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LGBTQI Asylum Seekers Face Many Obstacles

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By Nicole Narea


Judge Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, has at times proved an obstacle to the advancement of immigrant rights during her three years on the Seventh Circuit.


As an appellate court judge, Barrett helped to advance one of Trump’s key immigration policies. She sided with his administration in a case over Trump’s policy imposing a wealth test on the millions of immigrants who seek to come to the US annually. In her whopping 40-page dissent in that case, she laid out why the US has the right to block people who it deems likely to become dependent on public assistance in the future — even if they have never used public assistance in the past.


She has also repeatedly refused to review cases brought by immigrants applying for humanitarian protections and other immigration benefits who claimed they had been wrongfully denied. Some of those decisions may have negative repercussions for future such applicants; given that they set a precedent to be followed by judges in lower courts, these refusals could make it harder for immigrants to challenge an adverse decision from a consular officer on their visa application or obtain deportation relief from an immigration judge.


But her rulings haven’t always led to adverse outcomes for immigrants. In one case, she actually prevented the Trump administration from ending a policy that allows immigration judges to indefinitely close deportation cases in which the immigrant doesn’t appear to be a priority for enforcement, giving them a chance to live in the US without fear of deportation.

With Barrett’s mixed record — and only three years of experience on the federal bench — it’s difficult to predict how she would rule on immigration cases before the Supreme Court if she is confirmed, as expected.


The Supreme Court has upheld some of Trump’s signature immigration policies, including his travel ban policy. But it has also thwarted him at key moments: It has temporarily prevented him from ending the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young unauthorized immigrants to live and work in the US, and blocked him from putting a citizenship question on the 2020 census, which experts said would depress response rates in immigrant communities.


In those rulings against Trump, Chief Justice John Roberts joined the court’s liberals and cast deciding votes. It’s not clear whether Barrett would play a similar role — or if she would tip the scales in favor of conservatives on high-profile immigration cases going forward. One such case challenging Trump’s policy to exclude unauthorized immigrants from census population counts that will be used to redraw congressional districts in 2021 will likely come before the justices by the end of the year.


Here are some of the key immigration decisions Barrett has issued so far:


She sided with Trump on one of his key immigration policies: the public charge rule.


Perhaps Barrett’s most pivotal immigration ruling was her dissent in the case Cook County v. Wolf, in which the Seventh Circuit temporarily prevented the Trump administration from implementing its so-called “public charge” rule that created barriers to low-income immigrants seeking to enter the US.


Published last year by the Department of Homeland Security, the rule established a test to determine whether an immigrant applying to enter the US, extend their visa, or convert their temporary immigration status into a green card is likely to end up relying on public benefits in the future.


The rule has given immigration officials more leeway to turn away those who are “likely to be a public charge” based on an evaluation of 20 factors, ranging from the use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid — to English-language proficiency. It represents one of President Trump’s biggest blows to legal immigration so far.


In June, a majority of the Seventh Circuit voted to strike down the rule, arguing that it “set[s] a trap for the unwary by penalizing people for accepting benefits Congress made available to them.”


In her 40-page dissent, Barrett said she would have upheld the rule, arguing that those challenging it had set forth an exceedingly narrow definition of what it means to be a “public charge” that isn’t consistent with federal law. She also argued that the court should adopt the administration’s definition of “public charge” under the doctrine of Chevron deference, which mandates that judges defer to government agencies’ interpretation of federal law.


“Congress’s willingness to authorize funds to help immigrants who encounter unexpected trouble is perfectly consistent with its reluctance to admit immigrants whose need for help is predictable upon arrival,” she wrote in her dissent.


The rule went into effect again earlier this month following another federal court ruling. It has affected immigrants applying for green cards nationwide and at consulates abroad, as well as those applying for temporary visas overseas such as tourists, business travelers, students, and skilled workers.


The administration hasn’t released detailed data on how many people have been affected by the rule. But Julia Gelatt, a senior policy analyst at the nonpartisan think tank Migration Policy Institute, told Vox that 69 percent of the roughly 5.5 million people who were granted green cards over the past five years would have had at least one negative factor under the rule — which officials could have used as justification to reject their applications for immigration benefits.


She thwarted Trump’s attempt to end a key tool to grant relief to immigrants facing deportation


Former US Attorney Jeff Sessions had tried to revoke a little-known, but key tool that allows immigration judges to make determinations about which immigrants should be prioritized for deportation.


That tool, known as “administrative closure,” allows judges to put deportation proceedings on hold indefinitely for people who already applied for immigration benefits with another government agency. For example, it might apply to a noncitizen who overstayed their visa but is married to a US citizen who applied for a green card with US Citizenship Immigration Services on their behalf.


Sessions had tried to severely limit the circumstances under which immigration judges can administratively close a case, which had the effect of preventing people in deportation proceedings from getting the immigration benefits to which they were entitled.


But in June, Barrett argued in the Seventh Circuit’s opinion in the case Meza Morales v. Barrthat Sessions’ decision to do so violated federal regulations that allow immigration judges to “take any action... that is appropriate and necessary” to complete their cases.

