The views presented in this article do not necessarily reflect the views or opinions of the ABA Refugee Law Committee.
Michelle Amrit Kaur*
Immigration into the United States can be an overwhelming process. Until recently, that process was impossible for anybody living with HIV. Many HIV-positive immigrants apply for amnesty after arriving into the United States. U. S. Citizenship and Immigration Services (USCIS) does not guarantee amnesty for HIV-positive people, but it is possible for those who come from countries where persecution is high for HIV-positive people. Agencies are supposed to follow uniform standards to safeguard against discriminatory practices. Additionally, they are supposed to abide by past practice in decision-making. However, there is a large variation among court decisions, even when circumstances are similar. Current immigration standards are inadequate to ensure equal standards for handling HIV-positive asylum cases.
Until recently, USCIS did not grant visas for HIV-positive people. On July 30, 2008, President Bush signed the United States Global Leadership against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008.
The Act amended the Immigration and Nationality Act (INA) to eliminate HIV as a health condition that could prevent anyone with HIV from entering into the United States. HIV-positive people still could not qualify for a visa, though. The U. S. Department of Health and Human Services, Centers for Disease Control and Prevention (HHS/CDC) still had HIV listed as a communicable disease of public health significance.
On July 2, 2009, CDC proposed a rule change to amend Title 42 of the Code of Federal Regulations (CFR), Part 34,
to remove HIV from the list. The CDC published it in the Federal Register as a Notice of Proposed Rulemaking (NPRM) for a 45-day public comment period.
The CDC published its Final Rule in the Federal Register on November 2, 2009, which was effective January 4, 2010.
Due to the change, USCIS will no longer find HIV-positive applicants ineligible under Section 212(a)(1)(A)(i) of the INA.
Once an HIV-positive person has entered the U.S., there is a small window of opportunity for the person to file for asylum. The immigrant must file for amnesty within one year of entering into the United States.
Additionally, USCIS must consider the immigrant a refugee in order to file for amnesty.
A refugee is a person who is outside of their home country and who is unable to seek protection of that country due to persecution or a well-founded fear of persecution because of race, religion, nationality, membership in a particular social group, or political opinion.
The INA does not specifically define persecution. The courts, however, have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.”
The courts have also defined persecution as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.”
To demonstrate the well-founded fear element, the immigrant must establish that they have both a subjective and objective fear of returning to their country of origin.
For the subjective element, “an asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.”
The objective component is whether a reasonable person in the applicant’s circumstances would fear persecution. This element requires credible, direct, and specific evidence that supports a reasonable fear of persecution.
The next step is for the immigrant to establish that there is a pattern of persecution against similarly situated persons in their native country and that fear upon return is reasonable.
The final step is to establish membership in a particular social group.
The courts have defined this element as a group in which “the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.”
HIV-positive immigrants may apply for amnesty as a member of a particular social group because they cannot change their HIV status. While this may seem straightforward, especially for a person coming from a country well known for persecution of its citizens, the immigrant’s greatest challenge is persuading the court that the person has met the elements for asylum.
The issues facing HIV-positive people outside the United States are vast. Medical services are often hard to come by, but regions such as Africa have substantially increased treatment availability around the continent. Despite aid to the region, persecution is still a reality for HIV-positive women in Africa. Medical personnel in various parts of Africa routinely sterilize HIV-positive women without the women’s informed consent.
The reason for sterilization is to prevent HIV-positive women from giving birth to HIV-positive babies.
However, with medication during pregnancy and a cesarean birth, a newborn is likely to be born HIV-negative.
Yet, forced sterilizations continue. While American and international organizations have increased aid around the world for HIV treatments, remote regions still lack services. Some countries attempt to block international aid for HIV and have even persecuted doctors who provide services for HIV-positive people.
While the stigma of HIV often hinders treatment quality and availability, the stigma is greater for those who are lesbian, gay, bisexual or transgender and HIV-positive (LGBT/H). Uganda, for instance, is currently debating the so-called “Kill the Gays Bill” in which homosexuality would be a crime punishable by death.
One LGBT/H Ugandan recently won amnesty due to the continued issues in the country.
