Institute for Justice and Democracy in Haiti

HIV-Based Persecution in Asylum and Immigration Decisions

By  Victoria Neilson, Human Rights Magazine
 Fall 2004

Editor’s Note: The following is a condensed version of a longer article that will appear in 19 AIDS & PUBLIC POLICY JOURNAL (2004).

Since 1987 the United States has sent a clear message to foreign nationals: if you are HIV-positive, keep out. The Immigration and Nationality Act (INA) labels HIV “a communicable disease of public health significance,” rendering those living with HIV/AIDS “inadmissible.” Applicants for temporary visas who self-disclose their sero-positive status or applicants for permanent residence who test positive for HIV during a required medical examination therefore will be prevented from entering the United States or obtaining legal permanent residence unless they meet the stringent requirements for an HIV waiver.

Paradoxically, at the same time that the United States enforces one of the world’s most restrictive HIV immigration policies, in some limited circumstances a foreign national’s HIV-positive status can actually create the basis for an application for immigration. One form of relief that may be available is asylum, which may be granted if a foreign national can demonstrate a well-founded fear of persecution in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. The Board of Immigration Appeals (BIA) has defined social group membership as “that [which] the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” (Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985).) Since no cure exists for HIV, it is a status that cannot be changed and may form the basis for an asylum claim.

The greatest difficulty in proving such a claim is demonstrating that the person will suffer “persecution” in his or her home country. Although the term is not defined explicitly in the INA, case law has created a working standard that defines persecution as harm that has been inflicted on a person directly by the government or by private people who the government is unable or unwilling to control. Examples of recognized harm include death, torture, beatings, severe discrimination, and complete economic deprivation. Generally, limited discrimination or economic hardship does not rise to the level of persecution.

Winning an asylum case based on HIV status requires proving that the harm the person would suffer would amount to persecution as opposed to hardship. Proving merely that state-of-the-art medical treatment is unavailable because a home country is economically underdeveloped will rarely be recognized as persecution. Rather, the asylum applicant must prove government animus or willfulness.

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