“[A]n immigration judge might sometimes conclude, in exercising the discretion granted by [federal regulation], that it is appropriate and necessary to dispose of a case through administrative closure,” she wrote. “Moreover, cases must be disposed of fairly, and granting a noncitizen the opportunity to pursue relief to which she is entitled may be appropriate and necessary for a fair disposition.”


She dismissed a man’s claim for humanitarian protections


In August 2018, Barrett refused to review a Salvadoran citizen’s petition for humanitarian protection in the US, which had been dismissed by immigration judges who didn’t find him to be a credible witness.


Gerson Alvarenga-Flores had testified that he fled El Salvador after witnessing his friend’s murder at the hands of criminal gang members, who consequently threatened him. After he was apprehended at the border and detained, he claimed that he feared returning to his home country and applied for several forms of humanitarian protection, including asylum and protections under the Convention Against Torture.


The immigration judge in his case found inconsistencies in Alvarenga’s testimony describing two separate incidents: He claimed that he had been attacked by gang members while in a taxi and, on another occasion, said he was approached by them on a bus. Alvarenga explained that he gave the testimony in English, even though he does not speak English, which could have led to the confusion.


But the judge nevertheless concluded that his account of being targeted by gangs wasn’t credible, without even considering whether he would have deserved humanitarian protection.

Writing an opinion on behalf of a panel of Seventh Circuit judges, Barrett deferred to the immigration judge, agreeing that Alvarenga was unable to provide an adequate explanation for the discrepancies in his account.


“These two encounters with gang members were crucial to Alvarenga’s claim that gang members were likely to torture him if he returned to El Salvador, yet he could not keep the facts straight with respect to either one,” she wrote.


She ruled against a US citizen challenging his wife’s visa denial


In January 2019, Barrett refused to reconsider a case brought by a naturalized US citizen, Moshin Yafai, whose wife, Zahoor Ahmed, a citizen of Yemen, was twice denied a green card. The consular officer had denied Ahmed’s green card on the grounds that she allegedly tried to smuggle her two children across the border, even though Ahmed and her husband had provided documentation to the embassy that their children had died in a drowning accident.


Writing the Seventh Circuit’s majority opinion, Barrett found that the consular officer nevertheless did not appear to act in bad faith and even asked for more information, “suggest[ing] a desire to get it right.” That meant her court couldn’t review the consular officer’s decision, she said.


The ruling could make it harder for visa applicants to challenge arbitrary denials down the line.


Generally, courts can’t review the decisions of consular officers, who interview applicants for immigration benefits and decide whether or not to approve their visas or green cards. There is a narrow exception in the law that allows a US citizen to challenge a consular officer’s decision if it infringes on one of their constitutional rights. But it’s not clear whether one of those constitutional rights is to live with one’s spouse in the US, as Yafai had argued, she said.


“The status of this right is uncertain,” she wrote in the opinion. “Even if the denial of Ahmed’s visa application implicated a constitutional right of Yafai’s, his claim fails because the consular officer’s decision was facially legitimate and bona fide.”


She voted to deport a man who maintained lawful permanent residency for 30 years


In June 2019, Barrett cast the deciding vote in a Seventh Circuit case resulting in the immediate deportation of a Mexican immigrant who had been a lawful permanent resident of the US for three decades and first arrived in the US at age 10. He had been convicted for drug crimes resulting in a more than 10-year prison sentence, but because his mother was a US citizen, he believed he had a right to remain in the US.


The immigrant, Ruben Lopez Ramos, was not given the chance to argue that his deportation violated his rights under the Constitution’s equal protection clause. A short, one-paragraph order sealed his fate, claiming that his argument was “irrational” and had “little chance of succeeding.”


One of Barrett’s colleagues, dissenting, argued that Ramos should have been given his day in court, noting that, due to a now-repealed law, he would have derived US citizenship from his mother had she lived in the US prior to his birth and he could not have been deported. Ramos argued that he was subjected to differential treatment under that law in violation of his equal protection rights.


“He might be right,” US Circuit Judge David Hamilton wrote. Ultimately, however, due to Barrett’s vote, the Seventh Circuit never considered the issue.





by Yariel Valdés González


An immigration judge on Monday granted asylum to a lesbian woman from Cuba who has been in U.S. Immigration and Customs Enforcement custody for 10 months.

Judge Pedro J. Espina, who is based in Guaynabo, Puerto Rico, via videoconference granted asylum to Yanelkys Moreno Agramonte, 36, based on the harassment and discrimination she suffered in Cuba because of her sexual orientation. Espina said Moreno would face future persecution if she were to return to her country.


Moreno, in an article the Washington Blade published on June 18, said her family and neighbors never accepted her. Moreno also said Cuba’s National Revolutionary Police in Zulueta, a small town in the center of the country where she lived with her girlfriend, Dayana Rodríguez González, 31, subjected her to homophobic treatment.


