LGBTQIA+ people from around the world who come to the U.S. Southern border seeking safety from escalating discrimination and violence are now met with an impossible new system that denies us our human rights. Under Title 42, we struggled to find pathways from persecution in our home countries. When it was lifted on May 11, Biden replaced it with an asylum ban that forces us to stay in unsafe conditions while we try, and fail, to make an appointment on an app that does not work.
A gay asylum seeker myself, I experienced first-hand the challenges of proving my worthiness of protection under Title 42. Homosexuality is criminalized in a third of the world’s countries, forcing LGBTQIA+ people to face violence, harassment and discrimination, sometimes from our own government authorities. The Title 42 policy launched at the beginning of the COVID emergency prevented us from making an asylum case properly, leaving us in a state of vulnerability and without the protection we desperately needed. We faced increasing risks as we navigated detention or processing centers and were forced to return to countries where our lives were in danger.
I am now the client services manager at Lawyers for Good Government’s Project Corazon, where we coordinate legal services for thousands of LGBTQIA+ people fleeing danger, like I once did. Every day, I see how Biden’s new asylum ban makes pleading such claims nearly impossible. One of our clients, Mario, poses the perfect example.
Mario, a gender non-conforming Guatemalan asylum seeker from the Maya Qʼeqchiʼ community, carries on their late father’s legacy as a traditional herbal medicine expert and human rights advocate. In March 2022, they organized peaceful protests against the country’s homophobic “protection of life and family” bill, which was later passed by the Guatemalan Congress. However, their involvement led to persecution and torture by government-affiliated leaders, who accused them of witchcraft. Expelled from their community under indigenous “laws,” Mario sought refuge within Guatemala but faced ongoing persecution. Surviving two firearm assassination attempts, they fled to the United States’ Southern border to seek asylum.
Arriving at the Matamoros-Brownsville International Bridge, Mario exercised their rights under international law to express their intent to seek asylum directly to a Customs and Border Control asylum officer, the proper process before the U.S. government introduced the notoriously glitchy CBP One app earlier this year. Introduced to create an “orderly” means of arguing an exemption to Title 42, the app instead created yet another barrier to accessing asylum. Instead of accepting their declaration, the officer instructed them to use the app to make an appointment wherein they would check a box claiming they were exempt from the Title 42 public health emergency, and receive an appointment to tell their story and hopefully receive parole so they could begin the asylum process.
Mario managed to get access to a smartphone, but their limited literacy and unfamiliarity with technology posed challenges. The app failed to recognize their darker complexion during the photo capture process, as it did with numerous asylum seekers. Still, Mario did not give up: They struggled to secure an appointment every day, fearing their inability to verify their identity or meet the app’s listed vulnerabilities would hinder their right to request asylum. After 90 days of unsuccessful attempts and increasing dangers in Matamoros, they finally could not wait any longer and chose to instead risk crossing the hazardous river near the International Bridge to enter the U.S. They were intercepted by CBP and processed. Following a 72-hour case review, Mario received one-year parole, enabling them to pursue their asylum case in a safer environment.
If this new asylum ban had been in place, Mario would not be here today. They would have to prove that they had first sought asylum in Mexico, or figure out how to use an app that is not available in their language, or simply be forced to remain in a place where they had received numerous threats on their life. And had they attempted to cross, they would be deported “home” to a country that is notoriously hostile to LGBTQIA+ people, especially those with darker skin, and prohibited from seeking asylum in the U.S. again for five years.
This is now how asylum law works. Under existing asylum procedures that have been the law of the land since 1980, when Title 42 lifted on May 11, Mario should have just been able to walk up to an asylum officer and plead credible fear of harm based on their membership in a persecuted group. However, instead, the Biden administration pushed through critical, harsh changes to how asylum seekers on our southern border can seek protection, directly endangering our community and our lives.
It is not too late for the Biden administration to ensure that the new asylum rule does not exclude or discriminate against LGBTQIA+ people seeking protection in the United States. First, the administration should train immigration officials on the specific challenges facing our community, including understanding the laws and situations facing LGBTQIA+ people in different countries; this will guarantee a fair and appropriate evaluation in each individual case, and will avoid the perpetuation of stereotypes and prejudices that can lead to wrong decisions. Second, the administration must put mechanisms in place to provide legal advice and emotional support to people in our community seeking asylum, as we often face additional barriers due to our sexual orientation or gender identity. Third, the administration must fulfill its promise to create alternative pathways for people at imminent risk of harm, including our community members fleeing oppression.
The LGBTQIA+ community deserves an asylum system in the U.S. that recognizes and protects our fundamental human rights. Only then can we build an asylum system that reflects our values of equality and justice for all.
Estuardo Cifuentes is the client services manager at Lawyers for Good Government’s Project Corazon.