In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2619
RIGOBERTO VELASQUEZ‐BANEGAS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A206‐157‐231.
____________________
ARGUED DECEMBER 1, 2016 — DECIDED JANUARY 19, 2017
____________________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The petitioner, a citizen of Hondu‐
ras, entered the United States in 2005—without being au‐
thorized to do so—when he was 38 years old. He is now 49,
still living in this country, still not authorized to live here. In
2014 the Department of Homeland Security began proceed‐
ings in the Immigration Court to have him removed from
this country (i.e., deported) to Honduras. He applied for
withholding of removal and also for protection under the
2 No. 15‐2619
Convention Against Torture, on the ground that he is highly
likely to be persecuted if returned to Honduras. The immi‐
gration judge denied both applications and ordered him re‐
moved. The Board of Immigration Appeals affirmed sum‐
marily, and he appeals to us.
In 2007 he discovered that he was HIV positive. HIV,
short for human immunodeficiency virus, is treatable, but
often progresses to AIDS—acquired immunodeficiency syn‐
drome—a very serious, and though treatable often fatal,
condition. In the Immigration Court the petitioner argued
(and in our court continues to argue) that he is entitled to
remain in the United States because of acute danger that he
faces if returned to Honduras, danger resulting from the fact
that a great many Hondurans believe that AIDS is an afflic‐
tion of homosexuals (often it is, but not always, as so many
Hondurans believe), and also that any man with HIV is also
a homosexual. Most important, a great many Hondurans are
hostile—often violently so—to persons they believe to be
homosexual. And for cultural reasons related to Hondurans’
belief about these two diseases, the medical treatment of
both HIV and AIDS in Honduras is often deficient and often
invasive of privacy, though poor medical service is not itself
a form of persecution.
The petitioner testified without contradiction that
“straight” Hondurans tend not only to despise homosexuals
but also to perceive them as weaklings, and on both ac‐
counts to attack them physically. He presented evidence that
many suspected homosexuals have been killed in Honduras
out of sheer hatred and that the police often are complicit in,
or refuse to investigate, these crimes. He testified that he’s
not himself a homosexual but he reminds us (as we noted in
No. 15‐2619 3
the previous paragraph) that most Hondurans believe that
any man who has either AIDS or HIV is homosexual. He
fears that if returned to Honduras, as soon as he goes to a
hospital for treatment of his HIV he will be “outed” as a pre‐
sumed homosexual. And this is true, so far as appears,
whether it is a private or a government‐funded hospital—if
the latter, the “outing” of him by the hospital might well be
deemed explicit governmental persecution of presumed ho‐
mosexuals.
He points out that persecution that does not result in
death or serious bodily harm is still grounds for withholding
of removal. E.g., Stanojkova v. Holder, 645 F.3d 943, 948 (7th
Cir. 2011); Koval v. Gonzales, 418 F.3d 798, 805–06 (7th Cir.
2005). As we explained in Stanojkova,
Persecution involves … the use of significant physical
force against a person’s body, or the infliction of compara‐
ble physical harm without direct application of force (lock‐
ing a person in a cell and starving him would be an exam‐
ple), or nonphysical harm of equal gravity—that last quali‐
fication is important because refusing to allow a person to
practice his religion is a common form of persecution even
though the only harm it causes is psychological. Another
example of persecution that does not involve actual physi‐
cal contact is a credible threat to inflict grave physical
harm, as in pointing a gun at a person’s head and pulling
the trigger but unbeknownst to the victim the gun is not
loaded. The line between harassment and persecution is
the line between the nasty and the barbaric, or alternative‐
ly between wishing you were living in another country
and being so desperate that you flee without any assur‐
ance of being given refuge in any other country.
4 No. 15‐2619
Suspicion of the petitioner’s being homosexual will be
enhanced because, though now in his late forties, he has
never married. There has always been suspicion, even in the
United States, that a man who never marries may be homo‐
sexual or at least bisexual, meaning he’s sexually or romanti‐
cally attracted to both men and women. The suspicion does
not extend to heterosexual men who have such huge sexual
appetites that they are unwilling to tie themselves to one
woman, in marriage, but that is not our petitioner.
There is no suggestion that as a resident of the United
States all these years, albeit an unauthorized resident, the
petitioner has engaged in serious criminal conduct—his en‐
tire criminal record appears to be limited to a couple of mi‐
nor offenses that resulted in his being jailed for 15 days—or
has posed or poses any kind of threat to the nation’s health
or welfare. He is, in short, harmless, and we can’t under‐
stand the immigration judge’s failure to take that into ac‐
count in deciding whether to grant withholding of remov‐
al—also her failure to take into account the alarming and
pertinent fact that Honduras has the highest crime rate in the
western hemisphere. In fact, according to the U.N. Office on
Drugs and Crime, Honduras has the highest homicide rate in
the world—90.4 homicides per 100,000 people; the interna‐
tional average is 6.2 homicides per 100,000 people. U.N. Of‐
fice on Drugs and Crime, Global Study on Homicide 2013, pp.
12, 24 fig.1.5, www.unodc.org/documents/gsh/pdfs/2014_
GLOBAL_HOMICIDE_BOOK_web.pdf. This is a fact the
immigration judge and Board of Immigration Appeals
should have noted; neither did.
In fact the immigration judge made a hash of the record.
