Medical, Public Health and Legal Groups Urge U.S. Immigration Court To Take HIV Out of Deportation Decision

Immigration court's ruling that HIV+ Detainee is a "Danger to the Community" Defies Current Science

Medical, Public Health and Legal Groups Urge U.S. Immigration Court To Take HIV Out of Deportation Decision

New York, NY – July 10, 2013. The Center for HIV Law and Policy (CHLP), a national leader in HIV law and policy, filed a friend-of-the-court brief yesterday on behalf of four national medical and public health organizations, in Matter of Lopez, an immigration case involving a transgender woman living with HIV. The woman is challenging her removal from the United States to Mexico, where she experienced violence and brutality due to her transgender identity. Removal proceedings were triggered by an arrest for sex work.

Although arrests for sex work typically are handled as disorderly conduct charges, in this case they evolved into deportation proceedings when it was discovered that Lopez is HIV positive. A California immigration judge concluded, in the absence of supporting evidence, that having HIV while offering or participating in any type of sex poses a danger to the community warranting removal. It is undisputed that Ms. Lopez remains at imminent risk of persecution if returned to Mexico.

"Ms. Lopez's case is part of systemic HIV discrimination in immigration proceedings and the criminal justice system. Courts are improperly relying on stereotypes and misconceptions instead of current medical knowledge about HIV. Having HIV should not convert disorderly conduct into a deportation-triggering felony," said Iván Espinoza-Madrigal, CHLP's Legal Director.

CHLP's brief, filed on behalf of the National Alliance of State and Territorial AIDS Directors (NASTAD), the HIV Medicine Association, the Association of Nurses in AIDS Care, and Bienestar, urges the Board of Immigration Appeals to grant Ms. Lopez immigration protection. CHLP argues that HIV status cannot trump the right to protection from an imminent risk of persecution in Mexico. The brief notes that relying on HIV to treat a sex work arrest as evidence of dangerousness justifying removal also can serve as an end-run around the 2010 U.S. policy change ending HIV as a basis for automatic exclusion of immigrants.

"When an HIV diagnosis can trigger deportation for immigrants who face violence in their home country, the only behavior likely to be deterred is getting tested and into treatment. Individuals, and the communities where they live, are at greater risk of disease when the law and rational public health approaches are at odds," said Terrance Moore, NASTAD's Director of Policy and Health Equity.

"We hope that this case not only will protect the client from near-certain harm, but will help to ensure that all people affected by HIV have the same protection of the law afforded to others in the same situation. The fate of immigrants who come to this country to avoid gender-based persecution should not hinge on uninformed beliefs and policies rooted in ignorance about the routes, risks, and consequences of HIV transmission," said CHLP staff attorney Rashida Richardson.

Iván Espinoza-Madrigal and Rashida Richardson of The Center for HIV Law and Policy represent the organizations. Peter E. Perkowski, a partner with Winston & Strawn LLP, is providing pro bono support for this case. The National Immigrant Justice Center is handling Ms. Lopez's immigration case.

The brief is available in CHLP's Resource Bank.

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The Center for HIV Law and Policy is a national legal and policy resource and strategy center working to reduce the impact of HIV on vulnerable and marginalized communities and to secure the human rights of people affected by HIV. We increase the advocacy power of attorneys, community advocates and service providers, and advance policy initiatives that are grounded in and uphold social justice, science and the public's health.

Poz Magazine featured CHLP's amicus brief, the BIA decision, and Ms. Lopez's immigration relief.

Windy City Times also featured this victory.

El Diario/La Prensa, the largest and oldest Spanish-language daily newspaper New York City, covered this immigration case, and used it as a platform to showcase LGBT and HIV immigration issues.