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Cuban Man Denied American Asylum … Because He’s Got HIV

“Raul Hernandez, a gay man who defected from Cuba in 1993 to live in Brazil, had hoped to obtain permanent U.S. residency under the 1966 Cuban Adjustment Act after he arrived in 2000. Congress passed the Cold War-era act to provide an expedited and mostly automatic approval process for Cubans seeking refuge in the United States from Cuba’s Communist government, which U.S. officials and human rights advocates labeled as highly oppressive. But following a lengthy application and appeal process, Hernandez, 40, who lives in Arlington, Va., was turned down for admission under the Cuban Adjustment Act in 2005 because he’s HIV positive. U.S. immigration officials told him that the longstanding U.S. ban on HIV-positive visitors and immigrants — a part of U.S. law and regulation — would take precedent over the Cuban Adjustment Act.” [Blade]

On:           May 21, 2009
Tagged: , , , , , ,
    • Alec

      This must be President Obama’s fault. You forgot that part.

      May 21, 2009 at 3:42 pm · @ReplyReply to this comment ·
    • strumpetwindsock

      The outcome of this case may have been because he already lived in Brazil. Assuming he already had legal status there he would no longer qualify as a refugee.

      I know the U.S. and Canada signed a “third country” asylum agreement a few years ago which prevents someone already in one of our countries form applying for asylum in the other. I wouldn’t be surprised if that same policy applies to other countries as well.

      There is at least one case of a HIV positive Cuban refugee who was been granted asylum in the U.S. (this one is from 1999):

      HIV Infection isn’t a valid reason to refuse a refugee claim; the same is not true of an immigration application. Shitty deal, but I believe that’s how it is.

      May 21, 2009 at 4:09 pm · @ReplyReply to this comment ·
    • Chris

      You hardly hear about HIV anymore and even the gay community seems to be shying away on all the issues. Look at all the HIV exposure laws still on the books in every state. While I am HIV Negative, I seem to be in the minority on repealing the exposure laws. The ONLY thing these laws do is stigmatize people with HIV and Aids. There is no proof they have EVER HELPED in deterring people from spreading the virus. There have been no open protests of late about repealing these laws and that would be a first step in helping with this matter I feel. But I didn’t even know there was a US law banning immigration from HIV+ people, I had heard about other countries laws against HIV persons immigrating or even visiting some countries, but I didn’t know we had it here. That is a real shame and something needs to be done about it. I hope enough people involve themselves on this matter so this guy could immigrate just as he would be able to do if he were negative. I wonder how much his also being GAY has to do with the open prejudice against him? Lambda legal should volunteer their services on something as important as this.

      May 21, 2009 at 4:19 pm · @ReplyReply to this comment ·
    • Aaron

      @Chris: Yup. I use to work in immigration law and one of the requirements when applying for a green card is an extensive medical exam that tests for everything. I think the reasoning behind it is that they don’t want you to immigrate here with your medical condition and then use up medical resources that could be going to a natural born citizen. You have to show that you won’t be a burden on the country.

      May 21, 2009 at 5:00 pm · @ReplyReply to this comment ·
    • InExile

      The Bush administration lifted the ban on HIV positive travelers to the US but never put the law into effect. And of coarse the Obama administration has been in no hurry to lift the the ban because lifting the ban would amount to lifting a law written by Senator Jesse Helms just to discriminate against gay people. And as we all know the Obama administration is in no hurry to help gays!

      Read all about the HIV ban at:


      May 21, 2009 at 5:13 pm · @ReplyReply to this comment ·
    • InExile

      Latest Update On The Ban fron immigrationequality.org

      Depite high hopes that the HIV ban would be fully lifted by the end of the Bush administration, unfortunately, we are still waiting for the regulatory change necessary to lift the ban. The 2008 accomplishment — removing the statutory HIV ban from the Immigration and Nationality Act — was huge, and we all know that it is now just a matter of time for the Department of Health and Human Services (“HHS”) to complete the lifting of the ban.

      The next step in the process is for HHS to issue proposed regulations which will state the agency’s intention to remove HIV from its list of “communicable diseases of public health significance.” There will then be a period of time during which the public can submit comments, and then, probably 60 days later, HHS will issue a final rule.

      Meanwhile, Immigration Equality is continuing to work in coalition with other immigration, public heatlh, and HIV/AIDS organizations to pressure the new administration on this issue. Since HHS does not yet have a new Secretary, on February 11, 2009, we sent President Obama a letter that was signed by 152 organizations, urging him to take swift action to lift the HIV ban. As soon as we receive a response, we will post it on our webstie.

      Despite the incredible achievement of removing the HIV ban from the statute, our work will not be done until the regulation is amended and foreign nationals with HIV can travel and immigrate freely to the U.S. Until that happens, unfortunately, foreign nationals living with HIV must still obtain waivers to enter the U.S.

