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HIV-Positive Honduran Asylum Seeker Given Second Chance by 7th Cir.

By Casey C. Sullivan, Esq. on January 25, 2017 | Last updated on March 21, 2019

A Honduran immigrant with HIV has been given a second shot at escaping deportation, after a divided Seventh Circuit remanded his deportation case for reconsideration last Thursday -- and issued a harsh critique of the immigration judge who heard it, saying she "made a hash" of the record.

Rigoberto Velasquez-Banegas immigrated to America, without authorization, in 2005. In 2014, the government sought to deport him. But Velasquez-Banegas argued he would face severe persecution in his native Honduras, where his HIV status would be taken as a proxy for his homosexuality, exposing him to homophobic threats and violence. It was an argument, the Seventh ruled, that deserves another look.

Fear of Anti-Gay Persecution in Honduras

After the Department of Homeland Security initiated deportation proceedings against him, Velasquez-Banegas applied for a withholding of removal and protection under the Convention Against Torture.

Velasquez-Banegas, who discovered that he was HIV positive two years after immigrating to the U.S., made a three-fold argument. First, that many Hondurans believe that AIDS is "an affliction of homosexuals" and that any HIV positive person is gay.

Second, that "a great many Hondurans are hostile -- often violently so -- to persons they believe to be homosexual. Hundreds of LGBT people have been killed in Honduras in recent years, and prominent gay rights activists have been tortured and murdered. He'd be doubly suspect, Velasquez-Banegas said, because he is now 49 and has never been married.

Finally, Velasquez-Banegas asserted, in addition to the anti-gay bias and potential violence he would face, HIV treatment in Honduras "is often deficient and often invasive of privacy," though, the Seventh noted, "poor medical service is not itself a form of persecution."

Harsh Words for an Immigration Judge's "Hash"

Judge Richard Posner, joined by Judge Ilana Rovner, agreed that these arguments merited more thorough consideration. (Judge Kenneth F. Ripple dissented, saying that the immigration judge's factual determinations regarding Velasquez-Banegas's risk of persecution deserved greater deference.)

As the majority noted, there was no suggestion that Velasquez-Banegas had been engaged in serious criminal conduct. Aside from a few minor offenses, he was, so to speak, a model citizen -- despite not being a citizen.

"He is, in short, harmless," Judge Posner wrote, "and we can't understand the immigration judge's failure to take that into account in deciding whether to grant withholding of removal." The court was equally confused by the IJ's "failure to take into account the alarming and pertinent fact that Honduras has the highest crime rate in the western hemisphere."

"In fact," the court continued, "the immigration judge made a hash of the record." That included disregarding expert testimony about the treatment of gays, lesbians, and HIV-positive people in Honduras and demanding evidence that Velasquez-Banegas would be persecuted, without considering the feasibility of obtaining such evidence:

The petitioner left Honduras more than a decade ago; he's hardly in a position, living in the United States, to assess the particular risk to him if he's deported, as compared to the average HIV sufferer in Honduras or even the average HIV sufferer in Honduras who is middle-aged yet has never married.

"More Likely Than Not" Not Meant to Be Taken Literally

Further, such evidence is unnecessary. "To be a member of a group that faces a high probability of persecution in a foreign country is enough to establish that he's at risk of persecution if deported to that country," the Seventh concluded. The "more likely than not test," requiring an immigrant to show that he is more like than not to suffer persecution, "should not be taken literally," the court explained.

"We have noted repeatedly that remand may be warranted when the agency overlooks key aspects of an asylum seeker's claim and might reach a different conclusion after fuller evaluation of the record," the court concluded. "This is such a case."

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