Don’t Sell Out LGBTQI+ Refugees & Asylum Seekers

According to numerous media reports, Senate and White House negotiators are very close to announcing a deal that would swap Democratic votes for permanent changes to the U.S. immigration system in exchange for Republican approval of short-term military assistance to key U.S. allies.

While we remain skeptical that any deal will clear the increasingly high political hurdles in both the Seante and the House, we are nonetheless worried that even the outline of a bad deal — even a potentially moribund one — could set a catastrophic precedent that will eventually undermine our asylum system.

Such an agreement, should it be passed by both houses of Congress, would unlock funding and equipment for Ukraine previously opposed by Republicans, along with aid to Israel and Indo-Pacific partners. In turn, Democrats would bow to Republican demands for much stricter standards for claiming asylum, billions of dollars for expanded border policing, and new expulsion and enforcement mechanisms.

Such radical concessions would be inhumane, irresponsible, and profoundly dangerous for all seeking sanctuary in the United States — and especially so for LGBTQI+ refugees and asylum seekers.

The reported dangerous and highly politicized proposals would put asylum out of reach for many, if not most, refugees. This includes denying protection for thousands of LGBTQI+ asylum seekers fleeing persecution and torture. These proposals are reminiscent of the draconian agenda of former President Donald Trump and of Stephen Miller, his viciously anti-immigrant chief advisor.

The concessions reportedly being negotiated include either reimplementing the disastrous Title 42 law or introducing a similar broad expulsions policy; instituting a heightened “credible fear” standard for refugee screenings; and expanding the Family Expedited Removal Management (FERM) program.

These concessions would be nightmarish for all those trying to secure refuge in the United States, and especially to asylum seekers from marginalized groups, as they expand removal mechanisms and as they build walls to prevent refugees from ever having the chance to sit for an asylum hearing.

We further want to note the particular implications of the proposed deal for LGBTQI+ refugees:

• Reinstituting mass expulsions that give any President the power to indefinitely and unilaterally shut down access to asylum at the border. As we saw under the deadly Title 42 policy, over 13,000 migrants were subjected to severe violence in Mexico, including LGBTQI+ asylum seekers who were kidnapped, raped, and assaulted. Today, cartels, smugglers, police, and others continue to target queer and trans asylum seekers for sexual violence, kidnapping, and abuse as they wait in Mexico for a CBP One appointment to enter the United States. Beyond the dangers posed under the current system, the proposed changes would force LGBTQI+ asylum seekers into a dangerous, even lethal, limbo where they must choose between returning to their persecutors in their country of origin, remaining in danger in an unsafe third country, or entering the United States without authorization.

• Enacting a “Transit Ban” or “Safe Third Country” Agreements That Will Subject LGBTQI+ Asylum Seekers to Mortal Danger.  In reality, applying for asylum in common transit countries is simply not an option. Many LGBTQI+ asylum seekers have reported that they could not request asylum in a transit country because they were unsafe, and it was unclear if they could even base a claim on persecution on account of their sexual orientation or gender identity/expression. Indeed, most common transit countries — including, Mexico, Honduras, El Salvador, and Guatemala — have long, documented histories of severe violence against LGBTQI+ people. Forcing queer and trans people to seek protection in places that cannot provide it, endangering LGBTQI+ lives in the process, must be rejected.

• Raising the Asylum Screening Standard, Resulting in Bona Fide LGBTQI+ Refugees Being Returned to Persecution. Credible Fear Interviews (CFIs) are preliminary screenings usually performed in immigration detention without an attorney. Asylum seekers that pass this initial CFI screening may be admitted to the United States on a temporary basis, but they still must sit at a later date for a more formal adjudication under a higher well-founded fear standard. Because they are preliminary, the CFI screenings are often conducted very shortly after an asylum seeker survives a treacherous journey to the border. As such, many LGBTQI+ asylum seekers fleeing persecution who have suffered sexual violence and other severe mistreatment on the journey to the United States may not yet be ready to share their full story. Recognizing the 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.” Still, under current CFI standards, LGBTQI+ refugees with strong claims are wrongly denied a credible fear. This is due to a variety of factors, including fear of disclosing LGBTQI+ status to government officials, insufficient privacy in detention facilities where CFIs are often held, insufficient time to understand the process or speak with an attorney, and lack of LGBTQI+ competency or other errors among immigration officers. Despite the successful reversal of some negative CFIs by CGE members and partners, most individuals are deported before they can access an attorney to assist in overturning a denial. Plus, restrictions under the Biden Administration’s current policies have made challenging these denials even more difficult. The number of erroneous denials will skyrocket if the standard is heightened. LGBTQI+ refugees who would normally qualify for asylum will instead be returned to countries of persecution.

