Matter of Lopez (Board of Immigration Appeals 2013)

The Board of Immigration Appeals (BIA) has reversed an immigration judge's decision that an HIV positive immigrant charged with prostitution poses a sufficiently serious danger to the community to warrant deportation.

In this case, an immigrant woman is challenging her removal from the United States to Mexico, where she experienced violence and brutality due to her transgender identity and HIV status. Removal proceedings were triggered by an arrest for sex work. Although arrests for sex work typically are handled as disorderly conduct charges in California, in this case they evolved into deportation proceedings when it was discovered that Ms. Lopez is HIV positive. An immigration judge concluded, without evidence, that having HIV while offering or participating in sex poses a danger to the community warranting deportation. It is undisputed that Ms. Lopez remains at imminent risk of persecution if returned to Mexico.

The BIA provided an important rebuttal of the presumptive treatment of HIV as inherently dangerous, and provided the immigrant woman with an opportunity to return to immigration court to show that she should not be deported based on her HIV status.