Venezuelan HIV+ man wins appeal, may still be a refugee: US court

Leonel Euro Ayala, from Venezuela, overstayed his visitor’s visa in the US and sought that he be able to stay as a refugee. Amazingly, an immigration judge (who had found Ayala to be credible) and then on appeal the Board of Immigration Appeals found that he was not a refugee. Ayala then appealed again. This time an appeals court held that there had been errors by the Board, and sent the matter back to the Board for rehearing.

Ayala’s is one of those harrowing cases that demonstrates why the Refugee Convention exists.

Ayala claimed that he identified as gay from an early age.

• In 1995, he learnt that he was HIV positive.
• In 2000, aged 30, after having been to a party he was outed to his family, who then rejected him (one can only guess that they did not know that he was HIV positive)
• In 2003 co-workers saw him at a gay pride march, and he was outed at work. He was harassed by his co-workers including being told by his supervisor that he would not be promoted again because he was gay and that homosexuals were “mentally deviated people”.
• In 2004 he resigned from work.
• His neighbour, who had influence with police,  hated his politics (Ayala was anti- Hugo Chavez) and his sexuality and beat him up, saying: “he did not want a queer living within the compounds of his living quarters”.
• In September 2004 he had travelled to the US for an 8 day holiday, but had not claimed asylum as “the situation was not as grave and my life was not in danger.”
• On International AIDS Day, 5 December 2004, after having participated in the march and waiting outside a nightclub for his friends, he was mugged by police, who beat him up and stole his wallet. Ayala demanded his wallet and money back and then:

The officers “told [him] to shut up because [he] was queer and they could apply the vagrancy laws.” Ayala “felt scared, very scared” and thought the officers “were going to kill” him. The officers put a hood over Ayala’s head and drove him around in their car. The officers eventually removed the hood and forced Ayala to perform oral sex on one of the officers. After they forced Ayala to perform oral sex, the officers drove to “a dark place” that resembled a “marketplace of some sort” and left Ayala there. They told Ayala that “if [he] presented any kind of denouncement or report they had [his] address,” and “[t]hey could incarcerate [him] or plant drugs in [his] house and that was all as a result of being queer.” Ayala never reported the incident because he feared that the officers would assault him again or fulfill their threats.

• On January 23, 2005, members of the Bolivarian Circles physically assaulted Ayala after he participated in a march to protest the Chavez government. Ayala testified that, during the march, he wore “a visor that had the slogan of the opposition” and “carried the slogan of the opposition.” When the march ended, Ayala took the train back to his neighborhood. Members of the Bolivarian Circles approached Ayala when they saw his visor, physically assaulted him, and called him “squallad” [a derogatory term about those opposed to Chavez] and “queer.” They took his mobile phone, injured the left side of his face, and caused him to bleed from his elbow. Ayala reported the incident to police officers in a nearby patrol car, but they refused to help him. The officers told Ayala “that’s what happened to all the squallad queers” and “[s]omething worse than that should’ve happened for being a member of the  opposition.

• Ayala then began receiving threatening phone calls. The callers identified themselves as members of the Bolivarian Circles, said they knew where Ayala lived, and told Ayala to “look out because [he] could end up with flies in [his] mouth one morning.” Ayala never reported the phone calls to the authorities because the police had mistreated him and he did not believe they would help him. Ayala decided to move to the United States soon after he began receiving the threatening calls.

• Ayala now lives in Miami, where he works for a communications company. He receives free health care from a government program at a hospital in Miami. Ayala testified that, although he was able to obtain HIV medications in Venezuela until 2001, Venezuela experienced a shortage of HIV medications after 2001. Ayala denied coming to the United States to obtain better health care, but he acknowledged that he would not have access to the same quality of health care in Venezuela.