LGBTQI Asylum Seekers Face Many Obstacles


The U.S. District Court for the Northern District of California issued an order on Friday blocking, in its entirety, a Trump administration rule that would have made it virtually impossible for all refugees, including those who are LGBTQ or living with HIV, to secure asylum in the United States. The rule was set to go into effect on Jan. 11.

“Today’s ruling halts the most sweeping illegal, anti-refugee volley of the Trump administration,” said Bridget Crawford, legal director for Immigration Equality. “Asylum is an international human right. LGBTQ and HIV-positive refugees fleeing persecution will always be welcomed in the U.S.”

The case, Immigration Equality v. Department of Homeland Security, was filed on behalf of plaintiffs Immigration Equality, Oasis Legal Services, The TransLatin@ Coalition, Black LGBTQIA+ Migrant Project, and Transgender Law Center. Had the rule been allowed to go into effect, the population these organizations directly serve, asylum seekers who are LGBTQ or living with HIV, will face insurmountable barriers to asylum in the U.S., despite the fact that they have remarkably strong asylum claims.

In his ruling, U.S. District Judge James Donato wrote;

“In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through … But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum … Plaintiffs provide legal services and other assistance to those seeking asylum and similar protections from persecution or violence in their home countries. They have provided ample evidence that if enacted, the Rule would harm this mission … A nationwide injunction is warranted.”

Lambda Legal’s senior attorney on immigration matters, Omar Gonzalez-Pagan reacted on Twitter to Donato’s ruling.

“This rule is part of the Trump administration’s relentless efforts to close our doors to migrants and here, in particular, to refugees escaping persecution, even as the administration’s days wane. The rule is rooted in xenophobia and cruelty. It also is a haphazard attempt to enact a sweeping and unworkable overhaul of our asylum system, without adequate justification or compliance with the law,” said Gonzalez-Pagan in a statement. “Lives are at stake and we are relieved that the court has put this abhorrent policy on hold while we continue to make our case. We are gratified by the court’s quick action and confident that these attempted changes will never take effect.”

The rule — promulgated by the U.S. Department of Justice and  the U.S. Department of Homeland Security — is especially dire for people who are LGBTQ or living with HIV, who have no other recourse but to flee the unimaginable violence they experience in their countries of origin. In over 70 countries it is a crime or fundamentally unsafe to be LGBTQ or HIV-positive. The suit challenges multiple sections of the rule for creating numerous reasons why immigration judges should deny claims of refugees who otherwise qualify for asylum.

The rule denies asylum to people who:

· apply for asylum based on fear of persecution due to their gender, which may be interpreted by authorities as including LGBTQ asylum seekers;

· didn’t apply for asylum in a transit country, regardless of whether that nation is safe;

· stayed in a transit country for more than 14 days, even if they were trapped in that country;

· lived in the U.S. for more than one year without permission, even if they qualify for an exception to the one-year filing deadline;

· have otherwise strong claims of persecution if they are unable to prove that government officials participated in the abuse (e.g. violence by private actors, such as civilians who perpetrate mob violence or so-called “corrective rape,” will not count as evidence toward an asylum claim);

· are unable to explain in their first interaction with immigration officials the particular social group they are a part of, requiring LGBTQ and HIV-positive people to disclose and describe their identity and intimate details about their personal lives with particular concepts and language. 

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By Trudy Ring

Lambda Legal and Immigration Equality plan to sue the Trump administration over a new policy they say will make it “virtually impossible” for LGBTQ+ or HIV-positive refugees to gain asylum in the U.S.

The Department of Homeland Security and Department of Justice Thursday finalized a rule revamping procedures for asylum-seekers. In an announcement to be published in the Federal Register, officials with the departments said they seek to “establish streamlined proceedings” for asylum-seekers who face persecution in their home countries.

However, this streamlining will put asylum out of reach for many, according to Lambda Legal and Immigration Equality. Those seeking asylum in the U.S. are required to demonstrate that they fear persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.

But the revised rule “would require applicants to immediately and clearly articulate every cognizable [social group] before the Immigration Judge or forever lose the opportunity to present it, even on a motion to reopen where an applicant relied on ineffective counsel,” says a letter Immigration Equality submitted to the federal government while the rule was under consideration. “The rule does not even allow an exception for reliance on … disreputable agents who hold themselves out as attorneys when they are not.”

