APPLYING TORTURE AND ASYLUM PROTECTIONS TO PREVENT THE DEPORTATION OF PERSONS WITH HIV/AIDS

Christine Chiu, New York University School of Law

Abstract

Granting a foreign national with HIV/AIDS permission to remain in a country, whether temporarily or indefinitely, is a weighty decision. Faced with limited resources and often fervent public antagonism towards increased immigration, states must pick and choose whom to expel from its borders. This paper examines the extent to which HIV status is considered in determining whether a petitioner is eligible or even has a right to remain in a country. The analysis consists largely of a comparison of the asylum and torture protections afforded to petitioners with HIV/AIDS in the United States, Canada, and the European Court of Human Rights. The latter two jurisdictions have articulated two tests to provide torture protections in very limited circumstances to persons suffering from HIV/AIDS. This paper critiques these tests and proposes an alternative that seeks to balance policy considerations, humanitarian aims, and ease of implementation.