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Proposed funding deal will be deadly for LGBTQ+ asylum seekers

by Bridget Crawford, Director of Law and Policy


This Op-Ed was originally published in The Advocate on January 26, 2024.

Congress is on a path to enacting the most radical changes to U.S. immigration law in decades. If passed, LGBTQ people escaping persecution will be denied safe haven at our very doorstep, and left to fight for their lives abroad—a fight many will lose.

Republican lawmakers are refusing to pass a funding package that includes foreign aid unless Democrats adopt a slate of extreme anti-immigrant proposals straight from the Stephen Miller playbook. Key Democratic senators and the White House appear to be willing to gut the asylum system in their rush to strike a deal.

The proposals would give Homeland Security the authority to rapidly expel migrants, and make the screening standard for asylum claims nearly impossible to reach.As the legal director of Immigration Equality, an organization that represents LGBTQ and HIV positive asylum seekers, I can tell you that the legislation would result in the preventable deaths of thousands of queer and trans refugees.

One of the most egregious propositions would codify Title 42, a failed and illegal Trump policy that misused public health authority to expel migrants at the southern border before they had an opportunity to request asylum.

As a border management tool, it was a disaster. Expulsions of individuals under the policy, mostly back to Mexico where they faced severe violence and squalid conditions, forced repeat border crossings of desperate immigrants with nowhere else to go. Border agents were overwhelmed because the policy forced the same people to try over and over again to reach safety. It was also a field day for traffickers who preyed on vulnerable refugees, including families and LGBTQ migrants, who were not allowed to enter through a port of entry. One NGO cataloged more than 13,000 violent attacks against migrants as a result of the policy. These included LGBTQ migrants who were assaulted, raped, kidnapped, and extorted.

Now, Congress and the White House want to resurrect this colossal failure. But the new iteration would be even more destructive; any President would have the unfettered ability to shut down the border indefinitely for any reason. The U.S. could simply cease to process asylum claims.

Another catastrophic proposal under consideration would make the standard for initial asylum screenings, called credible fear interviews (“CFIs”), even more difficult to meet. The vast majority of refugees have no access to an attorney to understand the process before a CFI, which is frequently held just days after the asylum seeker arrives. Many queer asylum seekers – two thirds of whom face sexual and gender-based violence in Mexico – are still reeling from serious health issues associated with their flights to freedom. These include physical assault, conversion therapy, “corrective” rape, death threats, torture, the murder and suicide of other LGBTQ friends and partners, and a lifetime of homophobic abuse and rejection.

Other factors also impact an LGBTQ refugee’s ability to tell their story during a CFI – like the fear of disclosing LGBTQ status to government officials and lack of LGBTQ competency among immigration officers. Recognizing these circumstances of flight, Congress intentionally established the credible fear standard as a low bar so that “there should be no danger that a [person] with a genuine asylum claim will be returned to persecution.”

Even under current standards, LGBTQ refugees with strong claims are sometimes wrongfully rejected. At Immigration Equality, we frequently help LGBTQ clients get negative CFIs reversed, then they go on to win their asylum cases in court. Under the proposed standard, however, people who fear persecution will be more than three times more likely to fail.

But that’s not all. Another measure under consideration would make detention for asylum seekers mandatory, costing taxpayers billions. For decades, reports have documented inhumane detention conditions where immigrants suffer physical and sexual assaultmedical neglect, which sometimes leads to preventable death, prolonged solitary confinement, and homophobic and transphobic abuse. What is particularly vexing about the proposal, is that immigration detention is not only cruel and expensive, but it is unnecessary. Few immigrants pose any safety risk, and the overwhelming majority show up for their immigration hearings. Aside from the grave cost and humanitarian concerns, it is hard to fathom how the U.S. would ever even have the capacity to implement such a terrible idea.

What is perhaps most absurd about the reported deal is that it won’t actually solve any of the problems plaguing the immigration system, and – as DHS itself has noted – will actually make things worse. To be sure, we have real issues to resolve. For decades, Congress has failed to modernize our antiquated immigration system. In addition to issues at the border, this has led to families being torn apart, systemic inequities and due process violations, and massive backlogs. That dysfunction has also led to unnecessary and sometimes debilitating labor shortages in the U.S., and a loss of billions in potential employment and tax revenue. This has to change.

Unfortunately, our lawmakers are playing political games instead of legislating workable solutions. Deterrence-based policies, like those on the table, have always failed, and will always fail. Punishing refugees with cruelty will never stop them from seeking safety.

But let’s be clear: Despite what the MAGA extremists would have you believe, refugees and economic migrants seeking protection and opportunity are not a “problem.” They are human beings deserving of dignity, empathy, and respect. (And for the record, arriving at the border to ask for asylum is legal immigration. Every asylum seeker has a right, under law, to have their claims heard and adjudicated through our immigration system, no matter how they enter the country).

Congress and the Biden Administration cannot bargain away the lives of LGBTQ asylum seekers to pass a completely unrelated spending bill. LGBTQ refugees deserve a system that is equitable and accessible. Their lives depend on it.