This does not guarantee all LGBT/H Ugandans currently in the United States will receive asylum. The courts do not always apply past practice when deciding asylum cases. Even cases within the same circuit with similar circumstances may have differing outcomes. For instance, the 9th Circuit granted asylum to one Mexican LGBT/H on the grounds that he proved past persecution and a well-founded fear,
but the same court denied another Mexican LGBT/H six years later stating he failed to prove past persecution and a well-founded fear.
Despite laws enacted in Mexico between the two cases against homosexual based discrimination, LGBT/H persecution in Mexico was still widespread at the time of the case and remains true today.
One sad factor that courts use to determine cases such as these is whether a person appears “gay enough.”
Instead of a uniform method for asylum decision making, courts are using stereotypes to decide if a person is “gay enough” to face persecution in their native country.
An immigrant might meet all the required elements, but the court may still deny the case due to how the person appears or talks.
Despite clear elements for asylum in the United States, the courts’ application of case facts to those elements has not been uniform. HIV-positive immigrants must not only convince the courts that they meet the basic elements for asylum, but that they also fit into the stereotypes determined by the courts. The courts do not use past practice or uniform standards in determining asylum cases for HIV-positive people. Current immigration standards are inadequate to ensure equal standards for handling HIV-positive asylum cases.
* Michelle Amrit Kaur is a student in the George Washington University Master’s in Paralegal Studies Program. She graduated with a Bachelor in Arts in Criminology and Criminal Justice from the University of Texas at Arlington.
1 Tom Lantos and Henry J. Hyde United States Global Leadership against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, Pub. L. No. 110-293, § 305, 122 Stat. 2918.
2 42 C.F.R. § 34.2 (2010).
4 Medical Examination of Aliens- Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance, 74 Fed. Reg. 31798 (July 2, 2009) (to be codified at 42 C.F.R. pt. 34).
5 Medical Examination of Aliens- Removal of Human Immunodeficiency Virus (HIV) Infection from Definition of Communicable Disease of Public Health Significance, 74 Fed. Reg. 56547 (Nov. 2, 2009) (to be codified at 42 C.F.R. pt. 34).
6 8 U.S.C. § 1182(a)(1)(A)(i) (2011).
7 Green Card Through Refugee or Asylee Status, U. S. Citizenship and Immigration Services, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=3416a6c515083210VgnVCM100000082ca60aRCRD&vgnextchannel=3416a6c515083210VgnVCM100000082ca60aRCRD#.
8 8 U.S.C. § 1101(a)(42)(A) (2010).
10 Matter of Laipenieks, 18 I. & N. Dec. 433, 457 (B.I.A. 1983).
11 Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998); Miranda v. I.N.S., 139 F.3d 624, 626 (8th Cir. 1998).
12 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).
13 Berrotera-Melendez v. I.N.S., 955 F.2d 1251, 1256 (9th Cir. 1992).
14 Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004).
15 8 C.F.R. § 1208.13(b)(2)(iii) (2010).
16 Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985).
17 Id. at 233-234.
18 Litigating Against the Forced Sterilization of HIV-Positive Women: Recent Developments in Chile and Nambia, 23 Harv. Hum. Rts. J. 223 (2010).
21 Background: Jailed Doctors in Iran (updated), Physicians for Human Rights, http://physiciansforhumanrights.org/issues/persecution-of-health-workers/iran/iran-free-the-docs.html (last visited Jan. 30, 2013).
22 Henry Wasswa, Uganda’s ‘Kill the Gays’ Bill Spreads Fear, Al Jazeera (Jan. 3, 2013), http://www.aljazeera.com/indepth/features/2013/01/2013121392698654.html.
23 Will O’Bryan, New Neighbor: Gay Ugandan Living in D.C. Wins Asylum in the U.S., Metro Weekly (May 26, 2011), http://www.metroweekly.com/news/?ak=6271.
24 Boer-Sedano v. Gonzales, 418 F.3d 1082 (9th Cir. 2005).
25 Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011).
26 The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Mexico: A Shadow Report, Global Rights (2010), http://www.globalrights.org/site/DocServer/LGBT_ICCPR_Shadow_Report_Mexico.pdf.
27 Dan Bilefsky, Gays Seeking Asylum in U. S. Encounter a New Hurdle, The New York Times (Jan. 28, 2011), http://www.nytimes.com/2011/01/29/nyregion/29asylum.html?pagewanted=all&_r=0.