LGBTQ and ally immigration advocates joined Democratic congressmembers in expressing disappointment in the Biden administration's decision to abandon its proposed immigration changes and instead pivot to Trump-style asylum rules in the face of legal challenges.
The administration introduced a proposed rule February 23 that would "limit irregular migration" with what critics deride as a "transit ban" and expedited removal programs. That proposal is now open for public comment until March 27.
Separately, the Biden administration also must prepare for the end of Title 42, a federal Centers for Disease Control and Prevention policy enacted by former President Donald Trump during the COVID pandemic. Title 42 allows the United States to expel and turn away people who have traveled through countries with communicable diseases that pose a public health risk.
It is currently used to bar most migrants at the southern border and is set to expire May 11 when the federal COVID public health emergency ends. To prepare for that, the administration introduced a new policy January 5.
Neither policy addresses plans to protect and fast-track LGBTQ migrants arriving now or those who have been waiting for years for their turn to have their asylum case heard in a court at the U.S.-Mexico border.
"President Biden is doubling down on cruel and likely illegal policies that will undermine our life-saving asylum system for decades," said Bilal Askaryar, interim campaign manager at Welcome With Dignity, who moderated a virtual news conference with four immigration advocacy organizations February 22.
Others were also critical.
"This will be a damning rule for LGBTQ people," Immigration Equality Executive Director Aaron Morris told reporters during the conference call.
Askaryar called the "asylum transit ban" a "ban on Black, Brown, Indigenous, and poor people."
"If President Biden goes forward with this rule, he might as well dismantle the Statue of Liberty with it," Askaryar told reporters.
Until now, President Joe Biden has repeatedly promised a humane, safe, and orderly asylum system that would expand legal pathways to the U.S., removing the Trump administration's anti-asylum policies with an executive order and announcing a "blueprint for asylum."
Biden also promised to protect LGBTQ rights as a pillar of his administration from the start, as the Bay Area Reporter previously reported, and the president signed an executive order last June.
Others also spoke out.
"We must say no," said Guerline Jozef, founder and executive director of the Haitian Bridge Alliance, stating that people must hold the U.S. accountable to "uphold its mandate to provide protection and safety for those in need."
"Seeking asylum is the right thing for them to do. Forcing them into danger is the wrong thing for us as a people in this country to do," she said.
Beyond being the right thing, it's the legal thing, said Morris and Lee Gelernt, deputy director of the American Civil Liberties Union Immigrants' Rights Project, during the call.
Askaryar was joined by Gelernt, Morris, Jozef, and Krish O'Mara Vignarajah, president and CEO of the Lutheran Immigration and Refugee Service, in the discussion about the proposed policy.
Welcome With Dignity staged a protest with about 30 LGBTQ and immigration advocates in front of the White House February 23, the day the proposed asylum policy was publicly released.
The B.A.R. reached out to the White House, the DHS and DOJ for comment but did not receive a response by press time.
The B.A.R. requested comment from San Francisco agencies the LGBT Asylum Project and El/La Para Trans Latinas, both of which advocate on immigration issues, but did not receive responses by press time.
Deeply troubling
"The Biden administration's proposed asylum rule is a deeply troubling departure from decades of U.S. humanitarian leadership," Vignarajah said on the conference call.
Democratic congressmembers quickly expressed their disapproval of the Biden administration's proposal.
Congressmember Jerry Nadler (D-New York), ranking member of the House Judiciary Committee, and Congressmember Pramila Jayapal (D-Washington), ranking member of the House Immigration Integrity, Security, and Enforcement Subcommittee, criticized the administration in a joint statement February 21.
"We are deeply disappointed in the Biden administration's proposal to limit access to asylum," they stated. "The ability to seek asylum is a bedrock principle protected by federal law and should never be violated."
On a separate press call February 21, Biden administration officials repeatedly denied they recycled the Trump-era transit ban with the proposed policy and reiterated the administration prefers Congress to act "to update a very broken, outdated immigration system."
Secretary of Homeland Security Alejandro Mayorkas insisted to reporters "we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry," according to a February 21 DHS news release.
Trump anti-asylum policies
The Trump administration put a chokehold on the U.S. asylum and refugee systems, implementing travel bans and other policies that decimated the U.S.'s asylum and refugee systems. One of the most infamous policies Trump implemented was the Migrant Protection Protocols, commonly known as the "Remain in Mexico" program.
The policy placed migrants arriving at the southwestern U.S.-Mexico border in a waiting pattern in Mexico with no known end date in a country that isn't equipped to host tens of thousands of migrants and refugees.
