Political Asylum for People With HIV
There are significant numbers of immigrants living with HIV in New York, receiving medical treatment and other services important to a healthy quality of life. Some arrived as refugees seeking asylum. Others, however, are not aware that in their native countries they lived under circumstances that make them eligible for political asylum. Care providers as well as their clients often have questions about the meaning of political asylum, the process, and available resources.
Immigration laws are very complex and are always changing. Under the 1951 United Nations Convention Relating to the Status of Refugees, nations who signed the Convention Against Torture must grant political asylum to refugees and cannot forcibly return them to their native countries. The U.S. is one of 26 countries that accept refugees, and it granted asylum to about 2,350,000 people from 1975 to 2000.
A "refugee" is a person seeking asylum in a foreign country in order to escape persecution based on race, religion, nationality, or membership in a particular political or social group. A refugee can also seek to escape from extreme poverty, terrorism, famine, and natural disaster. Those who seek refugee status are known as "asylum seekers" and the practice of accepting such refugees is that of offering "political asylum." Those granted asylum are known as "asylees."
People with HIV can claim asylum on one of these grounds. Traditionally, political opinion was the primary basis for granting asylum. In recent years, however, the Board of Immigration Appeals recognized that asylum seekers can be persecuted for being members of a social group, one of the more difficult to prove yet widely used criteria. Lesbians, gay men, and bisexuals have been granted asylum based on their membership in a social group. And individual immigration judges have granted asylum to transgendered persons based on evidence that persecution was a result of the applicant being a member of a particular social group.
People should apply for asylum as soon as they learn they are eligible. Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, applicants have to apply within the first year of arrival in the U.S. An applicant may apply later if conditions in her or his native country have changed and affected eligibility. An applicant may also be excused from the one-year limit by applying within a reasonable time and proving extraordinary circumstances.
Political Asylum Eligibility
These are questions that are helpful to ask to explore eligibility for asylum:
Are you from a country in conflict?
Do you think you will be discriminated against or harmed by others because of your HIV status or sexual orientation if you must return to your home country?
Who do you think will harm you? If it is not the police or military, can you show that the government tolerates or approves of the behavior?
If you were to return to your country, would your life be in danger? From whom? Is there evidence?
Applicants must produce evidence that they were persecuted and will be if they return home, and that the persecutors believe the applicant has political opinions they wish to suppress (such as the opinion that people with HIV should be treated with dignity).
Although it may difficult, applicants must show that the government tolerates or approves the action of the persecutors. If it is not the government directly that persecutes people with HIV, or gay or transgendered individuals, then the applicant must show that the government either tolerates or approves of others persecuting these groups. For instance, if bands of vigilantes regularly attack and beat up people with HIV, the applicant must show that asking the police to prosecute the attackers is fruitless. Domestic violence is also grounds for seeking political asylum. Women who have suffered from domestic violence may be eligible under the Human Rights Gender Violence Act.
Applicants often say they have been or will be persecuted and that their group is generally disfavored but fail to show that the reason they are persecuted is because of their opinion or social group. For instance, if the police are harassing a young man with HIV, the applicant must show that they did it because they think he is HIV positive. But this may be difficult to prove, and many immigration applications are denied because of the inability to link persecution to a particular social group.
Overview of the Political Asylum Process
It is important to have an attorney with expertise not only in immigration law but also in political asylum. It is not recommended that applicants go directly to United States Citizenship and Immigration Services (USCIS -- formerly part of the Immigration and Naturalization Service or INS) without an immigration attorney because of the complexities of the laws. The fact that an applicant is in the U.S. illegally can immediately jeopardize his or her ability to remain.
If the attorney believes a case qualifies for asylum, the applicant writes a personal statement, or affidavit. Additional statements by witnesses and experts often make the difference between winning or losing the case. Specifics that make the story believable are critical, so contacting relatives, friends, and co-workers in the native country for letters of support, police reports, and witnesses of events, etc., is important. Immigration attorneys experienced in asylum often document claims with evidence from human right groups supporting applicants' cases. In addition, newspaper articles and news coverage can be used as supporting documents.
If an applicant has missed the one-year deadline, a psychological evaluation by a mental health professional is recommended. Many applicants have experienced significant emotional distress, which impedes the actions necessary to complete the application process; the mental health evaluation should describe the client's mental health and how it caused the application to be delayed. The applicant should also obtain letters from medical providers, a list of any medications they are taking, and laboratory reports.
The initial interview takes place with a USCIS officer, who asks pertinent questions. Many organizations will assist with an interpreter if needed. Family, relatives, and partners will not be interviewed or allowed in the interview room. The interview can take from 30 minutes to two hours, after which the applicant is told when to return, usually in two or three weeks, for the decision. If the asylum is approved, the process for an Identification Card begins.
If the immigration officer does not grant asylum, the applicant is referred to an immigration judge. This judge either grants political asylum or denies it and begins deportation proceedings. If the application is denied, the applicant has the right to appeal and can remain in the U.S. during the often lengthy appeals process. Recently, applicants have been receiving partial asylum status, which enables them to live and work in the U.S. indefinitely but not to leave the country. They are also not eligible for permanent resident status. Applicants can apply for a work permit 150 days after the USCIS has received the asylum application, and they may also be able to receive public benefits during the asylum process.
