BINATIONAL COUPLES: DEPORTATION DEFERRED FOR GAY HIV + MEXICAN MAN IN OHIO
http://www.lgirtf.org

When Steve Echols called the LGIRTF office last November, he was in a state of despair. His hope that his Mexican partner, Jesus Machado-Rios, would be able to remain in the US with him was beginning to seem more and more unrealistic. Jesus had been put into deportation proceedings and the two men could not afford to hire a lawyer. Luckily, LGIRTF was able to put Steve and Jesus in contact with Richard Herman, an experienced Cleveland immigration lawyer who is a member of LGIRTF's network of cooperating attorneys. Richard agreed to represent Jesus, who is fighting deportation to Mexico, free of charge.

Jesus came to the US from Mexico at the age of 16 and has been an undocumented resident for over 16 years. He met Steve at a disco in Dallas and, after a year of dating, they decided to move in together as long-term partners. Steve learned that Jesus was living in the US illegally and wanted to sponsor him to become a legal resident, but quickly realized that US immigration law would not allow this. In the absence of another solution, Jesus remained here illegally. Two years later, Jesus was arrested and charged with a misdemeanor by an undercover police officer. He believes he was targeted because he is Mexican and because he is gay. Following his arrest, Jesus' illegal immigration status came to the attention of the police and he was put into deportation proceedings. He spent three weeks in jail. "Jesus is HIV+," Steve explains. "They denied him his medicine. He lost 15 pounds in three weeks."

As if to add insult to injury, Jesus was later fined for the offense. During this period, Steve and Jesus retained several attorneys, all of whom provided them with advice that was inadequate and sometimes even erroneous. One attorney gave legal advice that was particularly misguided-he suggested that Jesus avoid deportation by entering into a "Green Card marriage" to an American woman. He could then apply, the attorney suggested, for suspension of deportation (a form of relief from deportation that existed until the 1996 immigration law came into effect) and become a legal resident.

When an immigrant is discovered by INS to have entered into a marriage solely for the purpose of obtaining immigration benefits, he or she may be deported and barred forever from returning to the US, and the individual he or she married faces a possible $250,000 fine and imprisonment. Wisely, Steve and Jesus commenced searching for another attorney.

Frustrated, the two men relocated to Ohio. There, too, they had difficulty finding information about immigration issues affecting gay men and people with HIV. With just a week to go until his case came before the court, Jesus' new attorney decided to cease representing him and claimed that gay people "had no right" to become US citizens. Then, when he saw from the results of an INS medical exam that Jesus was HIV+ (which he mistakenly believed would be a further obstacle to winning suspension of deportation), he suggested that Jesus and Steve "get lost" and did not even show up in court for the hearing. Steve had already paid $3,000 to the attorney and a further $5,000 for Jesus' bond. He threatened to report the attorney for his unprofessional advice. Despite the fact that he and Jesus were quickly running out of money, the couple was not prepared to abandon the fight for suspension of deportation.

Jesus appeared without legal counsel before a visiting Chicago judge at a court in Cleveland, who explained what needed to be done next and gave Jesus the necessary papers to file for suspension of deportation. Jesus collected supporting documentation, including character references from friends and co-workers at the Mexican restaurant in Dallas where he had worked for many years as a waiter. At this time, the record of a misdemeanor on file was not considered relevant to Jesus' case, but a subsequent change in the law meant that Jesus no longer qualified for suspension of deportation. Jesus' attorney back in Dallas told him that the misdemeanor could be expunged from Jesus' file and charged him a fee of $1700. This information was incorrect: the misdemeanor was not expungeable under any circumstances. The application for suspension of deportation was denied. Ten days remained until the next deportation hearing. Steve and Jesus were running out of hope; they knew of no other options that would enable Jesus to remain in the US. Money for further legal advice would be hard to come by; they had already borrowed from friends to pay the attorneys' bills.

