Melanie Nathan, African HRC: “Now that the U.S. Supreme Court is allowing the new Trump policy to stand while the question of its legitimacy continues through the Courts, LGBTQI Asylum Seekers must be given a policy exemption under the Trump asylum policy, providing certainty, rather than relying on mere discretion given to USCIS and border agents.”
Last week the U.S. Supreme Court allowed the Trump Administration to proceed with a policy which requires migrants to apply for asylum in another country while traveling en route to the U.S. border, failing which they will be rendered ineligible for U.S. asylum protections and referred for rapid deportation.
The Washington Post notes: “U.S. Citizenship and Immigration Services, (USCIS) which runs the asylum program, said Thursday that the restrictions will apply broadly to anyone “who entered, attempted to enter or arrived in the United States across the southern border on or after July 16, 2019,” if that person did not seek protection in another country while traveling to the United States.”
This rule is set to slam the door on the U.S. asylum process, and is most bewildering for LGBTQI asylum seekers, who make the arduous journey from many countries, including Africa, with the South American/ Central American route seen as their only route to seek asylum in the United Sates in their attempt to escape oppression, discrimination and violent persecution.
The policy itself does not speak directly to LGBTQI exemptions, and it remains unclear as to how LGBTQI asylum seekers will be processed. What is clear is the fact that most the countries along the route not only fail to offer equality to LGBTQI individuals but also criminalize and fail to offer safety and protection from homophobia and transphobia.
The Post article continues:
“USCIS did not respond to inquiries about how the policy will be implemented on the ground. Several analysts said it is likely to have a major effect on other Trump administration programs aimed at deterring migrants, including the “Migrant Protection Protocols” that have led to more than 42,000 asylum seekers being returned to Mexico this year to wait outside U.S. territory as their claims are processed.”
“Asylum officers would still have some discretion to let applicants into a process that could allow them to stay in the United States: Officers who believe an applicant faces true peril if sent home would still be able to refer that person to U.S. immigration courts if they determine they might qualify for a lesser status known as “withholding of removal.” Withholding is not a path to legal U.S. residency, but it stops the deportation process and would potentially give the person more time to pursue other legal claims on U.S. soil.
Officers also could refer asylum seekers for withholding under the U.N. Convention Against Torture if the claimant can demonstrate that they are likely to be harmed with the consent or participation of their home country’s authorities.
It is more difficult to qualify for those forms of protection, the officer said, because an applicant must demonstrate a higher likelihood that they will face harm: “Time will tell once asylum officers and their supervisors figure this out and get more comfortable with what should be ‘reasonable possibility’ ” of harm.”
Melanie Nathan, ED of African Human rights Coalition:
“Now that the U.S. Supreme Court is allowing the new Trump policy to stand while the question of the legitimacy of the rule continues through the Courts, LGBTQI Asylum Seekers must be given a policy exemption under the Trump Asylum Policy Rule, providing certainty, rather than relying on mere discretion given to USCIS and Border agents.”
Because of the particular nature of their persecution, and the fact that the U.S.A. is the only viable country equipped on many levels to support LGBTQI asylum seekers who take that route, a particular exemption should be established for those who have credible fear claims based on sexuality and gender identity, and especially those who have escaped countries which criminalize their sexuality.
At African HRC we remain unclear as to how LGBTQI Asylum seekers will be treated under this new policy, which we hope will ultimately be ruled unlawful by our Courts. However in the meantime, the Supreme Court allowing this to continue is causing enormous hardship for all asylum seekers and hindering the urgent quest for new safe lives by LGBTQI Africans and others criminalized in their home countries because of their sexuality and gender identity. Deportation is not an option and neither is the ridiculous notion that they could possibly find safety in any of the countries along their travel route.
by MELANIE NATHAN
Advocacy: African Human Rights Coalition
Mediation: Private Courts
Follow me on Twitter – @MelanieNathan1