Login | July 21, 2017

HIV-positive status could let man stay in U.S.

PATRICIA MANSON
Law Bulletin staff writer

Published: February 1, 2017

A divided federal appeals court has given a man who is HIV positive another chance to fight efforts to deport him to his native Honduras.

The 7th U.S. Circuit Court of Appeals directed the immigration judge who presided over Rigoberto Velasquez-Banegas’ case to reconsider his request to remain in the United States.

Foreign nationals who demonstrate they face a substantial probability of persecution if they are deported are entitled to withholding of removal or to protection under the Convention Against Torture, the court’s majority wrote.

And it wrote Velasquez-Banegas presented evidence — accepted as true by the immigration judge — that people who are believed to be homosexual face a risk of persecution in Honduras. Velasquez-Banegas, who is straight, contended many Hondurans believe AIDS is an affliction of homosexuality and many Hondurans are hostile to gays.

The majority rejected the judge’s suggestion that Velasquez-Banegas would be safe if he hid the characteristics that would lead many Hondurans to perceive him as gay.

Those characteristics are his HIV status and his position as a middle-aged man who has never been married, the majority wrote.

Immigration law, it wrote, does not require Velasquez-Banegas to avoid persecution “by pretending to be a very different person from what he actually is.”

Requiring such pretense would be akin to requiring someone who fears persecution to live in a cave in order to avoid contact with all other people, the majority wrote.

“The next step would be to rule that no one can have a real fear of persecution,” Judge Richard A. Posner wrote recently in an opinion joined by Judge Ilana Diamond Rovner, “because if persecution looms he can avoid it by committing suicide.”

But in a dissent, Judge Kenneth F. Ripple said he would decline to revive Velasquez-Banegas’ case.

Ripple conceded the immigration judge concluded the LGBTQ community — an expert witness for Velasquez-Banegas testified the acronym means lesbian, gay, bisexual, transgender and queer — faces persecution and possibly torture in Honduras.

He also wrote that immigration cases “pose a special burden” on judges.

“The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety and security that we enjoy,” Ripple wrote.

But the immigration judge, he wrote, concluded that Velasquez-Banegas had not established he would be perceived as gay by his fellow Hondurans.

And the 7th Circuit should not be second-guessing the immigration judge’s findings, Ripple wrote.

Ilan Wurman of Winston & Strawn LLP’s Washington, D.C., office argued the case in front of the 7th Circuit on behalf of Velasquez-Banegas.

Wurman said Velasquez-Banegas’ legal team is pleased with the ruling.

“We do think that this opinion will be used in future cases because it deals with the kind of evidence and how much evidence is relevant and necessary in similar cases,” he said.

Linda Y. Cheng of the U.S. Justice Department in Washington argued the case on behalf of the government.

A department spokesperson could not be reached for comment.

In 2005, Velasquez-Banegas entered the United States without authorization.

He applied to remain in this country when the U.S. Department of Homeland Security began deportation proceedings in 2014.

He also presented evidence that people believed to be gay are at risk of being killed or physically injured and that the police either refuse to investigate such crimes or are involved in them themselves.

In addition, he presented evidence that his HIV status likely would be revealed because patients’ privacy in Honduras is often invaded.

After the immigration judge ruled against him, Velasquez-Banegas appealed to the 7th Circuit.

Neither Ripple nor the majority identified the immigration judge. Her opinion denying Velasquez-Banegas’ request to remain in this country, like many filings in immigration cases, is sealed.

In its opinion, the 7th Circuit majority criticized the immigration judge for insisting Velasquez-Banegas present evidence that he in particular would be at risk of persecution in Honduras.

Because Velasquez-Banegas had left his homeland more than a decade before, the majority wrote, he could not assess his risk for persecution compared to that of the average person with HIV.

“No matter; to be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he’s at risk of persecution if deported to that country,” Posner wrote.

The case is Rigoberto Velasquez-Banegas v. Loretta E. Lynch, No. 15-2619.


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