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This comment is submitted in opposition to the Joint Notice of Proposed Rulemaking (NPRM): Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review; RIN 1615-AC42 / 1125-AA94 / EOIR Docket No. 18-0002/ A.G. Order No. 4714-2020 published in the Federal Register on June 15, 2020.
[If applicable, explain the nature of your personal and/or professional experience and how it informs your opinion.]
I adamantly oppose the proposed rule and demand that it be withdrawn in its entirety. The rule would radically change asylum law and deny protection to vulnerable asylum seekers fleeing persecution, including lesbian, gay, bisexual, transgender, queer, and HIV-positive (LGBTQ/H) people who will be returned to countries where their lives are in grave danger.
More specifically, I object to the rule for the following reasons:
[Insert your own points as to why you oppose the rule. Consider including the points below. As noted above, we encourage you write your objections in your own words.]
Some of the reasons the rule is so harmful to LGBTQ/H asylum seekers:
- The rule radically changes the concepts of “particular social group” and “political opinion” as grounds for asylum, severely limiting LGBTQ/H claims. The rule bans asylum on the basis of gender outright, which could be misinterpreted to also bar claims based on gender identity or even sexual orientation. Further, the rule narrows the definition of political opinion to only encompass opinions in “furtherance of a discrete cause related to political control of a state or a unit thereof.” Under this definition, LGBTQ/H political advocacy and speech would likely not be viewed as a political opinion for purposes of asylum relief. As a result, LGBTQ/H rights activists will likely be denied asylum and returned to countries where they will be in mortal danger.
- The rule redefines persecution so that LGBTQ/H asylum seekers are not protected. The rule rewrites court precedent and narrowly defines persecution to exclude from consideration instances where LGBTQ/H people are repeatedly threatened with harm, but the harm has not yet been carried out. Essentially, LGBTQ/H asylum seekers would have to wait for a persecutor to follow through on their threat before seeking protection. Further, under the rule, persecutory laws or policies that are “infrequently” carried out would not quality as persecution. In essence, an asylum seeker from a country where a same-sex relationship carries a sentence of death would not be able to seek protection on this basis if people are only “infrequently” executed for being gay. Similarly, an LGBTQ/H asylum seeker who is repeatedly and arbitrarily detained because they are LGBTQ/H would be denied protection if an adjudicator deems those detentions to be “brief.”
- The rule essentially eliminates protection for LGBTQ/H people who are harmed by private actors. The rule seeks to eliminate access to asylum for people who are fleeing persecution or who fear persecution from private (rather than government) actors. This is a devastating blow for LGBTQ/H asylum seekers who routinely face severe and pervasive violence and abuse from family and community members. For decades, the U.S. has protected refugees from harm, but under the new rule LGBTQ/H asylum seekers would be refused protection and returned to countries where they face brutal persecution.
- The rule forces adjudicators to consider factors irrelevant to a person’s need for protection, as reasons to deny asylum. Under the rule, adjudicators would have to consider and give negative weight to factors that have nothing to do with the refugee’s asylum claim. For instance, under the rule an adjudicator would likely deny the application of an LGBTQ/H refugee who changes planes in another country if they fail to apply for asylum there, or where a refugee travels through more than one country on the way to the U.S. – even where the transit countries are unsafe for LGBTQ/H people or where a nation lacks a functioning asylum system.
- The rule prohibits submission of evidence critical to supporting LGBTQ/H asylum claims. The rule would bar consideration of evidence based on “cultural stereotypes.” This would likely prevent LGBTQ/H asylum seekers from submitting crucial country conditions evidence demonstrating pervasive anti-LGBTQ/H sentiment in their country of origin. It is also critical to submit such evidence to establish why they cannot safely relocate to another part of their country. As a result, LGBTQ/H asylum seekers, who are often the victims of trauma who have been cut off from their families and communities and have little access to evidence to prove their claims, will be precluded from submitting materials that have long been accepted by adjudicators to support LGBTQ/H asylum claims.
- The rule violates U.S. obligations under domestic and international law. The proposed rule upends decades of legal precedent, rewrites laws passed by Congress, and blatantly violates U.S. treaty obligations by returning refugees with well-founded fears of persecution, including LGBTQ/H asylum seekers, to countries where they face severe harm and even death.