicants often bolstered their claims by demonstrating the extreme hardship that would be caused to their same-sex partner because of the applicant's deportation. Some applicants argued that their partners should be considered as spouses for the purpose of evaluating their hardship. Other applicants argued that the separation from their same-sex partners constituted "extreme hardship" to themselves.

Unfortunately, suspension of deportation was a casualty of the most recent immigration reform measures. It has been replaced by "cancellation of removal," which requires that the applicant show 10 years of continuous physical presence in the United States and "exceptional and extremely unusual hardship" to the applicant's U.S. citizen or permanent resident spouse, parent, or child. Lastly, there is a finite cap of 4,000 cancellation cases that may be granted, a fraction of the number of applications that had been granted in previous years. For applicants withHIV and gay and lesbian applicants, the shift to "cancellation" will be disastrous. No longer able to rely on "hardship" to the applicant, many of those who would have previously had strong suspension cases will face deportation without any form of relief. Same-sex partners are not likely to be considered "spouses" for the purposes of cancellation, because of the Defense of Marriage Act which purports to deny such status even if marriage becomes legal for gay and lesbian couples in Hawaii (as is expected later this year) or other states.

The new law guts a compassionate form of relief known as "voluntary departure," which allowed some persons with HIV/AIDS to remain in the U.S. for one year with eligibility for employment authorization and access to federal and state benefits as long as they promised to leave voluntarily. This status was typically renewed year after year for humanitarian reasons. Under the new law, voluntary departure can only be granted once for a period of 120 days, then the individual must leave or face a fine of $500 per day.

The latest round of immigration reform measures also strips away administrative and judicial review, limiting appeals of decisions and speeding deportations. For instance, some individuals will be subjected to deportation without a hearing before a judge if they are found to have entered the United States without inspection and cannot show they have resided here for more than two years. Those arriving in the United States without valid or sufficient travel documents but who express a "credible fear" of persecution may be given a limited opportunity to make an application for asylum. Functionally, it is difficult to imagine individuals who are fleeing persecution based on sexual orientation or HIV status having the capacity or knowledge to seek asylum on these bases. The new summary removal procedures may make it nearly impossible for such cases to have a full and fair hearing.

The impact of the anti-immigrant measures embodied in recent legislation has not been fully felt or completely understood. Its result will be measured in the future in terms of lives destroyed, families separated, needless suffering, and a heightened level of fear and skepticism by the newest members of our communities toward our government. For practical and updated information on the implementation and impact of the new laws and regulations on people with HIV/AIDS and on gays and lesbians generally, individuals should contact: the Lesbian and Gay Immigration Rights Task Force (New York, Chicago, San Francisco, Los Angeles, Seattle, Washington, D.C., and Boston); Gay Men's Health Crisis Legal Services (NY); the HIV Law Project (NY); the International Gay and Lesbian Human Rights Commission (San Francisco); the Midwest Human Rights Project on Sexual Orientation (Chicago); and the American Friends Service Committee Immigrant Rights Program (Newark and Miami).

*Sergio is a pseudonym used to protect the applicant's privacy.

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This article was provided by Body Positive. It is a part of the publication Body Positive.
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