“While this requirement would raise serious due process concerns for all asylum applicants, it poses particular barriers to [LGBTQ+ or HIV-positive] asylum seekers,” the letter continues. “For those applicants, the Proposed Rule essentially gives applicants a single, fleeting opportunity to declare themselves. This provision is fundamentally at odds with how LGBTQ/H identity works for many asylum seekers and would result in the denial of meritorious LGBTQ/H asylum claims.”

For one thing, recognition of one’s LGBTQ+ identity is a process that often takes time, the letter notes, and some people who don’t speak English “either do not have any words that would be understood by immigration officials in the U.S. as denoting a specific LGBTQ identity or they use terms common in the U.S., but not in the same way such identities are understood by American adjudicators.” They also may not feel comfortable stating their identity to a stranger, Immigration Equality relates. Further, the rule narrows the definition of political opinion that could cause someone to be persecuted, according to the the group.

In many countries, people who are LGBTQ+ or living with HIV are raped or sexually assaulted, beaten or subjected to other types of physical abuse, and even murdered, the letter relates. Survivors of violence often do not report the attacks to police, either for fear of retaliation or because the police are perpetrators of violence too.

The missive gives examples of people who have won asylum but would have been denied it under the new rule, including a woman whose family threatened to kill her and her child because the child was born intersex; a gay man who was regularly beaten by his fellow students at a religious school; and a transgender woman who endured a gang rape and multiple beatings.

“The depth of the Trump administration’s cruelty toward some of the most vulnerable people in the world truly knows no bounds,” Lambda Legal CEO Kevin Jennings and Immigration Equality Executive Director Aaron C. Morris said in a joint statement. “In many countries LGBTQ people and those living with HIV face unimaginable abuse and violence at every turn. The United States has long held itself out as a beacon of hope for these individuals, many of whom risk their lives to seek asylum here.

“Assuming that this rule resembles the proposed rule published in June of this year, we plan to sue. This rule flies in the face of our country’s core value of being a land for those who yearn to breathe free. And if this government will not uphold our country’s longstanding value of compassion for the oppressed, we will.

“While the Trump administration’s days are waning, it is critical to stop this rule in its tracks. Unless we stop it, the asylum ban would inflict irreversible damage on LGBTQ and HIV-positive asylum seekers desperate for a chance at safe haven in the U.S.”

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Tal Axelrod
The Trump administration is working to place new restrictions on which immigrants are eligible for asylum, its latest effort to curb both legal and illegal immigration. In a new 419-page rule from the Department of Homeland Security (DHS) and Department of Justice (DOJ) the administration said it will move to curtail the circumstances under which a person can apply for asylum protections, a decision it acknowledges will likely lead to a drop in asylum grants.
Specifically, the new regulations would broaden judges’ power to say asylum applications are “frivolous,” a ruling that would bar an immigrant’s request from being approved, and deny requests without a hearing if the claims are deemed to be backed by insufficient evidence.
The new policy also says that asylum seekers must prove that they will suffer “a severe level of harm” should they return to their home country. Current law says asylum seekers must have a “credible fear of persecution or torture.”
The definition of persecution is also limited in the new rule and will not cover some treatment that the U.S. deems “unfair, offensive, unjust, or even unlawful or unconstitutional,” “harassment” or “threats with no actions taken to carry out the threats.” Fears of gang violence will also be insufficient.
Beyond curtailing the circumstances that would lead to an asylum claim being granted, the rules also empower judges to weigh a series of actions by the seeker in determining whether to grant protections, including if they illegally crossed the U.S. border.

“The Departments note that these changes are likely to result in fewer asylum grants annually due to clarifications regarding the significance of discretionary considerations and changes to the definition of ‘firm resettlement.’ However, because asylum applications are inherently fact-specific, and because there may be multiple bases for denying an asylum application, neither DOJ nor DHS can quantify precisely the expected decrease,” the administration wrote in the rules. The new rule will be published Friday in the Federal Register and then takes effect in 30 days. The move is the latest in the Trump White House's four-year effort to curtail immigration into the U.S. The administration pushed new rules earlier this year that would make all applications for asylum at the southern border ineligible unless the migrants had previously applied in another country or are the victims of sex trafficking. It also sought to implement a policy requiring asylum seekers, many of whom are from Central America, to remain in Mexico while their cases are adjudicated.

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Queer Asylum Accompaniment Team is proud to support LGBTQIA asylum seekers who need sponsors. Sponsoring will allow asylum seekers to spend the months waiting for their asylum claims living in the community after leaving detention centers where they are vulnerable to abuse. 

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