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Gay Army chaplain struggles to save husband from deportation

ICE agents detain Honduran immigrant seeking marriage waiver

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Tim Brown, gay news, Washington Blade

U.S. Army Capt. Tim Brown, on right, is fighting the deportation of his husband, Sergio Avila-Rodriguez. (Photo courtesy the couple)

U.S. Army Capt. Tim Brown, who was awarded two Bronze Star Medals for two tours of duty in Afghanistan, currently serves as an Army chaplain at the Fort Bragg Army base in North Carolina.

Brown, 46, says he and his husband, Honduran immigrant Sergio Avila-Rodriguez, 24, were hopeful last Thursday that a scheduled visit to the U.S. Citizenship and Immigration Services office in Charlotte, N.C., would bring his husband one step closer to obtaining a marriage waiver.

Avila-Rodriguez had applied for the waiver last year in an effort to obtain permanent U.S. residence and to end his status as an illegal immigrant since the time his uncle first escorted him across the U.S. border from Mexico into Texas in 2002 when he was eight years old.

But according to Brown, the couple’s hopes were shattered, at least temporarily, during their May 10 visit to the Charlotte CIS office when agents with the U.S. Immigration and Customs Enforcement, known as ICE, took Avila-Rodriguez into custody.

While Brown was waiting in a nearby restaurant for what he thought would be a routine visit by his husband to assess the status of his marriage waiver application, the ICE agents told Avila-Rodriguez he was being taken to a detainment center in Georgia with plans in motion to deport him to Honduras, where he had not been since the age of 8.

Immigration officials released Avila-Rodriguez on Monday, May 14, pending a ruling on a motion his lawyer introduced on May 11 appealing a deportation order that the motion placed on hold but that could be reactivated if the motion is denied.

“I feel this was a setup,” Brown told the Washington Blade. “We went to the first marriage waiver interview a month ago,” said Brown, noting that he and an immigration attorney representing his husband went to the interview without Avila-Rodriguez at the advice of the attorney, Patrick Hatch.

Hatch told the Blade that as a precaution against potential efforts by ICE to detain immigrants in situations similar to the Avila-Rodriguez case, he routinely requests that his clients stay home while he goes to such meetings on behalf of his clients.

“So I and my husband’s attorney went in,” Brown said of the meeting last month. “And we were told they could not find Sergio’s file.”

Despite the missing file, the immigration officials agreed to make an exception and grant Avila-Rodriguez the marriage waiver, Brown said, adding, “They told us to come back again with Sergio” on May 10.

“The ICE agent told us then, ‘Do you think that I am going to detain and deport the spouse of a military officer?’” Brown said.

Attorney Hatch said based on the assurances by the immigration officials, including an ICE representative, he believed Avila-Rodriguez had cleared his main hurdle and the marriage waiver would be granted.

Brown said that when he and Avila-Rodriguez returned to the Charlotte immigration office on May 10 a guard at the entrance to the building told Brown he could not accompany Avila-Rodriguez to the meeting inside. Thinking this was a mere technicality for what would be a routine meeting to move forward with his husband’s marriage waiver application, Brown said he went to a nearby Starbucks to wait for Avila-Rodriguez to come out.

But he grew worried, he told the Blade, when he heard nothing from his husband for nearly four hours after the 9:30 a.m. meeting was scheduled to begin.

“Then I got a call from Sergio about 1:30,” said Brown. “He said they detained me and they are deporting me.”

Brown said he immediately called Hatch, who, along with other attorneys in his law firm, Hatch Rockers Immigration, tracked down the case and discovered the reason for ICE’s action. In a development that Avila-Rodriguez had long ago forgotten, Hatch learned from immigration officials that Avila-Rodriguez and his uncle were stopped at the U.S. border in 2002 and Avila-Rodriguez was ordered to return to a court in Harlingen, Texas, a short time later to deal with his illegal immigration status.

