The Trump administration has proposed a new federal regulation that would create insurmountable barriers to the vast majority of asylum claims, including by gutting the definition of refugee to the point where lesbian, gay, bisexual and transgender asylum seekers will be effectively excluded.
People have until the end of the day on Wednesday (July 15) to submit comments on the proposed federal rule [EOIR-2020-0003-0001] and to call on the U.S. government to revoke it.
The regulation would force asylum seekers to declare the "particular social group" they belong to during their first asylum hearing. This would force LGBTQ+ people who may have lived closeted for most of their lives to out themselves immediately to a potentially hostile judge.
It would exclude evidence in support of an asylum claim if the adjudicator thought it promoted a cultural stereotype against a country or a person. For instance, a claim could be blocked on the grounds that it allegedly advances stereotypes about a cultural context that may have contributed to homophobic violence.
It would also severely limit claims if the abusers are gangs or family members rather than government officials -- a common scenario in Central America. In cases in which the victim was tortured by a government agent, it would exclude cases if that government disavowed them as "rogue officials."
To qualify as persecution, the threat would need to be "exigent," disqualifying the cumulative harm so many LGBTQ+ people suffer from thousands of discriminatory cuts that add up to intolerable misery.
Finally, the regulation lists "failure to seek asylum in a country through which the applicant transited" as among "significantly adverse" factors to granting asylum. This would affect virtually all LGBTQ+ asylum seekers from the Northern Triangle, as they pass through Mexico. Many of those interviewed by Human Rights Watch have also been subjected to violence in Mexico and cannot remain there safely.
Consider how this regulation would affect someone like "Ale," a transgender woman from Guatemala I met at Casa Ruby, a Washington, D.C., shelter that supports LGBTQ+ asylum seekers.
"We know where you live, we're going to kill you, we know at which stop you get off and that you walk two blocks." She remembered the threatening words spoken to her nearly every day for two months in 2018 by men attempting to extort money from her. Her persecutors, when they phoned, called her "faggot" and "son of a bitch."
She knew she was at immediate risk. Guatemala has one of the highest murder rates in the world, and transgender people are frequently targeted. But when Ale reported the calls to the police, they responded with homophobic slurs rather than assistance.
She fled to the United States through Mexico, where she survived detention in a men's prison and expulsion from an evangelical-run shelter. Her story was a chronicle of suffering, but what sparked tears during the interview was when she spoke of her transphobic family: "They hate me," Ale said.
Ale is one of 20 Central American LGBTQ+ asylum seekers in the United States whom Human Rights Watch interviewed for a forthcoming report about anti-LGBTQ+ violence and discrimination in Central America's Northern Triangle. We also interviewed 95 LGBTQ+ people in El Salvador, Guatemala, and Honduras. They told horrific stories of violence at the hands of gang members, police, and their own families. Scarlett, a bisexual woman from Honduras, described being beaten by her former partner when he realized she had been with a woman. Maria, a trans woman from El Salvador, spoke of the murders of her two best friends, and her own experiences as a survivor of gang rape and police assault.
Ale was lucky: she made it into the United States before the administration of Donald Trump threw up a wall of obstacles to asylum. These obstacles include metering, a "slow down" strategy implemented by U.S. Customs and Border Protection that artificially limits the number of people who can cross into the United States at border crossings every day.
Another barrier is the Migrant Protection Protocol, which forces asylum seekers to remain in Mexico while their claims are adjudicated in the United States. And yet another is the Prompt Asylum Claims Review, which fast-tracks removal proceedings for asylum seekers, rushing them through "credible fear" interviews in a matter of days, usually without legal counsel.
The barriers also include the Guatemala Asylum Cooperative Agreement, which summarily returns Salvadoran and Honduran asylum seekers -- including LGBT people -- to Guatemala, despite their vulnerability to violence and exclusion there.
Now, the Trump administration seeks to cap off this evisceration of the U.S. asylum with this regulation. But the LGBTQ+ asylum seekers from the Northern Triangle whom Human Rights Watch interviewed in the United States and Mexico are dreaming of a better future, free from violence, in which they can study and work without fear of discrimination. For far too many asylum seekers, especially those caught in limbo in Mexico while the Trump administration unveils one policy after another that further restricts their options, those dreams remain out of reach.
LGBTQ+ asylum seekers who have made it into the United States expressed eagerness to integrate and establish themselves. Carlitos B., a non-binary person from Guatemala who fled after surviving repeated incidents of sexual assault, told us in Los Angeles in 2019: "I'm waiting for my work permit. I want to do everything legally. Maybe I will look for work in a restaurant. Right now I'm studying English at night from 6 to 9 p.m. In the morning sometimes I go running in the mountains."
People like Carlitos and Ale should be able to access a space offering some measure of freedom from violence and an opportunity realize their dreams.
Neela Ghoshal is a senior LGBT rights researcher at Human Rights Watch.