San Diego Gay and Lesbian News (06.05.2013)
Aids Weekly Plus
The Board of Immigration Appeals (BIA) overturned an immigration judge’s decision ordering an HIV-infected immigrant's deportation to Mexico. In 2006, the individual qualified for “withholding of removal under the Immigration and Nationality Act” because he had been “abused and persecuted” by police in Mexico.
However, after he lost his job and became homeless in 2009, he was convicted of soliciting oral sex from an undercover police officer. The Department of Homeland Security (DHS) filed a motion in 2012 that the man should be deported because he had HIV, making his crime especially “serious.”
Lambda Legal and the HIV Law Project filed a friend-of-the-court brief opposing the deportation based largely on studies that indicated no documented cases of HIV infection from oral sex existed. According to the brief, the man had agreed to use a condom and stated that he had planned to reveal his HIV status prior to performing oral sex. The brief also argued that HIV was a chronic, manageable disease for people diagnosed early and treated promptly. The brief was submitted on behalf of the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, GLMA: Health Professionals Advancing LGBT Equality, the LA Gay & Lesbian Center, the National Alliance of State and Territorial AIDS Directors, and the San Francisco AIDS Foundation.
DHS retracted its motion in light of information provided by the Lambda Legal/HIV Law Project brief. Lambda Legal HIV Project Director Scott Schoettes applauded the BIA decision because it was based on up-to-date information and the man was not returned to Mexico.
Under current California law, a misdemeanor conviction for solicitation or prostitution automatically escalated to a felony if the convicted person tested positive for HIV. HIV Law Project Spokesperson Cristina Velez urged the repeal of the statute.