HIV-Positive Colombian Native Loses Bid to Remain in the U.S.

A three-judge panel of the U.S. Third Circuit Court of Appeals, based in Philadelphia, has rejected a petition to review the Board of Immigration Appeals' decision ordering the removal back to Colombia of an HIV+ man who had overstayed his tourist visa to the U.S. and married a U.S. citizen.  Rodriguez v. Attorney General, 2010 Westlaw 1998836 (May 20, 2010).  The court agreed in its per curiam decision with the conclusion of the Immigration Judge and the BIA that the petitioner had failed to show that he would be subjected to persecution or torture on account of his HIV status if he were returned to his native country.

According to the panel decision, the petitioner entered the U.S. in March 1999, overstayed his visa, and married a U.S. citizen, from whom he is now separated.  Although he and his wife had attempted to adjust his status in the U.S. based on the marriage, that attempt fell through when they failed to appear for a scheduled hearing, and removal proceedings were initiated against him in 2004.  Because he had missed the deadline to file for asylum, his only potential remedies were withholding of removal based on a reasonable fear of persecution in Colombia, or protection under the Convention Against Torture, which would require proof that he would likely be subjected to torture at the hands of the Colombian government or forces whom the government could not or would not control.

Immigration Judge Eugene Pugliese found that the petitioner was a credible witness, that he is HIV+, and that he is genuinely afraid to return to Colombia, but the judge also found that the petitioner failed to meet his evidentiary burden for either form of protection.  Petitioner speculated in his testimony that due to his HIV status, authorities or anti-gay militias in Colombia would presume he was either a drug addict, gay or a prostitute, and would thus subject him to persecution as a socially undesirable individual.  The court's opinion does not mention any allegation by the petitioner that he would be deprived of necessary HIV-related medication in Colombia.  He provided no witnesses to back up his speculations, but did submit copies of newspaper articles tending to show that there is anti-gay discrimination in Colombia and that people living with HIV have been subjected to various oppressive or discriminatory actions.  Judge Pugliese found, however, that petitioner had failed to show that he was a member of a "particular social group" that was being singled out for persecution or torture.

The BIA, reflecting rulings in other cases, was willing to hypothesize that petitioner could be considered a member of a "particular social group" of HIV+ people, but agreed with the IJ that he had failed to meet his evidentiary burden on the issues of persecution and torture.  The 3rd Circuit panel, while stating that it appreciated petitioner's arguments, nonetheless concluded that the BIA "did not err in determining that, even assuming [petitioner] was a member of a particular social group of people who are HIV positive, he did not demonstrate that it was more likely than not that he would be persecuted or tortured in Colombia on the basis of this group affiliation."  The court found lacking any evidence of a "pattern or practice of persecution of people with HIV positive status in Colombia."  It also found there was no record in the evidence that the "discirminatory practices of the paramilitary groups were widespread or likely to affect him" or "that the government of Colombia is unable or unwilling to control any such activities."

The brief opinion illustrates the heavy evidentiary burden placed on applicants seeking to stay in the U.S.  Our laws at present do not authorize providing refuge for those whose lives if deported would be harsh or difficult, and being HIV+ is not seen as a ticket for permanent residence in the U.S.  Additionally, the changing (and in some countries improving) situation for people living with HIV in many countries in South America has made it less likely that applicants for asylum, withholding of removal, or CAT protection will be able to win their cases solely on the ground of their infection.  In this case, petitioner tried to bolster his application by arguing that his status would lead to adverse inferences subjecting him to persecution on grounds of assumed addiction, sexuality or prostitution activity, but provided no direct evidence to back up such speculation.