Pervasive anti-LGBTQ violence around the world causes many individuals to flee their countries of origin in search of safety. The past few years have been tremendously difficult for immigrants of all walks of life, but especially so for LGBTQ and HIV-affected asylum applicants who have fled to the United States to seek refuge from persecution and torture.

Following a steady stream of new policies, executive orders, and regulations that roll back protections for immigrant victims of violence, on June 15, 2020, the Department of Justice and the Department of Homeland Security released a Proposed Rule on Procedures for Asylum that would eliminate asylum as a viable form of relief for nearly all applicants.

The Proposed Rule upends decades of well-settled case law, unlawfully attempts to re-write sections of the Immigration and Nationality Act, and creates evidentiary hurdles so high that the vast majority of asylum applications will be denied if the Proposed Rule is adopted.

While all asylum seekers will be harmed under this Proposed Rule, the effects will be particularly devastating for those who have suffered violence due to their sexual orientation, gender identity, or HIV status.

With a timeline of less than 30 days to respond to the Proposed Rule, Proskauer Pro Bono Counsel Erin Meyer led a team in partnership with the New York City Gay and Lesbian Anti-Violence Project to research, draft, and submit a public comment letter demanding the withdrawal of the Proposed Rule in its entirety.

The Anti-Violence Project is a nonprofit organization that provides free legal services and counseling to LGBTQ and HIV-affected survivors of all forms of violence. Drawing upon our collective expertise and experiences with asylum law as it pertains to these vulnerable communities, the letter focuses on the specific aspects of the Proposed Rule that threaten to jeopardize the safety, wellbeing, and due process rights of LGBTQ and HIV-affected asylum seekers.

• According to the U.S. Department of State Country Reports on Human Rights Practices and the Human Dignity Trust, more than 70 countries around the world criminalize LGBTQ identity with penalties ranging from imprisonment to death sentences.
• Laws criminalizing LGBTQ identity not only expose LGBTQ people to the threat of arrest, imprisonment, and death, but also increase their risk of facing other forms of abuse at the hands of both state actors and civilians.
• In many countries, LGBTQ people suffer a pattern of physical, verbal, and sexual abuse, as well as severe economic deprivation resulting from discrimination in employment, housing, health care, and education.

A grant of asylum can be life-saving and liberating for LGBTQ individuals who cannot freely and safely be themselves in their home countries.

The Proposed Rule threatens to force LGBTQ and HIV-affected immigrants to return to these dangerous conditions in their home countries by, among other things:

• drastically narrowing the definitions of “persecution” and “political opinion,”
• imposing a list of 12 so-called “discretionary” factors that would mandate denial of asylum claims, and
• removing a number of critical due process protections.

Of particular relevance to LGBTQ asylum seekers, the Proposed Rule refuses to recognize that laws criminalizing LGBTQ identity are inherently persecutory, even though the U.S. Supreme Court struck down as unconstitutional such laws when they existed in the U.S. prior to 2003 on the basis that laws criminalizing same-sex relationships violate human rights and personal liberties.

Laws criminalizing LGBTQ identity are persecutory, even in the absence of prosecution, because these laws 1) forcibly closet LGBTQ individuals – which is itself a form of persecution, 2) enable government actors and civilians to harm LGBTQ people with impunity, and 3) prevent LGBTQ people from seeking protection from harm, particularly where the harm is on account of their LGBTQ identity.

The Proposed Rule would require LGBTQ asylum seekers to prove that persecutory laws have been or would be applied to them personally, a requirement that unreasonably expects that LGBTQ immigrants should expose themselves to the risk of arrest and prosecution before they can obtain asylum.

The Proposed Rule is by no means the first immigration law in the U.S. to target LGBTQ immigrants for exclusion. Laws dating back to 1917 denied LGBTQ immigrants admission to the U.S. on the basis that “homosexuals” were “persons of constitutional psychopathic inferiority.”  This bar against LGBTQ immigrants was not lifted until 1990.

Similarly, HIV-affected immigrants were banned from entering the U.S. from 1993 until as recently as 2010. In closing the door once again on many LGBTQ and HIV-affected immigrants, the Proposed Rule threatens a return to this shameful time in U.S. history.

Supported with legal precedent, social science literature, and the lived experiences of past clients, the public comment letter filed on July 14, 2020 makes a clear case for rescinding the Proposed Rule in its entirety.

To access the public comment letter in full, click here.

Our pro bono team included Pro Bono Counsel Erin Meyer, Litigation Associate Bryant Wright, Pro Bono Paralegal Alex Volpicello, Litigation Project Assistant Tori Klevan, and Pro Bono Intern Jennifer Qu, in collaboration with Lauren DesRosiers, an Equal Justice Fellow co-sponsored by Proskauer, at the Anti-Violence Project.