A highly qualified American Ph.D. professor of Latin Amer‐
No. 15‐2619 5
ican studies, Suyapa Portillo, who specializes in the LGBTQ
community (lesbian, gay, bisexual, transgender, and queer—
an acronym that covers the entire spectrum of homosexual
and related sexual orientations) in Honduras, testified as an
expert witness for the petitioner. In the last 12 years she’s
visited Honduras three to four times a year to conduct re‐
search. The immigration judge qualified Dr. Portillo to testi‐
fy as an expert witness regarding “the experience of LGBTQ
people in Honduras” and also of “HIV‐positive people” in
that country—overlapping groups, obviously—and having
been thus qualified Dr. Portillo testified that it’s very diffi‐
cult for people with HIV to find employment—employers
often require proof that an applicant does not have HIV. She
testified that since Honduras’s 2009 coup d’état (when the
Honduran Army, following orders from the Honduran Su‐
preme Court to oust President Manuel Zelaya, sent him into
exile), more than 200 LGBTQ people have been murdered
according to a pattern she thought indicated an “LGBT
cleansing,” in which transgendered women were murdered
with a single shot to the head and homosexual men tied up
and mutilated. Dr. Portillo believes that the police are com‐
plicit in the murders and that laws purporting to protect
LGBTQ people from assaults and murders are rarely en‐
forced.
The immigration judge did not question the accuracy of
Dr. Portillo’s testimony in the slightest, yet deemed it irrele‐
vant because it was “general”—it was about the LGBTQ
community and about the typical experiences of Hondurans
who have HIV rather than about the petitioner specifically.
But realistically the evidence is specific to the petitioner be‐
cause he fits the description of Hondurans who are at risk of
persecution as a result of being believed (accurately or not)
6 No. 15‐2619
to be homosexual. The immigration judge demanded evi‐
dence that he would be persecuted if returned to Honduras,
but failed to consider the feasibility of her demand. The peti‐
tioner left Honduras more than a decade ago; he’s hardly in
a position, living in the United States, to assess the particular
risk to him if he’s deported, as compared to the average HIV
sufferer in Honduras or even the average HIV sufferer in
Honduras who is middle‐aged yet has never married. See 8
U.S.C. §§ 1231(b)(3); 1158(b)(1)(B)(ii).
No matter; to be a member of a group that faces a high
probability of persecution in a foreign country is enough to
establish that he’s at risk of persecution if deported to that
country.
[I]n evaluating whether it is more likely than not that
the applicant’s life or freedom would be threatened in a
particular country on account of race, religion, nationality,
membership in a particular social group, or political opin‐
ion, the asylum officer or immigration judge shall not re‐
quire the applicant to provide evidence that he or she
would be singled out individually for such persecution if:
(i) The applicant establishes that in that country there is a
pattern or practice of persecution of a group of persons
similarly situated to the applicant on account of race, reli‐
gion, nationality, membership in a particular social group,
or political opinion; and (ii) The applicant establishes his
or her own inclusion in and identification with such group
of persons such that it is more likely than not that his or
her life or freedom would be threatened upon return to
that country.
8 C.F.R. § 1208.16(b)(2). That is an accurate description of
this case.
No. 15‐2619 7
It’s often said that an immigrant seeking withholding of
removal must prove that he or she is more likely than not to
suffer persecution if deported, see, e.g., INS v. Stevic, 467
U.S. 407, 424 (1984), and that belief may have informed the
immigration judge’s insistence on proof that the petitioner
will be persecuted if removed to Honduras. But in recent
opinions we’ve explained that the “more likely than not test”
should not be taken literally, for so taken it would mean that
an applicant for withholding of removal who had a 50.1 per‐
cent probability of being persecuted (killed, let’s say) if de‐
ported would be entitled to withholding of removal, but not
one who had only a 50 percent probability of being killed if
deported. Not only is this an absurd example of line draw‐
ing, but it assumes unrealistically that such statistics can be
computed. In fact “all that can be said responsibly on the ba‐
sis of actually obtainable information is that there is, or is
not, a substantial risk that a given alien will be tortured if
removed from the United States.” Rodriguez‐Molinero v.
Lynch, 808 F.3d 1134, 1135–36 (7th Cir. 2015). And therefore
it should be enough to entitle the applicant to withholding of
removal if there is a substantial, albeit unquantifiable, prob‐
ability that if deported he will be persecuted. And that is Ve‐
lasquez‐Banegas’s situation, given Dr. Portillo’s testimony—
testimony accepted in toto, we emphasize, by the immigra‐
tion judge. In the appendix to this opinion, we reprint, with
slight editing, pages 5 to 7 of the immigration judge’s opin‐
ion, which is where she summarizes Dr. Portillo’s testimo‐
ny—which, to repeat, she accepted in its entirety.
She accepted the petitioner’s evidence as well as Dr. Por‐
tillo’s, stating that “Having reviewed the [petitioner’s] testi‐
mony and documentary submissions, I find the [petitioner]
credible. His testimony is internally consistent and con‐
8 No. 15‐2619
sistent with his written statement. His testimony is also con‐
sistent with the other corroborative evidence in the record,
including medical records and affidavits in support of his
application.” What more could be required to justify grant‐
ing withholding of removal?
