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Lambda Legal and Immigration Equality Challenge Trump Administration's "Death to Asylum" Rule

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December 21, 2020
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Today, Lambda Legal, Immigration Equality, and co-counsel Kramer Levin Naftalis & Frankel LLP, filed a federal lawsuit, Immigration Equality v. U.S. Department of Homeland Security, challenging the Trump administration’s recently published “death to asylum” rule, which makes sweeping, essentially fatal changes to the United States asylum system.

The rule, which is set to go into effect on January 11, 2021, would make it virtually impossible for LGBTQ and people living with HIV fleeing persecution to secure asylum in the United States. In fact, the new rule eliminates eligibility for asylum to anyone with a gender-based claim. Further, even if a judge finds that someone is eligible for asylum, the new rule declares that most refugees should be denied protection because they don’t deserve it.

The lawsuit is filed on behalf of plaintiffs Immigration Equality, Oasis Legal Services, The TransLatin@ Coalition, Black LGBTQIA+ Migrant Project, and Transgender Law Center. The population these organizations directly serve, asylum seekers who are LGBTQ or living with HIV, will face insurmountable barriers to asylum in the U.S., despite the fact that they have remarkably strong asylum claims. Read more about the rule below.

Statements:

Jennifer C. Pizer, Law and Policy Director for Lambda Legal
“The Trump administration’s disdain for immigrants and refugees and indifference to their suffering is no secret. Just as with every single action on immigration that this administration has taken, the glaringly obvious goal of this rule is to end asylum altogether. These unjustified, arbitrary and capricious, and illegal changes effectively close the door for nearly all refugees, betraying one of our Nation’s core values – that we offer safe haven to persecuted minorities seeking safety from prejudice-based life-threatening violence.”

Bridget Crawford, Legal Director for Immigration Equality
“This rule will cost hundreds of thousands of lives, including those of LGBTQ and HIV-positive people. If the ban is allowed to go forward, the U.S. will deport countless LGBTQ and HIV-positive refugees back to persecution, torture, and death. The Trump administration’s attempt to abolish asylum cuts at the very heart of who we should be as a nation: a beacon of hope for people fleeing persecution. This rule must never see the light of day.”

Aaron Frankel, Partner and Co-Chair, Pro Bono Committee, Kramer Levin Naftalis & Frankel LLP
“It is crucial to block this move by the Trump Administration because it will cut off so many people who are in danger and deserve asylum. While the Biden administration likely would eventually overturn this rule, that process is not easy and will take a long time, leaving many people in life-threatening situations.”

Caroline Kornfield Roberts, Executive Director of Oasis Legal Services
“Oasis Legal Services represents hundreds of LGBTQ+ asylum seekers fleeing homophobic violence and death every year. Due to the severity of the persecution our clients have suffered we win 99% of our cases. Under this new rule, over 80% of our clients could be barred from protection, facing deportation and death in their home countries. Oasis stands with the LGBTQ+ immigrant community in strongly condemning this immoral and illegal rule.”

Bamby Salcedo, President and CEO of the TransLatin@ Coalition
“Many transgender and gender nonconforming Latinx people face unimaginable violence, persecution, and torture around the world. The majority of transgender women who seek refuge in the United States from these serious threats have nowhere else to go. The safety and survival of so many people depends on their ability to find a safe haven in this country. I was lucky to receive support from people when I fled Mexico because I feared for my life. The TransLatin@ Coalition was founded by trans Latin@ immigrants to improve the lives of trans Latin@s. While the Trump administration has turned its back on its commitment to LGBTQ refugees, we will not!”

Ola Osaze, Director of Black LGBTQIA+ Migrant Project
“It goes without saying that these latest rules from the Trump administration are aimed at eradicating asylum for migrants who are Black, LGBTQIA+, and/or women. This rule would create a level of chaos that would make it impossible for us to carry out many parts of our mission and would further endanger the people whose lives and safety are already so precarious. However, thanks to the transformative resistance, organizing and solidarity efforts we have all been engaged in over the last four years, including direct legal challenges against this administration, a substantial percentage of Trump’s 400+ executive orders and myriad modifications to immigration policies have been stopped and I am confident that we will stop this one too.”

