Based on news of Andrew Sullivan getting arrested for possession of a small amount of marijuana on federal park property, I tweeted: “So, he’s HIV positive and now has been arrested on drug possession charges? And he still hasn’t been deported?” Have to hand it to my liberal friends on the medium; no sooner did that declaration come up did I get a few questions on my attitude towards the matter. Before those answers get swallowed in the Twitter aether, I place my thoughts here:

I don’t think that Andrew Sullivan should be deported because he has HIV. I think he should be deported (“removed” is the legal term now) because there are medical grounds of inadmissibility per current immigration law. He has openly declared his status as such, and lives as a vocal example of flouting immigration laws. However, that removal isn’t even the rule in this case. If he contracted HIV in this country after entering legally (which, due to his employment is a safe assumption), then the only time he becomes “inadmissible” is during the adjustment of status process. However, it is my personal opinion that those known to be inadmissible should be placed through the removal process, because if they were to be found that way in the future, they would face removal anyway. It’s a cold matter of expediting the process.

If he had HIV prior to entering this country and has no waiver of inadmissibility, then he should be removed. Without such a waiver, his entry would have been predicated on pretenses during the non-immigrant process (I assume he’s on a work visa). The knowledgable inclusion of falsehood during this process is a trigger to start the removal process.

This is not a matter of Sullivan’s hypocrisy, though it’s tempting to do make it so. Sullivan moved to have the case against him dismissed because if he paid the $125 “no conviction” fine, it would have been a documented criminal act. Page 3 of USCIS Form I-485 (pdf) asks two very tricky questions. Have you ever, in or outside the United States: (Q1-a) knowingly committed any crime of moral turpitude or a drug-related offense for which you have not been arrested? and (Q1-b): been arrested, cited, charged, indicted, fined or imprisoned for breaking or violating any law or ordinance, excluding traffic violations? These are questions he will have to answer honestly.

The only rationale for Sullivan’s plea for mercy is that he needs to have his hands clean in order to perjure himself when the time comes to face a USCIS officer. We all know he was arrested for possesson. It’s now a matter of public record. The only acceptable answer to Q1-a of USCIS form I-485 is “yes,” and that he and his lawyers need to present a case for ignoring that “yes.” It is patently disgusting that he would intimate the intent to lie. No lawyer may knowingly promulgate lies in court; they can not call upon someone whom they know will bear false witness. In this case, Sullivan and his lawyers are already telling the world that they intend to lie; it’s just harder for them to get away with it. “Flout” is not a word that even comes close to the kind of disgrace he and his lawyers intend to perpetrate upon the system. That said, I also believe that you can’t prosecute a shoplifter until he tries to leave the store and that you can’t nab Sullivan for whining about how hard it is to lie on whatever forms he’ll have to fill.

For all his faults, the main reason I want him to face the music is a tactical one: The law, on its face, may be well intended, but the implementation is a total ass. I agree with Dr. Joyner that in this particular case, an offense that faces a less serious punishment than speeding would be a de facto nail in the removal coffin. If he accepts the fine, answers “yes” to Q1-a and is found inadmissible for that reason, or if he is found inadmissible due to his HIV status, he has one chance to challenge it in court and win. That one decision can and most likely will affect immigration policy when it comes to HIV-positive people. It is one of two ways where changes in laws due to one person endure to serve others. This is justice not just for Sullivan, but for others like him. Without this process and challenge, all Sullivan is begging for is special treatment under the law. This case may be the one that can challenge a policy in court and win. Were the results not be in his favor, he can at least leave the country knowing that he tried to make his case about something greater than himself.