Dr. Portillo testified without contradiction that “people
with HIV are generally considered to be LGBTQ” and that
the petitioner would not “be able to hide his HIV status due
to a lack of confidentiality in hospitals and the likelihood
that [he] would run into someone he knew while seeking
treatment.” The immigration judge noted that other affida‐
vits in the record (one by a native citizen of Honduras and
another by a sociology professor who lived in Honduras for
two years), stated that it is a “common belief in Honduras”
that those with HIV are gay or lesbian, but this was not good
enough for her because the affidavits had “cite[d] no data,
reports, or examples.” But Dr. Portillo’s testimony that the
immigration judge had accepted as truthful was uncontradicted
evidence, from a qualified expert witness, that the petitioner
will in all likelihood be unable to hide his HIV status and as
such will be believed to be a homosexual and persecuted ac‐
cordingly. Indeed he could hide it only by not seeking medi‐
cal care for it, which would endanger his life.
In any event it was error for the immigration judge to
suggest that the petitioner would be safe if he kept secret his
HIV status. The law does not require people to hide charac‐
teristics like religion or sexual orientation, and medical con‐
ditions, such as being HIV positive. E.g., Muhur v. Ashcroft,
355 F.3d 958, 960–61 (7th Cir. 2004). The immigration judge
implies that the petitioner would be thought to be homosex‐
ual and for that reason persecuted unless he evaded his po‐
No. 15‐2619 9
tential tormentors by pretending to be a very different per‐
son from what he actually is—a middle‐aged HIV positive
bachelor in a culture in which, should those characteristics
be revealed, he would be in serious danger. The immigration
judge would have sized up the danger to Velasquez‐Banegas
differently had she assumed the petitioner would live open‐
ly. Suppose a person if removed to his country of origin
would be sure to be persecuted unless, by living in a cave, he
avoided all contact with other persons. The next step would
be to rule that no one can have a real fear of persecution be‐
cause if persecution looms he can avoid it by committing su‐
icide.
It’s true, as emphasized by the immigration judge, that
the petitioner if deported will be returning to the region
(Comayagua, also the name of the major city in the region)
where his parents and siblings live. The immigration judge
thought this would protect him from the heavy crime activi‐
ty in the region, because he would be associating mainly
with people who had known him all his life and would
know he was not a homosexual. But they and others would
know that he was HIV positive, which Hondurans consider
a badge of homosexuality; and they might conclude that he
had become a homosexual after leaving Honduras for the
United States, for Hondurans also tend to believe that homo‐
sexuality is a lifestyle choice rather than a person’s genetic
destiny.
The immigration judge failed even to mention the peti‐
tioner’s testimony that an imputation of homosexuality to
him is made more likely by his being middle‐aged yet never
married. This omission takes on a special irony given the
judge’s criticism of petitioner’s evidence as being too gen‐
10 No. 15‐2619
eral. Now maybe he could conceal his bachelor status, along
with his HIV status, but in Muhur v. Ashcroft, supra, 355 F.3d
at 960–61, we rejected the related proposition that “one is not
entitled to claim asylum on the basis of religious persecution
if (a big if, by the way) one can escape the notice of the per‐
secutors by concealing one’s religion.” We noted that “Chris‐
tians living in the Roman Empire before Constantine made
Christianity the empire’s official religion faced little risk of
being thrown to the lions if they practiced their religion in
secret; it doesn’t follow that Rome didn’t persecute Chris‐
tians, or that a Christian who failed to conceal his faith
would be punished for acting ‘unreasonably.’” Id. The law
does not take a life of stealth as its starting point.
The immigration judge thought the most severe harm
that could befall Velasquez‐Banegas in Honduras would be
inability to receive adequate medical care. But that proposi‐
tion was inconsistent with her crediting Dr. Portillo’s testi‐
mony (as she did), as was the judge’s further statement that
Velasquez‐Banegas “[had] not established that it [was] more
likely than not that people [would] perceive him as
LGBTQ”—though she had acknowledged that Dr. Portillo
had “testified and stated in her affidavit that people with
HIV are generally considered to be LGBTQ, which she at‐
tributes to a lack of information available to the public. She
also testified that she does not believe that the petitioner would be
able to hide his HIV status due to a lack of confidentiality in
hospitals and the likelihood that the petitioner would run
into someone he knew while seeking treatment. She also dis‐
cussed a personal experience where she was extorted by po‐
lice officers while on her way to a gay bar with friends who
were members of the LGBTQ community. Three other affi‐
davits in the record state generally that it is a common belief
No. 15‐2619 11
in Honduras that those with HIV are gay or lesbian, but cite
no data, reports, or examples. … However, this evidence is
insufficient to establish that the petitioner will likely have
homosexuality imputed to him in Honduras, as it [this evi‐
dence] is general in nature, lacks objective data, and is not
specific to the [petitioner].” What can the immigration judge
have meant by that last sentence? The evidence, which cer‐
tainly supports the proposition that Velasquez‐Banegas is
likely to have homosexuality imputed to him in Honduras if
he’s deported, is “general” because there is more than one
person in Honduras with HIV, and is specific to the petition‐
er because he fits the description of Hondurans at risk of
persecution because believed (accurately or not) to be homo‐
sexual. The judge also said, contradicting her crediting Dr.
Portillo’s testimony (see Appendix below), that Portillo’s tes‐
timony that people in Honduras are uninformed and there‐
fore tend to link homosexuality to HIV was not based on any
report or evidence. It was based on her testimony, which
was evidence—uncontradicted evidence!
