HIV-Positive Mexican Immigrant Wins Battle to Stay in U.S.

HIV-positive Mexican immigrant Jose Luis Ramirez was released from custody last month after winning a six-month appeal with immigration courts that ruled his offer to perform oral sex for pay a “particularly serious crime” due to the fact that he had HIV. The judge had ordered that Ramirez be deported from California back to Mexico.

Lambda Legal and the HIV Law Project submitted a friend of the court brief in the case, which 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 that such a transmission was highly unlikely occurrence. The brief then asked the Board of Immigration Appeals to overturn the ruling.

After the brief was filed, the Department of Homeland Security retracted its argument that Ramirez's HIV status made his action a “particularly serious crime” and Immigration Appeals finally vacated the ruling last week.

“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,” said Lambda Legal HIV Project director Scott Schoettes.

In 2006, Ramirez had qualified for withholding of removal under the Immigration and Nationality Act. It is a status that gives an immigrant the right to remain in the U.S. and work legally; however, they will not be permitted to return once they leave the country. To Ramirez, this seemed like a dream come true. In Mexico, he had repeatedly suffered tremendous abuse by police officers, and he was starting to feel hopeful about life in America.

"This is a welcome reprieve for Jose Luis," said Public Law Center attorney Munmeeth K. Soni, who 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."

In 2009 the nonprofit organization Ramirez worked for went bankrupt, his long-term relationship ended, and he became homeless. These events forced him to engage in prostitution, knowing that he was HIV-positive. It was during this time that an undercover police officer offered to give Ramirez money in exchange for oral sex, an offer he accepted and was ultimately arrested for. Admissions from the officer would later show that Ramirez agreed to use a condom while performing oral sex, a fact that didn’t seem relevant during the court proceedings.

"DHS's 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."