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LGBTQI Asylum Seekers Face Many Obstacles

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By Dominique Mosbergen


The parents of at least 628 migrant children who were separated from their families by the Trump administration in 2017 and 2018 still haven’t been located, lawyers tasked with reuniting the families said in a court filing on Wednesday.


The affected children — whose families were torn asunder under the Trump administration’s so-called “zero tolerance” border policy — have now been without their parents for at least two years.


Attorneys from the American Civil Liberties Union, which is part of a court-appointed “steering committee” that’s been working to reunite separated families, said in the court filing that the parents of at least 295 of the still-separated children have been deported to their countries of origin.


“Our efforts to locate them … are ongoing,” the ACLU said of the parents who have yet to be found.


The ACLU also noted that the Trump administration had only recently provided the steering committee with potentially useful information from the Executive Office for Immigration Review, an agency under the Justice Department. That information included “phone numbers that had not previously been disclosed.”


ACLU attorney Lee Gelernt said the Trump administration should’ve provided this information “at least a year ago.”


“We’ve been asking them for any additional information they have forever and we only finally got this information after outcry that parents still could not be found and the issue reached the presidential debate level. This is information we should’ve gotten a year ago, at least a year ago,” Gelernt told CNN.


“We hope we can find a significant number of parents and children through this information. But make no mistake about it: Not only has the Trump administration not been helping us, but it’s now clear they failed to disclose information in their possession,” he added.


The Trump administration requested in the filing to be allowed to update the ACLU on a quarterly basis rather than monthly, “given the relatively low number of separations.”


President-elect Joe Biden has repeatedly lambasted Trump and his administration for separating at least 4,200 children from their parents in 2017 and 2018 ― and for not doing more to help reunite the families that remain separated.


“Their kids were ripped from their arms and separated, and now they cannot find over 500 of the sets of those parents, and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal,” Biden said during the second presidential debate.




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By Nicole Narea


A federal court has blocked the Trump administration from continuing to deport unaccompanied migrant children under a program that allowed immigration officials to summarily expel asylum seekers arriving at the southern border on account of the Covid-19 pandemic.


At least 13,000 such children have already been deported under the policy, often with little if any notice to their parents or legal counsel and even if they show no symptoms of the virus. Others have been held in hotels along the border for extended periods of time under the program.


That’s in spite of the fact that immigration officials are required to transfer migrant children within 72 hours of their apprehension to the Department of Health and Human Services’ Office of Refugee Resettlement, where they would be provided with a lawyer and the opportunity to pursue asylum and other forms of legal protection in the US.


In a ruling Wednesday, US District Judge Emmet Sullivan found that the Trump administration illegally invoked the pandemic to achieve its longstanding goal of keeping out asylum seekers.


One of the plaintiffs in the lawsuit challenging the policy, a 16-year-old identified only as P.J.E.S. in court filings, had fled his home country of Guatemala after receiving death threats due to his father’s political opinions and because he refused to join a gang. He sought to join his father, who is currently living in the US and awaiting deportation proceedings. But when he arrived at the southern border, he was taken into custody by US Customs and Border Protection in McAllen, Texas, and subjected to the rapid expulsion program.


Since the ACLU filed its lawsuit challenging the policy, the government voluntarily took P.J.E.S. out of the rapid expulsion program and sent him to an HHS facility.


The Trump administration began expelling migrants to Mexico in March under Title 42, a section of the Public Health Safety Act, that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”


Trump had previously relied on a series of interlocking policies to make the asylum system all but inaccessible for the vast majority of people arriving on the border. That included a program under which tens of thousands of asylum seekers were sent back to Mexico to wait on their immigration court hearings in the US and agreements with Central American countries that allowed immigration officials to deport migrants who had passed through those countries on their way to the US.


But the Title 42 expulsions largely replaced those policies as the Trump administration’s primary means of keeping out migrants amid the pandemic. The administration has made it effective until the director of the Centers for Disease Control and Prevention determines that the further spread of Covid-19 has “ceased to be a serious danger to public health.”


While President-elect Joe Biden has vowed to dismantle most of Trump’s policies on the border once he takes office, he has left open the possibility of maintaining the Title 42 program at least temporarily. But it’s not clear that there is a public health rationale for keeping the policy in place, given that the level of community transmission inside the US is already so high.


Immigrant advocates have argued that the US can safely continue to give protection to vulnerable immigrants.


“This policy is counter to our nation’s longstanding commitment to protecting refugees, including unaccompanied kids on the move, and the court rightly enjoined it,” Wendy Young, president of the legal aid group Kids in Need of Defense, said in a statement on Wednesday.