We have noted repeatedly that remand may be warrant‐
ed when the agency overlooks key aspects of an asylum‐
seeker’s claim and might reach a different conclusion after
fuller evaluation of the record. See Chen v. Holder, 604 F.3d
324, 330 (7th Cir. 2010); Gomes v. Gonzales, 473 F.3d 746, 752
(7th Cir. 2007); Chitay–Pirir v. INS, 169 F.3d 1079, 1081 (7th
Cir. 1999). This is such a case. We therefore vacate the deci‐
sions of the Board and the immigration judge and remand
the case for reconsideration in light of the analysis in this
opinion.
12 No. 15‐2619
APPENDIX (QUOTED FROM THE IMMIGRATION JUDGE’S
OPINION)
Dr. Portillo testified that people with HIV, like the petitioner,
are particularly vulnerable in Honduras. It is very difficult for
such people to gain employment, because employers, particularly
in the factory industry, require potential employees to present
proof of a negative HIV test before being hired. Although this is
illegal in Honduras, many private companies continue the prac‐
tice with impunity.
Honduras has a socialized health care system, but those with
money often use private doctors because of their superior quality
and efficiency. She believes that private market care in Honduras
is very expensive. She testified that hospitals often run out of
medications, including HIV medication, which forces people to
resort to self‐medication or buying those medications in the pri‐
vate sector. She believes that the public health system’s problems
stem from a military coup in 2009, which led to increased debt
and corruption for the country. She testified that there are major
hospitals and non‐profit organizations who give medical care in
the big cities in Honduras, but those who live in rural areas have
to take a bus trip, often four to five hours long, to the city, where
they must wait hours at the clinic for care. Also, the buses often do
not run at night because of safety concerns. Dr. Portillo is not fa‐
miliar with the particular medications that HIV patients take, and
she has not studied or worked with doctors who treat patients
with HIV.
She described her research regarding HIV testing in San Pedro
Sula, Honduras, in 2006. She first went to a Red Cross clinic to be
tested for the virus, which cost five hundred Lempira, and took
two weeks to get results. She returned two weeks after her test to
receive her results, and the nurses at the clinic gave her the results
in front of everyone in the waiting room. She took a second HIV
test at an Evangelical Church organization. The intake form there
asked about sexual orientation, and she identified herself as bi‐
No. 15‐2619 13
sexual. While she was waiting for the results of the test, the clinic
displayed videos and pamphlets about God and abstinence out‐
side of marriage. After receiving her results, she was counseled on
God and family. She received no information about prevention or
what to do if she was HIV‐positive. Finally, she went to a LGBTQ
organization for testing, which she described as the ʺbest experi‐
ence.ʺ But such organizations are not funded on an ongoing basis
and she does not know whether the organization still exists. After
she received her results from all three clinics, she was given a card
displaying her results, presumably to present to potential employ‐
ers. She has not updated her research regarding current tests or
procedures for HIV testing in Honduras since 2006.
Dr. Portillo remained in San Pedro Sula, Honduras, for two
months after completing her HIV testing research before traveling
to other parts of the country. She was not physically harmed or
threatened during this time, though she did take daily precau‐
tions. However, five months later, she returned to San Pedro Sula
and went out to a gay bar with friends who were members of the
LGBTQ community. They were stopped by police for a driving
violation and harassed because of their gender identity. Dr. Portil‐
lo told the police officers that she was a US citizen and that this
behavior was inappropriate, which led to the police taking one of
her friends and telling the rest of the group to follow them. The
police led them to a dark area in the city, and demanded money in
exchange for releasing her friend, to which Dr. Portillo agreed.
She believes that she was extorted because of her claim to U.S. cit‐
izenship and the assumption that as such she carried money on
her.
She testified that many Hondurans directly link the HIV virus
to the LGBTQ community. She believes that this is the result of a
dearth of education both in the public school system and the pub‐
lic generally. Most HIV‐positive people she has interviewed in
Honduras are afraid to come out because they fear the reaction of
their family, friends, and community, and because they fear losing
14 No. 15‐2619
their jobs. She testified that she does not believe it is possible for
people to hide their HIV status in Honduras successfully because
the confidentiality laws for medical providers are different from
what they are in the United States, the cities are small, they may
run into people they know, and many are required to seek help
from LGBTQ organizations and may be seen there.
Dr. Portillo also discussed the homophobic nature of Hondu‐
ran society. Since 2009, more than 200 LGBTQ people have been
murdered, often in a particularly gruesome manner that she be‐
lieves indicates they were targeted due to their gender identity.
She testified that people defecated in front of the building of a
LGBTQ organization where she worked, and they also spray‐
painted the building. Those who work for such organizations take
precautions daily to avoid harassment. She also witnessed a large
protest in Honduras regarding the governmentʹs granting “non‐
profit status” to a LGBTQ group, which Ms. Portillo described as
the largest protest she has ever seen. She also believes the police
are complicit in the harassment, assault, and murder of members
of the LGBTQ community, and that they rarely conduct fair inves‐
tigations of such crimes. She discussed one case in which a
transgender person was assaulted, on camera, and the footage
showed police officers watching and laughing. Although the po‐
lice officers involved were taken off active duty for a period of
time, she does not believe they were prosecuted for any crimes.
According to Dr. Portillo, the Honduran constitution and
criminal code have provisions intended to protect members of the
LGBTQ community, but in practice these provisions are not used
to protect members of the LGBTQ community or to prosecute
those who discriminate or even physically assault or kill members
of the community. She cited an example in which two transgender
people ran for public office, and a well‐known church leader
made a derogatory televised speech encouraging the public to
vote against them. But despite evidence of discrimination against
No. 15‐2619 15
them, the two individuals had their lawsuit dismissed for lack of
evidence.
