LGBTQ Migrant Rights Hang on by a Thread in the US
What can we expect from the Biden-Harris administration?
By Rolando Diaz VasquezAs of January 22, 2021, the Biden administration rescinded several Trump era migration policies, such as the Muslim Ban, pausing the construction of the US-Mexico border wall, and suspending the Migrant Protection Protocols. Biden also ordered a moratorium on most deportations for at least 100 days.[1] These orders, issued without congressional approval, signal a major willingness by the administration to boldly push towards more humane migration policies.
Biden tends to favor taking the legislative path towards getting political goals approved, as opposed to using executive authority to push through agenda items. At his core, Biden is an institutionalist with a preference for negotiation and compromise. However, Biden is also well-aware of the obstructionist opposition he and President Obama faced from 2010-2016 when the Republican Party controlled much of the Congress. Democrats face a likely strong opposition come the 2022 mid-term elections, placing the Democratic Party’s majority in Congress at risk, so there is no time to lose in achieving immigration reform.
On June 15, 2020, the Trump administration revealed proposals for major changes for gender-based asylum claims, which activists decried as the “Death to Asylum” rules, arguing that the proposals would have made it nearly impossible to get a gender-based asylum claim approved. The “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review” sought to amend the existing legal framework by providing justifications for denying claimant’s asylum petitions. The justifications applied to individuals who: [2]
apply for asylum based on fear of persecution due to their gender, which may be interpreted by authorities as including LGBTQ asylum seekers;
Stayed in a transit country for more than 14 days, even if they were trapped in that country;
lived in the United States more than one year without permission, even if they qualify for an exception to the one-year filing deadline;
The rules above essentially apply to most gender-based asylum claims. Human Rights Watch pleaded with the Department of Homeland Security to withdraw the proposed rule in its entirety, arguing the proposal was “designed to create insurmountable procedural barriers, evidentiary burdens, and qualification standards” for vulnerable asylum-seekers, such as women fleeing domestic abuse, LGBTQ people, and individuals fleeing gang violence in Central America. [3]
Lambda Legal Services and Immigration Equality filed a lawsuit against the Trump administration in December 2020, arguing the Trump administration’s proposals would “eviscerate” the US asylum system, “cost[ing] the lives of LGBTQ and HIV-positive refugees” [4], but on January 9, 2021—just two days before the proposals were to take effect—US District Judge James Donato blocked the rule from going into effect, stating that “the government has recycled exactly the same legal and factual claims made in prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts…”. [5]
Had the proposal gone into effect two days later, a Biden-Harris administration would have been forced to accept the changes for months before it could be challenged and reversed. The previous administration’s rift with LGBTQ rights was seen from its very inception. LGBTQ content was removed from the White House and State Department’s websites just one day into the Trump presidency, representing a stark contrast to Trump’s seemingly positive attitude towards his LGBTQ supporters when he notoriously waved the Pride flag at an October 2016 campaign event in Colorado.
The previous administration’s constant dismantling of LGBTQ rights, and clear attack on LGBTQ migrants’ rights has brought up questions on how President Joe Biden plans to restore these rights and strengthen protections. But, what exactly can we expect from the Biden-Harris administration? We can look to Biden’s previous positions on LGBTQ rights as well as his initial actions as President as an indicator of what may come.
Then-Vice President Joe Biden shocked Washington, D.C. when he endorsed marriage equality in May 2012, overshadowing his boss, former President Barack Obama, who was still evolving on the matter. It was the first time the Democratic Party’s national establishment heard one of their own openly support marriage equality. While it may seem that the support came in late, same-sex marriage was not exactly mainstream around the world at the time. Most European countries passed same-sex marriage laws in the 2010s, including Denmark 2012, France 2013, England and Wales 2013, Luxembourg and Ireland 2015, Germany 2017. [6]
On June 26, 2015, the US Supreme Court struck down state bans on same-sex marriage in Obergefell v. Hodges, thus legalizing marriage equality in all 50 states. Around the same time, the American conversation on refugee admissions was starting to take a turn for the worst. With the 2015 terrorist attacks in France—from Charlie Hebdo to the Bataclan and Stade de France incidents—to the 2015-16 sexual assault incidents in Germany, anxiety and skepticism on refugee admissions began to favor a path towards Trumpian policies, ultimately influencing Trump’s misguided decision to lower the refugee cap to a dismal 15,000 per fiscal year.
