Lambda Legal and the HIV Law Project Friday submitted a friend-of-the-court brief asking the Bureau of Immigration Appeals (BIA) to overturn an Immigration Judge’s ruling ordering the deportation of an HIV-positive immigrant convicted of solicitation for oral sex.
“The Immigration Judge relied on commonly-held misconceptions about the transmissibility of HIV and outdated notions regarding the consequences of an HIV diagnosis,” Lambda Legal HIV Project Director Scott Schoettes said. “As the risk of contracting HIV through oral sex is extremely low, solicitation for oral sex while HIV-positive does not make a person a danger to the community.”
The brief authored by Lambda Legal and the HIV Law Project concerns the case of Jose Luis Ramirez, 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.
Ramirez became homeless in 2009 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.
“A host of researchers, public health authorities, and epidemiological studies have determined that absent a number of extenuating circumstances, HIV transmission via oral sex is generally impossible, especially when the HIV-positive individual is the one performing oral sex,” said Cristina Velez of the HIV Law Project.
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 brief here.
The case is In the Matter of Ramirez. Ramirez is represented by Munmeeth Soni of the Public Law Center, which provides access to justice for 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.