LOS ANGELES - The Board of Immigration Appeals (BIA) has vacated an immigration judge's ruling ordering the deportation of an HIV-positive immigrant convicted of solicitation for oral sex.
The order follows a motion by the Department of Homeland Security (DHS) seeking to retract its earlier argument that the man's HIV status made his solicitation conviction a "particularly serious crime."
The DHS motion came shortly after Lambda Legal and the HIV Law Project submitted a friend-of-the-court brief in the case, "In the Matter of Ramirez," asking the BIA to overturn the Immigration Judge's ruling, arguing that contracting HIV through oral sex is extremely rare, if not impossible absent extenuating circumstances.
"This is great news and an important step by a government agency in recognizing and correcting commonly-held misconceptions about the transmissibility of HIV," Lambda Legal HIV Project director Scott Schoettes said. "More importantly, this is a wonderful outcome for Mr. Ramirez, whose HIV status will not be used as an excuse to compel his return to a place where he has been abused and persecuted."
"This is a welcome reprieve for Jose Luis," said Munmeeth K. Soni of the Public Law Center, who directly represented Ramirez in his appeal. "And it highlights the importance of ensuring an immigration court is provided with accurate and up-to-date information before making what may literally be a 'life-or-death' decision for the person before it."
Jose Luis Ramirez is a gay immigrant living with HIV who in 2006 qualified for withholding of removal under the Immigration and Nationality Act because of the repeated abuse he suffered at the hands of police officers in Mexico.
In 2009, Ramirez became homeless when the nonprofit organization for which he worked went bankrupt and his long-term relationship ended. He was arrested and charged with solicitation after agreeing to perform oral sex on an undercover police officer in exchange for money.
In 2012, the U.S. Department of Homeland Security (DHS) sought to terminate his withholding of removal, alleging that Ramirez's HIV status elevated his solicitation conviction to the level of a "particularly serious crime." Notwithstanding the undercover officer's admission that Ramirez had agreed to use condoms, and Ramirez's assertion that he planned to inform the officer of his HIV status before performing oral sex, the immigration judge terminated the withholding of removal order.
"DHS' motion represents a long-overdue adjustment of attitudes regarding the responsibility for preventing HIV transmission," said Cristina Velez of the HIV Law Project. "It is high-time for the State of California to repeal the statute that mandates the HIV testing of those convicted of solicitation or prostitution - and then elevates any future conviction from a misdemeanor to a felony if the person is HIV-positive."
The Lambda Legal/HIV Law Project authored brief - which was submitted on behalf of the American Academy of HIV Medicine, the Association of Nurses in AIDS Care, GLMA: Health Professionals Advancing LGBT Equality (formerly the Gay & Lesbian Medical Association), the L.A. Gay & Lesbian Center, the National Alliance of State and Territorial AIDS Directors, and the San Francisco AIDS Foundation - cited a number of studies concluding that there have been no documented cases of HIV transmission as a result of an HIV-positive person performing oral sex and demonstrating the highly unlikely occurrence of such a transmission.
The brief also argued that the Immigration Judge overestimated the lethality of HIV, which is more and more considered a chronic, manageable condition for people who learn of their status in a timely fashion and are provided with access to quality care and treatment.
Read the motion HERE.
Read the decision HERE.
The case is "In the Matter of Ramirez." Ramirez is represented by Munmeeth K. Soni of the Public Law Center, which provides pro bono legal representation to low-income residents of Orange County. The amicus brief was authored by Lambda Legal HIV Project director Scott A. Schoettes, and co-authored by Alison Yager and Cristina Velez of the HIV Law Project.