By contrast, Biden has pledged to increase annual refugee admissions to 125,000, while also including LGBTQ asylum-seekers in a more “pro-immigrant” plan. Among his plans, including policies that “make sure LGBTQ refugees and asylum seekers have access to necessary services and protections—ensuring federal agencies are trained to identify and respond to the particular needs of LGBTQ refugees and asylum seekers…”. Furthermore, Biden’s plans acknowledge LGBTQ immigrants face higher rates of sexual violence while in detention, showing that the alternative—non-profit case management—is more suitable and evidently less costly than keeping these migrants at a detention center. [7]
One major thing to look for is Biden’s proposed US Citizenship Act of 2021, which includes a pathway to citizenship for undocumented immigrants, eliminates the 1-year deadline to apply for asylum, increases funds to eliminate asylum backlogs, and increases the U-Visa cap from 10,000 to 30,000 per year. [8] Biden’s immigration reform proposal also goes beyond what happens within the US and seeks to address the root causes of migration from Central America. The bill includes a $4 billion aid plan to assist El Salvador, Guatemala and Honduras to reduce corruption, violence, and poverty, all the while establishing processing centers throughout the three countries in order to help those seeking refuge to register for resettlement instead of having asylum-seekers make the treacherous journey through Mexico in order to reach the US southern border. [9]
Every president knows they can’t achieve everything they want, but they can gather enough support to pass some sort of domestic, political accomplishment while they have the majority of Congress’ support. President Obama’s Affordable Care Act and Trump’s massive tax cuts represent major achievements for their administrations in their first two years, but President Biden seems to be on track towards making immigration his administration’s main domestic goal.
Institutions preserved LGBTQ migrants’ rights this time, but they still hang on by a thread until there is legislative action. The next two years—not four—will determine where LGBTQ migrants’ rights stand across the country.
References:
[1] Kavi, A. (2021) Biden’s executive orders and other directives in detail. The New York Times. https://www.nytimes.com/2021/01/20/us/biden-executive-orders.html. Accessed January 21, 2021.
[2] Washington Blade (2021), Federal Judge Blocks Trump Administration’s ‘Death to Asylum’ Rule. https://www.washingtonblade.com/2021/01/09/federal-judge-blocks-trump-administrations-death-to-asylum-rule/. Accessed January 21, 2021.
[3] Reid, Alder (2020) Comment on proposed changes to procedures for asylum and withholding of removal; credible fear and reasonable fear. https://www.hrw.org/news/2020/07/15/comment-proposed-changes-procedures-asylum-and-withholding-removal-credible-fear Accessed January 21, 2021.
[4] Straube, Trenton. Lawsuit is Filed Against Trump Ban on LGBT and HIV-Positive Asylum Seekers. https://www.poz.com/article/lawsuit-filed-trump-ban-lgbt-hivpositive-asylum-seekers. Accessed January 21, 2021.
[5] Los Angeles Times (2021) Federal judge blocks Trump administration’s sweeping asylum rules. https://www.latimes.com/world-nation/story/2021-01-08/us-judge-blocks-trump-administrations-sweeping-asylum-rules. Accessed January 21, 2021.
[6] Lipka, M and Masci, D (2019) Where Europe stands on gay marriage and civil unions. https://www.pewresearch.org/fact-tank/2019/10/28/where-europe-stands-on-gay-marriage-and-civil-unions/ Accessed January 21, 2021.
[7] Biden-Harris campaign (2020) The Biden plan to advance LGBTQ+ equality in America and around the world. https://joebiden.com/lgbtq-policy/. Accessed January 21, 2021.
[8] Madan, M. (2021) Here’s what you need to know about Biden’s new immigration bill. Miami Herald. https://www.miamiherald.com/news/local/immigration/article248630565.html. Accessed January 21, 2021.
[9] Ordonez, F. (2021) On immigration, Biden goes big in opening bid to congress. https://www.npr.org/sections/inauguration-day-live-updates/2021/01/20/958626092/on-immigration-biden-goes-big-in-opening-bid-to-congress. Accessed January 21, 2021.