End Trump Asylum and Immigration Policies That Severely Harm LGBTQ and HIV-Positive Immigrants

    Past Comments on Trump Regulations

    On November 8, 2019, Immigration Equality submitted a public comment opposing the Department of Homeland Security’s proposed Rulemaking on the Removal of the 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment…

The Policies and Regulations Issued by the Trump Administration Severely harm LGBTQ/H People. LGBTQ/H people are persecuted around the globe for being who they are. In nearly 70 countries it is a crime to be LGBTQ. The U.S. has long been a beacon of hope for LGBTQ/H asylum seekers and refugees fleeing persecution. But the Trump Administration has undermined this tradition by enacting a series of dangerous and unlawful policies that severely limit LGBTQ/H immigrants from qualifying for asylum or accessing other critical benefits and protections.

Solution: Rescind or withdraw Trump administration regulations, proposed regulations, and policies that severely harm LGBTQ/H asylum seekers.

i. Settle Litigation for the Regulation Entitled, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” (Published December 11, 2020). This rule guts the U.S. asylum system by rewriting asylum law without authorization from Congress and upends decades of legal precedent. In fact, the rule reinterprets the definition of refugee in such a limited way that it would essentially eliminate asylum protection altogether. As a result, most asylum seekers, including the LGBTQ/H refugees, would be denied humanitarian protection in the U.S. Immigration Equality has challenged this rule in federal court in the Northern District of California. See the press release here and Immigration Equality’s comments opposing the proposed rule here.
Instruct the DOJ and DHS to institute immediate measures to rescind the final rule, including through settlement of pending litigation, interim guidance, and/or a new notice of proposed rulemaking.

ii. Repeal the Migrant “Protection” Protocols aka the “Remain in Mexico” Policy. In January 2019, the Trump Administration introduced a policy — officially dubbed the Migrant “Protection” Protocols (MPP) — which requires asylum seekers entering at the southern border to be returned to Mexico during the pendency of their asylum proceedings. LGBTQ and HIV-positive people have been placed in MPP despite experiencing serious human rights abuses in Mexico. As of May 2020, there were at least 1,314 publicly reported cases of murder, rape, torture, kidnapping, and other violent assaults against people subject to MPP, including some LGBTQ/H asylum seekers.1

  1. DHS should immediately issue a memorandum revoking former Secretary Nielsen’s January 25, 2019 MPP implementation memorandum.
  2. DHS should work with the advocacy community and other stakeholders to: 1) immediately allow all LGBTQ/H asylum applicants with pending MPP cases, or whose cases are on appeal, to enter the U.S., 2) ensure that MPP participants are presumptively non-detainable, and 3) establish communication channels to disseminate information about the end of the policy to ensure that all affected applicants and advocacy groups on both sides of the border have access to timely and accurate information.
  3. Because many, many individuals subjected to MPP never received court notices, or could not attend court because they were incapable of appearing, in absentia orders have been common. Upon the request of someone placed into MPP and subsequently ordered removed in absentia, instruct the DOJ to rescind the removal order and reopen removal proceedings.

iii. Overturn Asylum Cooperative Agreements (ACAs). On November 19, 2019, the DOJ and DHS jointly issued an interim final rule that went into effect the same day that allows U.S. immigration officials to send certain asylum seekers arriving at the U.S./Mexico border back to countries with which the United States has entered into so-called “Asylum Cooperative Agreements” (ACAs) rather than allowing them to apply for asylum in the United States. The U.S. has reached agreements with Guatemala, EL Salvador, and Honduras despite the fact that none of these countries is safe for LGBTQ and HIV-positive people, who face widespread persecution and abuse in the Northern Triangle. See Immigration Equality’s comments opposing the proposed rule here.

  1. Direct the DOJ and DHS immediately to rescind the November 2019 interim final rule, including through interim guidance. Settle pending litigation, agreeing that the rule was unlawful. Direct DHS and the Department of State to negotiate an end to the agreements with Guatemala, El Salvador, and Honduras.
  2. Upon request of a person subjected to an ACA, instruct DHS and the DOJ to rescind expedited removal orders and allow those who were subject to transfer under an ACA to reapply for asylum in the United States as if they were doing so for the first time (this also means revoking the five-year bar on admission under INA section 212(a)(9)(A)(i)) for those transferred to Guatemala under the ACA).
  3. Direct DHS and the DOJ to rescind the 2019 determinations that the Guatemalan asylum system provides a “full and fair procedure for determining a claim to asylum or equivalent temporary protection,” and any similar 2019 or 2020 determination for Honduras.

1. Human Rights First (Dec. 2020) Delivered to Danger, available at: https://www.deliveredtodanger.org.