On Thursday, the Trump Administration’s Department of Homeland Security and Department of Justice finalized rule changes that are supposedly meant to “streamline” immigration hearings to make legal proceedings occur much more quickly. In reality, the pro-LGBTQ immigration non-profit, Immigration Equality says, the rule changes make it much harder for LGBTQ or HIV-positive refugees to get asylum in the United States.
One rule change gives all asylum seekers one chance and only one chance to declare their LGBTQ or HIV-positive identity to an asylum hearing judge. If they don’t, they can never bring it up again or re-file a case stating that they’re seeking asylum to escape queer-phobic abuse or anti-HIV stigma in their home countries.
“The Proposed Rule guts the U.S. asylum system by rewriting asylum law without authorization from Congress and upending decades of legal precedent,” Immigration Equality said in a statement. “This unprecedented bar would require applicants to immediately and clearly articulate every cognizable PSG (particular social group) before the Immigration Judge or forever lose the opportunity to present it, even on a motion to reopen where an applicant relied on ineffective counsel.”
Persecuted queers and HIV-positive asylum seekers are often attacked by police, doctors and government officials in their home countries for revealing their identities. As such, many are often afraid to reveal these things to U.S. authorities for fear of further discrimination or abuse. Others will only reveal these personal details about themselves after months of feeling more comfortable and supported in the U.S. system.
Many refugees also lack the English-skills to articulate their membership within these persecuted groups, especially if their lawyer doesn’t encourage them to do so or doesn’t inform them that these particular social groups are eligible for asylum.
A second rule change says that asylum seekers have to prove that their treatment was systemic — that is, caused by a government policy or institutional discrimination rather than “personal animus and retribution” from an individual or group of individuals. They have to prove that the discrimination affected other members of their groups equally, which is difficult to substantively prove.
Furthermore, refugees can no longer list “gender” as a characteristic they were targeted for (something that would put transgender people particularly at risk) nor can asylum seekers say that they were persecuted for their “political opinions” or “cultural stereotypes,” a broad rule change that would exclude all manner of refugees, particularly queer ones who were harassed for their self-expression.
Lastly, refugees have to prove that they’ve already been persecuted — the mere threat of persecution would no longer be sufficient to get asylum — and that their persecution was pressing and “extreme.” Intermittent harassment and brief detentions no longer count as worthwhile factors for seeking asylum. Additionally, refugees must prove that they first tried to re-locate to a friendlier place inside of their home nation or tried to apply for asylum in whatever countries they crossed through before reaching the U.S., even if those countries are also anti-LGBTQ.
Judges can also now fast-track asylum hearings to quickly determine whether someone is eligible rather than holding a longer fact-finding discovery period to help develop a refugees’ reasons for seeking asylum in the United States. As such, these rule changes won’t just harm LGBTQ and HIV-positive people, but seem to have been crafted specifically to prevent thousands of refugees from getting asylum in the U.S., a longtime goal of the Trump Administration.