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."