Hatch said he learned last week that Avila-Rodriguez’s uncle brought the then 8-year-old child to his parents’ home in North Carolina and never brought him back for the Texas court hearing. That prompted immigration officials in 2002 to issue a “removal order” against Avila-Rodriguez that remained in the U.S. immigration court system records for the next 16 years.

The immigration officials, including ICE agents, apparently could not find that record last month when Avila-Rodriguez was given tentative approval for his marriage waiver application. Hatch said that when they finally discovered it ICE revoked the approval of the marriage waiver.

Both Hatch and Brown said a further complicating factor was the fact that Avila-Rodriguez had been arrested in North Carolina on a misdemeanor drunk driving charge at the age of 21.

“We worked through every legal course of action to reconcile that,” said Brown, who noted that immigration officials had given preliminary approval for the marriage waiver last month despite the driving arrest.

Hatch, meanwhile, said he and his legal team worked on May 10 and 11 to file a motion to reopen the 2002 removal order case on grounds that Avila-Rodriguez was not properly notified of the hearing to which he failed to show up as an 8-year-old. According to Hatch, the filing of that motion placed an automatic stay on the deportation request initiated by ICE agents.

“He is still eligible for a marriage waiver and has a good chance for an approved waiver as the spouse of a U.S. military officer,” Hatch said.

Hatch said that Avila-Rodriguez’s status as an out gay man who’s in a same-sex marriage “should have no effect on the case.”

Pamela Wilson, a spokesperson for U.S. Citizenship and Immigration Services’ southern regional office, said the office is prohibited by law from commenting on pending cases.

Brown said he and Avila-Rodriguez first met about three years ago in Sanford, N.C., where the two lived. The couple married in January 2017 at a ceremony in Key West, Fla.

Brown has since come out publicly in the military and founded an LGBT advocacy organization called Get Out and Live, or GOaL, which he says advocates for LGBT equality and acceptance.

Hatch said Avila-Rodriguez is not eligible for the DACA program put in place under the Obama administration and which the Trump administration is attempting to rescind.

DACA allowed immigrants who entered the U.S. illegally as children to remain in the country and obtain a work permit for a two-year period that could be renewed. Although Trump issued a directive to end DACA, courts have placed a hold on discontinuing the program while efforts by supporters to block Trump from stopping the program are pending.

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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness

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Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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Activists concerned over removal of D.C. AIDS office executive

Dept. of Health declines to explain abrupt replacement of Kharfen

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annual AIDS report, gay news, Washington Blade
D.C. Department of Health Director Dr. LaQuandra Nesbitt abruptly dismissed Michael Kharfen from his position. (Photo via Linkedin)

The leaders of several local and national AIDS organizations have expressed concern over a decision by D.C. Department of Health Director Dr. LaQuandra Nesbitt to abruptly dismiss Michael Kharfen from his position since 2013 as Senior Deputy Director of the department’s HIV/AIDS, Hepatitis, Sexually Transmitted Disease and Tuberculosis Administration.

Under the leadership of Kharfen, who is gay, the Department of Health entity commonly referred to as HAHSTA has played a lead role in what AIDS advocacy organizations consider to be D.C.’s highly successful efforts in recent years to lower the rate of new HIV infections among city residents.

Alison Reeves, a spokesperson for Nesbitt, declined to give a reason for Kharfen’s termination, saying the DOH does not comment on “personnel matters.” Reeves said DOH official Dr. Anjali Talwalker has been named as interim Senior DOH Deputy Director for HAHSTA while a national search is being conducted for a permanent HAHSTA leader.

People who know Kharfen have said he has declined at this time to publicly comment on his departure from HAHSTA. He could not immediately be reached by the Blade for comment.

“Michael Kharfen’s departure is a real loss to HAHSTA, the D.C. community, and nationally,” said Paul Kawata, executive director of the D.C.-based National Minority AIDS Council. “It is important to remember that when Michael took over HAHSTA there were real challenges and concerns,” Kawata said.

“He transformed the agency and built strong relationships with local organizations and D.C.-based national organizations,” said Kawata. “His reasoned voice and ability to collaborate will be sorely missed.”