In December, a federal court ruled against Biden's effort to remove the Remain in Mexico program.
As COVID policies are set to expire in May, the Biden administration is searching for ways to manage the anticipated influx of migrants at the border, which is already at historic numbers.
According to a U.S. Customs and Border Patrol February 10 news release, there were 2.76 million undocumented immigrant crossings at the southwest U.S.-Mexico border in 2022.
Migrant populations appearing at the U.S.-Mexico border in hopes of asylum are not only from Latin America, but the Caribbean and as far away as Afghanistan, according to the Washington Office on Latin America.
According to WOLA, the U.S. has done more than 2.4 million Title 42 expulsions and over 72,000 implementations of the Remain in Mexico program.
Since May 2022, Title 42 has been tied up in a legal battle in a case filed by 20 Republican states that was taken up by the Supreme Court after U.S. health officials declared Title 42 was "no longer necessary." The court was scheduled to hear the case March 1, but canceled the hearing without explanation February 16, reported the New York Times.
Amid world crises, the departments of homeland security and justice have been testing asylum policies and revisiting Trump's policies to manage mass migration. Some of the policies were tested during the ongoing socioeconomic and political crisis in Venezuela and Russia's invasion of Ukraine, according to WOLA.
DHS and DOJ released asylum plans in January and February. A new parole process was introduced, along with a new Customs and Border Patrol app, CBP One, and expedited removal.
In January, Biden struck a deal with Mexican President Andrés Manuel López Obrador during his visit to Mexico to allow the U.S. to deport Cuban, Haitian, and Nicaraguan migrants to Mexico. Immigration advocates pointed out that was illegal under Mexican, U.S., and international laws. The caveat is that the U.S. must expand legal pathways for migrants to legally claim asylum in the Americas.
The Biden administration implemented the humanitarian parole program. It allows Cubans, Haitians, and Nicaraguans to legally enter the U.S. and work for two years.
On February 21, DHS and DOJ announced the bigger proposed asylum plan in a 153-page Notice of Proposed Rule Making published on the Federal Registry.
This proposal automatically presumes migrants are ineligible for asylum, with some exceptions. Among the requirements under the proposed rule to apply for asylum, migrants must prove to U.S. authorities they attempted to claim asylum in every country they crossed through. They must make an appointment using the app. They must have a valid or recently expired passport. They must have a U.S.-based sponsor.
Those who enter the U.S. illegally will be deported to their home country and blocked from returning for five years.
Left out in the cold
Immigration advocates said there are many humanitarian, legal, and logistical issues with the policy and implementing of the tools, specifically the app.
The app, which launched in January, has been overwhelmed and is plagued with technical glitches, locking some asylum seekers out from being able to apply. The app is the only way migrants can apply for asylum. It assumes people fleeing their homes have access to a smartphone and have reliable internet service. Advocates pointed to privacy and safety issues. There are a limited number of appointment slots that fill up quickly. Facial recognition and photo features are not working for darker skinned people.
An unidentified senior administration official told CNN CBP is presumably working to fix app issues.
Immigration advocates also believe the policy will create an additional burden on asylum seekers, create a two-tiered system, and deny some asylum seekers their rights to ask for asylum. Advocates fear the consequences will leave millions of asylum seekers, including the most vulnerable, such as LGBTQs, in dire and dangerous situations.
"The idea that someone will have a requirement to file for asylum in a country where it is fundamentally unsafe to be a queer person is senseless and cruel," Morris said, "and it will result in the death of LGBTQ asylum seekers."
He pointed out that under U.S. asylum law, sexual orientation and gender identity are "fundamentally protected" and therefore "a solid reason to ask for asylum." He said the policy and lack of any mention of protecting LGBTQ people is frustrating.
The Biden administration is pointing to a decline in the number of U.S. authorities' encounters with Cuban, Haitian, Nicaraguan, and Venezuelan migrants at ports of entry. According to DHS, the number of Cuban, Haitian, Nicaraguan, and Venezuelan migrants at the southwest border declined from a seven-day average of 1,231 on January 5, the date the new processes were implemented, to just 35 on January 31 — a drop of 97% in just over three weeks. Encounters have remained at similarly low levels in February.
Of those who applied for asylum legally through the humanitarian parole process, more than 26,000 Cubans, Nicaraguans, and Haitians were thoroughly screened and vetted, and received travel authorization through February 17. The program for Venezuelans launched in October 2022 successfully granted travel authorization to 33,800 through the end of January.
Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]
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