Oasis Files Comment Opposing Biden’s Newest Asylum Ban
Oasis, in partnership with Immigration Equality, filed a comment on July 8, 2024, against Biden’s newest asylum ban or Interim Final Rule (“IFR” or “Rule”). Detailing accounts of our clients’ lives in their countries or origin, our comment highlights how dangerous this rule will be for asylum seekers who are LGBTQ+ and may be living with HIV (LGBTQ/H).
In Summary:
The IFR guts the U.S. asylum system by establishing another discriminatory process that applies a heightened asylum standard to refugees at the Mexico/U.S. border. The IFR has few exceptions, a really high screening standard, and applies to Mexican refugees forced to remain in Mexico with their persecutors, unable to flee without the risk of penalty. Under the IFR, asylum seekers who are unable to obtain and wait for an appointment through the U.S. Customs and Border Protection (CBP) One mobile application (with very few exceptions), will be presumed ineligible for asylum regardless of the merits of their claim.
The IFR will subject LGBTQ/H refugees to severe harm, either because it will result in the wrongful denial of queer and trans asylum claims, or because LGBTQ/H refugees will put their lives in danger trying to comply with the IFR’s requirements. LGBTQ/H asylum seekers are routinely sexually assaulted, beaten, and kidnapped in Mexico, especially in the border region. Yet, under the IFR, queer and trans asylum seekers are required to wait in danger for a CBP appointment or risk losing their opportunity to apply for asylum. The exceptions to the ban for refugees who can prove “an extreme and imminent threat to life or safety” are insufficient. First, because they create a burden of proof higher than asylum law typically requires. Second, because they ignore the reality that violence faced by LGBTQ/H people in Mexico is highly probable, but unpredictable, and so under the IFR refugees are incentivized to wait until they are brutalized (or further brutalized) before seeking protection.
For queer and trans refugees, asylum is a critical lifeline. LGBTQ/H people are persecuted around the globe for being who they are. Asylum seekers do not want to cross the border with traffickers, or through deadly corridors. But they often have no other choice in order to keep themselves safe. This reality is why the Immigration and Nationality Act (“INA”) preserves the right to seek asylum, regardless of manner of entry. Punishing the most vulnerable refugees – LGBTQ/H, Black and Indigenous people, people with disabilities or limited literacy, poor people without access to smartphones and high-speed internet, people who do not speak languages available on the CBP One app – undermines the fundamental right to asylum.
The IFR also violates promises made by President Biden to “Protect Vulnerable LGBTQ/HI+ Refugees and Asylum Seekers” and “restore and strengthen our own asylum system.” As a candidate, he pledged that his administration would not deny asylum to people fleeing persecution and violence, and would end restrictions on asylum for those who transit through other countries to reach safety. The IFR blatantly contravenes these promises and condemns LGBTQ/H asylum seekers to further harm.
Key Statement Highlights:
The IFR is unlawful and will result in LGBTQ/H people being seriously harmed and returned to countries of persecution
The IFR violates, and is inconsistent with, U.S. and International Law
The rule forces vulnerable refugees, including Mexican Nationals, to wait in dangerous conditions in Mexico in order to be eligible for asylum
There is a pattern and practice of systematic violence against LGBTQ/H people, including LGBTQ/H human rights activists in Mexico.
Mexican police and other government actors often commit or acquiesce in violence against LGBTQ/H individuals, resulting in broad impunity for these acts.
People living with HIV in Mexico often lack adequate access to medication and treatment, especially if they are refugees
Firsthand accounts of harm suffered in Mexico by LGBTQ/H Mexican Nationals and refugees waiting to enter the U.S. and request asylum are plentiful
Requiring asylum seekers to “manifest” a fear ignores history and eliminates protection for LGBTQ/H asylum seekers conditioned to keep their LGBTQ/H status hidden for their own protection
Under the IFP, LGBTQ/H refugees will be left in perpetual limbo and queer families will be separated.
We firmly urge the Departments to withdraw the IFR in its entirety.
Our 2024 Summer Law Student Interns Mars, Chase, Michele, and Thomas, supervised by our Staff Attorney Becca Holt, helped draft the section about how dangerous it is for LGBTQ+ people to live in Mexico.
Published July 8, 2024