16 No. 15‐2619
RIPPLE, Circuit Judge, dissenting. I sincerely regret that I
cannot join my esteemed colleagues in their disposition of this
petition.
I cannot accept my colleagues’ view that the immigration
judge “made a hash of the record.” Majority Op. at 4. The rec‐
ord in this case contains evidence supportive of the position
of Mr. Velasquez‐Banegas and evidence supportive of the po‐
sition of the Government. The immigration judge carefully
evaluated the entire record and determined that Mr. Ve‐
lasquez‐Banegas had not carried his burden of demonstrat‐
ing, by a preponderance of the evidence, that he would be
subject to persecution or torture if he returns to his homeland.
Under well‐established principles of law, our role in review‐
ing the immigration judge’s decision is limited. We review le‐
gal conclusions de novo; however, we review factual determi‐
nations under “the deferential substantial evidence stand‐
ard.” Khan v. Holder, 766 F.3d 689, 695 (7th Cir. 2014); Mozdzen
v. Holder, 622 F.3d 680, 683 (7th Cir. 2010). We reverse “the
agency’s findings only if, viewing the record as a whole, a rea‐
sonable factfinder would be compelled to reach a contrary
conclusion.” Darinchuluun v. Lynch, 804 F.3d 1208, 1214 (7th
Cir. 2015) (citing 8 U.S.C. § 1252(b)(4)(B)); see also I.N.S. v.
Elias‐Zacarias, 502 U.S. 478, 481 (1992). Once we have deter‐
mined that this deferential standard has been met, we have
reached the limit of our authority. It is not within our ken to
order a new trial because we believe that the evidence better
supports a different conclusion.
Here, the substantial evidence test clearly has been met.
Following a hearing, the immigration judge denied relief, re‐
No. 15‐2619 17
jecting both Mr. Velasquez‐Banegas’s claim that he faced per‐
secution based on his imputed sexual orientation and his
claim that he would be persecuted because of his HIV status.
A.
The immigration judge first concluded that Mr. Ve‐
lasquez‐Banegas had not established that he was an imputed
member of the LGBTQ community and therefore would suf‐
fer the mistreatment frequently accorded to members of that
group. To support this conclusion, the immigration judge
pointed to five factors that undercut Mr. Velasquez‐Banegas’s
claim: (1) Mr. Velasquez‐Banegas was not gay and did not
plan to associate with the LGBTQ community in Honduras;
(2) Mr. Velasquez‐Banegas “testified that none of the three
people he knew with HIV in Honduras were homosexual, and
1
that neither he nor anyone else believed them to be” ;
(3) Mr. Velasquez‐Banegas likely would seek HIV treatment
at a hospital located four hours away in Tegucigalpa, reduc‐
ing the possibility that he would see someone he knew while
2
receiving treatment; (4) Mr. Velasquez‐Banegas would be re‐
turning to his hometown where he lived for thirty‐eight years
and many people who knew him before would still be living
there; and (5) neither the provided articles nor the country
conditions report stated that individuals who are
1 A.R. at 114. The Government concedes that this was an inaccurate por‐
trayal of Mr. Velasquez‐Banegas’s testimony. Government’s Br. 14 n.4.
Mr. Velasquez‐Banegas testified that he did not think these three people
were homosexual, but he was not aware of what others thought. A.R. at
170–74.
2 Id. at 114.
18 No. 15‐2619
HIV‐positive are assumed to be gay, although those docu‐
ments did discuss access to HIV healthcare, the stigma asso‐
ciated with being HIV‐positive, and the violence experienced
by members of the LGBTQ community.
Next, the immigration judge addressed Mr. Velasquez‐
Banegas’s claim that his HIV status was a protected social
group. The immigration judge determined that the social
group was cognizable and that Mr. Velasquez‐Banegas was a
member of this group. However, the immigration judge de‐
nied relief because Mr. Velasquez‐Banegas had not demon‐
strated that it was more likely than not that his “life or free‐
3
dom would be threatened” on account of his HIV status. The
“most severe harm” that Mr. Velasquez‐Banegas would face,
according to the immigration judge, was his inability to re‐
4
ceive medical care in Honduras. However, the immigration
judge concluded, and my colleagues do not challenge, that the
problem of inadequate medical care is not specific to those
with HIV.
Regarding relief under the Convention Against Torture,
the immigration judge found that Mr. Velasquez‐Banegas had
not established that it was more likely than not that he would
be perceived as gay, although the judge recognized that the
record reflects that LGBTQ people in Honduras experience
5
persecution and “possibly torture.” The immigration judge
added that lack of access to medical care and employment did
3 Id. at 115.
4 Id. at 116.
5 Id. at 116–17.
No. 15‐2619 19
not constitute torture. Based on these findings, the immigra‐
6
tion judge denied Mr. Velasquez‐Banegas’s petition.
Mr. Velasquez‐Banegas first asks us to review the deter‐
mination that his HIV status would not cause him to be per‐
ceived as gay. He claims that the Board disregarded relevant
evidence and also impermissibly reasoned that others would
not perceive Mr. Velasquez‐Banegas as gay so long as he did
7
not disclose his HIV status.
There can be no doubt that Mr. Velasquez‐Banegas pre‐
sented significant evidence that gay men in Honduras face
abuse, violence, and even death at the hands of the general
6 Mr. Velasquez‐Banegas appealed this decision to the Board of Immigra‐
tion Appeals (“the Board”). There, he argued that the immigration judge
erred in (1) finding that he would not be perceived as gay; (2) improperly
concluding that Mr. Velasquez‐Banegas could hide his HIV status; and
(3) discounting evidence as too generalized to support his claims. Finally,
he alleged that he had met his burden of proof for protection under the
Convention Against Torture.
