Board of Immigration Appeals Grants Asylum to Gay, HIV-Positive Applicant

Finding that learning that one is HIV-positive is "a changed circumstance materially affecting his asylum eligibility," the U.S. Board of Immigration Appeals, an administrative tribunal within the U.S. Department of Justice, has reversed a decision by an Immigration Judge to deny asylum to a gay, HIV-positive man who had not filed his asylum petition within one year of arriving in the U.S., as normally required by the relevant statute.

The July 14, 2011, decision by the Board has not been published, but the attorney for the successful asylum applicant, Paul O'Dwyer, circulated copies of the opinion to some immigration lawyers with the applicant's name and country of origin blacked out to preserve his confidentiality.  O'Dwyer will provide copies upon request:  He has also posted the decision to the "recent postings" section of the American Immigration Lawyers' Association website:, where it is listed as AILA Doc. No. 11072631 (posted July 26).

The immigration statute provides that a person has a one-year deadline after arriving in the United States to apply for asylum, unless a change in circumstances "materially affecting" the person's eligibility for asylum would justify extending the time.  Eligibility for asylum is based on the applicants having a reasonable fear of official persecution if the applicant were required to return to his country of origin.  In this case, the applicant, a gay man, had filed for asylum based on his sexual orientation, arguing that he was a member of a "particular social group" of gay men who were subjected to persecution in his home country.  Unfortunately, he filed more than a year after arriving in the United States.  Shortly after filing his petition, he learned that he was HIV-positive and amended his asylum petition to argue that should he return to his home country, he would also be subjected to persecution for being HIV-positive. 

An Immigration Judge concluded that the applicant had shown that he was likely to be persecuted on account of both his sexual orientation and his HIV status in his home country, but that due to the late filing of his application, he could not qualify for asylum.  However, because the Immigration Judge found that such persecution would be "likely" to occur, thus meeting the higher standard for a form of relief called "withholding of deportation," the Judge ordered such relief, a status that would guarantee the applicant's right to remain in the United States, but not a right to a green card and eventual citizenship. 

The Board of Immigration Appeals rejected the Immigration Judge's analysis of the filing issue as to asylum, writing, "we disagree with the Immigration Judge's determination that, since the respondent had already submitted an asylum application . . . based upon a fear of persecution on account of his sexual orientation, 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."

"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," wrote the Board, "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."  Thus the Board ordered that asylum be granted to Mr. O'Dwyer's client.

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