I cannot get HIV treatment in my country. Can I get asylum in the U.S.?

How to prove asylum eligibility based on government failure to allow HIV treatment.

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Question

I am a citizen of Venezuela. I learned that I was HIV positive during a mandatory blood test at my company. They fired me after learning the results. I tried to get medical treatment but it wasn’t available to me. I am on medication in the U.S. to control my illness and see a therapist weekly. I am afraid I will die of AIDS if I return to Venezuela because I cannot get treatment there. Can I get asylum in the U.S.?

Answer

To get asylum in the United States, you must prove that you have suffered actual past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. A person living with HIV/AIDS is considered to be part of a particular social group because being HIV positive is a characteristic you cannot change (see Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)).

Being fired from a job, by itself, does not constitute past persecution. However, you can demonstrate a well-founded fear of future persecution by showing an Immigration Judge or Asylum Officer the following four things:

  • you possess a characteristic that a persecutor seeks to overcome
  • you demonstrate that the persecutor is aware that you possess the characteristic
  • you show that the persecutor is capable of persecuting you, and
  • you show that the persecutor is inclined to persecute you.

Your HIV status can be considered a characteristic that the Venezuelan government seeks to overcome by denying you access to the medications you need. This is true even if there are Venezuelan laws requiring that you be given medication. Whatever the actual law states, the fact that you have been denied the medicine and will most likely be denied medical treatment in the future is what’s important.

The fact that you asked for medical treatment proves that the persecutor is aware that you are HIV positive. Not treating you shows that the persecutor is capable of persecuting and inclined to persecute you.

When you file your asylum application, you should include, in addition to proof that you are HIV+ and proof of any treatment you are currently receiving, copies of articles and statistics about HIV cases in your country. These will help the judge or officer understand that there is little treatment available. Also try to include evidence that you would not be able to access to whatever treatment exists. You should also include country-conditions information about how Venezuelan society treats people who are HIV positive.

It is always a good idea to consult with an attorney experienced in asylum law before filing an application for asylum.

by: , J.D., LL.M.

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