By Arthur S. Leonard
Finding that learning that one is HIV-positive is "a changed circumstance materially" affecting asylum eligibility, the U.S. Board of Immigration Appeals, an administrative tribunal within the U.S. Department of Justice, reversed an immigration judge's decision to deny asylum to a gay, HIV-positive man who failed to file his asylum petition within one year of arriving in the U.S. as required by law.
The board's July 14 decision is unpublished. Paul O'Dwyer, the man's lawyer, circulated it to colleagues with the man's name and country of origin redacted. The decision granted the man's asylum application.
Immigration law sets a one-year deadline for asylum applications unless a change in circumstances "materially affecting" the person's eligibility justifies extending the time. Eligibility is based on a reasonable fear of official persecution if the applicant is returned to his country of origin. The applicant first filed for asylum based on his sexual orientation arguing that he belonged to a "particular social group," gay men, who are persecuted in his home country. His application was filed more than a year after arriving in the United States. After filing his petition, he learned that he was HIV-positive and amended his petition saying he would be persecuted for being HIV-positive if he was returned home.
An immigration judge concluded that he was likely to be persecuted for his sexual orientation and his HIV status in his home country, but because he filed late he could not qualify for asylum. The judge also concluded that he met a higher standard for a form of relief called withholding of deportation and ordered such relief. That guarantees the man's right to remain in the United States, but not a right to a green card and eventual citizenship.
The board rejected the judge's analysis on timeliness, writing:
"We disagree with the Immigration Judge's determination that…his discovery of his HIV positive status…would not qualify as a change in the respondent's circumstances that materially affected his eligibility for asylum. We find that it is a changed circumstance materially affecting his asylum eligibility. We therefore conclude that despite his arrival in the United States in 1998, the respondent should have been permitted to apply for asylum due to his discovery of his HIV status."The board wrote:
"In light of the Immigration Judge's unchallenged conclusion that the respondent had shown a likelihood of persecution on account of his HIV positive status, we find that the respondent also met the lower burden of proof required to establish eligibility for asylum, i.e., a well-founded fear of persecution on account of a ground protected under the Act."