The context of rights for the LGBTQ community on the island is extremely limited, because same-sex couples cannot legally marry and they do not have the right to adoption. Cuba’s Labor Code does not protect transgender people and only those who undergo sex-reassignment surgery can change their gender and photo on their identity document, a process that can take several months. 


Rodríguez and Moreno entered the U.S. together on Nov. 3, 2019, through a port of entry in El Paso, Texas, but were separated as soon as they began the asylum process.


Rodriguez was released from the El Paso Service Processing Center on Feb. 4, 2020, on parole and a $7,500 bond. Moreno was transferred to the South Louisiana ICE Processing Center in Basile, La., where she remained until her final immigration hearing.


Rodríguez, who now lives in Arizona, in a message she sent to the Blade said she was very happy when Moreno called her and told her she had won her case.


“I felt a lot of emotion in my heart,” Rodríguez declared. “I couldn’t help it. I still can’t stop crying. We will be together again soon.”


Liza Doubossarskaia, a legal assistant for Immigration Equality, which assisted Moreno with her parole petitions, welcomed the decision with joy. 


“We are all extremely happy for Yanelkys and Dayana,” said Doubossarskaia. “It has been a difficult journey for her, but fortunately it has a happy conclusion.”


Moreno won asylum without legal representation and she will be released soon, according to Rodríguez. who added her girlfriend will first move to Houston and then meet her again after 10 months of forced separation.




BY CAMILO MONTOYA-GALVEZ


U.S. Immigration and Customs Enforcement (ICE) announced on Tuesday that it made more than 2,000 arrests during a six-week nationwide operation in July and August that focused on those with criminal convictions and charges, but also led to the arrests of some undocumented immigrants with clean records.


As part of the operation, ICE agents made "at-large" arrests, which could take place at residences, worksites and traffic stops, across the country, including in large metropolitan areas like Los Angeles, where the ICE field office apprehended the most immigrants. ICE said the operation targeted undocumented immigrants and others subject to deportation who had been charged or convicted of a crime involving a victim.


Roughly 85% of those arrested had criminal convictions or charges ranging from assault and sexual offenses to domestic abuse and robbery, ICE said. Henry Lucero, the executive associate director of ICE who's in charge of apprehensions, detention and deportations, said the rest of those arrested include immigrants who were ordered deported by an immigration judge but did not leave, those previously deported who had reentered the U.S. and so-called collateral arrests.

The agency announced in March that it would focus on apprehending those with certain criminal records and those deemed to pose a threat to public safety during the coronavirus pandemic. Asked by CBS News how the recent arrests of immigrants without convictions or charges conformed with that announcement, Lucero offered a clarification of the so-called "enforcement posture."


"We never said we were going to stop arresting individuals," Lucero said in a call with reporters. "We said we were going to prioritize and focus on those that are public safety threats. And that's exactly what we did during this operation."


Lucero reiterated that the enforcement posture, which he said is still in place, does not exempt immigrants without criminal records from enforcement actions.

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"We never stated we're ... going to stop arresting any type of immigration violator. We continue to arrest immigration violators. We use discretion when appropriate. That will remain in effect until further notice," he said.


Lucero said the late summer operation initially targeted those with convictions or charges related to domestic abuse and then expanded. "We know a lot more people are spending time at home to mitigate the spread of COVID-19," he added. "We wanted to do everything we could to prevent people from getting hurt, especially in their own homes."


Since the early days of the Trump administration, ICE agents have no longer been bound to Obama-era policies that instructed them to focus on arresting and deporting immigrants with certain criminal records, recent border-crossers and those who reentered the country after being deported.


ICE and its enforcement priorities under President Trump have become a focal point of the nation's broader debate around immigration, with some Democratic lawmakers calling for the agency to be abolished. Advocates for immigrants have also criticized ICE's response to the spread of the coronavirus inside its sprawling immigration detention system, which is the largest in the world. 


More than 5,300 immigrants have tested positive for the coronavirus while in custody and at least six detainees have died after contracting the virus, according to the agency's latest statistics.


Lucero on Tuesday noted the agency's detainee population has plummeted during the pandemic, declining to roughly 21,000 this week, and said officials are screening new detainees for medical vulnerabilities to assess whether they can be released if they don't pose a flight risk or public safety threat. He noted, however, that those with criminal convictions that make them subject to "mandatory detention" under a 1996 Clinton-era immigration law are not eligible for release.


The pandemic has also significantly limited ICE operations. As of August 22, the agency had made nearly 94,500 arrests inside communities, as well as at state and federal jails, in fiscal year 2020, 89% percent of which were immigrants with criminal convictions or pending charges, according to ICE officials. During the same time span in fiscal year 2019, ICE made more than 143,000 arrests, 86% of which were immigrants with convictions or charges. 


However, Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, noted that the number of people entering ICE detention after being arrested by the agency, rather than being transferred by border officials, has been increasing in recent weeks, according to agency data. He expressed concern about ICE arrests in communities increasing while the coronavirus continues to be widespread in the U.S.


"There is still a pandemic raging," Reichlin-Melnick told CBS News. "ICE should not be engaging in large-scale enforcement actions that send people to detention centers where the virus is rampant."






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