Velasquez-Banegas v. Lynch, 2017 U.S. App. LEXIS 981 (7th Cir. Jan. 19, 2017)

The United States Court of Appeals for the Seventh Circuit (the Court) vacated the decisions of an immigration judge (IJ) and the Board of Immigration Appeals (BIA), holding that their denial of Velasquez-Banegas’ (petitioner) application for asylum overlooked key aspects of his claim and that a different conclusion might be reached after fuller evaluation of the record. Petitioner was first diagnosed as living with HIV while an undocumented resident of the United States. Facing removal proceedings, he applied for withholding of removal and protection under the Convention Against Torture (CAT), on the ground that he is highly likely to be persecuted if returned to Honduras, where an HIV diagnosis is often used as a proxy for homosexuality.

The petitioner presented evidence that, in addition to having the highest crime rate in the western hemisphere and the highest homicide rate in the world, Honduras has a culture of stigma, discrimination, and violence targeted at homosexuality. An expert witness also testified that more than 200 LGBTQ people had been murdered since 2009 in a pattern indicating an “LGBT cleansing,” including transgender women shot execution style and homosexual men tied up and mutilated. Moreover, police are complicit in murders and laws purporting to protect LGBTQ people from violence are rarely enforced.

The IJ nevertheless discounted this testimony because it was generalized to the LGBTQ community, rather than based on the petitioner’s specific case. The Court critiqued the IJ’s analysis of the legal standard for removal—that a petitioner be “more likely than not” to face persecution if removed—as taken too literally, stating that uncontroverted testimony from petitioner’s expert witness met this standard. The court also highlighted that petitioner should not be required to hide his HIV status, and that he posed no threat to national health or welfare.