At least three sources familiar with HAHSTA, who spoke on condition of not being identified, have said reports have surfaced internally from DOH that director Nesbitt is planning to reorganize several DOH divisions, including HAHSTA.

The sources say people familiar with the reported reorganization expressed alarm that HAHSTA would be dismantled as a separate DOH entity, with AIDS-related programs operated by other DOH divisions.

“Some think she wants to use the funds earmarked for HAHSTA for other things,” said one of the sources. “She could be jeopardizing federal grant money for HIV and hepatitis,” the source said.

The Washington Blade raised questions surrounding Kharfen’s departure with John Falcicchio, the D.C. Deputy Mayor for Planning and Economic Development, who also serves as Mayor Muriel Bowser’s chief of staff, at a press conference on Monday on an unrelated topic. Falcicchio said he would try to arrange for mayoral spokesperson LaToya Foster to respond to the Blade’s questions about a possible DOH reorganization of HAHSTA and the issues surrounding Kharfen’s departure from DOH.

Neither Foster nor another mayoral spokesperson had responded as of late Tuesday.

“Michael Kharfen’s leaving D.C. government is a huge loss to the D.C. community and potentially puts at risk federal grants for HIV, sexually transmitted diseases, and hepatitis,” according to David Harvey, executive director for the D.C.-based National Coalition of STD Directors.

“If his departure is about a consolidation of agencies within DOH, then the community will be the loser,” Harvey said.

“We need HAHSTA to continue,” he said, adding, “The mayor should reverse this decision and reinstate Michael Kharfen.”

Sources familiar with the D.C. government’s personnel polices have said that Kharfen and other high-level officials holding positions such as that of a senior deputy director are considered “at will” employees who serve at the pleasure of the mayor and the agency head for whom they work. They can be removed for any reason or no reason, those familiar with the personnel policy say.

Before becoming the DOH Senior Deputy Director in charge of HAHSTA in 2013, Kharfen served from 2006 to 2013 as HAHSTA’s Bureau Chief for Partnerships, Capacity Building, and Community Outreach. Those who know Kharfen said in that role he is credited with working closely with a wide range of local and national organizations that provide services for people with HIV/AIDS as well as other public health organizations.

Among them is the D.C. Appleseed Center for Law & Justice, which has worked closely with HAHSTA and the DOH to develop, among other things, a plan to significantly curtail new HIV infections in the city by 2020.

Other groups working closely with Kharfen have been the Washington AIDS Partnership, the National Coalition of STD Directors, the Prevention Access Campaign, and the HIV-Hepatitis Policy Institute.

“Under Michael’s leadership, D.C. was instrumental in pioneering many new innovations in preventing and treating HIV that were later adopted by other jurisdictions,” said Carl Schmid, executive director of the D.C.-based HIV-Hepatitis Institute. “And if you look at the results, I think it demonstrates success,” Schmid said.

“I do not know any details of his departure, but I know he will be missed not only in D.C. but across the country,” Schmid told the Blade.

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Trans teacher, P.G. County schools face off in discrimination lawsuit

Officials deny charges of harassment, retaliation

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Jennifer Eller, gay news, Washington Blade
Jennifer Eller alleges the P.G. County school system subjected her to discrimination and harassment. (Photo courtesy of Lambda Legal)

Attorneys representing transgender former English teacher Jennifer Eller in a 2018 discrimination lawsuit against the Prince George’s County Public Schools and the county’s Board of Education filed a motion in federal court last week asking a judge to rule in support of Eller’s two main allegations against school officials.

The motion for partial summary judgment, filed on April 28 in U.S. District Court for the District of Maryland, calls on the court to affirm Eller’s charges that school officials acted illegally by failing to intervene when she was subjected to a hostile work environment for five years that included abuse and harassment by students, parents, fellow teachers and supervisors and retaliation by administrators.

The motion also calls on the court to affirm that Eller, 39, was forced to resign from her teaching job in 2017 because of the harassment and discriminatory action based on her gender and gender identity.