On July 1, 2015, the Board adopted and affirmed the immigration judge’s
decision. Because the Board summarily affirmed the immigration judge’s
opinion, we base our review on the immigration judge’s analysis. Balogun
v. Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).
7 The Board has recognized explicitly that homosexuality qualifies as a
“particular social group.” Moab v. Gonzales, 500 F.3d 656, 661 n.2 (7th Cir.
2007). The immigration judge noted that imputation may or may not ap‐
ply to claims of membership in particular social groups. A.R. at 114. As‐
suming without deciding this issue, the immigration judge proceeded un‐
der the assumption that relief could be granted on this ground. Id. We
have held that a petitioner can state an imputed claim where he shows
that others will attribute a political opinion to him and will persecute him
on that basis. See Chen v. Holder, 604 F.3d 324, 332 (7th Cir. 2010).
20 No. 15‐2619
8
public, as well as at the hands of the police force. Indeed, the
immigration judge concluded that “LGBTQ individuals in
9
Honduras may face persecution, and possibly torture.” How‐
ever, the immigration judge also found that Mr. Velasquez‐
Banegas had not shown that he would be perceived as gay
based on his HIV‐positive status.
Mr. Velasquez‐Banegas submits that the immigration
judge erred by discounting evidence merely because it was
general in nature. Specifically, he claims that the immigration
judge “faulted the testimony and affidavits in the record for
only ‘generally’ stating that there is a ‘common belief in Hon‐
duras that those with HIV are gay or lesbian,’ and for citing
10
‘no data, reports, or examples.’” The relevant part of the im‐
migration judge’s opinion states:
The record also contains some evidence that
those with HIV are at times assumed to be a
member of the LGBTQ community, and the re‐
spondent expressed this fear in his testimony.
See Ex. 3. The respondent’s expert witness,
Ms. Portillo, testified and stated in her affidavit
that people with HIV are generally considered
to be LGBTQ, which she attributes to a lack of
information available to the public. She also tes‐
tified that she does not believe that the respond‐
ent would be able to hide his HIV status due to
a lack of confidentiality in hospitals and the
8 See, e.g., A.R. at 415–16, 486–87, 489, 521–24, 529–30, 537–46, 559.
9 Id. at 117.
10 Pet’r’s Br. 17 (quoting A.R. at 17).
No. 15‐2619 21
likelihood that the respondent would run into
someone he knew while seeking treatment. She
also discussed a personal experience where she
was extorted by police officers while on her way
to a gay bar with friends who were members of
the LGBTQ community. Three other affidavits
in the record state generally that it is a common
belief in Honduras that those with HIV are gay
or lesbian, but cite no data, reports, or examples.
See Ex. 3, Tabs B, E, and F.
However, this evidence is insufficient to es‐
tablish that the respondent will likely have ho‐
mosexuality imputed to him in Honduras, as it
is general in nature, lacks objective data, and is
not specific to the respondent.[11]
First, it is important to note that the immigration judge
considered the entire record, including “general” evidence.
The judge found the general evidence to be unpersuasive and
did not give very much weight to it. While Ms. Portillo, peti‐
tioner’s expert, had testified that people in Honduras are un‐
informed and therefore tend to link homosexuality to HIV,
the judge noted that this statement was not based on any re‐
port or evidence. Instead, the expert could only support a re‐
lated point; namely, that “there is considerable overlap be‐
12
tween the two groups.” Similarly, the country report only
11 A.R. at 114.
12 Id. at 398 (“Exhibit D”) (“To be precise, in 2005 UNAIDS estimated that
13% of men who have sex with men were living with AIDS. SHADOW
REPORT at page 5.”). The other evidence fell short for the same reason.
22 No. 15‐2619
supported the notion that the HIV/AIDS epidemic “is still
concentrated in high‐risk groups such as commercial sex
workers and their clients, men who have sex with men, [and]
13
prisoners … .” It did not expand on whether Hondurans
likely would assume that all HIV‐positive men shared a par‐
ticular sexual orientation. Indeed, the report could be inter‐
preted as cutting against this view. It listed “Vulnerable
Groups” as including “Men who Have Sex with Men,” as well
as “Sex workers,” “Prisoners,” “Women,” “Vulnerable
Youth,” “Orphans,” “Military,” “Migrant Groups and Mobile
Populations in Affected Regions,” and “Indigenous Groups
14
and Descendants of African Origin.” According to the coun‐
Exhibit E states “[p]ersecution extends to those individuals who are per‐
ceived as gay due to their HIV/AIDS status. The epidemic is concentrated
within gay men. As a result, HIV/AIDS is perceived to be a disease
‘caused’ by LGBT individuals. Heterosexual males who have HIV/AIDS
are often believed to be gay, and thus face the same risks of harm as gay
individuals. In turn, LGBT individuals are often thought to have
HIV/AIDS. As such, LGBT individuals and those with HIV/AIDS face per‐
secution based on both homophobia and AIDS‐phobia.” Id. at 415. The ex‐
hibit, however, cites no support for this conclusion. Similarly, Exhibit F
states “[t]he common myth surrounding those infected with HIV is that
the person is gay or they engaged in some homosexual activity,” but again
does not support this conclusion. Id. at 431. Most unpersuasively, Exhibit
B states “[i]n Honduras, there are a lot of people who link HIV to being
gay. I know that the two are not necessarily connected because I know that
Miguel was not gay, and I know that Rigoberto is not gay. But in my coun‐
try, a lot of people assume that the two things are linked together,” imme‐
diately after discussing a heterosexual man dying from AIDS and rumors
that he had infected another woman. Id. at 390.
