Washington Blade - June 1, 2009
Lou Chibbaro Jr.

"It has been determined that you are eligible for asylum in the United States," the U.S. Citizenship and Immigration Services informed D.C. resident Raul Hernandez in a May 26 letter.

"We're just elated and relieved that justice was finally done in this case," said Christopher Nugent, Hernandez's attorney.

Nugent, who disclosed the news about the asylum approval on Friday, said the favorable decision by the immigration agency marked the end of nearly a decade-long odyssey for the 40-year-old gay man, who first arrived in the U.S. in 2000. At that time, Hernandez intended to defect to the U.S. under a law passed by Congress in 1996 that provides an expedited process for admitting Cubans seeking to flee the Communist regime of Fidel Castro.

But after a lengthy application and appeal process, Hernandez, who initially settled in Arlington, Va., was turned down in 2005 for admission under the Cuban Adjustment Act because he's HIV positive.

U.S. immigration authorities informed him that the longstanding U.S. ban on HIV-positive visitors and immigrants would take precedent over the Cuban Adjustment Act, which normally provides an almost automatic approval process for Cuban immigrants. The Blade first reported on Hernandez's plight last month.

Last year, Congress repealed the law that put in place the HIV visitor and immigrant ban. However, the ban remains a part of a regulation carried out by the Department of Health and Human Services governing the admissibility of immigrants with potentially communicable diseases.

The Obama administration is currently taking steps to repeal the regulation, but the administrative process for removing it is not expected to be completed until late this year or early next year.

AIDS activists this week criticized the Obama administration for not moving fast enough to repeal the regulation after as many as 60 Canadians complained that they were subjected to burdensome and "humiliating" hurdles in their effort to enter the U.S. to attend an AIDS conference in Washington because of their HIV status.

U.S. officials said the Canadians were eligible to apply for a waiver that would allow them to enter the country. The AIDS advocacy group Housing Works said the Canadians claim the waiver application process involved overcoming a number of unnecessary hurdles, including traveling to a U.S. consular office in Ottawa and being forced to reveal details about their personal medical condition on a form and in an interview.

Nugent said because Hernandez couldn't benefit from the Cuban Adjustment Act, he had to assemble specific evidence to show that gay people and people with HIV are routinely subjected to discrimination, persecution and often are forced against their will to live in isolation centers created for people found to be HIV positive.

"Mr. Hernandez...established that there exists a pattern and practice of state-sponsored and condoned persecution of political dissidents, openly gay men, and people with HIV," Nugent wrote in a legal brief filed with the Citizenship and Immigrant Services office.

"These people are commonly quarantined in sanatoria, obviously in violation of their human rights, and/or sent to military prisons when considered dissidents," he said in the brief.

Spokespersons with the Cuban Interests Section office in Washington, which serves as an informal Cuban embassy, and with Cuban Mission to the United Nations in New York, did not respond to requests by the Blade for comment on the Hernandez case.

"This will bring real peace to his life," Nugent said Friday, in discussing Hernandez's reaction to the asylum status.

As someone approved for U.S. political asylum, Hernandez is eligible to apply for permanent U.S. residency status in one year.

He currently works as a caseworker assisting HIV patients at Washington's La Clinica Del Pueblo. He could not be immediately reached for comment.

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