A new set of rules that would make it nearly impossible for LGBTQ+ migrants to claim asylum in the United States was blocked by a federal court on Friday.
Just days before President-elect Joe Biden takes office, the Trump administration was set to unveil new restrictions on asylum claims that critics said would lead to the vast majority of applications being rejected. A wide-ranging, 419-page document released in December, among other things, barred asylum seekers from citing persecution based on their gender identity, which could be understood by immigration officials as extending to sexuality. Applicants would also be deemed ineligible if they neglected to file a tax return, resided in the U.S. a year prior to making a claim, or cited gang-based violence in their complaint.
Known as the “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,” the Department of Homeland Security (DHS) policy gave greater discretion to judges to use these proposed rules to determine whether asylum cases are “frivolous.” Any applicant deemed as lacking proper grounds for asylum could be dismissed without a hearing.
But in a scathing ruling issued in the U.S. District Court for the Northern District of California, Judge James Donato argued that Acting DHS Secretary Chad Wolf lacked the proper authority to make the sweeping changes to the asylum system. After former DHS Secretary Kirstjen Nielsen resigned from the post in April 2019, Wolf’s appointment to the position was not confirmed by Congress. A separate judge ruled against a Trump administration challenge to the Deferred Action for Childhood Arrivals (DACA) program in November on similar grounds.
Donato noted in his written opinion that the Northern District of California was the fifth federal or district court to rule “against authority... to change the immigration regulations.” “If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise,” he wrote. “It did not.”
LGBTQ+ advocacy groups celebrated the court’s decision, which placed a federal injunction on the DHS policy. Bridget Crawford, legal director for Immigration Equality, referred to the proposed rule as “the most sweeping illegal, anti-refugee volley of the Trump administration.”
“Asylum is an international human right. LGBTQ and HIV-positive refugees fleeing persecution will always be welcomed in the U.S.,” Crawford said in a statement.
One of the factors that made the policy so objectionable to LGBTQ+ activists, who widely referred to it as the “death to asylum” rule, was that it would change the very foundation on which asylum claims are made. Currently, applicants must show a “credible fear of persecution or torture” if they were to be returned to their country of origin, but the Trump administration guidelines would have raised the bar significantly by mandating that they prove that they would endure “a severe level of harm” if they did not remain in the U.S.
Omar Gonzalez-Pagan, a senior attorney for Lambda Legal, said the proposal is “part of the Trump administration’s relentless efforts to close our doors to migrants… even as the administration’s days wane.”
“The rule is rooted in xenophobia and cruelty,” Gonzalez-Pagan said in a statement. “It also is a haphazard attempt to enact a sweeping and unworkable overhaul of our asylum system, without adequate justification or compliance with the law. Lives are at stake and we are relieved that the court has put this abhorrent policy on hold while we continue to make our case.”
But while Friday’s court ruling will prevent these regulations from becoming official policy, other restrictions are set to take effect in the final days of Donald Trump’s increasingly embattled presidency. Two days before Biden’s inauguration, CBS News reports that DHS will begin rejecting asylum seekers who “exhibit symptoms of a contagious disease, like COVID-19” or are fleeing a country where coronavirus cases are “prevalent or epidemic.” A day later, DHS is moving forward with a rule barring entry along the southern border to non-Mexican migrants.
Biden has already signaled that his administration is likely to reverse these regulations but cautioned that it could take “up to six months” to roll out a new system for asylum claims, according to the Associated Press.
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