      May 21, 2009 at 5:21 pm · @ReplyReply to this comment ·
    • GPW

      @InExile: So what you are saying is that currently even foreign tourists cannot enter the US legally without obtaining some special waiver? Is that true?

      May 21, 2009 at 5:39 pm · @ReplyReply to this comment ·
    • InExile

      @GPW: YES

      May 21, 2009 at 5:44 pm · @ReplyReply to this comment ·
    • InExile

      @GPW: In fact is goes even further than that. Currently it is easy for heterosexual couples to get the waiver but not easy for gay men!

      You would think this would be a priority for the democrats wouldn’t you???

      May 21, 2009 at 5:46 pm · @ReplyReply to this comment ·
    • GPW


      “You would think this would be a priority for the democrats wouldn’t you???”

      yeah just like DOMA, DADT, ENDA, etc, etc. BIG PRIORTY!

      May 21, 2009 at 5:53 pm · @ReplyReply to this comment ·
    • InExile

      @GPW: They got out money, our time, and our votes, and now they are done with us!

      May 21, 2009 at 6:00 pm · @ReplyReply to this comment ·
    • Bill Perdue

      @Alec: You’re right. It isn’t just Obama’s fault.

      He doesn’t operate in a vacuum. He’s answerable to one of the two anti-LGBT, immigrant bashing parties that dominate US politics by using anti-democratic laws to exclude the left from electoral politics. One of them, the Democrats, is the party that Alec toadies for.

      That’s not to say that Obama is without blame. His campaign hinged on pandering to bigots. He shot down our chances to retain same sex marriage rights in California almost single handedly when the he said “gawd’s in the mix”, knowing full well it would be used by his bigot pals like Warren. His administrations adopted a chilling hostility to our agenda, trying to postpone it until the next election cycle and beyond.

      The record of the US and it’s border agency ICE towards people with HIV/AIDS is criminal. People have died in detention centers without meds or medical care awaiting deportation. That’s the ultimate result of the immigrant bashing, anti-GLBT bigotry so common in the Republican and Democratic parties.

      We need to push for the repeal of anti-immigrant laws and for a policy that criminalizes discrimination in immigration practices based on HIV status and sexual identity. We also need to push the Obama Administration to declare that the US has an arms wide open policy of guaranteed for LGBT folks facing incarceration, torture and death because of homophobic policies in their homelands.

      May 21, 2009 at 6:19 pm · @ReplyReply to this comment ·
    • Chris

      I just hope that Obama doesn’t turn out to be as homophobic as the right wing christian fundies he so wants to please. So far he hasn’t spoken a single word, NOTHING in support of a single LGBT issue. Its as bad as the Regan administration not wanting to publicly acknowledge HIV and AIDS in the 80’s. Obama seems too scared to come out publicly in favor of anything LGBT, hell he can’t even acknowledge a congratulatory reply to those states recently adopting gay marriage.

      May 21, 2009 at 6:37 pm · @ReplyReply to this comment ·
    • InExile

      @Chris: It’s called bigotry!

      May 21, 2009 at 7:24 pm · @ReplyReply to this comment ·
    • schlukitz


      And cowardice!

      May 21, 2009 at 8:24 pm · @ReplyReply to this comment ·
    • Nick

      As bad a Reagan? If Obama has done nothing or said nothing w/r/t to gay rights six years from now I’ll (perhaps) grant you that comparison. Until then please can the hyperbole.

      May 21, 2009 at 8:40 pm · @ReplyReply to this comment ·
    • Alec

      @Nick: They can’t. President Obama is the sum of all evil in the world.

      I guess we know where the 30% or so of gay men and lesbians who didn’t vote for him blog.

      May 21, 2009 at 11:51 pm · @ReplyReply to this comment ·
    • Bill Perdue

      @Nick: @Alec: These comments are examples of the politics of failure junkies, those who continue to support the Democrat and Republican parties or Obama personally despite their long record of bigotry, betrayal and periodically driving the bus over us.

      The responses of Democrats to criticism of Obama fall into several categories:

      I. He’s a savior and you’re crucifying him. Poor, poor Obama. (Alec)

      II. Give him a few years. Seven years. Then we’ll see. Maybe. (Nick)

      III. Let’s not push him into a corner and make him choose between us and the bigots. We know how that’ll go.

      IV. Bus? What Bus? I didn’t see any bus.

      V. We’re being tested to see if we’re worthy.

      VI. I can read Obama’s mind and I know, deep in my heart, that he loves us.

      VII. This is all a Republican plot to embarrass the best little President in the whole wide world.

      VIII. He’s too busy turning the recession into a depression and committing mass murder from Palestine to Pakistan to be bothered by such un-American things as equality and human rights.

      May 22, 2009 at 2:27 am · @ReplyReply to this comment ·

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