By Alice Schyllander
President Biden campaigned on the promise to reform the immigration process, ending the attacks waged against legal immigration and pathways to seek asylum by the previous administration. The Biden Administration has taken action to end some policies implemented under the Trump Administration, including ending construction on the border wall, ending discriminatory bans on entry from those in Muslim-majority countries, ending the Asylum Cooperative Agreements with Guatemala, El Salvador and Honduras, and recently lifting the record-low ceiling on refugee admissions. However, there is still significant progress that needs to be made by to ensure that refugees globally can access protection in the United States. The Administration needs to deliver on its campaign promises to reform the U.S. immigration system, foster racial justice and strengthen LGBTIQ rights by refusing to send LGBTIQ asylum seekers back to conditions to violence, poverty, and persecution. LGBTIQ asylum seekers that are returned or forced to wait in Mexico, Guatemala, El Salvador or Honduras under Trump-era immigration policies are often subjected to the same persecution that they fled from their home country, increasing their risk for gender-based violence, discrimination, intimidation, threats, physical aggression and murder.
LGBTIQ people flee to the U.S. to escape conditions of persecution and violence. LGBTIQ people in Northern Triangle Countries (Guatemala, El Salvador, and Honduras) are subjected to multiple forms of violence that are both state-sanctioned and perpetrated by non-state actors. A 2016 study determined that Northern Triangle countries are considered one of the most dangerous regions in the world for trans women. The United Nations High Commissioner for Refugees (UNHCR) concluded in a 2017 study that 88% of LGBTIQ asylum seekers and refugees from Northern Triangle Countries have experienced sexual and gender-based violence in their country of origin. Impunity for perpetrators of violence contributes to the high rates of violence against LGBTIQ people in Northern Triangle countries. In a 2015 study in El Salvador, 72 percent of trans women did not report violence against themselves to authorities due to fear of revictimization and treatment by officials. In study conducted by Cattrachas between 2008 to 2015, a Honduran LGBTIQ rights nonprofit, found that of the 225 violent deaths of LGBTIQ people recorded during this period in Northern Triangle countries only resulted in 13 convictions. The high rates of violence, poverty and persecution of LGBTIQ people in Northern Triangle countries causes many of them to choose to flee, but many are subjected to violence on their journey to safety.
The Migrant Protection Protocols (the “Remain in Mexico” Policy) was a Trump-era immigration policy that returned LGBTIQ asylum seekers back to the same conditions of persecution and violence they were escaping in their home countries. The ‘Remain in Mexico’ policy required asylum seekers who appeared at a port of entry at the U.S. Southern border to wait in Mexico while their case is being processed through the U.S. asylum system. Vulnerable populations that are susceptible to persecution or violence in Mexico were supposed to be exempt from the ‘Remain in Mexico’ policy, but LGBTIQ asylum seekers were not exempt from being enrolled in the program. Due to lack of official data collection, it is challenging to estimate exactly how many LGBTIQ asylum seekers were directly impacted by the policy or subjected to conditions of violence and persecution due to their enrollment in the program. According to the US Citizenship and Immigration Services, cases from El Salvador, Guatemala, and Honduras made up more than half of the total 4,385 asylum claims for anti-LGBTIQ persecution between January 2007 and November 2017. It is difficult to estimate how many LGBTIQ asylum seekers experienced violence or persecution while being forced to wait in Mexico, but there is data on the rates of gender-based violence against LGBTIQ asylum seekers on their journey through Mexico. The UNHCR found in a 2016 study that two-thirds of LGBTIQ asylum seekers from Northern Triangle Countries reported experiencing sexual and gender-based violence in Mexico after they crossed the border at a blind spot.
On President Biden’s first day in office he paused the ‘Remain in Mexico’ policy, and recently officially ended the program. Pausing the program granted relief for the more than 15,000 migrants enrolled in the program waiting for their asylum applications to be processed. But the suspension of the ‘Remain in Mexico’ policy did not address the 41,247 migrants whose cases were rejected while they were enrolled in the program. There was an approval rate of 1.5% for asylum status for those enrolled in the ‘Remain in Mexico’ program, as compared to the asylum approval rate of 40% by those whose cases were heard by immigration judges in 2017. It is difficult to estimate how many of those rejected were LGBTIQ asylum seekers with a credible fear of persecution who were subsequently returned to conditions of violence and discrimination. When President Biden ended the ‘Remain in Mexico’ policy, he maintained Title 42, which is a public health law that allows immigration authorities to expel asylum seekers back to Mexico without an opportunity to make an asylum claim. There have been 492 attacks and kidnappings against asylum seekers turned away since President Biden entered office. Al Otro Lado found in a survey conducted between mid-February and early April 2021 in Baja California that among LGBTIQ asylum seekers stranded in Mexico that 81 percent reported being attacked or subjected to an attempted attack within the last month. Title 42 has subjected LGBTIQ asylum seekers to conditions of persecution without an opportunity to seek protection in the United States.
The Biden Administration should re-process asylum cases for those denied while enrolled in the ‘Remain in Mexico’ program, giving special priority to individuals who are especially vulnerable like LGBTIQ asylum seekers. The UN High Commissioner for Refugees recently called for the United States to end Title 42 which violates core principles of international refugee law. The Biden Administration should end this policy immediately, ensuring that LGBTIQ asylum seekers can seek protection. The Biden-Harris Administration has the opportunity to fulfill its campaign promises by enacting these policies and creating a humane asylum process for LGBTIQ asylum seekers.