New York, NY — August 16, 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.
The BIA's decision came several weeks after The Center for HIV Law and Policy (CHLP), filed a friend-of-the-court brief on behalf of four national medical and public health organizations, arguing that the immigration judge did not properly assess the actual significance of the detainee's HIV status, including whether she had in fact intended to cause harm. The BIA returned the case to the immigration judge to address this error.
Ms. Lopez 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 this case they evolved into deportation proceedings when it was discovered that Ms. Lopez is HIV positive. A California 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.
"This victory restores a level of fairness for Ms. Lopez. She will now have an opportunity in immigration court to show that she should not be deported based on her HIV status. If the law is applied evenhandedly, and the court is informed on the current-day science and realities of HIV, Ms. Lopez should prevail," said Rashida Richardson, a CHLP staff attorney who assisted with the brief.
The BIA decision also creates useful precedent for future cases involving immigrants living with HIV. "The BIA provided an important rebuttal of the presumptive treatment of HIV as inherently dangerous," noted IvÃín Espinoza-Madrigal, CHLP's Legal Director.
CHLP's brief was 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 (ANAC), and Bienestar.
IvÃín 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 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.