A plea for asylum by an HIV-positive transgender individual is providing a rare glimpse into the complexities of deportation cases and the harsh realities facing federal immigration detainees.
Wilfrido “Perla" Lopez-Roque, who is an undocumented Mexican immigrant, has been detained in the Santa Ana Jail since being caught last year by U.S. Immigration and Customs Enforcement or ICE at a freeway check in San Diego County.
Most undocumented immigrants detained by federal officials are immediately deported under a “voluntary removal” process that sends them back to their country of origin. Some, such as Lopez-Roque, request a judicial hearing for asylum. Her asylum petition triggered a legal battle challenging the government’s deportation attempt.
In court filings supporting her request for asylum, the 46-year-old claims to have fled to the United States 25 years ago after enduring horrific abuse because she was a gay man. She claims to have been abused by the mayor of her hometown of Michoaca'n and later gang-raped by police in Guadalajara.
During her time in the U.S., Lopez-Roque underwent feminizing therapies to live as a woman. Then in the 1990s, she discovered she was infected with HIV, the virus that causes AIDS.
Because of her lifestyle, she and her attorneys said, her deportation to Mexico could expose her to violence if not death, so they are seeking asylum for her.
“[Lopez-Roque] recognizes that her life in the United States has been far from perfect, but she has been able to live free from extreme sexual violence she endured in Mexico,” wrote Keren Zwick, an attorney for Lopez-Roque's from the National Immigrant Justice Center in Chicago, which assists immigration detainees.
Lopez-Roque has three convictions for prostitution in Los Angeles. That has prompted federal immigration attorneys to argue that her HIV infection and the potential of spreading the virus elevate her prostitution convictions to the level of a "particularly serious crime" for which the law says she can be deported.
Under current federal law, serious crimes include those involving violence, weapons or personal assaults such as rape.
In the prostitution cases, which occurred from the 1990s through 2007, undercover Los Angeles police observed Lopez-Roque talking or engaging in acts they construed as attempted prostitution, leading to the arrests, said Peter Perkowski, a Los Angeles attorney serving pro bono in her case.
But Perkowski and Lopez-Roque's other attorneys said there was no sex or exchange of fluids that could transmit HIV, so no serious crime occurred.
In one case, Lopez-Roque's attorney argued that she was forced into prostitution by a physically abusive pimp.
Zwick also said there must be a single crime that is serious for deportation. “You can’t assume prostitution per se is a serious crime,” Zwick said.
A Second Chance
In a rare victory for an ICE detainee, Lopez-Roque's case is scheduled to go before a federal immigration judge for a new hearing on Friday after a federal appeals board found a deportation ruling was issued in error earlier this year.
A three-judge panel of the federal Board of Immigration Appeals, a Virginia-based agency that reviews judges' immigration decisions nationally -- ruled on Aug. 7 that an immigration judge didn’t adequately examine case details before the first ruling.
“The immigration judge did not evaluate whether Lopez-Roque intentionally tried to spread HIV to partners,” noted the opinion written by appellate judge Robert Pauley.
An immigration judge must assess the details of Lopez-Roque's actions and the convictions, then write a new ruling, according to records.
“I think this was a very good win for our client, along with others who are HIV positive,” Zwick said.
'I Love My Life Here'
Perla said that at an early age she identified as a woman but in 1980 began living as one.
Reaching California, she had breast implants, took hormone medications and presented herself as a woman, including wishing to be called by a feminine pronoun.
She is detained in a section of a Santa Ana jail leased by ICE, where a wing is designated for certain gay and transgender detainees.
In an interview prior to the appellate ruling, Lopez-Roque said she hopes to be granted asylum to return to a transgender community in Hollywood where she has resided for years.
"I love my life here,” she says.
In an unexpected move last week, immigration officials also agreed to allow Lopez-Roque to be released on bail while the proceedings go forward. But so far she hasn’t been able to make the $6,000 bail from ICE’s facility.
ICE leases such jail space in two other Orange County jails and from local governments around the nation for its estimated 32,000 detainees.
Lopez-Roque and other ICE detainees have few rights and limited visitation. An estimated 85 percent don’t have attorneys. Privately, immigration attorneys estimate only about 15 percent of appellate immigration decisions nationally are won by detainees.
The 64-bed wing for gay and transgender detainees in Santa Ana is one of only two in ICE’s national system; the other in Texas. The wing, which typically is full, was created to protect gay and transgender males from abuse by other inmates.
A substantial but undisclosed number of the detainees at the Santa Ana ICE facility are HIV positive, attorneys and officials say. Those with HIV receive drugs that can combat the disease, although deaths do occur.
This summer, advocates and those who object to the criminalization of HIV infection championed Lopez-Roque's case nationally.
In July, the Center for HIV Law and Policy in New York and three other professional groups filed legal arguments with the immigration appellate board supporting Lopez-Roque. The other groups are: the National Alliance of State and Territorial AIDS Directors in Washington, D.C., the HIV Medicine Association in Virginia, and Bienestar, a support organization that previously assisted Perla.
“[Lopez-Roque’s] case is part of systemic HIV discrimination in immigration proceedings and the criminal justice system,” wrote Iván Espinoza-Madrigal, legal director of the Center for HIV Law and Policy center. “Having HIV should not convert disorderly conduct into a deportation-triggering felony.”
ICE officials have said they don’t comment on cases like Lopez-Roque's, because they are considered private. Officials couldn’t be reached on recent developments in the case because of the federal government shutdown.
The Fight For Asylum
While Lopez-Roque's attorneys won a new hearing on the serious crime issue, they were not successful with her request for asylum under the Convention Against Torture, which is intended to prevent deportation of individuals to homelands where they may face violence or death.
In an interview, Lopez-Roque shuddered at the thought of being sent back to Mexico, saying they kill people like her for sport. Her family has rejected her, giving her no support system in her native land, she said.
Federal immigration judges can waive deportation of individuals who can show they will be harmed upon return.
But the panel ruled that Lopez-Roque's case “did not meet the burden of proof” that “it was more likely than not” that she should would be harmed.
It also ruled that Lopez-Roque “did not establish that the government of Mexico acquiesces to mistreatment. The background evidence reveals that the government of Mexico has taken steps to prevent mistreatment,” the appellate panel wrote.
But continuing violence in Michoaca'n is such that the federal government’s control in villages like Villa Hermosa is questioned.
This past spring, for instance, Villa Hemosa has rocked by a mass killing of more than a dozen individuals, including the mayor.
Photos of police vehicles riddled with bullet holes, bodies hung from bridges and decapitated victims in Villa Hermosa can be found readily at news websites.
Lopez-Roque’s attorneys say they plan to continue to fight for asylum. Given the Aug. 7 opinion, Zwick said, “we have a decent chance."
Rex Dalton is a San Diego-based journalist who has worked for the San Diego Union-Tribune and the journal Nature. You can reach him directly at firstname.lastname@example.org.