Jesus works as a cashier in a grocery store. Steve, who is also HIV+ and has severe back trouble, is no longer working and is supported by disability social security. "We didn't know which way to turn", says Steve. "We were both so tired and stressed. Jesus' health was suffering. We were about to throw in the towel." Jesus adds, "I thought that they would send me back to Mexico. The people in the town where my family lives don't know I'm gay and I wouldn't feel safe there. I couldn't get my HIV treatment in Mexico. Everything I have is here in America."

Some friends with Internet access provided a serendipitous route to help. A desperate search on the Web resulted in a hit on the Lesbian and Gay Immigration Rights Task Force website. Steve recalls, "We had never heard of LGIRTF or any organization like that but when I found out about it, I immediately called the office and told them what had happened. They were fantastic."

LGIRTF urgently began to look for an attorney in the Columbus area who would be qualified to take Jesus' case. Meanwhile, Jesus came down with pneumonia and was hospitalized on the day of his deportation hearing with a visiting Detroit judge in Cleveland. Carrying a doctor's note, Steve went to the court alone and made an emotional plea to the judge for compassion. The judge suggested that Jesus might be able to apply for asylum. "Not one of the lawyers we had seen before had suggested asylum as an option," says Steve. There was some discussion in court that day about the law that required an asylum applicant to file within one year of arriving in the US. As Steve understood it, the Judge agreed to grant Jesus an exception from the one year filing deadline. A few days later, LGIRTF located Cleveland lawyer Richard Herman who had experience with sexual orientation-based asylum claims for clients from countries such as Belarus and Guatemala.

After hearing the story of Jesus' suffering and his terrible experiences with previous lawyers, Richard Herman felt strongly that this case was worth fighting, and agreed to represent him free of charge. Since then, Richard Herman has been working on the case with his associate, Vania Stefanova, who has been doing much of the litigation work. LGIRTF has assisted Herman and Stefanova by supplying expert information about conditions in Mexico for gay men and people with HIV, which could be presented as evidence in support of an asylum claim. This includes a note from a doctor explaining that for Jesus, being deported "would be a death warrant." LGIRTF also provided Steve and Jesus with information about the law and the process that they were facing. In April 1999, Jesus, who was by then out of hospital, appeared at a Master Calendar Hearing with the same visiting Detroit judge. Vania Stefanova was there to enter a request for asylum. At the hearing, however, there was confusion over whether the judge had actually agreed to grant an exception to the one year filing deadline. So once again, Jesus was at risk of deportation.

To proceed with a full asylum claim, Steve and Jesus would have to go through the difficult process of proving that their previous counsel had given them poor advice in order to win an exception to the filing deadline. This was something they preferred not to pursue. Instead, Vania Stefanova took the rare step of asking for "deferred action," meaning that Jesus would not actually be deported, but would be allowed to live and work in the US indefinitely.

The granting of deferred action is based on the presence of sympathetic factors including HIV+ status. The INS Trial Attorney supported the granting of deferred action and the case is now being considered by the District Director of the INS in Cleveland. If approved, it will be passed to the Regional Commissioner of the INS for consideration and final approval. Although Jesus' case is now administratively closed with the judge, Steve and Jesus have the right to re-open the case in the future if they decide to go through with the asylum application.

After so much confusion and uncertainty, Jesus and Steve finally feel that their case is in good hands and they stand the best chance they can hope for to remain together in the US. Jesus' hair, which fell out from the stress, has grown back, and he has returned to his job. As the couple awaits the outcome of their claim, Steve reflects, "There are a whole lot of gay people coming into the country who need help, who face racism and homophobia and find people in the system who don't understand gay immigration issues. I wish there were more lawyers who were prepared to take on cases like ours. We are so grateful to Richard Herman's office and LGIRTF."

Vania Stefanova is proud to have been involved in this case. "When people like Steve and Jesus, who want to do the right thing, have to suffer like this, I feel good about fighting for their rights."

 

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