HIV Positive Nicaraguan Fights U.S. Deportation and Wins

Just a week before Christmas 1996, a New York immigration judge granted suspension of deportation to a gay HIV-positive Nicaraguan man, thereby making him a permanent resident of the United States. As the applicant, Carlos,* completed his powerful and moving testimony, one of the government trial attorneys representing the Immigration Service wiped tears from her eyes. The government conceded the case without asking the applicant a single question.

In an oral decision, the judge ruled that Carlos would suffer extreme hardship if deported because of persecution of gays and persons with HIV in Nicaragua, and because he would be separated from his partner, a U.S. citizen. After the decision was rendered, the two men embraced spontaneously with immense relief and happiness.

After fleeing a lifetime of anti-gay persecution in Nicaragua, Carlos had traveled by airplane, car, and foot through Guatemala and Mexico before crossing without inspection into Texas in July 1989. A few days later he arrived in New York City where he would live with his grandmother and cousins.

Carlos lived in New York City for a year with his Nicaraguan relatives until he became estranged from his family when they found out he was gay. He moved out of Manhattan and eventually met his current partner, an American citizen, with whom he has been in a relationship for five years. During the more than seven years that Carlos had lived in the United States, he studied and became fluent in English, studied computer and tax courses, worked at a dry cleaner, a bakery, several retail stores, and as a bookkeeper.

In July 1996, he stumbled across some information about asylum from members of the Lesbian and Gay Immigration Rights Task Force he met in Queens, and decided to apply for political asylum based on his fear of persecution as a gay man in Nicaragua and as a person with HIV. For almost two months he worked with his lawyer to prepare the case, including supporting statements from other Nicaraguans and extensive documentation about conditions in Nicaragua for gays and people with HIV/AIDS. A few weeks after filing his application, Carlos was summoned to an interview at the New York Asylum office. At the interview, the interviewing officer asked almost no questions and sat expressionless as Carlos explained the basis of his case. The asylum officer seemed unsympathetic. Carlos felt that his case would not be granted at this stage. As is sometimes the case, his application for asylum was not granted and he was referred to an immigration judge for deportation.

About a month later, before the judge, Carlos applied again for asylum and filed an additional application for "suspension of deportation." He was only days away from the effective date of the Anti-Terrorism Act, which rendered those who had entered without inspection ineligible for suspension. The judge accepted both applications, and with Carlos' agreement, scheduled his case for a full hearing in only six weeks. (Ultimately, the judge decided to grant the suspension application, conferring upon Carlos immediate status as a permanent resident.)

In his applications, Carlos cited a lifelong history of vicious anti-gay violence beginning in his childhood. The perpetrators included his own father, neighborhood children and students in his high school. He recounted harrowing stories of physical and sexual abuse that were visited upon him because he was identified as gay and from which he was powerless to seek protection from the authorities, who themselves were widely known to arrest, detain, mistreat, and otherwise persecute gays.

Carlos also testified before the judge to harassment and death threats at the bank where he worked in Managua and explained how he lost his job more than once because coworkers refused to work with a person they suspected of being gay. He then described the repeated and humiliating physical and sexual violence he experienced while performing mandatory military service at the age of 18. After finally completing his military service and returning to civilian life, Carlos again experienced anti-gay attacks and decided to flee Nicaragua.

In addition to his extensive personal experiences, which were laid out in great detail in a lengthy affidavit, Carlos and his lawyer supplied hundreds of pages of documentation and affidavits evidencing the persecution of gays in Nicaragua. These included news articles and human rights reports from around world condemning the then newly elected government of Violeta Chamorro for passing a wide-ranging anti-gay law in 1992. (Some of this documentation was supplied by the International Gay and Lesbian Human Rights Commission and Gay Men's Health Crisis.)

In support of his suspension application, Carlos testified about his life with his American partner, his partner's children, grandson, and others who make up his immediate family. He told the court that his life would be destroyed if he was forced to return to Nicaragua and separated from his life-partner. In addition to the destruction of their relationship, Carlos also told the court that as persons living with HIV they both relied on each other greatly, and that their relationship had sustained their physical and emotional health over the past few years. Carlos provided several documents, including news articles and expert affidavits, showing that persons with HIV/AIDS in Nicaragua are actively discriminated against, denied even basic medical treatment, persecuted, harassed, and sometimes even killed because of the pervasive fear and misinformation about the virus.

What's remarkable about this case it is that it is probably one of the last of its kind due to the change in the law that removed "suspension of deportation" as an option, and instituted "cancellation" on April 1, 1997. [These changes are discussed in depth in the main article, "Limited Justice for HIV-Positive Immigrants."]

Carlos had entered without inspection only seven years before filing his application for asylum. By luck he found out about the possibility of asylum in time to file before the April 1, 1998 deadline. He had no "qualifying relative" to meet the new "cancellation" requirements, but had an extremely compelling and strong case for both asylum and suspension because of the persecution he would have faced if forced to return to Nicaragua as a gay man and a person with HIV. The judge in Carlos' case also considered the hardship that would be caused to Carlos and his partner if they were forced to separate in the event Carlos was deported. This consideration of the gay couple's relationship will also not occur under the new "cancellation" guidelines. In the future, individuals like Carlos whose asylum cases are not granted may face deportation with no other form of relief.

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

This article is a revised version of a story printed in the Winter 1996 Newsletter of the Lesbian and Gay Immigration Rights Task Force.