“The United States is capable of determining the protection needs of these children while at the same time addressing public health concerns.”

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By Neela Ghoshal


When Pricila, a 32-year-old trans woman, fled El Salvador in February 2019, she had good reason to fear for her life. Police had beaten and sexually assaulted her, telling her they would make her a man. Gang members attempted to forcibly recruit her. They extorted her, burned her, beat her, abducted her gay friend, and threatened that she would be next. Pricila fled to safety in the United States, where her asylum case is underway. But if the Trump administration has its way, people like Pricila, who asked us to use her first name only, may no longer be eligible for asylum in the United States.

A regulation proposed by the Justice and Homeland Security Departments in June would, as the organization Immigration Equality put it, “essentially eliminate asylum protection altogether” for people seeking asylum on grounds of persecution related to their gender identity or sexual orientation. And now, in what has to be categorized as the regulatory equivalent of beating a dead horse, the Justice Department on September 23 proposed yet another regulation to limit asylum seekers’ ability to provide evidence in support of their claims.

LGBT asylum seekers — including those, like Pricila, from Central America’s Northern Triangle — often have strong asylum claims, as documented in a new report by Human Rights Watch. Although the Northern Triangle countries of El Salvador, Guatemala and Honduras have passed some laws and policies  to protect people from violence and discrimination based on sexual orientation or gender identity, LGBT people can tell you a yawning gap exists between what is on paper and the abusive reality they face.

In another 70 countries around the world, LGBT people can be imprisoned based on their sexual orientation or gender identity. Data spanning 2007 through 2017 shows that asylum seekers with persecution claims based on gender identity or sexual orientation overwhelmingly passed initial U.S. screenings regarding their fear of returning to their home countries.

The international refugee system exists to provide protection to people like Pricila, who are persecuted because of their identity or beliefs. But the U.S. administration seems bent on shutting them out. Homeland Security has compelled asylum seekers arriving at the southern border to wait for months in Mexico before they undergo a “credible fear” interview, the first step in the asylum process. Some are forced to remain in Mexico for many more months while U.S. courts adjudicate their claims. Northern Mexico, where several trans women have reported receiving death threats, is particularly inhospitable for them. Pricila was gang raped in Mexico.

Other asylum seekers, including LGBT people, have been forcibly transferred to Guatemala — “among the most dangerous countries in the world,” according to the State Department’s own assessment — under an Asylum Cooperative Agreement. In August, a Salvadoran trans asylum seeker was murdered there —one of at least 20 LGBT people murdered in Guatemala so far in 2020

Refugees International and Human Rights Watch have exposed how Guatemala’s asylum system is unprepared to handle an influx of asylum seekers. Not one of the 939 asylum seekers transferred to Guatemala between November 2019 and March 2020, when transfers were suspended due to the Covid-19 pandemic, has been granted asylum.

Since March, U.S. authorities have used the pretext of Covid-19 to close off land borders to asylum seekers altogether, and the Border Patrol has summarily expelled nearly 150,000 people. No one knows how many were fleeing persecution based on gender identity or sexual orientation because they were never given the chance to ask for protection. 

The Homeland Security and Justice regulation proposed in June bars all gender-related asylum claims. It does not define gender, but in addition to dismissing claims from abused women and girls, immigration judges could misconstrue it to bar all gender identity asylum claims.

The rule requires claimants to identify themselves as victims of persecution based on sexual orientation or gender identity the first time they come before an immigration judge — or waive their right to do so. Persecution for most forms of political activism — including LGBT activism in countries where it is outlawed — would be insufficient to constitute “persecution on account of political opinion,” because the rule narrows “political opinion” cases to people seeking “regime change.”

The regulation would exclude evidence to support an asylum claim if the adjudicator thought it promoted a “cultural stereotype.” A judge could dismiss evidence of Pricila’s abuse by Salvadoran police if she thought it promoted a machismo stereotype. The Trump administration seems more concerned not to offend homophobes and misogynists than to protect their victims.

This week’s newest proposed rule digs the hole even deeper, setting a 15-day time limit on filing an asylum application and preferencing U.S. government human rights reports over those of reputable nongovernmental organizations. It would even allow immigration judges to introduce evidence on their own, fundamentally distorting the role of a U.S. immigration judge and opening the door to the introduction of evidence that might reflect judges’ own biases, such as anti-LGBT prejudice.

The recent and proposed asylum policies and regulations that shut out people fleeing persecution should be scrapped. LGBT asylum seekers, like Pricila, have compelling reasons for fleeing their home countries. The United States should provide them a fair asylum process.




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