13 Id. at 303.
14 Id. at 310–12.
No. 15‐2619 23
try report, all of these groups face an increased risk of expo‐
sure. It certainly was well within the discretion of the immi‐
gration judge to determine the weight that ought to be given
to particular evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii).
My colleagues also suggest that the immigration judge
committed legal error in requiring evidence more specific to
Mr. Velasquez‐Banegas. They take the view that it is enough
to be a member of a cognizable group that faces a high prob‐
ability of persecution. Majority Op. at 6 (citing 8 C.F.R.
§ 1208.16(b)(2)). It is true that the general rule is that member‐
ship in a cognizable social group whose members are exposed
to a high probability of persecution is sufficient to make out a
case for withholding of removal. But that general rule as‐
sumes that it has been established that the applicant is in fact
a member of the group. See 8 C.F.R. § 1208.16(b)(2)(ii). Here,
no one maintains that Mr. Velasquez‐Banegas is gay; in fact,
he vigorously denies that he is and has stated that he has no
plans to associate with the gay community, given his antipa‐
thy toward the group. His inclusion in the group therefore
depends on establishing an imputed identification with that
group, and, on that question, we already have acknowledged
the necessity to examine the surrounding circumstances that
might establish such an imputation, including the circum‐
stances of the particular case. See Chen v. Holder, 604 F.3d 324,
332–33 (7th Cir. 2010).
Mr. Velasquez‐Banegas seems to recognize the appropri‐
ateness of weighing evidence specific to him because he also
contends that the immigration judge erred in failing to con‐
24 No. 15‐2619
sider “one of the most important pieces of particularized evi‐
15
dence he offered.” Mr. Velasquez‐Banegas explained that, in
addition to being HIV‐positive, he has “never gotten mar‐
16
ried,” and currently is middle‐aged and single. He asserts
that this increases the particularized risk that others will as‐
sume he is gay once they learn he has HIV. He claims that
because the immigration judge did not cite specifically this
evidence in her opinion, her entire determination is void.
As I have noted earlier, the immigration judge did con‐
sider particularized evidence about Mr. Velasquez‐Banegas,
including that:
the respondent will be returning to a country,
and region, that he has lived in for thirty‐eight
out of his forty‐seven years of life. His parents
and siblings live in Comayagua, where he plans
to return, and it is likely that many people who
knew him before his departure from Honduras
are still living there, … . Thus, the respondent
will likely be living with people who have
known him for the majority of his life and are
unlikely to impute homosexuality to him,
should they find out he is HIV‐positive.[17]
While the immigration judge’s opinion may have been clearer
if it had stated that these findings directly overcame other
“particularized” evidence about Mr. Velasquez‐Banegas, in‐
cluding his age and marital status, that inference reasonably
15 Pet’r’s Br. 24–25 (emphasis in original).
16 A.R. at 174.
17 Id. at 114–15.
No. 15‐2619 25
can be made from the record, and hardly warrants upsetting
the immigration judge’s determination. Immigration judges
need only consider those issues presented and say enough for
us to conclude “that [they] ha[ve] heard and thought and not
merely reacted.” Solis‐Chavez v. Holder, 662 F.3d 462, 469 (7th
Cir. 2011) (internal quotation marks omitted).
Finally, Mr. Velasquez‐Banegas also contends that the im‐
migration judge impermissibly reasoned that others would
not perceive him as gay so long as he did not disclose his HIV
status. He argues that he has a right to be open about his con‐
18
dition. This is not an accurate characterization of the immi‐
gration judge’s opinion. The immigration judge concluded
that, because Mr. Velasquez‐Banegas likely would seek HIV
treatment at a hospital located four hours away from his
hometown, this “significantly decreases the odds that he
would run into someone he knows while seeking treat‐
19
ment.” Even if Mr. Velasquez‐Banegas chooses to be open
about his HIV status, he has not established that his HIV sta‐
tus will cause him to be perceived as gay. The fact that he may
choose to share his status does not alter this outcome.
18 See Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011) (describing the
inability to be open about membership in a protected group—their reli‐
gion—as a “common form of persecution”); Muhur v. Ashcroft, 355 F.3d
958, 960 (7th Cir. 2004) (rejecting argument that applicant should avoid
persecution by practicing religion covertly).
19 A.R. at 114.
26 No. 15‐2619
B.
The immigration judge also determined that Mr. Ve‐
lasquez‐Banegas had established his membership in the par‐
ticular social group of HIV‐positive men living in Honduras.
However, she then concluded that (1) he could not show a
nexus between any harm he may suffer through his member‐
ship in this group; and (2) the alleged economic and social
harm, including difficulty in procuring medical treatment
and obtaining employment, did not rise to the level of perse‐
cution.