Eller’s motion for summary judgement, which calls for a ruling in her favor on the allegations, came one month after attorneys for the P.G. County Schools and the school board filed their own motion seeking summary judgment against all the allegations in Eller’s lawsuit. If U.S. Magistrate Judge Charles B. Day rules in favor of the school system’s motion, which court observers do not think will happen, it would result in the dismissal of the lawsuit.

The motion filed by Eller’s attorneys calls on the court to rule against the school system’s motion for summary judgment.

Court records show that the motions by the opposing sides in the case came after Magistrate Judge Day issued a March 26 directive requiring the two sides to attend a May 7 settlement conference in which an effort must be made to settle the case before it goes to trial.

Day’s directive, in the form of a letter to the attorneys, called for Eller and her attorneys to submit 10 business days in advance of the conference a “written demand” for what a settlement agreement should include. Day’s letter calls for P.G. school officials and their attorneys to submit five days in advance of the conference a “written offer” to Eller for what a settlement should consist of.

“For years, I was aggressively misgendered, attacked and harassed in the hallways and even in my own classroom by students, peers and supervisors,” Eller said in a statement released by the LGBTQ litigation group Lambda Legal, which, along with the D.C. law firm Arnold & Porter, is representing Eller.

“My pleas for help and for sensitivity training on LGBTQ issues for students and staff, were ignored,” Eller said. “The relentless harassment stripped me of the joy of teaching and forced me to resign,” said Eller. “It is time for Prince George’s County Public Schools to be held accountable.”

Eller charges in her lawsuit that the harassment and discriminatory action against her began in 2011 when she began presenting as female during the school year. The lawsuit says school officials initially responded to her complaints about the harassment by demanding that she stop dressing as a woman and return to wearing men’s clothes, which she refused to do.

The lawsuit says she was forced to resign from her teaching job in 2017 after being diagnosed with post-traumatic stress disorder due to the alleged abuse she faced on the job.

In addition to naming P.G. County Public Schools and the P.G. County Board of Education as defendants, the lawsuit also names as a defendant the school system’s CEO Monica Goldson.

The lawsuit charges that the school district and its administrators violated Title VII of the U.S. Civil Rights Act of 1964, Title IX of the U.S. Education Amendments of 1972, the Equal Protection Clause of the U.S. Constitution, the Maryland Fair Employment Practices Act, and the Prince George’s County nondiscrimination code.

In its official response to the lawsuit, attorneys for the school system denied Eller’s allegations and claimed the school system had in place nondiscrimination policies that covered gender identity and sexual orientation for school employees and students. The school system also states in its response that Eller may have failed to exhaust administrative remedies required prior to filing a lawsuit and that the lawsuit missed deadlines for certain legal claims.

It also says her legal claims may be disqualified because of her “voluntary resignation of employment,” an assertion disputed by Eller’s attorneys who say the resignation was forced by the abuse and harassment Eller faced on the job.

Her attorneys also point out that Eller filed a complaint against school officials in 2015 before the U.S. Equal Employment Opportunity Commission, which conducted an extensive investigation into Eller’s complaint. The attorneys note that in 2017 the EEOC issued a letter stating that there was “reasonable cause” to believe Eller had been subjected to unlawful treatment based on her sex and gender identity.

“After she filed this discrimination charge, the school administration retaliated against Ms. Eller by taking away her advanced placement English class and opening a disciplinary hearing against her that ended in no discipline,” the Lambda Legal statement says.

P.G. County school officials have declined requests from the Washington Blade for comment on Eller’s lawsuit, saying they have a policy of not commenting on pending litigation.

Among those expressing concern over the issues raised in the Eller lawsuit is College Park, Md., Mayor Patrick Wojahn, who is gay. College Park, which is home to the University of Maryland, is in Prince George’s County.

“It’s important for our county and for the entire community, especially for the kids, that the schools be places free of harassment and discrimination,” Wojahn said. “And if what Ms. Eller says is true, then it shows that the school system has fallen seriously short.”

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