Less than two months ago, when streets ordinarily would have been filled with rainbows and Pride marches, Trump’s administration decided to propose changes making it almost impossible for LGBTQ+ refugees to reach safety in the United States.
Immediately, immigration rights organizations began raising the alarm about the 161-page rule announced on June 15 that they say will virtually block many desperate LGBTQ folks from gaining asylum in the US. “This is like Stephen Miller’s magnum opus to just eviscerate the asylum system,” Bridget Crawford, legal director of the charity Immigration Equality, told BuzzFeed LGBTQ.
According to the Administrative Procedure Act, the government is required to address every unique comment, so critics urged the general public to send their thoughts by July 15 in order to slow down the implementation by months. Advocacy organizations were given a 30-day period to spread the news and submit as many public comments on the rule as possible. “[T]he fact that organizations like us had 30 days to comment on it and say what’s wrong with it is just completely unreasonable,” Crawford said.
Immediately, the goal for groups like Immigration Equality was to delay what would be an unprecedented attack on asylum law, which Crawford describes as a “death by a thousand cuts'' — that through numerous small alterations, the majority of asylum applications could be affected. The LGBTQ+ community are particularly vulnerable to rules like a categorical bar on gender-based claims that activists worry will be interpreted by judges as a reason to dismiss any transgender cases.
Activists now say that they find themselves in a state of emergency as decades of legal precedent look to be upended, sending vulnerable individuals with stories like many of the people BuzzFeed LGBTQ recently profiled back to a country where they may face harassment, be raped, or even killed.
Some of the new regulations seem to be deliberate paradoxes, designed to trap LGBTQ+ people in harmful conditions, activists say — especially with the definition of “persecution” being narrowed to exclude “repeated threats with no actions to carry out the threats.” The ruling therefore seemingly implies a refugee should stay and wait until they’re harmed before seeking asylum, which is not feasible for many asylum-seekers.
Currently, in over 70 countries, it is still a crime to be LGBTQ+ or HIV-positive. Of those, 31 carry a sentence of 10 years or more in prison, and 11 countries allow the death penalty as a sentence.
“We have clients, especially from Middle Eastern countries, who have been threatened with death for being LGBTQ,” Crawford told BuzzFeed LGBTQ. “And they believe these threats to be legitimate because they know of other people who have been killed. So of course you flee when people threaten you — because what action could you wait for?”
Another provision declares that you cannot use persecutory laws to support your case; rather, you have to give “credible evidence that those laws or policies have been or would be applied against an applicant personally.” Activists fighting this ruling say this has the potentially perverse effect of punishing and denying asylum to people from nations where being LGBTQ carries the threat of execution or years in prison.
In a country like Brunei, for example, where gay men can face a sentence of stoning for same-sex sexual interactions, they would want to try and avoid any encounter with the law.
Many LGBTQ+ women still experience the brutal practice of corrective rape, which, under this rule, would no longer qualify as “persecution” if it was not perpetrated by government actors. And even if the attacker was a police officer in uniform, an applicant would have to prove they were a government official acting “under the color of law.”
The rule additionally punishes individuals for not having the language to express their experiences within a Western context or fully understanding their identity yet.
Under these new regulations, they would have to establish their particular social group in specific terms from the beginning (e.g., gay or lesbian) of the aslyum process and remain identifying with that group. Someone who has identified themself as gay in their country of origin, but realizes once they have lived in the US that they are a trans woman, would be penalized under these new rules for not being able to articulate their identity off the bat.
“It fundamentally misunderstands LGBTQ+ identity and the coming-out process,” Crawford argued, “and will disproportionately impact this population.” She explained that the rule as a whole sets an “unrealistic bar” for asylum-seekers like Mia (a pseudonym), a client of Immigration Equality’s from Jamaica..
Mia, a transgender woman with HIV, was gang-raped at age 16 by a group of men. After telling their family, Mia was accused of being gay and thrown out of the family home. Living on the street in a storm drain with a group of LGBTQ youth, they witnessed one of their friends being brutally stabbed to death, and three others shot.
Eventually, after a vicious attack that left four fingers permanently disfigured, Mia fled Jamaica and after an arduous journey arrived at the US border. They were forced to wait in Mexico for over three months to request asylum, facing further homelessness and persecution. Mia was eventually granted asylum in the US — something they would be denied under these new changes.
Right now, the immigration courts in the United States have a backlog of over 1.2 million cases. Many of the people behind those cases have experiences similar to Mia’s, and it’s unclear what will happen to them now. People who have not filed their claims yet are currently in detention centers, which are an incredibly hostile environment for LGBTQ+ individuals in particular.
Data from ICE detention centers shows that LGBTQ detainees are 97 times more likely to be sexually assaulted. Trans women in all-male spaces are especially at risk from both staff and fellow detainees. Crawford says that a client recently had “Gay HIV sick” written outside his cell by officials, publicly exposing his medical status and leading to threats, harassment, and discrimination from others.
And this type of mistreatment in detention centers isn’t just a US issue, according to Leah Zadeh, the executive director of UK Lesbian & Gay Immigration Group. “Homophobic, biphobic, and transphobic harassment and abuse are rife in UK detention centers,” she told Buzzfeed LGBTQ. Many asylum-seekers that UKLGIG interviewed reported facing discrimination from staff, physical attacks from other detainees, and suicidal thoughts. Vani, an Indian transgender woman, claimed that she couldn’t use the shower for 15 days due to fear of anti-trans abuse.
A study from the University of Sussex also recently discovered that across Europe, 1 in 3 LGBTQ+ asylum-seekers were refused because officials simply did not believe their sexual orientation or gender identity. Four in 10 reported being rejected because officials did not consider them as persecuted, or at sufficient risk of persecution, in their home country, and more than a third felt interviewers did not listen to them.
"To be recognized as a refugee you have to prove you are LGBTQI+, and in many cases, the only ‘evidence’ you have is your own testimony,” Zadeh explained. “Even when other evidence exists, it is sometimes dismissed — we have seen the Home Office disregard corroborating statements from friends and partners, and ignore supporting evidence from LGBTQI+ organizations.”
While the US system has never been perfect, there have been some legal precedents like the Refugee Act of 1980 to help immigrant rights organizations maintain relatively high success rates in the face of the Trump administration’s ongoing attacks on immigration.
But now, with the 30 days over, this rule may destroy that precedent, redefining what forms of “persecution” qualify someone to be recognized as a refugee — which, activists say, will result in tremendous violence. And countless LGBTQ folks desiring a safe place to live openly find their lives caught in the fray.
At the end of the response period to Trump’s immigration rule, there were 86,682 comments made. Now, the government is legally required to address all of these criticisms or face more lawsuits. And in theory, this may delay the rule being implemented until after the general election in November, when Trump hopes to be reelected. But Crawford, who says she believes the policy will eventually be ruled as “unlawful,” still has her concerns.
“The problem is, as we’ve seen with some of the other Trump policies, even if there’s a lawsuit and even if you’re likely to prevail, you don’t always stop implementation of the rule,” she explained, referencing controversial changes like a “wealth test” for immigrants and the denaturalization of longtime citizens, both of which are still being fought in court.
“So I fear the same results could happen here, where it will go into effect for a period of time,” she continued. “And that would be the death knell for asylum applications.”