Though Congress passed the Cuban Adjustment Act to expedite the approval of Cubans seeking refuge in the United States, Raul Hernandez, a Cuban-born, HIV-positive gay man, was turned down in 2005 because of his HIV status, the Washington Blade reports. Last year, Congress repealed the U.S. law that bans HIV-positive visitors and immigrants, but it is still upheld by the Department of Health & Human Services (HHS).

According to HHS officials, the Obama administration is attempting to repeal the regulation, but the process may not be complete until later this year or early 2010. In the meantime, Hernandez, who lives in Arlington, Virginia, has opted to apply for U.S. political asylum—which is not influenced by HIV status—stating that he would face anti-gay persecution if he returned to Cuba.

“Mr. Hernandez…established that there exists a pattern and practice of state-sponsored and -condoned persecution of political dissidents, openly gay men and people with HIV,” said Christopher Nugent, Hernandez’s attorney, in one of his briefs.

In addition, Nugent insisted that his client has developed a resistance to several antiretroviral medications and may require a treatment regimen that is unavailable in the Caribbean island.