7th Circuit Intervenes in HIV Deportation Case

CHICAGO (CN) – A Honduran man will get a second shot at asylum after a divided Seventh Circuit ruled he cannot be forced to hide his HIV-positive status to protect himself from homophobia if he’s deported.

Rigoberto Velasquez-Banegas entered the United States illegally in 2005 when he was 38 years old. Two years later, he discovered he was HIV positive.

When the Department of Homeland Security initiated proceedings to have him deported in 2014, Velasquez-Banegas argued that he should be granted asylum because of the danger he would face in Honduras as an HIV-positive man.

He presented evidence that many Hondurans believe that any man with HIV is also homosexual, many gay men have been killed in Honduras out of hatred, and police often refused to investigate these crimes. For similar cultural reasons, Velasquez-Banegas says he would have limited access to medical treatment for HIV and AIDS.

In addition, Velasquez-Banegas has never married, further enhancing potential suspicions that he is gay.

An immigration judge rejected Velasquez-Banegas’ arguments, suggesting that he could easily keep his HIV status a secret to stay out of danger.

But a divided Seventh Circuit rejected this line of reasoning in a ruling issued Thursday, vacating the immigration judge’s ruling and remanding the case.

“The immigration judge implies that the petitioner would be thought to be homosexual and for that reason persecuted unless he evaded his potential tormentors by pretending to be a very different person from what he actually is – a middle-aged HIV positive bachelor in a culture in which, should those characteristics be revealed, he would be in serious danger,” Judge Richard Posner said, writing for the panel’s majority.

But the law does not require that an immigrant hide characteristics like religion, sexual orientation, or medical conditions like HIV, the 11-page opinion states.

“Suppose a person if removed to his country of origin would be sure to be persecuted unless, by living in a cave, he avoided all contact with other persons. The next step would be to rule that no one can have a real fear of persecution because if persecution looms he can avoid it by committing suicide,” Posner continued.

The judge said Velasquez-Banegas could potentially also conceal his bachelor status, but “the law does not take a life of stealth as its starting point.” Posner said the immigration judge “made a hash of the record.”

Judge Kenneth Ripple dissented, finding that Velasquez-Banegas did not show his HIV status will cause him to be perceived as gay in Honduras.

“The fact that he may choose to share his status does not alter this outcome,” Ripple said.

He acknowledged that Velasquez-Banegas will not have the same opportunity for medical treatment in Honduras, but said that deprivation does not rise to the level of persecution.

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