A Honduran immigrant received a second chance to seek asylum after a polarized Seventh Circuit ruled that it would be unconstitutional to force him to hide his HIV-positive status to protect himself from homophobia after being deported to his home country.
The case involves 38-year old Rigoberto Velasquez-Banegas, a Honduran native who entered the U.S. as an undocumented immigrant in 2005, contracting HIV two years later. Upon learning of Velasquez-Banegas’ undocumented status, the Department of Homeland Security proceeded to have him deported in 2014. However, Velasquez-Banegas argued that returning to Honduras with his illness would most likely expose himself to the danger of violent discrimination.
Velasquez-Banegas presented compelling evidence of many Hondurans believing that any man with HIV or AIDS is also a homosexual. He emphasized how many Honduran gay men have been the victims of hate crimes targeted against homosexuals, with police refusing to investigate such incidents.
In addition, these cultural prejudices would also limit his access to treatment for HIV and AIDS in his home country. Moreover, because Velasquez-Banegas isn’t married, his HIV-positive status is all but guaranteed to arouse suspicion back home.
An immigration judge (IJ) rejected these arguments, pointing out that he could easily keep his illness a secret to protect himself. But after taking his case to the Court of Appeals, a divided Seventh Circuit rejected the IJ’s decision, ruling that the case be remanded.
Writing for the court majority, Judge Richard Posner, said, “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.”
However, the court panel ruled that the law does not require immigrants to hide personal details such as their religion, sexual orientation, and health conditions like HIV.
“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,” Judge Posner added.
For more examples and updates of contentious immigration cases like this, be sure to follow this blog. If you or a loved one needs representation in an immigration court, or simply need legal advice after being the subject of deportation proceedings, don’t hesitate to contact the legal team of the Lyttle Law Firm. Call us at (512) 215.5225 to schedule a consultation.