The Trump administration has proposed a rule that narrows the scope of consideration for asylum claims to the point where many refugees, including LGBTQ immigrants and numerous others seeking safety in the United States, would be turned away.
In the 161-page proposal published last month, the administration appeared to seek out multiple avenues to justify turning away asylum seekers from all walks of life who are suddenly faced with insurmountable barriers to fleeing repressive homelands. The public commenting period has ended and the administration will review the feedback before finalizing the rule.
The rule would limit the definition of persecution in the context of immigration, wipe out due process for many refugees, and even discard cases of those who did not seek asylum in countries they passed through on their way to the US, among other strict regulations.
The proposed rule, pitched by the Departments of Justice and Homeland Security, would leave immigration officials with much greater leeway to dismiss cases. The departments said persecution would be defined narrowly as “actions so severe that they constitute an exigent threat.”
“Persecution does not encompass the generalized harm that arises out of civil, criminal, or military strife in a country, nor does it encompass all treatment that the United States regards as unfair, offensive, unjust, or even unlawful or unconstitutional,” the proposal states. “It does not include intermittent harassment, including brief detentions; threats with no actual effort to carry out the threats; or, non-severe economic harm or property damage.”
Those facing violence from anti-LGBTQ or otherwise abusive family members or community members would seemingly be out of luck, as the proposal states that “persecutors who are private actors, including but not limited to persecutors who are gang members, rogue officials, or family members who are not themselves government officials or neighbors who are not themselves government officials, shall not be considered to be persecutors…”
And yet, even when the persecutor is not a “private actor” — such as the case of repressive regimes where governments are known for bigotry and repression — refugees could see their cases dismissed entirely because the US could say such assertions are based on stereotypes of the national character of the asylum’s seekers homeland.
“Accordingly, the proposed rule would bar consideration of evidence promoting cultural stereotypes of countries or individuals, including stereotypes related to race, religion, nationality, and gender, to the extent those stereotypes were offered in support of an alien’s claim to show that a persecutor conformed to a cultural stereotype,” the departments stated in the proposal.
Additionally, the regulation would give immigration officials power to label applications of asylum seekers as “frivolous” and deny consideration without fair hearings.
Those who are seeking asylum in the US after passing through multiple countries could also see their cases thrown away, as the proposal finds fault for “failure to seek asylum in a country through which the applicant transited.”
The administration has doubled down on its longstanding tendency to impose barriers to immigration. Most recently, the administration tried to pull visas from international college students whose classes for the upcoming semester were scheduled to be entirely online. The administration reversed course on that policy after legal challenges and fierce resistance from universities, businesses, and states.
In a written statement, Alphonso David, president of the Human Rights Campaign, said, “Asylum seekers are among the world’s most vulnerable people. This administration is once again turning its back on our country’s longstanding moral leadership as a beacon for those facing violence and oppression around the world. This regulation guts our asylum system, leaving asylum seekers, including those who are LGBTQ and those living with HIV, out in the cold.”
A coalition of advocacy groups including the Transgender Legal Defense & Education Fund (TLDEF), Casa Anandrea, Colectivo Transgrediendo, GMHC, Sylvia Rivera Law Project, and the Translatinx Network joined together to offer comments opposing the proposal.
Andy Marra, executive director of TLDEF, in a written statement, said, “The proposed rule is part of an aggressive effort to close our nation’s doors at a time when transgender people worldwide are fleeing increased violence and persecution in their countries of origin.”
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