Biden’s Deadly Rule: Closing the Border Disproportionately Harms Queer and Trans Asylum Seekers
Yesterday, President Biden unleashed two assaults on the human right to apply for asylum: (1) a Presidential Proclamation that immediately suspends the right to apply for asylum for people at the Southern border who do not enter the U.S. at a port of entry, and (2) an interim final rule that seeks to make this suspension procedure permanent.
What the Proclamation and Interim Final Rule Say:
Under the proclamation, the Southern border is in effect now closed to asylum seekers. The interim final rule requires that the Southern border be closed anytime there has been an average of 2,500 or more crossings over the past 7 days. Once the numbers decrease to 1,500 (or less) crossings for at least seven days—a number not seen since July 2020 at the height of the pandemic—the border will reopen two weeks later. Historical data suggests that, based on this metric, the border will remain closed for years.
Instead of arriving at the border, asylum seekers are told to cross at a port of entry by making an appointment on the deeply problematic CBP One mobile application and to wait in dangerous conditions in Mexico for periods of 8 months or longer before receiving an appointment.
If someone tries to seek asylum at the border during a suspension period, they will be automatically found ineligible for asylum—unless they meet very narrow exceptions. They will also be quickly removed from the U.S., without any additional screening, and be prohibited from entering the U.S. for at least 5 years. For decades, Border Patrol officers would ask an individual if they were afraid to return to their home country before considering deportation. Now, the asylum seeker, unprompted and without the support of an attorney, will have to explicitly express to armed border patrol officers not only a fear of returning, but will also have to meet a much higher threshold of evidence in order to not be deported. Finally, as the White House’s announcement of these new policies emphasized, criminal prosecutions for immigration violations will also be increased, with additional funding and resources dedicated to punishing those seeking safety instead of aiding them.
What this means for asylum seekers:
To put this dangerous new asylum ban in perspective, Border Patrol has encountered a daily average of migrants exceeding 2,500 individuals in 110 of the past 296 months (or 37% of the time). Had Biden’s rule been in effect, the right to asylum between ports of entry would have been shut down more than one-third of the time this century.
And remember, the interim final rule won’t restore the right to seek asylum between ports of entry until the daily average goes below 1,500 migrant apprehensions. But the daily average has been over 1,500 in 172 of the past 296 months (58% of the time). Under the new rule, the mere opportunity to seek asylum becomes non-existent for the foreseeable future.
The government is not building loudspeakers or setting up a communication system to relay when the suspensions will be in place. There will be no confetti raining down or prize awarded to the 2,500th person to be encountered by Border Patrol so that the person crossing behind them knows they need to now wait. Instead, the arbitrariness of this perverse new rule will force people who are seeking asylum to be returned to danger and be excluded from the U.S. for a significant period of time. The irony is that they are barred from seeking asylum simply because they are seeking safety at a time when others are also trying to escape persecution. Victims and survivors of racist, religious, gender-based, political and/or homophobic and transphobic violence have a human right to seek asylum, but Biden’s rules would have them locked up in a prison cell for trying to find support and security in the U.S.
A manufactured crisis prime for manipulation:
The proclamation and rule are based on the flawed notion that border crossings are at historic “crisis” levels. The data does not support this. Instead what has increased over the past couple of years is border enforcement and the reason why people want to enter the United States has changed. Based on the Department of Homeland Security’s own data, border crossings have remained mostly constant over the last decades; it’s the ratio of how many people who are trying to cross the border and are caught compared to those who are not that has changed. This is a manufactured crisis and one that can be manipulated by the U.S. government. For example, if DHS wants to force a suspension of the border, they just need to increase enforcement for a week to get to an average of 2,500 encounters a day. They can keep up this enforcement for however long they want the border to be closed. When they want to reopen the border, they just need to reduce enforcement and the number of encounters will drop.
The disparate effect on LGBTQ+ asylum seekers:
These new immigration enforcement mechanisms will affect queer and trans asylum seekers of color disproportionately. First, the rule demands that if an asylum seeker is crossing between ports of entry during a suspension period, they must affirmatively state to a border patrol officer that they have a fear of returning to their country of origin and why. They must speak up and tell this figure in authority that they are LGBTQ+ and have suffered persecution—anything ranging from physical violence, sexual harm, and ostracization—all within minutes of crossing the border, the culmination of a dangerous and very often traumatic journey to reach safety. Having to “manifest a fear” and then be required to show a “reasonable probability of persecution” goes against everything an LGBTQ+ asylum seeker has learned to do to keep themselves safe. In their country of origin, the place where they are escaping from, being a visible member of the LGBTQ+ community leads to violence, harm, and even death. At Oasis, we see the terrible mental and physical impacts of this violence on our clients and see time and time again; that it is only after our clients reach safety in the U.S. and begin to build community and find support systems, that they are then able to be vocal, open, and visible with their LGBTQ+ identities.
Second, a recent study reported that Latine trans immigrants are subject to debilitating and torturous conditions while in detention, enduring torture and abusive treatment (held in solitary confinement as punishment) by detention authorities, and denied access to basic human needs and medical care. This dehumanization, abuse, and transphobia in detention incurred psychological consequences including trauma, anxiety, depression, suicidal ideation, and a preference to self-deport. The increased detention and incarceration of queer and trans asylum seekers under this rule will be felt acutely by our client communities and cause long lasting harm and trauma.
“Oasis is appalled by these new restrictions on asylum, shamelessly announced by President Biden on the 85th anniversary of when the U.S. barred entry of the M.S. St. Louis, a ship carrying over 900 people fleeing persecution from Nazi Germany during World War II,” said Adam Ryan Chang, Executive Director of Oasis. As a queer person who has directly interviewed and supported victims of anti-LGBTQ+ hate crimes in countries like Romania and Ghana, Adam emphasizes that “queer and trans asylum seekers are among the most vulnerable of those who reach the border. The idea of incarcerating an asylum seeker for fleeing persecution based on their sexuality or gender identity is horrific and flies in the face of what the Biden Administration has promised the LGBTQ+ community—to safeguard and protect them.”
Rachel Kafele, Oasis’ Director of Programs and Advocacy, commented, “It is disturbing that after campaigning on a promise to restore asylum and some dignity to our immigration laws, President Biden is relying on the same legal authority Trump used to enact his Muslim ban, which relied on racist and islamophobic tropes to unlawfully block refugees and immigrants from Muslim-majority and African countries.” Rachel added, “This latest maneuver to end asylum by the Biden Administration takes a page right from Trump’s book and closes the door on queer and trans asylum seekers in order to score political points.”
Published June 5, 2024