Although the statute governing withholding of removal
does not define “persecution,” we have said that it “‘must rise
above mere harassment.’” Ciorba v. Ashcroft, 323 F.3d 539, 545
(7th Cir. 2003). More to the point, we have described persecu‐
tion as including “detention, arrest, interrogation, prosecu‐
tion, imprisonment, illegal searches, confiscation of property,
surveillance, beatings, or torture,” Toptchev v. I.N.S., 295 F.3d
714, 720 (7th Cir. 2002), behavior that threatens the same, and
“non‐life‐threatening behavior such as torture and economic
deprivation if the resulting conditions are sufficiently severe,”
Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (citing
Sayaxing v. I.N.S., 179 F.3d 515, 519 (7th Cir. 1999)). However,
“generalized conditions of hardship which affect entire pop‐
ulations do not rise to the level of persecution.” Id.; see also
Musabelliu v. Gonzales, 442 F.3d 991, 994 (7th Cir. 2006) (“Asy‐
20
lum is not a form of unemployment compensation.”).
20 Mr. Velasquez‐Banegas repeatedly cites reports showing that police of‐
ficers and private citizens have targeted LGBTQ individuals in Honduras.
No. 15‐2619 27
Mr. Velasquez‐Banegas claims that the immigration judge
ignored evidence related to the poor medical care and eco‐
nomic deprivation that HIV‐positive individuals face. Mr. Ve‐
lasquez‐Banegas also claims the immigration judge gave too
much weight to the fact that the Honduran government has
enacted laws prohibiting the discriminatory practices which
Mr. Velasquez‐Banegas fears.
Regarding potential economic deprivation, the immigra‐
tion judge acknowledged:
The record shows that the respondent will
face some harm in Honduras on account of his
HIV‐positive status, including employment dis‐
crimination, welfare discrimination, social
stigma, and difficulty obtaining medical treat‐
ment for HIV. See Ex. 3, Tabs G–O. The respond‐
ent’s expert witness, Ms. Portillo, testified that
those with HIV in Honduras are frequently de‐
nied employment opportunities, particularly in
the factory industry, as they are required to pro‐
vide proof that they do not have the virus before
being hired.[21]
Despite this evidence, the immigration judge determined that
Mr. Velasquez‐Banegas had not met his burden of establish‐
ing economically based persecution. The judge cited specific
evidence in making this finding, including that the Honduran
But, as noted above, Mr. Velasquez‐Banegas failed to connect his HIV sta‐
tus with imputed sexual orientation. We therefore cannot consider the
possibility of violence facing LBGTQ persons within the merits of his per‐
secution claim based solely on his HIV status.
21 Id. at 115.
28 No. 15‐2619
government has prohibited companies from denying or ter‐
minating employment due to HIV status. Additionally, the
immigration judge noted that Mr. Velasquez‐Banegas’s ex‐
pert, Ms. Portillo, only testified that the factory industry still
conducted HIV tests and “was not aware of other industries
22
in the country that refuse employment due to HIV status.”
The immigration judge found these deficiencies significant
because Mr. Velasquez‐Banegas did not have a history of fac‐
tory work. He had grown up on a ranch in Honduras, worked
23
on a horse ranch in Kentucky, and also worked on a tobacco
24
farm. The immigration judge therefore concluded that
Mr. Velasquez‐Banegas did not establish that he would be un‐
able to secure the type of employment that he would be most
25
likely to seek in Honduras.
Finally, the immigration judge determined that, although
Mr. Velasquez‐Banegas may experience difficulty obtaining
HIV treatment and medication, this difficulty was due to gen‐
eral country conditions that make it difficult for all Hondu‐
22 Id. at 116.
23 Id. at 377–79.
24 Id. at 382.
25 See, e.g., Medhin v. Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003) (petitioner’s
alleged loss of one job due to his ethnicity was at most, discrimination but
not persecution); Zalega v. I.N.S., 916 F.2d 1257, 1260 (7th Cir. 1990) (“Alt‐
hough [the petitioner] complained that he could not get a government job
commensurate with his education and training and that he could not ob‐
tain additional land to expand his fox farm, the economic disadvantage
[the petitioner] suffered was minor.”).
No. 15‐2619 29
rans to receive proper medical care. Additionally, the immi‐
gration judge noted “that the Honduran Government has
passed legislation that establishes the right to medical care for
26
people with HIV.” Honduras also has a socialized medical
system, low‐cost hospital care for those with HIV (in cities),
and “at least thirty[‐]seven” HIV treatment centers in the
27
country. The immigration judge was certainly entitled to
credit this evidence and come to the conclusion that any eco‐
nomic deprivation that Mr. Velasquez‐Banegas might en‐
counter would not rise to the level of persecution. I do not
understand my colleagues to disagree with that determina‐
tion.
Immigration cases always pose a special burden on United
States judges. As Jacques Maritain so eloquently put it: “We
are all wounded souls.” See Jacques Maritain, Réflexions sur
lʹAmerique 87–91 (1958). Every American, including every
United States judge, has a family memory that includes an‐
cestors who came from some place where life was not as good
as it is here. The DNA of our national character makes it very
difficult to tell an individual that he cannot enjoy the same
liberty, safety, and security that we enjoy. When the individ‐
ual suffers from a medical condition that cannot be treated as
well in the country to which he is returned, basic humanitar‐
ian values make the task even more difficult. No doubt, those
who must make necessary policy choices and those who must
enforce those choices feel, or should feel, that same angst. But
immigration must be regulated, and, in this Country, national
policy is set by Congress and enforced by the Executive. Our
26 A.R. at 116.
27 Id.
30 No. 15‐2619
own task as judges is limited. Because the immigration
judge’s determinations were supported by substantial evi‐
dence, I respectfully dissent.