• Forcing More Low-Risk but Highly Vulnerable LGBTQI+ Asylum Seekers into Detention Where They Will Be Abused, while Costing American Taxpayers Billions. For years, immigrants’ rights organizations have warned DHS that throwing asylum seekers in prisons is dangerous and irresponsible. Voluminous reports have documented dangerous and inhumane detention conditions, including sexual assault, medical neglect, and other homophobic and transphobic abuse directed at detained LGBTQI+ asylum seekers. Tragically, abuses have continued under the Biden Administration. Jailing traumatized and vulnerable asylum seekers in abusive prisons is morally reprehensible. Detention already costs American taxpayers billions each year, and increasing it will mean millions or billions more going directly into the pockets of the private prison industry. The Biden Administration should be limiting detention, not increasing it.

These short-sighted changes all fail to tackle any of the real issues preventing LGBTQI+ refugees from securing safety, such as a years’ long backlog and insufficient capacity for humane processing at the border. The reported measures would also cost American taxpayers billions of dollars without fixing our broken immigration system, and they would be immensely unpopular with the American people who want real solutions and who are strongly in favor of protecting refugees.

Make no mistake, destroying asylum will not fix the immigration system, solve problems along the southern border, or diminish the “push” factors that compel LGBTQI+ individuals to flee their countries. It will, however, result in the preventable persecution, torture, and death of thousands of LGBTQI+ refugees.

Instead, the Biden Administration should follow through on its promise to protect vulnerable LGBTQI+ refugees and asylum seekers by:

• halting the use and defense of the Administration’s “Circumvention of Lawful Pathways” rule which has already been found illegal; and
• finally rescind the Trump-era “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” rule.

Both rules threaten the lives of LGBTQI+ asylum seekers. The 2023 Circumvention of Lawful Pathways rule bars refugees from asylum based on their manner of entry into the United States and their transit through third countries, factors that do not relate to their persecution or fear of return. It applies only to refugees who enter at the southwest border, the vast majority of whom are people of color. It punishes and bans refugees fleeing LGBTQI+, political, religious, race-based, gender-based, and other persecution. The ban applies not only in full asylum adjudications but also in preliminary screenings at the border, which resulting in mass deportations of refugees without a hearing.

The 2020 “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” rule includes numerous provisions that put LGBTQI+ refugees and others from particular risk by banning from asylum, or denying asylum to, refugees who suffered brief detentions or escaped their persecutors before threats could be carried out; who transited through other countries on their way to the United States; who crossed into the United States between ports of entry or were unable to precisely articulate the legal parameters of their persecuted social group at their hearings. It also blocks asylum seekers from due process, removal hearings and other forms of immigration relief; allows adjudicators to deny asylum without ever hearing an asylum seeker’s testimony; illegally raises the credible fear screening standard set by Congress; and provides for the removal of torture survivors back to where they were persecuted.

In the short term, this disastrous deal may be torpedoed by Speaker Mike Johnson and far-right House Republicans — especially since Trump slammed the negotiations last week. For those extremists, any compromise on border security short of full passage of H.R. 2 — which has no chance of passage in a Democratic-controlled Senate — is insufficiently cruel and irresponsible.

In the long term, however, the Democrats must not trade away the fundamental right to seek asylum for political expediency ahead of this year’s elections or even for the urgent goal of helping Ukraine resist Russian aggression. The U.S. Refugee Act of 1980 guarantees that right to any person “with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and both parties should reaffirm America’s commitment to protecting those seeking refuge.

The drivers of the global refugee crisis — war and other violence, authoritarian repression, poverty, and climate change — show no signs of ebbing, and refugee and asylum mechanisms must be strengthened, not dismantled. This is even more essential for LGBTQI+ refugees and for members of other marginalized groups. The Council for Global Equality calls on President Biden and Congressional leaders in both parties to not sell out LGBTQI+ refugees and asylum seekers, not now and not ever.