Asylees can apply for lawful permanent residence after one year, but due to backlogs, approval can take up to ten years. In the interim, they are entitled to all the benefits of permanent residents, including work authorization, benefits, and the ability to travel to most countries with the exception of their own.
Guidelines for Service Providers
HIV+ political asylum seekers suffer from multiple traumas. In addition to the ordeal of immigration, asylum seekers differ from other immigrants in that they have been forced to leave their countries. The emigration process, especially for those who enter the U.S. unlawfully, brings additional trauma. The journey may have taken several days or months, perhaps through hostile borders and conflict zones, and may have placed their lives at risk or subjected them to rape, robbery, or lack of food.
In the U.S., all asylum seekers are considered illegal aliens and so cannot work legally. Although many may have been technicians or professionals, they are often forced to work in menial jobs in the U.S. This loss of status and professional identity can be very demeaning. Such individuals often describe how their previous work or life experience is not acknowledged by providers. One client, after obtaining asylum, went to a community college in New York to further his education. During intake, he explained that in his native country he worked as computer analyst. The counselor responded, "That was there -- it doesn't really count. What have you done here?"
Clients can have difficulty conveying their thoughts and feelings in English. Those who have experienced humiliation and torture may be sensitive to questions they interpret as interrogation. Building trust over time is essential to well-being and to explore options.
HIV+ asylum seekers can also be suspicious of providers. The stigma surrounding their lives in their native countries may have damaged their perceptions of themselves and the world. I once worked with a professional woman who experienced humiliation during a hospitalization in Venezuela. A huge sign was placed over her bed: AIDS PATIENT, STAY AWAY, and a psychiatrist extorted money by threatening to disclose her status. Her trust in health care professionals was shattered and took years to re-establish. An HIV diagnosis is stressful in and of itself, but many people seeking asylum also have additional trauma from childhood sexual abuse, or physical and emotional abuse due to gender or sexual orientation.
The asylum process can be traumatic because clients are asked to revisit diffcult experiences that may have been repressed for many years or that they may not be emotionally prepared to address. This can lead to anxiety, paranoia, intrusive thoughts, or repeated flashbacks. As much as an individual is eager to obtain asylum status, she or he may resist undergoing the process. One client said, "I thought I would never have to remember this again."
Here at the Positive Life Program, we have developed a socio-therapeutic model to make the asylum process more manageable. We educate the client about the process, anticipating anxiety and preparing for this overwhelming period. The first step is to help the client with relaxation techniques like Reiki or acupuncture. The client's personal affidavit is created during the ongoing clinical interventions. Support groups play an important role, along with information exchange.
Processing the different stages of seeking asylum involves adapting to a new culture and mourning the loss of country of origin. So we let all our clients know that they are not alone in this journey -- we are there to provide support and to advocate for their rights. Our clients have shared how this has sustained them in their most difficult moments.
The waiting period between the initial interview and the asylum decision is about three weeks. This period is overwhelming for applicants, who often report increased sleep disturbances, lack of concentration, and preoccupation with the outcome. They report putting their health on hold, forgetting medications, missing medical appointments, etc. They may also depend increasingly on antidepressants and sedatives as the asylum process becomes both a priority and an emotional upheaval in their lives.
The navigation of multiple systems can be overwhelming for the client and requires a multidisciplinary approach with case managers, social workers, and health and mental health providers working closely with the immigration attorney. When a person first seeks services from any provider, that provider needs to assess if there is a need and eligibility for asylum, asking the questions outlined above. If the facility does not offer such services, the client should be referred to immigration advocates.
In addition, medical providers need to routinely inquire about clients' immigration process, as it is integral to their medical treatment. Letters of support from medical providers are essential to supporting asylum. The Physicians for Human Rights Political Asylum Project offers a manual for healthcare providers, Examining Asylum Seekers.
Social workers are essential to the process, since an applicant may verbalize repressed traumatic experiences for the first time. The person may also be need of psychiatric evaluation and medications. Social workers can write a letter of support, including an evaluation to be submitted for the petition. This evaluation needs to include the trauma in country of origin, changes in personality as a result of persecution, and the mental health prognosis if the applicant were to return to the native country. A psychiatric evaluation indicating the diagnosis, treatment recommendations, and the importance of the applicant remaining in the U.S. to psychological well-being weighs in favor of the applicant in the asylum process. Attorneys and mental health providers need to work very closely.
In summary, the political asylum process is an overwhelming experience, especially for those living with HIV/AIDS. Health care providers, including primary care physicians, case managers, and social workers, play an important part by offering a safe place for clients who are in a critical period of their lives. Advocating for asylum validates an individual's life experiences and struggles. As providers working alongside our clients in this process, we embrace our commitment to our clients' rights to human dignity, respect, and justice.
Rosa Bramble Weed, L.C.S.W., is the Director of Positive Life Program of the Child Center of Woodside in Queens, New York.
|Finding Legal Representation|
There are many organizations that offer free legal services to HIV+ asylum seekers. If clients apply after the one-year deadline, some organizations will represent the case or refer clients to private attorneys whose fees range from $3,000 to $8,000. If one organization does not accept the case, go to a second or third. Networking among clients about attorneys is also helpful, and organizations also have lists of private attorneys. Providers can also inquire about in-service trainings on immigration and asylum.
Physicians for Human Rights
Gay Men´s Health Crisis
HIV Law Project
Aid for AIDS
New York Immigration Coalition
The Association of the Bar of New York
National Immigration Project of the National Lawyers Guild