Metro Weekly

Federal judge blocks Trump rule that would turn away LGBTQ asylum seekers

Judge's order will prevent DHS from imposing higher burden of proof on refugees while courts hear challenge to rule

Central American asylum seekers featured in “The Right Girls” – Photo: Wolfer Productions.

A federal judge in California has blocked a recent Trump administration rule that immigration and LGBTQ advocates have dubbed the “Death to Asylum” rule that would have effectively made it impossible for LGBTQ individuals and people living with HIV to seek asylum.

The rule, introduced last month, would rewrite asylum law — without authorization from Congress — and redefined who qualifies as a “refugee” by requiring people seeking asylum to meet more stringent criteria before they can claim “credible and reasonable fear” of persecution or death if they return to their countries of origin.

For instance, a person who is threatened with death or bodily harm because of their sexual orientation or gender identity (referred to as a “gender-based claim”) would not necessarily be allowed to cite that as a reason for seeking asylum. Instead, they would have to provide proof that they are being categorically targeted by government actors, due to their membership in a “particular social group.”

Critics of the rule say that that higher burden of proof would effectively annihilate what little protections asylum seekers enjoy, placing them at risk of death or persecution should they be deported.

Another provision in the rule would have rejected applicants for asylum if they don’t initially declare their LGBTQ status in demanding recognition as a member of a “particular social group” (such as gay men or trans women) — despite the fact that pervasive homophobia or transphobia in countries of origin may inhibit people from disclosing their HIV status, sexual orientation, or gender identity.

A third provision would prohibit refugees from seeking asylum if they don’t apply for asylum in a “transit country,” or if they stay in said “transit country” for longer than 14 days.

The rule, which was slated to go into effect on Monday, was blocked in its entirety by U.S. District Judge James Donato, of the Northern District of California, who issued an injunction prohibiting the government from seeking to enforce the law while the case is being litigated in court.

In response to a legal challenge from Immigration Equality, Lambda Legal, and Kramer Levin Naftalis & Frankel LLP, on behalf of several pro-immigrant and LGBTQ organizations that work with asylum seekers, Donato found that the plaintiff’s lawyers have provided sufficient evidence to allow them to argue in court that the Chad Wolf, the forming acting head of the U.S. Department of Homeland Security, lacked authority to push forward with the rule, as well as evidence that the organizations’ clients would suffer “irreparable harm” if the rule were to go into effect before its constitutionality was challenged. 

“Because plaintiffs have shown a likelihood that the DHS lacked authority through Wolf for the proposed rulemaking, the Court need not reach the other grounds plaintiffs propose for an injunction,” Donato wrote in his ruling.

“Plaintiffs have also demonstrated a likelihood of irreparable harm in the absence of injunctive relief,” he added. “Organizations can establish irreparable injury by showing ‘ongoing harms to their organizational missions,’ including the organizational mission of ‘representing and seeking asylum seekers’ … Plaintiffs provide legal services and other assistance to those seeking asylum and similar protections from persecution or violence in their home countries. They have provided ample evidence that if enacted, the Rule would harm this mission.”

Related: Trump immigration rule would prevent most LGBTQ or HIV-positive refugees from seeking asylum

Lawyers for the plaintiff organizations will now have the chance to argue in court that the rule is unlawful, denies asylum seekers’ right to due process, and that it was wrongly approved and did not provide sufficient time for the public to comment on the proposed rule.

“This rule is part of the Trump administration’s relentless efforts to close our doors to migrants and here, in particular, to refugees escaping persecution, even as the administration’s days wane,” Omar Gonzalez-Pagan, a senior attorney for Lambda Legal, said in a statement. “The rule is rooted in xenophobia and cruelty. 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,” he continued. “We are gratified by the Court’s quick action and confident that these attempted changes will never take effect.”

“Asylum is an international human right,” added Bridget Crawford, the legal director for Immigration Equality. “LGBTQ and HIV-positive refugees fleeing persecution will always be welcomed in the U.S.”

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