Judge Allows Boy With HIV to Stay in U.S.

An HIV-positive preschooler from Thailand who was used as a pawn in a human trafficking ring won a court ruling Monday that will allow him to stay in the United States to battle deportation.

U.S. District Judge Dickran Tevrizian ruled that Phanupong Khaisri, 3, can remain here to appeal an Immigration and Naturalization Service ruling that rejected his asylum application.

“I’d be giving this kid a death sentence if I sent him back,” Tevrizian said. “I’m just not going to do that.”

In an aside that was not part of the ruling, the judge said he believed immigration officials should let the boy stay in the United States until he is 18 and decides for himself whether to return to Thailand. He is temporarily living with a social worker.

The ruling was a blow to the child’s grandparents, who adopted him in Thailand but have been characterized by American social service workers and Tevrizian as unsuitable guardians.

“It’s not the end,” said Dorothea P. Kraeger, an attorney representing the grandparents. “The fight will go on. He should be with his family.”

Kraeger plans to seek a hearing on the issue within 30 days.

The decision was the latest in a string of legal maneuverings that began in April 2000, when Phanupong, who is called Got, arrived at Los Angeles International Airport with two adults who used him as a decoy to smuggle a woman into the country.

The adults were returned to Thailand, but immigration officials were unsure what to do with Phanupong, who was then 2 and obviously physically ill.

Research turned up grim facts: Got’s mother was a drug-addicted prostitute who had rented the child to traffickers more than once, and whose family had sold her into prostitution at age 12. The child’s father had contracted HIV and committed suicide when Got was 8 months old.

Social services workers, who had been appointed as the child’s guardians by Tevrizian, revealed that the child had HIV and had been in the throes of the disease when he arrived.

Months after Got arrived, it also surfaced that his paternal grandmother, Sumalee Khaisri, had served 12 years in prison for trafficking in heroin.

Nonetheless, Thai government officials, for whom the case has become an international embarrassment, speedily processed adoption papers granting the grandparents custody of Got.

Kraeger said the grandmother was apparently pardoned. Officials from the Los Angeles-based Coalition to Abolish Slavery and Trafficking, the social service agency overseeing Got’s case, deny that, saying she was released from prison for good behavior.

“I’m not willing to turn over this child to . . . convicted drug dealers,” Tevrizian said Monday. “I don’t like it that this child is being used as a tennis ball between two countries.”

The Thai deputy consul general in Los Angeles, Nuttavudh Photisaro, said the government feels “sorry for the grandparents. We know how sad they are that they cannot take their grandchild back home. . . . We place our hope in another hearing.”

The grandparents, who have been in Los Angeles off and on for months, attended Monday’s hearing.

Got’s lawyer, Peter A. Schey, and officials of the anti-slavery group have argued that there is no safe home for Got in Thailand--no place where he could be protected from further trafficking or be assured of adequate medical care.

AIDS patients in Thailand face social ostracism and poor medical treatment, Immigration and Naturalization Service documents show.

Last July, Tevrizian issued a temporary injunction to prevent Got’s return to Thailand until his application for asylum could be processed.

The INS last month rejected that application, saying Got is not protected under asylum law because he was not harmed due to his race, religion, nationality, political opinion or membership in a particular social group.

The INS ruling acknowledged that Got was endangered because he is a child, but held that was an “overly broad” social group that could not be protected, INS documents show.

Despite immigration laws that allow asylum applicants to seek further review in such cases, the INS letter states, “There is no appeal from this decision.”

“We’re kind of astounded by the brazenness with which they [INS officials] are willing to circumvent the law in Phanupong’s case,” immigration attorney Schey said Monday.

Schey and Got’s caretakers plan to appeal the INS decision and seek permanent status for the boy via asylum or through a federal law that grants visas to victims of sex trafficking.

Each year, according to congressional estimates, as many as 50,000 people, mostly women and children, are brought into the United States for sex-trafficking purposes. Human rights advocates have long complained that innocent victims are often punished with deportation once the trafficking rings are broken up.

However, the INS has yet to formulate guidelines for the law, so the new visas are not yet available. “We are still in the process of developing the regulations for implementation,” said Bill Strassberger, an INS spokesman, who declined to comment on the case.

After the hearing, the social worker who is caring for the child, Chutima Vucharatavinara, said Got is happy and vivacious, having transformed from a terrified, scrawny toddler to a plump child in barely a year. He has grown more than six inches.

His viral load has dropped dramatically so the AIDS virus is no longer detectable in his system, said Hae Jung Cho of the support group, adding that an unidentified local family is prepared to adopt him if he is granted permanent residency in the United States.

After the hearing, Vucharatavinara choked back tears of relief, saying, “I want to say ‘Thank you’ to this country. They’re willing to bring justice for everyone in the world.”

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Times staff writer Patrick McDonnell and the Associated Press contributed to this story.