Lynly S. Egyles, Legal Director for Transgender Law Center
“The rule sets an impossible standard for everyone seeking asylum in the United States, by design, and the consequences will be especially dire for refugees who are LGBTQ+ or living with HIV. Asylum seekers deserve a home where they are safe, can live with dignity, and thrive.”

More information about the rule
The rule—promulgated by the U.S. Department of Justice and  U.S. Department of Homeland Security—is especially dire for LGBTQ people, people living with HIV, and women, who have no other recourse but to flee the unimaginable violence they experience in their countries of origin. In over 70 countries it is a crime or fundamentally unsafe to be LGBTQ or HIV-positive. The suit challenges multiple sections of the rule, which creates numerous reasons why judges should deny claims of refugees who otherwise qualify for asylum.

The rule will deny asylum to people who:

●    Apply for asylum based on fear of persecution due to their gender, which may be interpreted by authorities as including LGBTQ asylum seekers

●    didn’t apply for asylum in a transit country, regardless of whether that nation is safe

●    stayed in a transit country for more than 14 days, even if they were trapped in that country

●    lived in the U.S. for more than one year without permission, even if they qualify for an exception to the one-year filing deadline

●    LGBTQ and HIV-positive people with otherwise strong claims of persecution if they are unable to prove that government officials participated in the abuse (e.g. violence by private actors, such as civilians who perpetrate mob violence or so-called “corrective rape,” will not count as evidence toward an asylum claim.)

●    are unable to explain the particular social group they are a part of, requiring LGBTQ and HIV-positive people to disclose their identity and intimate details about their personal lives in their first interaction with immigration judges.

Lambda Legal has long supported the rights of LGBTQ immigrants and asylum seekers and immigrants living with HIV. Just this year, Lambda Legal and Immigration Equality successfully advocated for the release of two asylum seekers living with HIV who were detained unnecessarily at an ICE detention facility in Texas and put at increased risk of contracting COVID-19. In 2007, Lambda Legal secured asylum for Jorge Soto Vega, a gay man from Mexico. Lambda Legal has also supported the asylum claims of LGBTQ people and people living with HIV with friend-of-the-court briefs on multiple occassions, such as in 2016, in support of Carlos Bringas-Rodriguez, a gay man living with HIV who escaped persecution in Mexico based on his sexual orientation, and Rigoberto Velasquez-Banegas, a man living with HIV who fled persecution in Honduras due to his HIV status and assumed sexual orientation. In 2011, Lambda Legal filed a brief in support of Karolina Lopez Berera, a transgender woman living with HIV who fled persecution in Mexico, as well as in 2006, in support of Y.S., a gay Palestinian man seeking asylum, and in 2000 in support of Geovani Hernandez-Montiel, a gay man from Mexico that faced persecution because he did not conform to gendered stereotypes in his physical appearance. And in 1997, Lambda Legal successfully represented Alla Pitcherskaia, a Russian lesbian in her appeal before the Ninth Circuit, the first asylum case to address persecution based on sexual orientation at the federal appellate court level.

Attorneys working on the case are Senior Counsel and Policy Director Jennifer C. Pizer, Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan, and Senior Attorney and Criminal Justice and Police Misconduct Strategist Richard Saenz from Lambda Legal, Legal Director Bridget Crawford and Executive Director Aaron Morris from Immigration Equality, and Jeffrey S. Trachtman, Aaron M. Frankel, Chase Mechanik, Jason M. Moff, and Austin Manes from Kramer Levin.

Read the complaint here.

Read Lambda Legal’s comments opposing the rule here.

Read Immigration Equality’s comments opposing the rule here.